Commonwealth v. Plummer

Denial of petition for post-conviction relief affirmed; although defendant's pro se petition was never amended and a brief was not presented, counsel appointed for post-conviction relief hearing adequately represented defendant by presenting defendant's theories to court and by questioning trial counsel.

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�1 This is an appeal from an order denying Appellant’s petition for post- conviction relief. Following a jury trial Appellant was convicted of third- degree murder, aggravated assault and reckless endangerment. He was directed to serve a sentence of 10 to 20 years’ imprisonment, followed by 4 years’ probation. This court affirmed the judgment of sentence on direct appeal and our Supreme Court denied Appellant’s petition for allowance of appeal.

�2 Appellant filed a pro se petition seeking post-conviction collateral relief. The Commonwealth responded denying Appellant’s allegations and moving to dismiss the petition as untimely. A proceeding on the petition was held October 20, 1997, wherein the Commonwealth alleged that Appellant’s judgment became final on September 9, 1996, and that Appellant’s petition was not filed until September 18, 1997, making it untimely. At a hearing on Appellant’s petition he testified that he placed his petition in the institutional mail at the State Correctional Institute at Graterford on September 7, 1997 and that he could provide the court with proof of this mailing. The PCRA court continued the hearing until November 24, 1997, at which time Appellant’s counsel presented a cash slip from the prison dated September 7, 1997. The court concluded that in accordance with the prisoner mailbox rule the time limits were satisfied.*fn1 This hearing was also ultimately continued at Appellant’s counsel’s request. A third hearing was held on April 28, 1998.

�3 At this final hearing Appellant’s counsel called trial counsel to the stand. In addition Appellant testified on his own behalf. The court took the matter under advisement, but later entered an order denying Appellant’s petition. Appellant filed a timely appeal to this court, but we dismissed it for failure to file a brief. Commonwealth v. Plummer, 570 MDA 1999. Appellant’s later application to reinstate his appeal was granted by this Court on July 24, 2001, and thus, the matter is presently before us.

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