No exceptions appear in the record. We have nevertheless examined the entire record and conclude that it contains no error. We hold the appeal to be frivolous.
Defendant does bring forward the following purported assignment of error:
“1. The defendant assigns as error the action of the Probation Officer during the interview with the defendant and prior to the sentencing of the defendant wherein the Probation Officer expressed an opinion to the defendant that if the defendant accepted an active sentence, said defendant would not receive more than six (6) months imprisonment.”
No conversation between defendant and the probation officer appears in the record. An assignment of error based upon matters outside the record is improper and must necessarily be disregarded on appeal. However, we do note that in his purported assignment of error, defendant does not contend that his conversation with the probation officer influenced his plea of guilty. (An affidavit filed by the solicitor indicates that a probation officer was asked to confer with defendant after defendant’s plea of guilty had been entered and accepted.)
Suffice to say, a defendant has no right to choose between an active sentence and probation, and even if the probation officer expressed an opinion to defendant as alleged in the purported assignment of error, it would constitute no grounds for relief.
No error.
Chief Judge Mallard and Judge Hedrick concur.