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Story v. Commonwealth11/19/2004
es not indicate that proof of speeding or reckless driving is required to establish wantonness. Therefore, we find no fault with counsel's failure, if he did fail to advise Story of "reckless homicide." Based on the facts of this case and our previous decisions, Story's actions could establish the elements of wanton murder. His decision to plead guilty to such charges was not "unintelligent" or "involuntary." Thus, we affirm.
Story also claims he should have been granted an evidentiary hearing and the appointment of counsel for his RCr 11.42 motion. We disagree.
A motion for an evidentiary hearing will not be granted "if motion on its face does not allege facts which, if true, render the judgment void." RCr 11.42 only requires an evidentiary hearing "'if the answer raises a material issue of fact that cannot be determined on the face of the record.'" Although an RCr 11.42 proceeding "is not a direct appeal with a constitutional right to an attorney," the rule requires that the court appoint the appellant representation "if the movant is without counsel of record and financially unable to employ counsel."
As discussed, the claims of error made by Story are without merit. His motion does not raise a material issue of fact that is not resolved on the face of the record. Likewise, there was nothing in the motion that would have rendered the judgment void if we had concluded the allegations to be true. Therefore, neither an evidentiary hearing nor appointment of counsel is necessary.
For the foregoing reasons, the decision of the circuit court denying Story's RCr 11.42 motion is affirmed.
ALL CONCUR.
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