Hoskins v. Commonwealth

420 S.W.2d 560, 1967 Ky. LEXIS 111

• Court: Court of Appeals of Kentucky
• Decided: October 20, 1967
• Status: Published

Opinion

CLAY, Commissioner.

This is an appeal from a judgment denying, without a hearing, appellant’s motion for relief under RCr 11.42. Appellant was sentenced to life imprisonment upon conviction of being an accessory before the fact to a murder. At the original trial and on appeal appellant was represented by competent counsel employed by him. His conviction was affirmed in Hoskins v. Commonwealth, Ky., 374 S.W.2d 839.

In this proceeding it is questionable that any of the grounds for setting aside the original judgment of conviction were sufficient even if proven upon a hearing. Some were raised on the original appeal. Some do not raise a question of the violation of any constitutional right. All pertain to matters well known to appellant and presumably his counsel at the time of trial. There is no allegation that appellant did not have competent, adequate and effective counsel.

It is not the purpose of RCr 11.42 to permit a convicted defendant to retry issues which could and should have been raised in the original proceedings when the competency, adequacy and effectiveness of his own counsel are not in good faith questioned, and where the grounds of his RCr 11.42 motion are matters which must have been known to him at the time of trial. Those matters should be presented then and not in a postconviction proceeding. From the entire record it is evident appellant had a fair trial, and none of the grounds stated in his 11.42 motion are sufficient to justify a collateral attack upon the judgment of conviction. Therefore, it was not error for the trial court to deny this motion without a hearing.

The judgment is affirmed.

All concur.