*1
671
records,
by any
or
of
find federal authori
the usual methods for
nal case; felony sentencing in a a presence at CONCLUSION principle "per is se particular violation of that Abeyta failed to demonstrate has "presence of prejudicial" and absence prosecutorial misconduct. His conviction for judging not a factor in the viola prejudice is battery against a household member is af Torres-Palma, 290 tion." United States firmed, but we remand to the district court (10th Cir.2002). 1244,1248 F.3d re-sentencing Abeyta was not present sentencing hearing. at the CONVICTIONS PriO® [126] Abeyta argues that the State any proof that he had been provide
failed to battery against of a
previously convicted required by Wyo.
household member as Stat. 6-2-501(£)(i) §
Ann. enhance sentence disposition felony.
to a Given our of issue, waiver we need not reach the merits 2003WY137. that where this issue. we note BYRD, Appellant Ronald Howard alleged in to seek prior convictions are order (Defendant), sentence, questions a two enhancement of presented. first is generally fact are judgment pertinent prior whether a has been MAHAFFEY, Linda Lee Linda f/k/a rendered, and the second whether (Plaintiff). Byrd, Appellee Lee person prior judgment in the is the named No. 02-261. presently before the court. Chavez accused State, 1350 cert. Supreme Wyoming. Court of denied, 64 446 U.S. S.Ct. (1980). Singer v. L.Ed.2d 841 See also Unit Oct. States, (C.C.A.3), F. cert. ed
denied, 258 U.S. 66 L.Ed. S.Ct. (1922). Prior can
[T27] convictions documentary evidence through
established copies
such as the admission of authenticated records, prison admission of authenticated judgments
copies of of conviction and sen Wyoming courts
tence from courts or from states, by
in other the admission and use of records,
copies prison fingerprint of certified
byor a defendant's admission of such convie- Chavez, 1350; 604 P.2d at
tions. Waxler Wyo. identity
Evidence of can be the form of
admission or confession the defendant,
photographs, places, similar birth dates security
similar social numbers or other iden numbers, fingerprint
tification certified cards finger testified to
from arrests defendant, print classifier to be those
testimony prison to his official relative *2 HILL, C.J., GOLDEN,
Before LEHMAN, KITE, VOIGT, JJ. LEHMAN, Justice. Byrd appeals Ronald Howard allowing
district his counsel court's decision him representing of record to withdraw from to trial. also contests the district grant subsequent court's refusal him a review, Upon continuance of trial date. ' we affirm. ISSUES following forth iésues sets appeal: on I. Did the trial court commit reversible error when it allowed counsel (8) eight days to withdraw business before trial? appel-
II. Did the trial court's denial of lant's motion for continuance obtain new counsel after the court had allowed counsel shortly require to withdraw before trial reversal?
Appellee formerly Mahaffey, Linda Lee Byrd, phrases known as Linda Lee the issues as: Appellant
1. estopped Whether from raising appeal pre- issues on that were not by proper served in the district court ob- jection exeeption.
2. Whether the district court committed granting reversible error in the motion for Appellant's counsel to withdraw. the district court Whether committed in denying Appellant's reversible error mo- tion for a continuance. Appellee's
4. Whether substitute State- Evidence, adopted ment of the which was court, timely filed. FACTS1 Cornia, Representing Appellant: Mike Ev- anston, WY. Complaint A Divorce was filed
Representing Appellee:
Decker
Stan
Can-
2, 2001,
by Mahaffey
Beckwith, Lemich,
Greenhalgh,
answering
non of
complaint
Stith
June
Cannon, P.C.,
Springs,
&
Rock
On
district court
WY.
June
scheduled
fore,
transcript
any proceedings
1. No
was made of
the statement of facts herein is based on the
including
hearings.
the trial and motions
There-
court record.
cases,
In criminal
the withdrawal
2001. This date
of coun
trial for November
by order of the district
based
sel,
trial,
vacated
particularly
on the
eve of
joint
implicate due-process
motion filed
due
on a
considerations
January
father. On
the death
defendant's
to effective
assistance
Epperson
Wyo.,
the district court rescheduled the
counsel.
