Opinion
No. 39023.
Filed December 21, 1973.
1. Post Conviction: Attorney and Client. For post conviction relief on the ground of ineffective assistance of counsel, it must appear that counsel's assistance was so grossly inept as to shock the conscience of the court. 2. Post Conviction: Sentences: Criminal Law. Matters relating to sentences imposed within statutory limits are not a basis for post conviction relief.
Appeal from the District Court for Douglas County: JOHN C. BURKE, Judge. Affirmed.
Lawrence R. Brodkey, for appellant.
Clarence A. H. Meyer, Attorney General, and Bernard L. Packett, for appellee.
Heard before WHITE, C. J., BOSLAUGH, McCOWN, and CLINTON, JJ., and COLWELL, District Judge.
This post conviction appeal concerns the application and claim of the defendant, Carlos Henry, filed May 2, 1972, in the District Court for Douglas County, Nebraska, that (1) he was afforded ineffective assistance of counsel at the time sentence was imposed, and (2) excessive sentence raised in brief on appeal. Defendant was granted a full evidentiary hearing. We affirm the judgment of the District Court dismissing defendant's application for post conviction relief.
Defendant, aged 18 years, was adjudged guilty of grand larceny on his guilty plea entered August 10, 1970. After a presentence investigation, defendant was granted probation for a 2-year term by order entered September 4, 1970. In November of 1970 defendant was convicted of driving a motor vehicle on a suspended license. On formal information filed alleging violation of probation terms, the defendant was arraigned and entered his plea of guilty admitting his violation of probation terms. A supplemental presentence investigation was made. During all the proceedings defendant was represented by an attorney from the Douglas County public defenders staff. The defendant and his attorney advised the court that at the time of his last arrest the defendant had been regularly employed. Defendant requested his attorney to obtain a letter from his employer. Defendant's attorney informed the court: "He is referring to a Mr. Hamburger who is his employer. I would feel if we contact him he would say that Carlos has been employed. At this point it seems irrelevant in the case." The letter was not obtained. On May 21, 1971, defendant was sentenced to serve a period of 4 to 7 years in the Nebraska Penal and Correctional Complex. There was no direct appeal from that conviction.
At the post conviction hearing defendant was represented by independent counsel; a letter from the Carmichael Construction Company of Hastings, Nebraska, dated July 7, 1972, was made a part of the evidence, in part stating: "Mr. Henry was employed with us for about two months, and in that time we considered him to be a faithful and responsible employee. Although we did not know him very well, his foreman said that he was a very good worker." From the denial of defendant's post conviction application the defendant perfects his appeal to this court.
A review of all the records shows defendant was at all times fully and effectively represented by counsel; the failure of counsel to obtain a letter does not either shock or challenge the conscience of this court. State v. Putnam, 182 Neb. 185, 153 N.W.2d 456.
Defendant had a juvenile record and misdemeanor record beginning in 1965; he had no prior felony convictions. The sentence imposed was within the statutory limits and is not a basis for post conviction relief. State v. Birdwell, 188 Neb. 116, 195 N.W.2d 502.
AFFIRMED.