Maye v. Com.
| Decision Date | 05 February 1965 |
| Citation | 386 S.W.2d 731 |
| Parties | Earl MAYE, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Earl Maye, Jr., pro se.
Robert Matthews, Atty. Gen., Charles W. Runyon, Asst. Atty. Gen., for appellee.
The appellant, Earl Maye, Jr., brings this appeal pro se and in forma pauperis from a judgment overruling his RCr 11.42 motion to vacate his conviction and sentence to life imprisonment on a charge of armed robbery, KRS 433.140.
When the grounds stated in an RCr 11.42 motion, even if found true, would not be sufficient to invalidate the judgment, the motion may be overruled without a hearing. 1 Cf. Oakes v. Gentry, Ky., 380 S.W.2d 237 (1964). See also Odewahn v. Ropke, Ky., 385 S.W.2d 163 (1964) and the U. S. Supreme Court decisions therein cited. In such a case the movant, though indigent, is not entitled to the appointment of counsel. Jennings v. Commonwealth, Ky., 380 S.W.2d 284, 286 (1964). Neither is he entitled to be a hearing or to appointed counsel if the material issues of fact can be determined from the face of the record. RCr 11.42.
The motion in this case was overruled on the basis of the record, without a hearing. Our review therefore is directed to the existence, vel non, of any material issue of fact that could not fairly have been resolved from the face of the record.
The grounds stated in the motion were, in summary, as follows: (1) Denial of effective assistance of counsel in that the appointment of an attorney to defend movant was made one day before the trial, so that he did not have reasonable time and opportunity to prepare a defense; (2) Improper disclosure during the trial, and reference thereto by the prosecuting attorney in his summation to the jury, of movant's prior convictions of other offenses; (3) Failure of the court to instruct the jury properly and in writing; (4) Insufficiency of the evidence to support a conviction; and (5) The verdict was against the law and the evidence.
Grounds (2) through (5) embrace mere errors, none of which are of such proportion as to invalidate the judgment Hence they do not call for a hearing under RCr 11.42. Nevertheless, we are fortunate in having the record of the original proceeding before us on this appeal (as it should be in all cases where reference to it is necessary), and are able to say without reservation that the factual allegations of the motion are largely untrue 2 and do injustice to the judge and attorneys who participated in the trial.
Ground (1), though it states a constitutional violation, is refuted on the face of the record in the from of an order entered on February 19, 1962, showing that the movant was brought into open court and arraigned, entered a plea of not guilty, and was then and there represented by counsel, Hon. W. R. Gentry, Jr. By the same order his trial was set for February 27, 1962. The record further discloses that he was tried on the appointed day and that his defense was conducted by Mr. Gentry. There was no motion for a continuance.
In his brief on this appeal 3 the movant states that the order of February 19, 1962, misrepresents the facts in that Mr. Gentry was appointed by the court on that date only to assist him during the arraignment. He goes on to say that the same attorney was employed by the movant's co-defendant, one Luther Rhodes, and was not really appointed to defend the movant at his trial until February 26; that counsel moved for and was granted separate trials for the two defe...
To continue reading
Request your trial
-
Sanders v. Com., 1999-SC-0115-MR.
...In the absence of a motion for a continuance, the presumption must be that counsel did not think one was needed. Cf. Maye v. Commonwealth, Ky., 386 S.W.2d 731 (1965). Sanders has not met his burden of overcoming such a presumption. A review of the record indicates that the psychologist had ......
-
Harper v. Com.
...to request funds. No evidentiary hearing is required if the allegations of the RCr 11.42 motion are insufficient. Maye v. Commonwealth, Ky., 386 S.W.2d 731 (1965). C. Whether counsel competently used the mental health experts to present defense evidence. In the first part of this argument, ......
-
Adams v. Com.
...He contends that he did not have adequate representation by counsel or the equal protection of the law. He refers us to Maye v. Commonwealth, Ky., 386 S.W.2d 731 (1965) and Hammershoy v. Commonwealth, Ky., 398 S.W.2d 883 (1966). Adams testified that his court appointed counsel informed him ......
-
Ware v. Com.
...attorney to represent both of them. The appointment of separate counsel in every such case was strongly suggested in Maye v. Commonwealth, Ky., 386 S.W.2d 731, 733 (1965), because even though no conflict of interests may appear in the beginning there is a strong possibility that it may deve......