Brown v. State

520 So. 2d 168, 1987 Ala. Crim. App. LEXIS 4554, 1987 WL 299

Opinion

McMILLAN, Judge.

Appellant argues that the trial court erred in dismissing his petition for writ of error coram nobis without an evidentiary hearing. A petition for writ of error coram nobis “is not intended to serve as a substitute for an appeal, or to enable a defendant to question the merits of the case for which he stands convicted.” Cannon v. State, 416 So.2d 1097 (Ala.Cr.App.1982), citing Goodman v. State, 387 So.2d 862 (Ala.Cr.App.), cert. denied, 387 So.2d 864 (Ala.1980.) However, while some of the appellant’s allegations fall outside the scope of a coram nobis petition, this appellant has also alleged that his counsel was ineffective. Appellant contends that his counsel failed to make an application for youthful offender status, failed to advise him of his right to appeal, and failed to advise him of his rights with regard to his guilty pleas. Therefore, because the appellant has alleged facts in support of his claim of ineffective assistance of counsel and has signed a verfication that his allegations are true, this case is due to be remanded for an evidentiary hearing on the claim of ineffective assistance of counsel. Ex parte Boatwright, 471 So.2d 1257 (Ala.1985).

REMANDED WITH DIRECTIONS.

All the Judges concur.

ON RETURN TO REMAND

This cause was remanded to the trial court for a hearing on his petition for writ of error coram nobis wherein he claimed that his counsel was ineffective for failing to make application for youthful offender status and failing to advise him of his right to appeal. A review of the testimony at that hearing indicates that the appellant has not met his burden under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) for proving ineffective assistance of counsel. The record reveals that counsel did indeed apply for youthful offender status but it was denied by the court. Furthermore, counsel testified that he advised the appellant of his right to appeal as well as the waiver of his rights regarding his guilty plea.

The denial of the appellant’s petition for writ of error coram nobis is hereby affirmed.

OPINION EXTENDED; AFFIRMED.

All the Judges concur.