[W] Commonwealth v. Malone4/7/2003
Ordered Withdrawn April 29, 2003.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
JOSEPH JOHN MALONE, APPELLANT
Appeal from the Order Entered February 4, 2002, In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal , at No. CC 200013621
Before: Graci, Cavanaugh, JJ., and McEWEN, P.J.E.
The opinion of the court was delivered by: Graci, J.
OPINION
Appellant, Joseph J. Malone ("Malone") appeals from an order entered on February 4, 2002, in the Court of Common Pleas of Allegheny County, denying Malone's petition for relief under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. For the reasons set forth below, we vacate the order and remand this matter with directions.
I. FACTUAL AND PROCEDURAL HISTORY
Malone was charged by information filed September 25, 2000 with two counts of driving under the influence of alcohol or controlled substance, 75 Pa.C.S.A. § 3731(a)(1), (4). Malone was also charged with two Motor Vehicle Code summary offenses: driving while operating privilege is suspended or revoked, 75 Pa.C.S.A. § 1543, and driving without required financial responsibility, 75 Pa.C.S.A. § 1786. On October 5, 2000, Malone appeared before the trial court with his attorney, Bruce Carsia, Esq., to enter a plea of guilty to the information. Malone completed and signed a standard guilty plea colloquy form, which was made part of the record. The Commonwealth presented its summary of the case and the trial court accepted Malone's plea after determining that it was supported by an adequate factual basis.
At Malone's request, he proceeded immediately to sentencing. A Guideline Sentence Form submitted to the trial court confirmed that this was Malone's sixth DUI offense. Malone was sentenced at count one (DUI) to a term of imprisonment of one to two years, with alternative housing permitted, effective July 27, 2000, and with parole granted effective July 27, 2001. The court also sentenced Malone to a consecutive term of probation of two years. No further penalty was imposed at count two of the information (DUI) or for the summary offense of driving without financial responsibility. On the summary offense of driving while operating privilege is suspended, the trial court sentenced Malone to a concurrent term of imprisonment of ninety days along with a $1000 fine.
Malone's attorney indicated on the record that they had discussed the advisability of filing a post-sentence motion and that Malone had voluntarily waived filing such a motion. N.T. Guilty Plea, 10/5/00, at 10:7-11. Malone did not pursue a direct appeal.
On June 13, 2001, Malone, now represented by Patrick J. Thomassey, Esq., filed a motion seeking parole. The trial court denied the motion by order dated June 19, 2001.
On November 5, 2001, Thomas N. Farrell, Esq. filed a PCRA petition on Malone's behalf. Attorney Farrell amended the petition on December 12, 2001. In his original and amended PCRA petitions, Malone raised various ineffective assistance claims against plea counsel and requested an evidentiary hearing, at which Malone intended to "present the testimony of prior counsel, the testimony of Mr. Malone, and the transcript of the prior pleadings ." PCRA counsel did not attach signed certifications regarding the identity of any witnesses or the substance of their proffered testimony. The PCRA court issued the following order announcing its notice of intent to dismiss Malone's PCRA petition:
AND NOW, to-wit, this 14 th day of January, 2002, a
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