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09/30/94 DARYL KIGH WARD v. STATE

September 30, 1994

DARYL KIGH WARD
v.
STATE



Appeal from Etowah Circuit Court. (CC-91-011.61). Roy Moore, TRIAL JUDGE.

Rehearing Denied March 3, 1995. Certiorari Denied May 5, 1995. Released for Publication October 17, 1995. As Corrected January 19, 1996.

McMILLAN

The opinion of the court was delivered by: Mcmillan

On Return To Remand

McMILLAN, JUDGE

This cause was remanded with instructions that the trial court require the State to respond to the allegations contained in the appellant's Rule 32, A.R.Cr.P., petition. Additionally, the trial court was instructed to conduct any further proceedings that it may have deemed necessary under Rule 32.7(d) and Rule 32.9, A.R.Cr.P. The trial court has returned to us the following specific findings of fact and order denying the petition:

"This matter having come on before the Court on a remand from the Court of Criminal Appeals of the State of Alabama, and upon such remand, the State of Alabama having now filed its amended motion to dismiss, and the Court, thereafter, having proceeded to review the Defendant's petition, the State's original motion to dismiss, the State's motion to dismiss as amended, the Court file and official Court record in this cause, together with all other pleadings and matters, and upon such review

"It appearing to the Court that the Defendant has assigned in his instant petition grounds alleging ineffective assistance of counsel, lack of jurisdiction by the trial Court to render judgment or impose sentence, a sentence imposed exceeding the maximum authorized by law, newly discovered evidence, and failure on behalf of the Defendant to appeal within the time prescribed by law; and upon considering such based on the Defendant's allegation that he does not challenge his plea of guilty but only questions the sentence received pursuant to such plea; and

"It appearing to the Court as to the grounds alleging ineffective assistance of counsel, together with the issues raised under the same[,] lack of jurisdiction by the Court to render judgment or impose sentence, and a sentence imposed exceeding the maximum authorized by law, that the Defendant and his counsel entered into a plea agreement with the Office of the District Attorney regarding the charge against the Defendant, his stipulation as to his prior criminal record for purposes of treatment under the Alabama Habitual Felony Offender Act, and the sentence which the Defendant would receive based upon such agreement and stipulation; and

"It further appearing to the Court that such matters are contained in the official Court record and transcript in this cause and contained as a part of Defendant's initial petition for relief under the provisions of Rule 32 of the Alabama Rules of Criminal Procedure filed with this Court in October 1991; and

"It further appearing to the Court that such plea agreement entered into between the Defendant and his attorney and the State of Alabama through the district attorney's office met with the approval of the Defendant and that he raised no objection to such at the time he entered his plea of guilty; and

"It further appearing to the Court, based upon the same, that the Defendant cannot so claim ineffective assistance of counsel, nor can his attorney's conduct be shown to have prejudiced the Defendant, nor can the same have been prejudicial to him to the extent that it would have affected the ultimate outcome of the Defendant's case had it gone to trial when weighed against the evidence presented to the Court by the assistant district attorney in a recitation of facts upon which the State would rely in order to obtain a conviction, such being done at the time of Defendant's plea of guilty; and

"It further appearing to the court, based upon the foregoing, that the Defendant has failed to meet the standard for ineffective assistance of counsel as set out by the United States Supreme Court in the case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984); and

"It further appearing to the Court that the Defendant has failed to allege a clear and specific statement or full disclosure of any fact so as to sustain his ground relative to the jurisdiction of the Court or as to the sentence imposed by the Court at the time that the Defendant entered his plea of guilty to a Class B felony with the Defendant having three or more prior felony convictions; and, lacking more, that such grounds require no further ...


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