Opinion
No. 21736
Decided January 10, 1966.
Defendant was convicted of first degree murder. From a denial of his petition for post-conviction relief, prisoner brings error.
Affirmed
1. COURTS. — United States Supreme Court — Escobedo Decision — Retrospective Application — Date. United States Supreme Court decision of Escobedo v. Illinois does not apply retrospectively in this state to cases which have been determined before June 22, 1964, which is date on which Escobedo was announced.
2. CRIMINAL LAW. — Post-Conviction Relief — Rules — Appeal and Error. Trial court was correct in denying petition for relief under Rule 35(b), Colo. R. Crim. P. without evidentiary hearing where it was clearly apparent upon face of petition that such relief could not be granted.
Error to the District Court of the City and County of Denver, Honorable Sherman G. Finesilver, Judge.
Plaintiff in error, pro se.
Duke W. Dunbar, Attorney General, Frank E. Hickey, Deputy, James W. Creamer, Assistant, for defendant in error.
Marion H. Brown, Jr., brings writ of error here from a judgment of the district court for the City and County of Denver refusing to grant him relief under Rule 35(b), Colo. R. Crim. P.
In December, 1953, Brown was convicted of first degree murder as a result of a particularly brutal homicide and the penalty was fixed at death. With the aid of assigned counsel, Brown brought writ or error and that judgment was reversed and the case remanded for a new trial. Brown v. People, 130 Colo. 77, 273 P.2d 128.
On April 13, 1956, Brown was again convicted of first degree murder. This time the penalty was fixed at life imprisonment. Brown did not seek writ of error to this judgment. However, on October 21, 1964, Brown brought the 35(b) proceeding in question here. That petition was denied by the trial court without an evidentiary hearing.
[1) Brown's contention here is that the matters alleged in his 35(b) petition, if true, entitled him to relief under Escobedo v. Illinois, 378 U.S. 478, 84 Sup. Ct. 1758, 12 L.Ed.2d 977. In Ruark v. People, 158 Colo. 110, 405 P.2d 751, we held that Escobedo does not apply retrospectively in this state to cases which have been determined before June 22, 1964, which is the date on which Escobedo was announced.
[2) Since it was clearly apparent upon the face of the petition that 35(b) relief could not be granted on the grounds urged here, the trial court was correct in denying the petition without any evidentiary hearing.
The judgment is affirmed.