Opinion
February 18, 1966.
Appeal from the McCracken Circuit Court, C. Warren Eaton, J.
Kenneth Clark, pro se.
Robert Matthews, Atty. Gen., Joseph Eckhert, Asst. Atty. Gen., Frankfort, for appellee.
Kenneth Clark's motion under RCr 11.42 to vacate the 1961 judgment under which he was sentenced to life imprisonment in the penitentiary as an habitual criminal was overruled by order of the trial court without a hearing. Clark has appealed from the order.
The record shows that Clark was arrested on warrants charging several offenses of dwelling-house breaking. Upon being taken before the county court for a preliminary hearing he waived hearing. A few days later he was indicted on the house breaking charges and on habitual criminal counts. Upon arraignment, at which time he was represented by appointed counsel, he pleaded not guilty. However, when the case was called for trial he pleaded guilty with advice of the appointed counsel.
Clark's motion to vacate the judgment alleged as its main ground that he was deprived of his constitutional right to counsel because the court failed to appoint counsel to represent him at the preliminary hearing. The motion also asserted that Clark was entitled to have court-appointed counsel from the time of his arrest, and that he was entitled to be confronted by the witnesses against him at the preliminary hearing. (Of course there were no witnesses at such hearing because Clark waived the hearing.)
Under the following cited decisions of this Court Clark's motion was on its face without merit and the trial court properly overruled it. Carson v. Commonwealth, Ky., 382 S.W.2d 85, cert. denied 380 U.S. 938, 85 S.Ct. 949, 13 L.Ed.2d 825; Scamahorne v. Commonwealth, Ky., 394 S.W.2d 113; Commonwealth v. Watkins, Ky., 398 S.W.2d 698 (decided January 28, 1966).
The order is affirmed.