Banton v. Commonwealth

CULLEN, Commissioner. Paul Banton appeals from a judgment which overruled, without a hearing, his motion under RCr 11.42 to vacate a judgment of 1962 under which he is serving an eight-year sentence for voluntary manslaughter. The sole ground on which he sought relief was that he was not given a preliminary hearing, between arrest and indictment. In the absence of a showing of prejudice this is not a ground for relief under RCr 11.42. See Commonwealth v. Watkins, Ky., 398 S.W.2d 698; Roark v. Commonwealth, Ky., 404 S.W.2d 22 (decided June 10, 1966). Banton’s only claim of prejudice is that if he had been given a hearing his attorney (apparently one hired by him) “would of had time to learn of the nature and import of the alleged crime, and would of had sufficient time to consult with appellant, and establish some rapport with him, and in all likelihood would have been able to advise and protect him legally.” The record shows that appellant had counsel as early as March 20, 1962, and that he was not tried until June, so his counsel had ample time to learn of the nature and import of the crime, to consult with appellant and establish rapport with him, and to advise and protect him. The judgment is affirmed.