Summary 2007 WY 71

Summary of Decision issued April 27, 2007

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Case Name: DeLoge v. State

Citation: 2007 WY 71

Docket Number: 06-189

Appeal from the District Court of Laramie County, the Honorable Edward L. Grant, Judge

Representing Appellant (Defendant): Steven A. DeLoge, Pro se..

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda Pojman, Assistant Attorney General.


Issues: Whether the district court abused its discretion when it denied DeLoge’s Motion to Disqualify District Court Judge for cause. Whether the district court erred by denying DeLoge’s Motion for Appointment of Counsel. Whether the district court abused its discretion when it denied DeLoge’s Motion for Preservation and Return of Seized Property.

Facts/Discussion: DeLoge appealed from an order denying his post-conviction motion for return of seized property. He claimed he was entitled to immediate return of the property. He also challenged the denial of his motion to disqualify the district court judge and the denial of his motion for appointment of counsel. He claimed his trial and appellate counsel were ineffective.
Motion to Disqualify: The denial of a motion for disqualification of a judge for cause is reviewed under the abuse of discretion standard. To demonstrate judicial bias or prejudice, an appellant must show more than the fact that the trial court ruled against him correctly or incorrectly, on a particular matter. The district court properly referred the disqualification motion to another judge for resolution on the merits. That judge held a hearing, reviewed the file and ultimately found that DeLoge failed to establish judicial bias or prejudice mandating removal for cause. The Court found no error.
Assistance of Counsel: DeLoge has exhausted all of his state remedies with the exception of his motion for the return of his property. The Court addressed the claims which arose subsequent to the remand. DeLoge filed a motion for the appointment of counsel contending that his motion for the return of seized property was a critical stage in the proceedings and therefore he had a right to the effective assistance of court-appointed counsel. The Court disagreed stating that the motion was filed after the judgment and sentence was entered. Post-conviction motions for the return of seized property are considered civil proceedings. Therefore there is no constitutional right to effective assistance of counsel.
Motion for Preservation and Return of Seized Property: The general rule requires the return of seized property other than contraband to the rightful owner after the termination of criminal proceedings unless the government has a continuing interest in the property. The denial of a motion for the return of seized property is reviewed for an abuse of discretion. The Court found the district court erred by denying DeLoge’s motion without requiring the State to submit evidence regarding the government’s continuing interest in the retention of the property. As a result of this decision, the Court found it was premature to address DeLoge’s contention that his due process right to access exculpatory evidence was violated.

Holding: The Court affirmed the order denying the disqualification of the district court judge. They also affirmed the order denying DeLoge’s motion for the appointment of counsel. The Court reversed the district court’s Order Directing Final Disposition of Property Seized by Law Enforcement and remanded the case to the district court.

Affirmed in part and reversed in part.

J. Burke delivered the decision.

Link: http://tinyurl.com/2vzpck .