*3
16,
May
for
2002.
date
(1981);
Adger v.
Wyo.,
P.2d 671
584
(1978). However,
cases,
P.2d 1056
in civil
26, 2002,
counsel for
April
On
[¶4]
always pro
of counsel
withdrawal
does
hearing
A
on
filed a motion to withdraw.
grounds
granting
vide
for the
of a continu
3,May
for
2002.
this motion was scheduled
Annot.,
1155,
ance.
48 A.L.R.2d
however,
Ultimately,
Byrd,
appear.
did not
"
withdrawal,
trial,
on
'The
the eve of
granted
court
the motion with
attorney
for
an
one
14, 2002, Byrd
a motion
May
filed
draw. On
action,
leaving
party unprepared
such
denied,
to continue trial. The motion was
trial,
ipso
ground
is not
facto a
culmi
and trial commenced
"
Benson,
continuance.
. . .' Benson v.
66
granting
nating with the district
(1949).
94,
816,
Nev.
204 P.2d
subject
dividing the
marital
divorce and
Particularly relevant to the matters with
appeal
This
followed.
property.
appeal
which we are concerned in this
holding
this court's
STANDARDOF REVIEW
may deny
"...
the trial court
a
Honan,
v.
809 P.2d
Honan
[¶5]
gives
problem
continuance if the
which
recognized:
786-87
request
rise to the
for a continuance is
authority to
The district court has the
party moving
the fault of the
for the
litigation. That
control
the course of a
Craver, supra,
continuance." Craver v.
grant
power includes the discretion to
con-
601P.2d at 1000.
tinuances,
upon
either
its own motion or
Bacon,
court filed with the clerk. Such consent may upon be conditioned substitution of (c) permitted Counsel will not be to with- other counsel." Uniform District except upon draw from a case court order. require Court Rules do not that substi- Except extraordinary in the case of cir- tute counsel be obtained before the court cumstances, the court shall condition attorney. allows withdrawal of an How- upon withdrawal of counsel the substitu- ever, practice, a better and one that will appear- tion of other counsel written presented, avoid the difficulties here alternative, ance. the court shall would be to condition withdrawal allow withdrawal a statement submit- prac- substitution of new counsel. This acknowledging ted the client the with- tice would avoid the waste time and client, stating drawal of counsel for the resources that occur in a case such proceed pro attorney se. An desire Nevertheless, permit- as this. the order appearance who has entered a limited shall ting withdrawal be deemed to have withdrawn when permissible under the rules for dis- attorney has fulfilled the lim- duties of the *5 trict courts. entry appearance. ited added.) (Emphasis added.) Carlson, 802, (Emphasis In at this Carlson, Upon [¶14] our review of we court stated: acknowledge recognition our of "a better review the record to determine We practice" support and continue to prof the whether the district court abused its dis- suggestion fered noted therein. refusing cretion to set aside the default recognize suggestion we further such is not judgment against appellant. entered On mandatory, particularly when it is noted that 31, 1991, January grant- the district court 1) opinion published our Carlson was ed Mrs. Carlson's motion for a trial new to pertinent the 19983enactment of the modi phase litigation the first between 2) provisions 102(c), fied of U.R.D.C. parties. setting these The notice of for the acknowledges applicability the clear of that 183, new trial was filed on March 1991. specific language rule and the utilized within thereafter, 25, Very shortly on March provided by rule. the As the modified rule 1991, a to consent withdrawal of counsel Carlson, and our statements the district signed which Carl had was filed with the merely court had to condition withdrawal of judge district court. The district sent Carl counsel the of other substitution coun 1991, a letter on March which informed appearance sel written extraordi unless him that he should seek new "as counsel nary circumstances existed. we possible" soon as has "[this case must review this action to if determine "ex lingering been in court since and I traordinary whereby cireumstances" existed 14, 1991, keep May intend to as the trial the district court could allow the withdrawal date." of counsel without the condition aof written permitting The order Carl's counsel to substitution of other counsel. April just withdraw was filed on little a month over before the scheduled Byrd Counsel for [¶15] conditioned his specific for withdrawal on facts. trial. The district court entered its order replacement Byrd's