Opinion
No. CR 81-134
Opinion delivered April 12, 1982
CONSTITUTIONAL LAW — RIGHT TO COUNSEL — ALLEGED INEFFECTIVENESS. — There is no merit to appellant's argument that he was denied effective assistance of counsel because his attorney erroneously advised him that the minimum sentence for the crime charged was 10 years, whereas, it was actually five years, where appellant stated three times under oath that his lawyer had, in fact, advised him that the minimum Sentence was five years, and appellant gave no indication that he was concerned about the minimum sentence.
Appeal from Randolph Circuit Court, Andrew G. Ponder, Judge; affirmed.
Jim King, for appellant.
Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
Some 50 days after having received a 20-year sentence upon a negotiated plea of guilty to charges of aggravated robbery and habitual criminality, the appellant filed a Rule 37 petition for postconviction relief, asserting ineffective assistance of counsel in that his attorney had erroneously advised him that if he were found guilty the jury would have to impose a sentence of either 50 years or life. After an extended hearing the trial court denied the petition. The appeal comes to this court under Rule 29(1)(e).
Inasmuch as the denial upon conflicting testimony does not appear to be erroneous, appellant's present attorney has understandably abandoned his client's original ground for relief and now argue only that Virgin's first lawyer testified at the Rule 37 hearing that he had advised Virgin that the range of punishment was from 10 years to 50 years or life. It is asserted that the advice was wrong in that the minimum was actually 5 years. Even so, in the trial court Virgin did not even hint his petition or in his testimony that he had been concerned about the minimum sentence. Moreover, in testifying before his former lawyer took the stand, Virgin stated under oath three separate times that his lawyer had advised him that the minimum was 5 years. Thus the present argument for reversal is totally without merit.
Affirmed.