Roark v. Commonwealth

CLAY, Commissioner. In this proceeding under RCr 11.-42 appellant’s motion was overruled without a hearing. The grounds of the motion were (1) appellant was denied a preliminary hearing, and (2) he has newly discovered evidence relating to the issue of guilt. On the first ground there is no intimation of prejudice; on the second ground there is no suggestion of the nature of the newly discovered evidence. Appellant contends he was entitled to an evidentiary hearing because the Commonwealth filed no response to the motion. Since the motion on its face did not present a ground on which relief could be granted, no response was necessary. The lack of a preliminary hearing did not deprive appellant of any constitutional rights. See Carson v. Commonwealth, Ky., 382 S.W.2d 85; Yates v. Commonwealth, Ky., 386 S.W.2d 450; Walker v. Commonwealth, Ky., 386 S.W.2d 452; Warner v. Commonwealth, Ky., 386 S.W.2d 455; Commonwealth v. Watkins, Ky., 398 S.W.2d 698. Newly discovered evidence relating to the issue of guilt has not been recognized as a ground for granting relief under RCr 11.42. Johnson v. Commonwealth, Ky., 391 S.W.2d 365; Fannin v. Commonwealth, Ky., 394 S.W.2d 897; Bell v. Commonwealth, Ky., 395 S.W.2d 784. The Supreme Court case of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed. 770, does not require a change of view. Nor does the motion present facts which would justify the granting of coram nobis relief. See Wallace v. Commonwealth, Ky., 327 S.W.2d 17. The judgment is affirmed.