Polsgrove v. Com.

• Citation: 439 S.W.2d 776
• Parties: Donald Ray POLSGROVE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Decision Date: 07 February 1969
• Court: United States State Supreme Court (Kentucky)

Page 776

439 S.W.2d 776

Donald Ray POLSGROVE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Feb. 7, 1969.

As Modified on Denial of Rehearing May 2, 1969.

Donald Ray Polsgrove, pro se, James H. Polsgrove, Louisville, for appellant.

John B. Breckinridge, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, for appellee.

REED, Judge.

Donald Ray Polsgrove appeals from an order overruling a motion under RCr 11.42 to vacate his conviction of armed robbery for which he was sentenced to life imprisonment.

It appears that Donald Ray Polsgrove and Charles Robbins were tried jointly for armed robbery of a Louisville liquor store and a judgment of conviction was entered as to Polsgrove on May 9, 1966. A transcript of this joint trial was filed in this court on an attempted direct appeal by Polsgrove and we have examined this transcript.

So far as is pertinent to the disposition of this case, it appears that Polsgrove and Robbins were positively identified by the victim of the robbery, Ernest M. Wallshield. Wallshield, the proprietor of the liquor store, testified that Polsgrove handled the pistol and Robbins carried a brief bag in which the money taken from the liquor store was placed. Wallshield also testified that as the two robbers left his store he fired three shots wounding Robbins. It is also undisputed that Robbins was arrested with Polsgrove at Polsgrove's home where a brief bag fitting the description of the one used in the robbery was found. Robbins was in a wounded condition. The prosecution introduced a written statement taken from Robbins after his arrest confessing his own guilt and implicating Polsgrove as the man who handled the gun. We shall later discuss the facts surrounding the introduction of this written statement by the prosecution at the trial of Polsgrove and Robbins.

Polsgrove, at the time of his trial, was represented by employed counsel of his own selection. This same attorney attempted to prosecute a direct appeal from Polsgrove's conviction to this court. We dismissed that appeal by order and without opinion for the reason that the appeal on its face was from a nonappealable order. This attempted appeal was from an order overruling Polsgrove's motion and grounds for new trial. The notice of appeal filed in the circuit court designated the appeal as being from that order and no notice of appeal from the judgment of conviction was filed in the circuit court. After we dismissed this direct appeal, Polsgrove employed a different attorney who filed petition for a rehearing and the matter was again thoroughly considered by this court. The petition for rehearing was overruled and the appeal stood dismissed.

Later, Polsgrove instituted the current action pursuant to RCr 11.42 for post-conviction relief. The Commonwealth filed a motion to dismiss and the trial judge, after considering the motion on its face with accompanying affidavits and other evidentiary material, denied Polsgrove the relief sought but permitted him to appeal from this disposition in forma pauperis, and we appointed counsel to represent Polsgrove on his current appeal to this court.

The first ground urged by appellant is that the response of the Commonwealth to his motion for post-conviction relief was insufficient and that the trial court should have taken all of the allegations of the motion as confessed and granted Polsgrove a new trial.

The Commonwealth opposed appellant's motion and moved to dismiss it. RCr 11.42 provides that an answer may be filed to a motion to vacate judgment, but it does not require it. Ramsey v. Commonwealth, Ky., 399 S.W.2d 473. The first ground urged is without merit.

The second ground urged is that our action in dismissing Polsgrove's direct appeal was error. These contentions were thoroughly presented and considered on the petition for a rehearing. We remain convinced that our disposition of the direct appeal was correct. The able counsel whom we appointed to represent Polsgrove urges us to clarify the law in respect to proper procedure in prosecuting an appeal from the circuit court to this court of a conviction of a felony. We believe our cases of Boggs v. Commonwealth, Ky., 424 S.W.2d 806; Sherley v. Commonwealth, Ky., 413 S.W.2d 627, and Patrick v. Commonwealth, Ky., 436 S.W.2d 506 (rendered January 24, 1969), clearly establish the proper procedure to effect direct appeal to this court under the provisions of RCr 12.52, RCr 12.54 and KRS 21.140.

Appellant himself argues that if we were correct in dismissing his direct appeal, then he has been denied adequate representation by counsel.

The difficulty with this contention is that at the trial level Polsgrove was represented by employed counsel of his own choice. This same counsel undertook to prosecute an appeal. Other employed counsel also represented Polsgrove in the attempted direct appeal. Hence, the real question is whether or not the mistake or misunderstanding of Polsgrove's employed counsel can be characterized as such incompetent representation as to deprive appellant of his substantial constitutional right to adequate representation by counsel.

It has been held that where a defendant in a criminal case retained counsel of his own choice to represent him, commission by such counsel of what might retrospectively appear to be errors of judgment in the conduct of the defense at the trial does not constitute a denial of due process chargeable to the state. King v. Commonwealth, Ky., 387 S.W.2d 582.

No real complaint is made of the conduct of Polsgrove's defense by his counsel at the trial. The mistake, or misunderstanding, of Polsgrove's counsel had only the result of denying appellate review.

Appellate review is a matter of grace and not a matter of right; in criminal cases it is not a constitutional right. However, when a statute authorizes a direct appeal as a matter of right, an indigent defendant must be afforded the same opportunity as any other defendant to exercise this right. There is no showing in the instant case of any discrimination against Polsgrove so far as the exercise of this right is concerned. See McIntosh v. Commonwealth, Ky., 368 S.W.2d 331. In the instant case, the circumstances of representation of appellant by his employed counsel on the trial level were not such as to shock the conscience of the court or render the proceedings a farce and a mockery of justice. Cf. Rice v. Davis, Ky., 366 S.W.2d 153. Hence, we hold that the ground urged concerning lack of adequate representation by counsel is without merit.

The next grounds urged for reversal may be grouped together and classified as errors occurring at the trial. Appellant argues that the trial judge should have granted him a separate trial. The right to separate trials was not a common law right or...