Showing posts with label post-conviction relief. Show all posts
Showing posts with label post-conviction relief. Show all posts

Tuesday, February 07, 2012

Summary 2012 WY 15

Summary of Decision February 7, 2012

[SPECIAL NOTE:  This opinion uses the "Universal Citation."  It was given an "official" citation when it is issued.  You should use this citation whenever you cite the opinion, with a P.3d parallel citation.  You will also note when you look at the opinion that all of the paragraphs are numbered.  When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number.  The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance] 

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name:  Schreibvogel v. State of Wyoming

Citation:  2012 WY 15

Docket Number: S-11-0172


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. 

Tuesday, November 24, 2009

Summary 2009 WY 145

Summary of Order issued November 24, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Eaton v. State

Citation: 2009 WY 145

Docket Number: S-08-0235

Order Lifting Stay of Execution and Order Closing Case

The matter came before the Court upon a “Petitioner’s Status Report” which was e-filed November 16, 2009, pursuant to the terms of the Court’s November 14, 2008 “Order Granting Petition for Writ of Review, Order Vacating Warrant of Execution, Order Setting Date of Execution and Order Staying Execution.” In the Status Report, Mr. Eaton’s counsel informed the Court that the state district court denied the petition for post-conviction relief. In the Court’s docket S-09-0220, Mr. Eaton filed a petition seeking review of the district court’s denial of post-conviction relief. Today, the Court denied that petition and remanded the matter to the district court for issuance of a new warrant of execution. Given the Court’s disposition of the petition Mr. Eaton filed in S-09-0220, the Court found it was no longer appropriate for the Court to continue the stay of execution of Mr. Eaton’s sentence. Instead the Court found that any request for a stay should first be directed to the district court, or any tribunal that Mr. Eaton deems appropriate.

The Court ordered the stay of execution of sentence under the Court’s order of November 14, 2008 was lifted and the captioned case was closed.

C.J. Voigt delivered the order for the court.

Summary 2009 WY 144

Summary of Order issued November 24, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Eaton v. State

Citation: 2009 WY 144

Docket Number: S-09-0220

Order Denying Petition for Writ of Certiorari/Review

The matter came before the Court upon a “Petition for a Writ of Certiorari or Writ of Review” filed October 30, 2009. In his petition, Mr. Eaton sought review of the district court’s denial of post-conviction relief. After a careful review of the petition, the materials attached and the file, the Court found that the petition should be denied.

The Court ordered Mr. Eaton be allowed to proceed in the matter in forma pauperis; the Petition for a Writ of Certiorari or Writ of Review was denied; and the case was remanded to the district court for issuance of a new warrant directed to the director of the department of corrections to carry out the execution of the sentence as provided by law.

C.J. Voigt delivered the order for the court.

Monday, July 23, 2007

Summary 2007 WY 113

Summary of Decision issued July 18, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Hauck v. State

Citation: 2007 WY 113

Docket Number: 06-216

Upon Petition for Writ of Review/Certiorari

Representing Appellant (Petitioner): Diane Lozano, State Public Defender; Tina N. Kerin, Post-Conviction Counsel, State Public Defender Program.

Representing Appellee (Respondent): Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; David L. Delicath, Senior Assistant Attorney General.

Date of Decision: July 18, 2007

Issues: Whether the district court erred in summarily dismissing Petitioner’s petition for post-conviction relief from a conviction for felony property destruction.

Holdings: The tenets of post-conviction relief are well established by Wyo. Stat. 7-14-101 through 7-14-108 (2005). Post-conviction relief is available in limited circumstances to redress constitutional errors occurring in the proceedings resulting in the defendant’s conviction. Accordingly, constitutional errors relating to the finding of guilt are open for consideration in a post-conviction relief action, whereas claims of error pertaining to sentencing are not.
One of the issues raised by Petitioner in his petition below was whether he had received appropriate credit on his sentence for time served. The district court dismissed this issue as being not cognizable in a post-conviction relief action. This determination by the district court is correct and that decision is affirmed.
However, Petitioner’s other claims do not fall outside the scope of § 7-14-101(b). Petitioner’s challenges to his competency, his Sixth Amendment right to counsel, the use of restraints at trial, and prosecutorial misconduct all implicate constitutional protections and relate to the finding of guilt. Therefore the district court’s determination on those challenges are reversed and the matter is remanded for further consideration.
The district court also ruled that Petitioner’s claims were barred from consideration in the post-conviction relief action because they could have been raised in a direct appeal from conviction. The district court’s ruling generally would be correct in light of Petitioner’s failure to timely appeal his conviction. In this case, however, we find that Petitioner was effectively denied his direct appeal. The right to appeal, if that right is granted by a state, as Wyoming has, is a due process right. Because of its constitutional magnitude, the right must be zealously protected. The record shows that the district court, after imposing sentence, abrogated its duty to protect this right by failing to advise Petitioner of his right to appeal his conviction as mandated by W.R.Cr.P. 32(c)(3). The record does not otherwise reflect that Petitioner knew of his right to appeal and the process involved to effectuate that right. Under these extenuating circumstances, where the district court undermined Petitioner’s ability to take a timely direct appeal, district court’s mistake cannot be allowed to prejudice the Petitioner. Given these specific facts, Petitioner’s failure to appeal cannot be relied upon as grounds for summarily dismissing his petition for post-conviction relief. The district court’s ruling that Petitioner’s claims were procedurally barred is hereby reversed.
Petitioner’s claim that he should have received credit on his sentence for time served is not cognizable in a post-conviction relief action and, consequently, the district court’s dismissal of this claim is affirmed. The district court improperly dismissed Petitioner’s other claims. Its rulings concerning those claims are reversed. This case is remanded to the district court for further proceedings.

J. Golden delivered the opinion for the court.

Link: http://tinyurl.com/2hbr4t .

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