before counsel had keep entered an These facts included refusal to appearance practice. which is not a appointments telephone messages favored and return 102(c) Rule of the Uniform Rules for the after had authorized his counsel to addition, Wyoming District Courts of the agreement. State enter into an In provides permitted through will not be to "[clounsel declined to execute his counsel the except upon subject withdraw from a case court agree deed that was to the earlier contrast, ment, order." only eventually Rule 19.02 of the and such deed was Wyoming of Appellate by Byrd through Rules Procedure executed the efforts of Ma- such, recognizing See with counsel Rule of Professional Conduct haffey. As Wyoming May 1.16, for in the matter trial was set emt. 8. that, given 2002, counsel concluded matter was initi Additionally, this him and to communicate unwillingness May 2001. On June ated on Mahaffey,counsel dealings with Byrd's direct for November initially scheduled prepare for trial and appropriately could by order This date was then vacated Byrd's interests. protect the joint motion filed on a based Byrd's father. On Janu the death of Further, transcripts due to although no the case, court rescheduled ary the district in this proceedings made of the were Hence, this Byrd failed to trial date does reflect the record year in for over one had the or matter been and obstructed reasonably cooperate case, placed of this at time that trial was derly progression the district actually held. In very position. in a difficult his counsel deed, court entered although the district facts, cannot con these Under support, spousal temporary order constitute situation did not clude that Mahaffey as payments to make refused required "extraordinary circumstances" Byrd did not that order. required under 102(c). Accordingly, we hold under U.R.D.C. discovery requests, requiring cooperate with dis court did not abuse its by Mahaffey filed compel to be a motion allowing Byrd's counsel to with cretion Mahaffey attempt obtain forcing above, jurisdictions many As noted draw. requested documentation some the actions of including Wyoming consider party. After the district through a third contrib whether these actions appellant, to execute a stipulated order court entered hand, weigh uted to the situation mari concerning primary quitclaim deed against to counsel resolving tempo property tal real estate justice. It is also prompt administration *6 issues, Byrd delayed support rary spousal trial court is better able recognized that the Therefore, it becomes of the deed. execution matter, judge the is more conversant to actions, con Byrd, by his own apparent that docket, conditions, and the status of local counsel's to withdraw. to his tributed counsel, disposition of and is capacity and been points pressing of Professional Conduct actual somewhat restrained reasons for counsel's out that counsel [117] to the district court Mahaffey 1.16 from by Wyoming Rule also Byrd may with requested each of the accurately fully ex have fore, more familiar with the presumptions eral quently not embalmed Cates setting Eddy, grant in this case. the district situation, background and in the formal record. at 915-16. There court these same which is fre gen Additionally, Byrd complains that rule, an that while drawal. Under allowing his counsel court order allowing order withdraw the district must obtain a court by solely expressions support to withdraw is based appearing in an action and al after basis, "good existed court that cause" adequate counsel request with an such order, is different than entry of the keep confidential must also be careful "extraordinary finding of cir might requisite facts and not disclose facts certain 102(c). by called for U.R.D.C. against his client. cumstances" prejudice the court the district court for confidentiality Byrd and also criticizes between an artful balance findings of fact identifying its particularly for withdrawal providing adequate basis ruling allowing reasoning supporting its by requesting to and obtained counsel must be Byrd's counsel.2 Never the withdrawal lawyer's general statements A withdraw. record, theless, upon review of the require ter we find considerations professional reasonably court could ordinarily that the district have representation mination of extraordinary cireuamstances by concluded accepted the court as sufficient. should be sometimes even critical in Certainly, specific most welcome