(dissenting): I cannot agree that the facts of the instant case fall within the scope of our decision in Brown v. State, 196 Kan. 236, 409 P. 2d 772. In Brown the trial court found the claim of the petitioner to be substantial and granted an evidentiary hearing, but heard only the states’ witnesses and denied petitioner’s request to be present over the objection of his counsel. Unlike in Brown, the trial court in the instant case found there were no issues of fact presented, which required the presence of petitioner. True, the court permitted petitioner’s counsel, at his request, to offer evidence for the purpose as stated “to show that we would be entitled to a full evidentiary or plenary hearing.” The testimony adduced failed to corroborate in anyway petitioner’s claim of incompetency on the part of his deceased counsel. Under the circumstances petitioner’s presence could add nothing to the proceedings except a repetition in person of his allegation of incompetency of counsel.
Where no disputed facts are presented in a motion to vacate other than unsupported statements of the petitioner his presence is not required. (Craig v. State, 198 Kan. 39, 422 P. 2d 955, and Blacksmith v. State, 195 Kan. 523, 407 P. 2d 486.)
I find no abuse of discretion by the trial court and would affirm the judgment.
Price, C. J., and Fromme, J., join in the foregoing dissenting opinion.