People v. Schultheis

*716VAN CISE, Judge,

dissenting:

I agree with the majority that the trial court correctly refused to compel trial counsel to present testimony he knew to be perjured. Also, I agree with the majority that trial counsel should not have divulged to the court that his client was insisting on his putting on perjured testimony, and that the court should have granted the motion to withdraw.

However, I do not agree that the denial of the motion was reversible error, and see no basis for holding, as a matter of law, that the defendant was thereby deprived of his constitutional due process right to effective assistance of counsel.

“A court must determine, when faced with a claim of ineffective assistance of counsel, ‘whether the advice was within the range of competence demanded of attorneys in criminal cases,’ ... and whether the assistance rendered by the attorney demonstrates ‘faithful representation of the interest of his client ... ’ ” People v. Blalock, Colo., 592 P.2d 406 (1979).

The perjured testimony was not presented, but that is certainly not “ineffective assistance.” Once the trial started, there is nothing in the record, and we have been referred to nothing, which would show that defendant was denied effective assistance of counsel. In fact, it is apparent that defendant was ably represented throughout the trial. And neither at trial, nor in the new trial motion, nor on appeal, has there been any showing of prejudice to defendant by the denial of the motion to withdraw.

I would affirm the conviction.