and of the find- the enumeration fact, reasoning, ings appellate of law and conclusions review. this court's ruling by support of its is a district court in made by requested may appear through to allow the withdrawal and existed defend his attor- ney pro se. counsel. Honan, at T87. Byrd also infers that based [¥21] interpretation opinion of our in upon his JAG in cireumstances this case are Servs., 2002 WY much different than those that existed in Family Dep't ¶ ¶ it Honan; we, therefore, do not find the hold ing Here, upon in that case to incumbent the district court to ensure dispositive. hearing that the on the motion to withdraw Byrd present represent was his own inter reported. as counsel was while a ests at trial and made a motion for continu transcript proceedings may have Byrd ance before the district court. proved helpful making to this court its concerning extended notice his counsel's mo review, placed such a burden should not be tion to withdraw. hearing The withdrawal Certainly, given the district court. days date, was held before the actual trial Byrd prejudiced by fact that believed he was provided notice of the withdraw, ruling allowing his counsel to many Further, trial date months advance. arranged bring he could have such issues although the record before this court is limit again before the district court for review ed, it does indicate that knew of his Yet, having proceedings such recorded. counsel's withdrawal to the trial date Byrd failed to take such actions. because he filed a motion for a continuance appeared at trial with his file that he had Finally, Byrd argues the rea obtained from his withdrawn counsel. Honan, soning utilized this court was also allowed to participate in the trial applied P.2d at must be this case. In representing his own interests after the dis Honan, a requested wife filed for divorceeand trict court denied his motion for continuance. hearing temporary support determine alimony. appear The husband failed to Denial of Continuance hearing at the and later failed to abide court's rulings made at the hearing. At a [124] his final issue appeal, contempt proceeding, later the husband's Byrd contends that the district court abused present, again counsel was but the husband grant its discretion when it refused to personally appear, leading failed to to the Again, motion for continuance. we do not issuance of a bench warrant. The husband agree. Byrd pro filed his se motion for *7 appear also did not at the time of the sched ap continuance on or about and, requested uled trial when his counsel to proximately days prior two to the scheduled withdraw, granted request. the court trial date. That motion stated that it was proceeded The court then with trial in the "based on the reason that the defendant has absence of the husband. This court reversed Greenwood, an appointment with Elizabeth judgment stating: the resultant legal According Byrd's new council to [sic]." case, In this the husband suffered own statement of the evidence filed with the injustice court, court, Byrd hearing when the district district the clarified at absence, attorney husband's allowed the to the reason for the continuance was not present withdraw because no one was to meeting conflict the with Ms. Greenwood Rather, represent the husband's interests. Those and the trial. the continuance was opportunity requested interests included an to chal- pursue wished to lenge contempt the possibility hiring represent order and to make a of her to him Therefore, appears formal for a continuance. in the it matter. Byrd misrepresented we hold that the district court abused its his motion that Ms. permitted discretion it when the husband's Greenwood had already been retained. In addition, Byrd to withdraw and then immediate- that his motion was indicated ly proceeded with the trial in the absence jointly by filed when this was both Also, previously, of the husband. The husband to is entitled not the case. as indicated this matter had been for over one being given have a trial new after reason- setting year able notice of the trial so that he the district court at the time that 678 al- Byrd had been according to the actually held. is considered court and
trial
unique to the case. Shanor
prior notice of
cireumstances
five months
at least
lowed
Wyo.,
Wyoming,
actually
Engineering,
commenced
Inc.
it
v.
date of
before
granted a continuance
Smith,
(1985);
Wyo.,
previously
and was
v.
P.2d
Smith
1-9-102,
(1985).
