Cox v. Commonwealth

411 S.W.2d 320, 1967 Ky. LEXIS 460

• Court: Court of Appeals of Kentucky
• Decided: February 3, 1967
• Status: Published

Opinion

PALMORE, Judge.

Thomas Allen Cox appeals from an order overruling without a hearing his RCr 11.42 motion to vacate a judgment sentencing him to life imprisonment on each of 15 counts of armed robbery. KRS 433.140.

The claim for relief is based on allegations that while under police interrogation following his arrest Cox gave a confession without having been informed of his right to remain silent arid his right to counsel, of which rights, he says, he was ignorant. Cf. Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). However, regardless of what invasions of his rights are alleged to have taken place, the record shows that he appeared in court with counsel, withdrew a plea of not guilty, and pleaded guilty on all counts. Hence it became unnecessary for the confession to be used, and if it was in fact read to the jury it could not have been prejudicial, since life imprisonment on each count was the minimum sentence the court or jury was authorized to impose. See KRS 433.140.

As pointed out in Maggard v. Commonwealth, Ky., 394 S.W.2d 893, 894 (1965), it is to be presumed that an illegal confession will be excluded by the trial court if the occasion arises and timely objection is interposed. If all that Cox says is true, there is no reason whatever to suppose the trial court would have permitted the confession to be used in the face of a proper objection and showing of the facts, or that, had it done so, the error would not have been corrected on direct appeal to this court. Illegality of a confession is not ground for an RCr 11.42 attack on a conviction entered pursuant to a plea of guilty. Maggard v. Commonwealth, Ky., 394 S.W.2d 893, 894 (1965).

The judgment is affirmed.