Gresham v. Page

1968 OK CR 92, 441 P.2d 478, 1968 Okla. Crim. App. LEXIS 327

• Court: Court of Criminal Appeals of Oklahoma
• Decided: May 22, 1968
• Docket: No. A-14635
• Status: Published

Opinion

BRETT, Judge:

Robert E. Lee Gresham, Jr., files a petition in this Court seeking “delayed post conviction appeal, or, in the alternative, for writ of habeas corpus.”

Petitioner states that he was convicted for the crime of burglary in the second degree, after former conviction of felony, in case No. 21091 in the district court of Tulsa County, judgment and sentence dated May 28, 1965, and petitioner was sentenced to serve 15 to 45 years in the State Penitentiary.

This petitioner heretofore filed in this Court a petition for writ of mandamus to require the district court of Tulsa County to furnish him a casemade at State expense, and that writ was denied. Gresham v. Page, Okl.Cr., 411 P.2d 251.

Before denying the writ of mandamus, this Court ordered the district court of Tulsa County to conduct an evidentiary hearing into the matters alleged in the petition. That hearing was duly conducted, this petitioner was present, represented by an attorney, and subpoenaed witnesses in his behalf. Petitioner, on the advice of his counsel, did not testify at that hearing.

After an examination of a transcript of the proceedings at such evidentiary hearing, this Court adopted the findings of the trial court, and ruled that petitioner was not entitled to the relief sought.

Petitioner’s sole contention in the present proceeding is that he was ill advised by his counsel at the evidentiary hearing, and did not testify in his own behalf. Such allegation, if true, would not entitle this petitioner to either a post conviction appeal or a writ of habeas corpus.

Writ denied.

NIX, P. J., and BUSSEY, J., concur.