Carter v. Commonwealth

450 S.W.2d 257, 1970 Ky. LEXIS 438

• Court: Court of Appeals of Kentucky
• Decided: February 6, 1970
• Status: Published

Opinion

CULLEN, Commissioner.

Arnold Carter sought by RCr 11.42 motion to vacate a January 1969 judgment of conviction of storehouse breaking under which he is serving a five-year sentence. The motion was overruled without a hearing and Carter has appealed.

The primary ground set forth in the motion was denial of effective assistance of counsel. The allegations were that counsel was appointed for Carter about one month before trial but from the time of appointment until the day of trial counsel did not once visit or consult with Carter; that counsel did not confer with Carter in regard to any possible defenses he might have and did not conduct investigations to determine if matters of defense could be developed; that counsel refused to prepare a defense or try the case before a jury, as Carter requested; and counsel, because he was not being compensated, coerced Carter to enter a plea of guilty. The only response to the motion, by the Commonwealth, was a simple general denial.

Under Hall v. Commonwealth, Ky., 429 S.W.2d 359, and Stinnett v. Commonwealth, Ky., 446 S.W.2d 292, the foregoing allegations were such as to entitle Carter to an evidentiary hearing.

Carter made other allegations, of illegal arrest and unlawful search and seizure, but such are not grounds for relief under RCr 11.42. See Roberts v. Commonwealth, Ky., 417 S.W.2d 234; Dupin v. Commonwealth, Ky., 404 S.W.2d 280, 281.

The order appealed from is reversed with directions for further proceedings in conformity with this opinion.

HILL, C. J., and MILLIKEN, PAL-MORE, REED and STEINFELD, JJ., concur.