§
Under
ther did not Mahaffey file a motion to quests requiring set forth those reasons [¶27] Given meth employ other alternative compel and above, the district court are the actions of requested docu some of ods to obtain affirmed. mentation. by Byrd in his own As admitted GOLDEN, J., concurring. specially traditionally
brief, not favored this court has summarily I would affirm. delay have contributed those who indicate of this case do not circumstances own for continuance their caused the need rights were ever Byrd's process due Inskeep, 752 P.2d Inskeep v. actions. See point requiring this threatened to the Fox, P.2d (Wyo.1988); Urich herein raised Court to consider issues Sharp Sharp, 671 objected proce to the Byrd when he never Eddy, 669 (Wyo.1983); Cates v. P.2d "play the attempt dure below. Teton, 916; Teton v. failed, system" should not and this Court (footnote (Wyo.1997). Sharp, at 319 he objections to cireumstances entertain his omitted), stated: created. only upon granted will A. continuance deny a continu- good and a court will cause Further, I no reason for this see *8 problem gives which rise to ance where the advisory engage opinion in an re Court fault of the movant. We request is the 102(c). majority garding U.R.D.C. Since Craver, [601 in said as much Craver so, however, I am com opinion has done (Wyo.1979)] at where it was uncooperative An client pelled to comment. held: attorney's grounds support an create may deny a "... the trial withdrawing representation of that client. his gives problem if continuance But, itself, uncoop the fact that a client is a is to the for continuance rise enough an "ex erative is not to constitute moving for the party the fault traordinary required cireumstance" continuance." "extraordinary circum rule. Without Likewise, Inskeep, at we declared: stance," discretion the trial court is without of an accept the withdrawal consistently held that have We being in substitute counsel is record without granting denying of a continuance discretion of the acknowledgement within the sound from the place, or at least 102(c) language client. The of U.R.D.C. mandatory regard.
clearly in this majority opinion empha As the
sizes, quite this case had been time. The had at least four
some
months notice of the final trial date. The uncooperative point
client became at some
early in proceedings (appellee's sug brief
gests uncooperative attor his
ney beginning). Byrd's from the attor
ney plenty had of time to determine whether represent
or not he wanted to continue under circumstances. While
uncooperativeness may justified have coun withdrawal, nothing justi
sel's the record
fies counsel's withdrawal within two weeks of providing protection
trial without some (ex)elient. 102(c) I would hold that U.R.D.C.
was violated this case. I would particular
still affirm. Under circum case, Byrd prove
stances this cannot that a violated,
substantial and thus the violating
error the rule was harmless. 9.04.
W.R.A.P.
DOUBLE EAGLE PETROLEUM MIN & CORPORATION, Wyoming a
ING cor poration; Resources, River Wind Representing Appellant: Inc., Mark W. Gifford Wyoming Corporation, Appel a Newman, Craig, Casper, WY. (Plaintiffs), lants Representing Appeliee: Mr. Thomas Brown, LLP, Massey, Reese Drew & Cas- QUESTAR EXPLORATION & PRODUC Questar per, Exploration WY for & Produc- COMPANY, corporation; TION a Texas Co.; Wexpro tion Co. & Mr. R. Michael Wexpro Company, corporation; a Utah Mullikin, Swift, Mullikin of Larson & Jack- Company, Inc., Lance Oil & Gas Dela son, McGloin, Gary Davenport andWY C. corporation; Resources, ware and Ultra Snow, Denver, Davenport, & Severson CO Inc., Wyoming corporation, Appellees Co.; for Lance &Oil Gas and Mr. Gerald (Defendants). *9 Mason, P.C., Pinedale, Mason of Mason & No. 02-265. Burns, Wall, George WY and W. Mueller of Mueller, P.C., Denver, Supreme Wyoming. Smith Court & CO for Ultra Resources. Oct. HILL, C.J., GOLDEN,
Before LEHMAN, VOIGT, JJ., BROOKS, D.J.