Hammershoy v. Com.
| Decision Date | 04 February 1966 |
| Citation | 398 S.W.2d 883 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Walter HAMMERSHOY, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
Walter Hammershoy, pro se.
Robert Matthews, Atty. Gen., Joseph Eckert, Asst. Atty. Gen., for appellee.
Appellant, Walter Hammershoy, was convicted of armed robbery (KRS 433.140) and sentenced to life imprisonment by a judgment of the Pike Circuit Court entered on March 11, 1965. An indigent, he was represented at the trial by court-appointed counsel. On the day the judgment was entered his counsel filed a notice of appeal (RCr 12.52) in his behalf and appellant himself, pro se, moved the court to designate an attorney to prosecute the appeal. The motion was supported by an appropriate affidavit and recited the following circumstances:
The record does not contain a copy of any order responsive to the motion.
On September 7, 1965, now a prisoner in the penitentiary at Eddyville and again acting pro se and in forma pauperis, appellant filed in the Pike Circuit Court an RCr 11.42 motion to vacate the sentence, in which he set forth certain substantive grounds of error and alleged that he had been deprived of an appeal because his court-appointed counsel failed to perfect it after agreeing to do so. The instant appeal is taken from an order overruling the motion without a hearing.
The order overruling the motion recites the following information which is not otherwise shown on the face of the record 1:
(Emphasis added.)
If we are correct in our interpretation of Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), and Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963), the right of an indigent defendant in a criminal case to the assistance of counsel on appeal, secured by the Fourteenth Amendment, cannot be subjected to a determination by either a court or state-provided counsel that the grounds for appeal are meritorious, or 'feasible.'
It was remarked in McIntosh v. Commonwealth, Ky., 368 S.W.2d 331, 335 (1963), that an attack on the trial judgment is not the appropriate remedy for a frustrated right of appeal. However, Lane v. Brown, supra, indicates that it is, 2 subject to the condition that such relief may be denied if within a reasonable time the state provides the movant an appeal on the merits, including assistance of counsel. See, for example, Cruz v. People,...
To continue reading
Request your trial
-
Evitts v. Lucey
...has permitted a postconviction attack on the trial judgment as "the appropriate remedy for frustrated right of appeal," Hammershoy v. Commonwealth, 398 S.W.2d 883 (1966); this is but one of several solutions that state and federal courts have permitted in similar cases.10 A system of appeal......
-
Moore v. Com.
...and to enter a new judgment from which a new appeal might be prosecuted. This procedure had been approved in Hammershoy v. Commonwealth, 398 S.W.2d 883, 884 (Ky.1966), then seemingly disapproved in Cleaver v. Commonwealth, 569 S.W.2d 166, 169 (Ky.1978), and then reapproved in Stahl v. Commo......
-
People v. Moore
...permitted a post-conviction attack on the trial judgment as 'the appropriate remedy for frustrated right of appeal,' Hammershoy v. Commonwealth, 398 S.W.2d 883 (Ky.1966); this is but one of several solutions that state and federal courts have permitted in similar cases. A system of appeal a......
-
State v. Miller
...frustrated right of direct appeal. Evitts v. Lucey, supra, 469 U.S. at 399, 105 S.Ct. at 837, citing with approval Hammershoy v. Commonwealth (Ky.1966), 398 S.W.2d 883. Accordingly, we find appellant's first assignment of error not In his second assignment of error, appellant cites many all......