Slopak v. Cupp , 10 Or. App. 262 ( 1972 )

FORT, J.

The petitioner sought post-conviction relief in the circuit court of Marion County. A demurrer interposed by the state was sustained only as to the first of four causes of action alleged in petitioner’s petition. A hearing was held on the remaining causes of action and relief denied. Petitioner appeals.

Petitioner pleaded guilty to the crime of sodomy. Former ORS 167.040. He subsequently sought to change his plea to not guilty, alleging that he did not know that he could receive a possible life sentence under his prior plea of guilty. It is conceded that the trial judge advised petitioner only that there was a 15-year penalty and that he had not advised him that he faced a possible life sentence. Petitioner’s request to change his plea was denied and he was sentenced to 15 years in prison.

In his first assignment of error petitioner asserts that the court erred in sustaining the state’s demurrer to the first cause of action wherein petitioner alleged that the trial court abused its discretion in refusing to permit petitioner to withdraw his guilty plea. In view of the facts that (1) petitioner, during the guilty plea proceedings, acknowledged the possibility of 15 years’ imprisonment, and (2) the petitioner fails to show how he was prejudiced since he, in fact, received a 15-year sentence, this assignment of error is without merit. State v. Slopak. 3 Or App 532, 534, 475 P2d 421 (1970); Proffitt v. Cupp, 2 Or App 527, 528, 468 P2d 912, Sup Ct review denied (1970); Dixon v. Gladden, 250 Or 580, 588, 444 P2d 11 (1968); Semmes v. Williard, 247 Or 583, 431 P2d 844 (1967).

The remaining assignments of error raise questions of fact which were decided adversely to petitioner by the court below. As there is substantial evidence in the record to support that court’s conclusions, these assignments are similarly without merit.

Affirmed.