Tipton v. Com.
| Citation | 398 S.W.2d 493 |
| Parties | Ronald Lee TIPTON et al., Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Decision Date | 21 January 1966 |
| Court | United States State Supreme Court (Kentucky) |
Ronald Lee Tipton, pro se and James Sprinkle, pro se.
Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for appellee.
DAVIS, Commissioner.
The appellants, Ronald Lee Tipton and James Sprinkle, appeal from the order denying their joint motion to vacate a judgment convicting them of armed robbery. The same appellants have previously had review of their former motion to vacate the same judgment. Tipton v. Commonwealth, Ky., 376 S.W.2d 290.
The present appeal flows from their RCr 11.42 motion filed in the trial court on August 23, 1965. In the motion so filed the appellants presented two bases upon which they deemed themselves entitled to the relief sought: (1) that no counsel was appointed for them upon their examining trial, and (2) the counsel who was appointed to represent them upon the trial in circuit court failed to perfect an appeal for them, in forma pauperis, which had been permitted by the trial court. After the Commonwealth had filed response to the motion, appellants filed a 'rebuttal' in which it is at least suggested that it was the duty of the trial court to afford these appellants counsel for an appeal. For purposes of this opinion we shall regard this as a third point advanced by appellants.
The trial court overruled the motion to vacate, without a hearing and without appointment of counsel, upon the grounds that the alleged bases for relief were refuted on the face of the original record and in light of the adverse ruling already made in the first appeal above cited. Odewahn v. Ropke, Ky., 385 S.W.2d 163.
The appellee points out that RCr 11.42(3), which became effective January 1, 1965, specifically requires that any motion to vacate under RCr 11.42 shall The appellants retort that RCr 11.42 contained no such provision at the time they filed their original motion to vacate. However, we do not consider that fact as dispositive of the matter. In our view, the amendment to RCr 11.42 promulgated September 23, 1964, effective January 1, 1965, now designated as RCr 11.42(3) is merely declaratory of the common law rule which already applied to RCr 11.42 as it was originally drafted. 1 The purpose of the amendment was to dispel any doubt in that area. The language as now written in the rule is comparable to that employed in the federal rule affording post-conviction remedy. 28 U.S.C. § 2255 contains, among others, this provision:
'The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.'
We are of the view that appellants have no legal right to make this second assault upon the judgment of conviction. However, since the record is before us, and in order to preclude additional litigation, we shall dispose of the points raised by appellants.
The fact that appellants were not provided counsel at the examining trial is not basis for the relief sought in the absence of any allegation or showing that anything occurred at the examining trial amounting to prejudice to either of the appellants. Carson v. Commonwealth, Ky., 382 S.W.2d 85; cert. den. 380 U.S. 938, 85 S.Ct. 949, 13 L.Ed.2d 825; DeToro v. Pepersack, (4th Circuit), 332 F.2d 341, cert. den., 379 U.S. 909, 85 S.Ct. 198, 13 L.Ed.2d 181; Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923.
Neither is there merit in the claim that appointed counsel failed to perfect an appeal for the appellants from the original judgment of conviction. Under no circumstance would that have become a ground for vacating the judgment per RCr 11.42. It could, under appropriate circumstances, become the basis for an appeal which otherwise would have been foreclosed as too late. See McIntosh v. Commonwealth, Ky., 368 S.W.2d 331; Curry v. Commonwealth, Ky., 390 S.W.2d 891. The appellants have failed to point to any asserted error at the original trial of which complaint could have been made upon appeal. In such circumstance, even if appointed counsel had deliberately or negligently failed to...
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Gray v. Wingo
...in that action. RCr 11.42(3). Caudill v. Com., Ky., 408 S.W.2d 182 (1966); Deweese v. Com., Ky., 407 S.W.2d 402 (1966); Tipton v. Com., Ky., 398 S.W.2d 493 (1966); Crochrell v. Warren, Ky., 383 S.W.2d 377 (1964); Baker v. Davis, Ky., 383 S.W.2d 125 (1964); Broadus-Bey v. Diamond, 264 F.2d 2......
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Williams v. Com.
...that his court-appointed counsel 'refusel to appeal the case, or make a motion for a new trial.' We think the principle of Tipton v. Commonwealth, Ky., 398 S.W.2d 493 governs here. It is noted that appellant does not aver any substantive ground upon which he deems that a motion for a new tr......
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