409 P.2d 526 | Colo. | 1966
delivered the opinion of the Court.
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 of 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.
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.
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.
