(dissenting).
The petitioner had all of the ample protections which our law affords one accused of crime, including the assistance of competent counsel, Mr. Maurice Richards. Upon adequate and persuasive evidence, the petitioner was duly convicted of the serious and dangerous crime of aggravated robbery, for which the statutory penalty is 5 years to life. On January 11, 1975, the petitioner was sentenced to a term of 1 to 15 years (without making any mention of the problems of which he now complains). The record does not indicate whether the lesser term was imposed in error or whether the trial court éxercised the prerogative given under Sec. 76-3 — 402, U.C.A. 1953, and sentenced the petitioner for the “next lower category of offense” in giving him only the 1 to 15-year sentence.
Subsequent thereto, attorney Richards sent petitioner a letter which stated:
Dear Mr. Chess:
As I have discussed with you on several occasions, it is my opinion that we do not have any legal issues substantial enough to allow us to win. Furthermore, if we were to appeal and win, it would mean a new trial. If you were found guilty at a new trial, you stand a substantial chance of receiving a sentence of 5-life, rather than the 1-15 you have already been sentenced to. Therefore, I recommend that we notify the Supreme Court that you do not intend to pursue the appeal.
I would like to hear from you as soon as possible regarding your desires in this matter. If you would like to appeal your conviction, I would appreciate it if you would outline the reasons upon which you would like me to base the appeal. [Emphasis added.]
The main opinion seems to ignore the most important proposition in the letter, to-wit: “It is my opinion that we do not have any legal issues substantial enough to allow us to win.”
In the absence of any indication to the contrary, it should be assumed that Mr. Richards spoke advisedly. If an erroneous sentence has been imposed, the proper procedure is to impose the correct statutory penalty for the crime, i. e., 5 years to life.1 This should be true, notwithstanding the provision of Sec. 76-3 — 405, U.C.A. 1953, and the cases stated in the main opinion.2
Consistent with the conclusion of the trial court that Mr. Richards gave the petitioner adequate and professional service is the fact that he left to his client to make the decision as to the alternatives available.
Three years after petitioner made that decision, he changed his mind and repudiated it by filing the instant proceeding. In it, he alleged matters which had been fully known to himself and to his attorney at the time of his trial and conviction which could then have been raised at that time, or at least at the time of sentence, or on an appeal, none of which was done. In the instant proceeding, his major attack was that he was “denied effective assistance of counsel.” Mr. Richards is a lawyer who is capable, experienced and of good reputation; and the record shows that he capably fulfilled his duty in identifying himself with the petitioner’s cause. That contention of petitioner being without merit, the only claim of injustice he now asserts is that he was tried in “jail clothes” issued by the Weber County Jail.
These observations are pertinent: There is no indication in this record as to what type of clothing the petitioner was wearing, *347whether it was poor, rich or nondescript; and incidentally, there is no such thing as “jail clothes” in the sense of being in a uniform or having distinctive markings so indicating.3 In any event, that sole fact would have revealed nothing new to the jury, certainly nothing concerning his guilt or innocence. They could not have failed to be aware that a man charged with armed robbery was in custody and being held in jail. Indeed, that fact was brought out in the evidence. Moreover, there is no basis other than the merest conjecture as to whether whatever type of clothing the petitioner was wearing would inspire sympathy for, or prejudice against, the petitioner, or would have any effect on the jury’s determination of his guilt or innocence.
In the interest of giving effect to legal procedures and the solidarity of judgments once fairly arrived at, it is our settled law that in order to justify reversing a conviction, it is essential that it be made to appear both that an error was committed and that it was prejudicial in that there is a reasonable likelihood that it affected the outcome of the trial.4
In summary, there are several propositions, each of which should prevent the reversal of the judgment:
First, the absence of any credible basis in the evidence to show that the petitioner wore so-called jail clothing, or that there was any prejudice which resulted therefrom.
Second, failure to call attention to the matter either at the time of the original trial,. or at the time of sentence, or on appeal.
Third, there are the presumptions of regularity and verity of the original trial and the judgment which has not been accorded.
Fourth, the same statement applies as to this proceeding and the affirmative duty to show prejudicial error.
Fifth, all of those, together with the too-long delayed complaint about matters which should long since have been at rest, combine, in my mind, to make a convincing case for supporting the judgment of the trial court.
This petitioner has had not only all of the protections the law allows, including the jury trial, assisted by competent counsel, but he was also given a full and fair opportunity in this habeas corpus proceeding to present any evidence to persuade a different, fair and conscientious district judge that he has suffered an injustice. Having failed in both of those trials, the majority opinion directs that this proceeding be further proliferated. That is the prerogative of this Court to which I owe such deference as is appropriate. But it is equally my prerogative and responsibility to express my disagreement therewith and my judgment that there should be no such further proceedings. I would affirm and approve the judgments already entered herein.
HALL, J., concurs in the opinion of CROCKETT, C. J.. Belt v. Turner, 25 Utah 2d 230, 479 P.2d 791 (1971).
. That the later imposition of a greater penalty which is justified in law does not violate constitutional protections, see North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Moon v. Maryland, 398 U.S. 319, 90 S.Ct. 1730, 26 L.Ed.2d 262 (1970); and Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973).
. This case is similar to State v. Archuletta, 28 Utah 2d 255, 501 P.2d 263 (1972).
. This is the express mandate of Section 77 42 1, U.C.A. 1953. See e. g., State v. Neal, 1 Utah 2d 122, 161 P.2d 756 (1953).