Summary 2012 WY 15

Summary of Decision February 7, 2012

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Case Name:  Schreibvogel v. State of Wyoming

Citation:  2012 WY 15

Docket Number: S-11-0172

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465078

Original Proceeding, Petition for Writ of Review, District Court of Carbon County, The Honorable Wade E. Waldrip, Judge

Representing Appellant (Petitioner):  W. Keith Goody, Cougar, Washington.

Representing Appellee (Respondent):  Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; Meri V. Geringer, Senior Assistant Attorney General.  Argument by Ms. Geringer.

Date of Decision: February 7, 2012

Facts:  The appellant was convicted of two counts of first-degree sexual assault and one count of robbery.  The Court’s opinion affirming those convictions upon direct appeal is found at Schreibvogel v. State, 2010 WY 45, 228 P.3d 874 (Wyo. 2010).  In that proceeding, the appellant alleged, inter alia, that his trial counsel was ineffective for failing to object to inadmissible evidence, and for failing adequately to cross-examine the victim in regard to the defense of consent. The appellant did not prevail on either allegation.

Just less than a year after losing his appeal, the appellant filed in the district court a Verified Petition for Post-Conviction Relief.  In his petition, the appellant alleged that his appellate counsel was ineffective for not raising in the direct appeal two additional allegations of trial counsel’s ineffectiveness: (1) failure to pursue as a defense the synergistic effect of the victim’s simultaneous use of the prescription drug Paxil and alcohol; and (2) failure to investigate and pursue expert medical testimony as to the cause of an injury to the victim’s face.  In addition, the appellant also alleged that appellate counsel rendered ineffective assistance by failing to seek an evidentiary hearing under W.R.A.P. 21.

The State filed a Motion to Dismiss Petition for Post-Conviction Relief, citing Wyo. Stat. Ann. § 7-14-103(a)(iii) for the proposition that the appellant’s claim of ineffective assistance of trial counsel was procedurally barred because it had been determined on the merits in the direct appeal.  The district court heard the motion to dismiss and subsequently issued a lengthy decision letter and order dismissing the petition. 

In response, Appellant filed this Petition for Writ of Review.  The Court granted the petition, the matter was briefed, and oral argument was heard.

Issues:  Where the appellant has raised the claim of ineffective assistance of trial counsel in his direct appeal, may he raise the claim again, on different factual grounds, in a petition for post-conviction relief by arguing that appellate counsel was ineffective for not raising those different factual grounds? 

Holdings:  This was a question of first impression before the Court.  The Court answered the question in the negative.  The Court held that where a claim of ineffective assistance of counsel has been raised and decided against the appellant in his direct appeal, he may not raise a claim of ineffective assistance of counsel, based upon different allegations, in a petition for post-conviction relief because the claim is procedurally barred by Wyo. Stat. Ann. § 7-14-103(a)(iii).  A stand-alone claim of ineffective assistance of appellate counsel is not cognizable under the post-conviction relief statutes because post-conviction relief is limited to the alleged denial of constitutional rights during the proceedings which resulted in conviction.  The jurisdictional exception for the consideration of ineffective assistance of appellate counsel provided in Wyo. Stat. Ann. § 7-14-103(b)(ii) is limited to situations where a claim “[c]ould have been raised but was not raised” in the direct appeal, as addressed by Wyo. Stat. Ann. § 7-14-103(a)(i).

J Voigt delivered the opinion for the court.

In a concurring opinion, Chief Justice Kite wrote separately because, while she agreed that Petitioner was not entitled to the relief he sought, she disagreed with the majority’s conclusion that the district court and this Court lacked subject matter jurisdiction to decide his post-conviction claim.  The concurrence would hold that Petitioner’s assertion that he was denied his Sixth Amendment right to effective assistance of appellate counsel falls within the scope of § 7-14-101(b) and is not barred under § 7-14-103 and would have addressed the merits of the claim.