¶1dissenting.
¶2Respectfully, I must dissent from affirmation of this RCr 11.42 case. The trial court denied the motion without first ordering an evidentiary hearing be held. In particular, I believe a hearing was necessary in regard to whether defense counsel’s performance was deficient in failing to exercise all of the peremptory strikes permitted during the trial in chief. Failure to properly utilize this strike resulted in leaving on the jury a juror who served as a correctional officer at Eastern Kentucky Correctional Complex. Once the trial court denied the defense motion to strike her for cause, a peremptory challenge was the only way to remove her from the jury. Because the defense did not exercise all of *629its peremptory challenges at the appropriate time, the error of leaving this juror in the panel could not be reviewed during the direct appeal. Baze v. Commonwealth, Ky., 965 S.W.2d 817, 825 (1997). The majority opinion now renders the merits of this issue impossible to ever address by holding that issues raised and disposed of on direct appeal are not the proper subject of review in an RCr 11.42 motion.
¶3While the majority opinion purports to confront the merits of this issue, it does so without having heard from trial counsel. The lack of testimony from that counsel makes the majority opinion’s discussion of the issue purely speculative, the very flaw it uses to dispose of Appellant’s argument. I would reverse and remand to the trial court for an evidentiary hearing to explore the basis of trial counsel’s failure to exercise the last peremptory strike to remove the juror from the jury panel.