Summary 2011 WY 167

Summary of Decision December 22, 2011

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Case Name:  Ken v. State of Wyoming

Citation:  2011 WY 167

Docket Number: S-10-0103

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464960

Appeal from the District Court of Uinta County, the Honorable Dennis L. Sanderson, Judge

Representing Appellant (Defendant):  Patricia L. Bennett, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General.  Argument by Mr. Armitage.

Date of Decision: December 22, 2011

Facts:  Appellant and his girlfriend were seated in a car in an apartment parking lot when the victim, his fiancée and her five-year-old son pulled into an adjacent parking space.  Words were exchanged and the victim made a racial and derogatory comment to Appellant. As the victim’s group was walking toward the apartment complex, Appellant got a gun from his car, pointed it directly at them and began walking toward them.  The victim testified unequivocally that Appellant pointed the gun directly at him and fired twice while still pointing the gun at him.

A jury convicted Appellant of attempted first degree murder and aggravated assault.  Appellant appealed, asserting defense counsel provided ineffective assistance in several ways, including that he failed to file a timely motion for new trial.  Appellant also contended the evidence presented to the jury was insufficient to support his conviction for attempted first degree murder.

After docketing of Appellant’s appeal, the case was remanded to the district court for an evidentiary hearing on his claim that counsel was ineffective.  On remand, the parties stipulated that defense counsel failed to timely file post-trial motions for acquittal and new trial.  Following a hearing, the district court concluded Appellant was prejudiced by counsel’s failure to timely file a motion for new trial because, had counsel timely filed the motion, the court would have granted it on the ground that the attempted first degree murder conviction was contrary to the weight of the evidence and may have resulted in a miscarriage of justice.

Upon the district court’s entry of its findings of fact and conclusions of law, the case returned to this Court for consideration of the issues presented in the appeal.

Issues: 1) Whether the ineffective performance of trial counsel denied Ken his Sixth Amendment right to effective counsel; 2) Whether evidence presented at trial was sufficient to support convictions of attempted first degree murder and aggravated assault.

Holdings:  The Court reversed the attempted first degree murder conviction and remanded the case for a new trial on that charge.

Addressing the second issue first, the Court concluded that the jury could reasonably have concluded that Appellant was angry, retrieved his gun and purposely aimed it at the victim.  The Court held that sufficient evidence was presented to support the attempted first degree murder conviction; therefore, Appellant was not entitled to a judgment of acquittal.

However, as to the second issue, the Court concluded that Appellant was prejudiced by counsel’s deficient performance because had the motion been timely filed, the district court would have granted it, the State would have had no means to challenge the order and Appellant would have received a new trial on the attempted first degree murder charge. Therefore, the Court held that Appellant satisfied his burden to show ineffective assistance of counsel.

C.J. Kite delivered the opinion for the court.

J. Golden, filed a concurring in part and dissenting in part opinion, in which J. Voigt joined, stating that he agreed with the Court’s holding that Appellant was not entitled to a judgment of acquittal.  However, he respectfully dissented from the Majority’s opinion that (1) Appellant’s trial counsel performed deficiently by failing timely to file a post-verdict motion for new trial pursuant to W.R.Cr.P. 33(a) on grounds that the jury’s verdict was against the great weight of the evidence and a miscarriage of justice occurred, and (2) a reasonable possibility existed that, but for that deficient performance, the outcome would have been different, finding the attorney’s performance and district court’s later comment were nothing more than hindsight which ought to be rejected under the analysis required by Strickland v. Washington.

J. Voigt filed a concurring in part and dissenting in part opinion, in which J. Golden joined, to write separately with a few additional comments.  He agreed with Justice Golden that trial counsel was not ineffective for failing to file a motion for new trial. His additional concern is the effect of W.R.Cr.P. 29 and 33 when the issue is sufficiency of the evidence.  He would hold that a new trial motion under W.R.Cr.P. 33 cannot be based upon sufficiency of the evidence, or the weight given to evidence that has been found sufficient. On an additional point, Justice Voigt agreed with Justice Golden that the majority’s discussion of the State’s inability directly to appeal in a criminal case should have been omitted from the majority opinion, as it would now be indelibly inserted into the concept of ineffective assistance of counsel.