Smith v. State

488 So. 2d 19 (1986)

Gary D. SMITH v. STATE.

3 Div. 399.

Court of Criminal Appeals of Alabama.

March 11, 1986.

Rehearing Denied April 8, 1986.

Gary D. Smith, pro se.

Charles A. Graddick, Atty. Gen., and Mary Ellen Fike Forehand, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

The appellant, Gary D. Smith, appeals the summary denial of his petition for writ of error coram nobis. The only allegation cognizable under the remedy is Smith's allegation of ineffective assistance of counsel, based on the following grounds: (1) Counsel "failed to interview the purported victim of the crime to determine whether or not prima facie evidence of theft of property I existed"; and (2) counsel "failed to explain to petitioner the essential ingredients of the charge of theft of property I."

The trial court did not err in denying Smith's petition without an evidentiary hearing because his allegations were insufficient; Smith failed to satisfy the "prejudice" requirement of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), for he did not allege in his petition that, had counsel been effective, he would have pleaded not guilty and insisted on going to trial. See Hill v. Lockhart, ___ U.S. ___, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).

Accordingly, this cause is due to be, and it is hereby, affirmed.

AFFIRMED.

All Judges concur.