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J. BLAINE ANDERSON, Circuit Judge, concurring:
I concur in Judge Canby’s opinion. This is written only to emphasize the thoughtful and thorough discussion of the state court trial judge with petitioner and his trial counsel at the change of plea hearing and at sentencing.
Additional facts, not disputed, nor could they be, include: the petitioner, upon advice of counsel, executed a written plea agreement and the trial judge discussed it with petitioner and petitioner was furnished a copy; at a thorough sentencing hearing, the minimum of five years was emphasized several times, and at one point the trial judge stated, “I wish to make it very clear, that you serve the five-year mandatory on each of the concurrent, but a ten-year total. .. . ” Immediately thereafter, and once again, the trial judge asked both petitioner and his counsel whether there were any further matters or questions. Each replied in the negative. As pointed out by Judge Canby, there was no motion to withdraw the guilty pleas, nor was there any expression of surprise or dismay.
Furthermore, the record is sufficiently clear that petitioner’s trial counsel discharged his duties and obligations as defense counsel to advise the petitioner of the sentencing potentials and alternatives. In spite of petitioner’s conclusory affidavit, the trial court record of the plea and sentencing hearings, read in a realistic and commonsense perspective, leads me to conclude that there was probably not even a “technical” violation. At most there could be only a speculative doubt with regard to petitioner’s understanding.
Document Info
Docket Number: 17-73046
Judges: Anderson, Skopil, Can-By
Filed Date: 10/18/1982
Precedential Status: Precedential
Modified Date: 10/19/2024