State v. Menard

205 N.W.2d 547, 189 Neb. 825, 1973 Neb. LEXIS 904

• Court: Nebraska Supreme Court
• Decided: March 23, 1973
• Docket: No. 38715
• Status: Published

Opinion

Per Curiam.

Wayne Menard moved for post conviction relief on the ground of ineffective assistance of counsel. The court dismissed the motion without an evidentiary hearing, and Menard appeals.

The motion is related to the conviction of Menard in a prosecution for assault with intent to commit robbery. The court granted counsel, the public defender, leave to withdraw after the sentencing hearing. The court found that counsel had performed all duties incumbent upon him. The court, the same judge presiding, in the present proceeding, in addition found from the files- and records that Menard was entitled to no relief upon his motion.

Menard’s complaint is that the public defender failed to call an eyewitness and the victim’s physician. The evidence against Menard was overwhelming, and nothing suggests that any such testimony would have affected the result.

Where the files and records in a post conviction proceeding show that the prisoner is entitled to no relief, an evidentiary hearing is not required. See, State v. Virgilito, 187 Neb. 328, 190 N. W. 2d 781 (1971); State v. Fugate, 180 Neb. 701, 144 N. W. 2d 412 (1966). Denial of Menard’s motion was correct.

Affirmed.