Hall v. Commonwealth , 429 S.W.2d 359 ( 1968 )


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  • DAVIS, Commissioner.

    Clifford Ray Hall appeals from an order overruling his motion for post-conviction relief under RCr 11.42. The motion was denied without an evidentiary hearing. Hall had pleaded guilty to a charge of armed robbery and is presently serving a life sentence at Eddyville.

    Included in a rambling, somewhat incoherent, RCr 11.42 motion purportedly prepared by appellant without assistance of counsel is an allegation that his court-appointed counsel refused to prepare a defense for appellant on the ground that he was not receiving compensation. The motion avers that in the original trial the attorney placed the appellant in extreme duress and coerced him into entering the plea of guilty by reason of counsel’s persistent refusal to enter upon a trial without compensation.

    The attorney who had been appointed at the original trial (not the same attorney who appears by appointment on this appeal) made an affidavit, which was filed with the appellee’s response in the trial court, categorically denying the allegations of the motion and affirmatively asserting that he had been willing at all times to afford his best efforts for appellant. In face of this affidavit, coupled with a stenographic report containing a purported incriminatory statement of the appellant, the trial judge denied the motion for post-*360conviction relief without an evidentiary hearing.

    In Jones v. Commonwealth, Ky., 389 S.W.2d 927, and Lewis v. Commonwealth, Ky., 411 S.W.2d 321, we held that allegations contained in an RCr 11.42 motion that appointed counsel had refused to defend the defendant unless he pleaded guilty, coupled with the averment that the guilty plea had been entered under duress, were sufficient to require an evidentiary hearing on the motion and on the question of whether the plea of guilty was made voluntarily and free of duress. It is true that in Jones v. Commonwealth, Ky., 411 S.W.2d 37, we rejected the alleged errors of the RCr 11.42 hearing that had followed as the result of our decision in Jones v. Commonwealth, Ky., 389 S.W.2d 927, and concluded that the trial court had properly found that the guilty plea was voluntary and that there was no merit in the motion which had been presented. That decision is not authority for refusing the eviden-tiary hearing in face of the allegation as contained in the present record despite the countering affidavit.

    We comprehend and appreciate the reluctance of the trial courts to afford evi-dentiary hearings looking toward a “swearing match” between a local attorney and an inmate of the penitentiary. It is reprehensible that indigent convicts may impugn the integrity of conscientious lawyers who serve them well and sacrificially. On the other hand, it would be equally intolerable for a court-appointed lawyer to deliberately decline effective assistance and coerce a plea of guilty. We hasten to point out that we do not suggest that this has occurred in this or any other case, but under our system of trial, the opportunities for confrontation and cross-examination are deemed imperative as minimal requirements for orderly process in resolving disputed issues of fact. In light of these circumstances, it was error for the trial court to deny appellant an evidentiary hearing at which he could be present with full opportunity to participate. What we are holding here is not inconsistent with our holding in Odewahn v. Ropke, Ky., 385 S.W.2d 162. In the case at bar, the investigation of the allegations without the personal presence of the prisoner cannot be appropriately accomplished. The proper officials can and will undertake such prosecutive actions as are provided which may look toward deterrents of false swearing in any appropriate case.

    The judgment is reversed with directions to afford the appellant a hearing at which he may personally appear.

    WILLIAMS, C. J„ and MILLIKEN, PALMORE, and STEINFELD, JJ., concur. EDWARD P. HILL, MONTGOMERY, and OSBORNE, JJ., dissent.

Document Info

Citation Numbers: 429 S.W.2d 359

Judges: Davis, Hill, Milliken, Montgomery, Osborne, Palmore, Steinfeld, Williams

Filed Date: 6/14/1968

Precedential Status: Precedential

Modified Date: 10/1/2021