Hamm v. Commonwealth ( 1966 )

CULLEN, Commissioner.

The appeal is from an order overruling, without a hearing, a motion by appellant under RCr 11.42 to vacate a judgment of October 1956 under which he was given a life sentence as an habitual criminal.

The sole ground of attack on the judgment is that the procedure under which the jury was given evidence of the prior convictions of the defendant before it made its determination of guilt or innocence of the current offense charged, and even before any evidence was offered on the current offense (which procedure is permitted under the Habitual Criminal Act, KRS 431.-190), violated the defendant’s right to a fair trial and denied him due process. Under our decisions in Jones v. Commonwealth, Ky., 401 S.W.2d 68, and Wilson v. Commonwealth, Ky., 403 S.W.2d 705, this ground is not sustainable.

Since there was no issue of fact and since the ground stated in the motion was not sufficient to invalidate the judgment, the mov-ant was not entitled to a hearing or to counsel.

The judgment is affirmed.