Opinion
January 21, 1966.
Appeal from the Circuit Court, Criminal Branch-Second Division, Jefferson County, J. Miles Pound, J.
Curtis Lee Ray, Jr., pro se.
Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., for appellee.
This is an appeal from a judgment overruling the appellant's RCr 11.42 motion to vacate his conviction and sentence upon a plea of guilty to stealing from a public building. The governing statute (KRS 433.180) imposes a penalty of two to ten years.
The gist of the appellant's contention revolves about his having no counsel at arraignment, inadequate counsel at his trial, and the failure of the trial court to probate his sentence as he was led to believe it would. The record refutes his contentions; it states that the appellant withdrew his "not guilty" plea and pleaded guilty in open court in the presence of his appointed counsel, that the court found him guilty accordingly, fixed his punishment at five years' imprisonment and, upon motion of his counsel, withheld the entering of the judgment for approximately a month until investigation would reveal whether probation of the sentence would be justified.
The appellant's claim that he was deprived of counsel is too general to justify relief, Oakes v. Gentry (Ky. 1964), 380 S.W.2d 237; it does not disclose enough to justify a hearing on the issue and, besides that, it is expressly refuted by the record. His claim that counsel said he would make no defense is another general assertion which does not disclose what defense, if any, could have been made. The record shows that his plea of guilty was made in open court in the presence of his counsel, and it is obvious that appellant pleaded guilty in order to obtain a lighter sentence than a jury might have imposed under the statute. Furthermore, even if the appellant had been induced to plead guilty in the hope of proposed probation, the appellant had no right to assume that the trial court would accede to such a proposal. Hurt v. Commonwealth (Ky. 1960), 333 S.W.2d 951; Franklin v. Commonwealth (1947), 305 Ky. 111, 203 S.W.2d 2, 3.
The judgment is affirmed.