Opinion
No. B58-682, CA 19117
Argued and submitted February 27, 1981
Affirmed March 16, 1981
Appeal from District Court, Lane County.
Frank R. Alderson, Judge.
H. Thomas Andersen, Eugene, argued the cause and filed the brief for appellant.
Karen H. Green, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Attorney General, John R. McCulloch, Jr., Solicitor General, and William F. Gary, Deputy Solicitor General, Salem.
Before Buttler, Presiding Judge, and Warden and Warren, Judges.
PER CURIAM
Affirmed.
Defendant's sole assignment of error is that he was denied the effective assistance of counsel and due process of law in violation of the Oregon and United States Constitutions. As we noted in State v. Robinson, 25 Or. App. 675,550 P.2d 758 (1976), that question can be properly resolved only in a post conviction proceeding (ORS 138.510- 138.680) in which evidence can be adduced at a hearing. Although we indicated in Robinson, as well as in subsequent cases (e.g., State v. Henley, 31 Or. App. 109, 569 P.2d 58 (1977)), that there may be rare instances where this issue may be raised on direct appellate review, we have been cited to no such case in which we found that rare instance; we conclude that this case is not one of them, and do not consider the question.
Affirmed.