McKENNA v. PEOPLE, 160 Colo. 369 (1966)

(417 P.2d 505)

Richard McKenna v. The People of the State of Colorado.

No. 21692.Supreme Court of Colorado.
Decided August 15, 1966.

Defendant was convicted of first degree murder. From a denial of his motion to vacate and set aside judgment and sentence, the defendant brought error.

Affirmed.

1. CRIMINAL LAW — Motion — Post Conviction — Relief — Disposition — Appeal and Error. Where trial court found that the various matters raised by defendant in his motion to set aside judgment and sentence under Colo. R. Crim. P. 35(b) had been considered on writ of error, and that no constitutional issues were raised, and that the motion should be denied without hearing as provided in the Rule, held, trial court acted properly in its disposition of the motion.

Page 370

Error to the District Court of El Paso County, Honorable William M. Calvert, Judge.

Allen T. Compton, for plaintiff in error.

Duke W. Dunbar, Attorney General, Frank E. Hickey, Deputy, James F. Pamp, Assistant, for defendant in error.

EN BANC

PER CURIAM.

Plaintiff in error McKenna filed a motion to vacate and set aside judgment and sentence pursuant to Rule 35(b), Colo. R. Crim. P. in the District Court for El Paso County. He alleges as grounds for relief, in substance, that his trial and conviction of first degree murder were a sham and a pretense, that he was tried as accessory but charged as a principal, and that the trial court erred in admitting into evidence certain testimony offered by the People during the trial.

Following the trial and conviction of the defendant in April of 1950, this Court reviewed the matter on writ of error, McKenna v. The People, 124 Colo. 112, 235 P.2d 351, affirming the conviction. In this review proceeding McKenna was represented by counsel.

[1] The trial court in the instant matter, after reviewing the files and records of the case, found that the various matters raised in the motion under Rule 35(b) had been considered on writ of error and that no constitutional issues were raised, and that the motion should be denied without hearing as provided in the Rule. We agree with this disposition of the motion.

The judgment is affirmed.

MR. CHIEF JUSTICE SUTTON, MR. JUSTICE DAY and MR. JUSTICE FRANTZ not participating.

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