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Gribbons v. Commonwealth11/24/2004
seriously to impair the judge's impartiality and sway his judgment."
Gribbons has not provided sufficient evidence to indicate any bias on the part of the trial judge. The fact that the trial judge who presided over Gribbons's murder trial was the same judge who presided over Gribbons's divorce does not indicate bias. Likewise, the trial judge's previous role as Gribbons's counsel at a DUI hearing does not establish lack of impartiality.
With regards to the allegations of ex parte communications, Gribbons offers no support for his claims other than the assertion that his friends and family members could testify on his behalf, if necessary.
Merely asserting that relevant facts could be discovered is insufficient to sustain a grant of an RCr 11.42 motion. RCr 11.42(2) states that a motion to vacate a sentence "shall state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds." The purpose of the rule "is to provide a forum for known grievances, not to provide an opportunity to research for grievances." Gribbons has not provided any evidence to substantiate the allegations of ex parte communications. Therefore, granting the motion would merely give Gribbons the "opportunity to research for grievances." To do so, would be in contravention of the purpose of the rule. Thus, Gribbons has not established sufficient evidence of judicial bias.
EVIDENTIARY HEARING
Finally, Gribbons argues his motion for an evidentiary hearing and appointment of counsel were erroneously denied. We disagree.
A request 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.'"
Gribbons has not provided sufficient evidence on the face of his motion to render the judgment void. As established in our prior discussion of Gribbons's substantive claims, he has not raised a material issue of fact that cannot be resolved on the face of the record. Therefore, the circuit court's denial of his motion for an evidentiary hearing and appointment of counsel was proper.
For the foregoing reasons, the order of the Casey Circuit Court is affirmed.
ALL CONCUR.
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