Opinion
A101621.
10-16-2003
THE PEOPLE, Plaintiff and Respondent, v. LANCE MAYNARD GARDNER, Defendant and Appellant.
Lance Gardner appeals from a judgment of conviction entered upon a plea of nolo contendere. Appellants court-appointed counsel has briefed no issues and asks this court to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
An information filed in San Mateo County Superior Court charged appellant with corporal injury of a spouse or cohabitant (Pen. Code, § 273.5, subd. (a)), dissuading a witness through force or threat of force (§ 136.1, subd. (c)(1)), possession of marijuana in a county jail (§ 4573.6), and possession of marijuana or drug paraphernalia in a county jail (§ 4573.8). The information further alleged that appellant suffered a prior strike (§ 1170.12) and served a prior prison term, a sentencing enhancement (§ 667.5, subd. (b)).
All statutory references are to the Penal Code unless otherwise indicated.
In a negotiated disposition, appellant pleaded nolo contendere to possession of marijuana or drug paraphernalia in a county jail (§ 4573.8) and admitted suffering a strike (§ 1170.12) with the understanding that the court would sentence him to two years and eight months in state prison. The court then granted the prosecutions motion to dismiss the remainder of the information.
The court sentenced appellant to the mitigated term of one year and four months for possession of marijuana or drug paraphernalia in a county jail (§ 4573.8) and then doubled the term to two years and eight months because of appellants admitted strike (§ 1170.12). The court granted appellant 126 days total presentence credit and ordered him to pay a $200 restitution fine.
Before appellant entered his plea, the court advised him of the constitutional rights he would be waiving and the direct consequences of his plea. Appellant expressly waived his constitutional rights and knowingly and voluntarily pleaded nolo contendere and admitted the special allegation.
Appellant was represented by counsel throughout the proceedings.
There was no sentencing error.
Appellant has filed a supplemental brief in which he alleges that he received inadequate representation of counsel. Appellant alleges, inter alia, that he wished to withdraw his plea before sentence was imposed and his counsel failed to file the appropriate motion.
Nothing in the record before this court supports appellants contention that his counsel failed to notify the court of appellants desire to withdraw his plea. Also, nothing in the record establishes that such a motion could have prevailed, and, hence, the record does not support the contention that appellant suffered any prejudice. Accordingly, if appellant wishes to pursue this collateral attack upon his conviction, he would have to do so in a petition for a writ of habeas corpus wherein sworn affidavits could supplement the official record.
Because the issues appellant wishes to raise are not cognizable on direct appeal, appellants motion for an extension of time to perfect his supplemental brief is denied.
There are no issues that require further briefing.
The judgment is affirmed.
We concur: Marchiano, P. J. and Margulies, J.