*1 Schütz, not Hesse, co-employee responsible remand the is for the main- Overy and working of the condition that trial. tenance against appellees those for a case unreasonably dangerous he because part, part in in Affirmed reversed condition, authority to then correct the remanded. anything simply intend cannot because he day of the is aware condition. On in THOMAS, Justice, concurring and question, Overy did not direct Case’s activi- dissenting. judgment as to summary ties. him should be affirmed. appli- perceive appropriate I Because of our case rules to this situation cation inappro- I add that it seems would differently majority upon somewhat than priate rely vulgar language, court, respects equipment I dissent and tearing up reports, in some the refus- complaints, post-injury in I that the entertain concur others. am satisfied al to because, view, in my none of summary in conduct those affirming court is correct relationship could have causal McCaskill, events Downing, judgment in favor of injury. to Case’s Seaman, agree Griggs, I also Mann. respect majority disposition with Hesse, However, Largent, and Schütz. agree posture as to Goss
I cannot with its Overy. Supervisor Field Maintenance
Differing I re- majority, from the would Goss, summary judgment
verse the as to summary judgment I affirm
and would Overy. favor KALLAS, Appellant Dennis Succinctly, that a co-em- understand (Defendant), negli- ployee culpable can become liable gence injury in connection an to an co-employee employee ways. Wyoming, Appellee three The STATE (Plaintiff) (Two Cases). engage activity that is can affirmative unreasonably dangerous. perceive IAs 87-241, Nos. 87-242. alleged in liability, is not that basis it respon- co-employee A can be Supreme Wyoming. this case. Court working for the of a sible maintenance June dangerous. unreasonably condition that is reverse That is the basis agree as to
as to Goss and to reverse
Largent. In the of each of these instance
co-employees, the does structure Thirdly,
genuine issues material fact. supervisor, as a can affirma-
co-employee,
tively employee an to encounter an direct agree
unreasonably dangerous condition. genuine of material there exist issues respect to Schütz
fact with whether
Hesse, supervising ac- specifically Case's day injury, directed on the of his
tivities danger- unreasonably
him to encounter Overy, as I understand
ous condition.
record, responsibility for the dan- had no
gerous the sense condition boom authority If he had to correct it.
1985). adequate The facts of the case are opinion. ly set out that appeal, In this Kallas asserts two First, petition he claims that issues. post-conviction first re under review is his Wyoming Statute 7-14-103 petition. lief not raised in an provides any that claim petition is original or an amended waived. filing prior to the This issue arises because post-conviction for relief petitions of the here, Kallas filed an are under review that untitled, he pro se document “pursuant to Title 28 moved the court post-convic seq. et to issue a U.S.C. 2254 * * *.” As is on the lesser sentence tion documents, pro se it is often the case with to ascertain the exact nature difficult filing. uncertainty, Because we dispose of the case on the will not based might arisen from the waiver which have application of 7-14-103 to the facts W.S. this case. issue, Kallas asserts
As a second dismissing court erred in that the district evidentiary hearing. petition without an necessary hearing because He claims that, “guaranteed” him his trial counsel pled guilty, he receive a three-to- he Counsel, Public Naylor, Appellate Julie and further that trial year five sentence Program, appellant. for Defender object to various violations counsel failed Gen., Atty. John W. Joseph Meyer, B. rights. The State re constitutional of his Gen., Renneisen, Deputy Atty. and Gerald argument contending these sponds to this Gen., appel- for Luckhaupt, Atty. Asst. P. issues, appeal, having raised on not been lee. long-standing rule of It is a were waived. have raised that issues that could been law CARDINE, C.J., and Before challenge by a open not appeal are MACY, JJ., THOMAS, URBIGKIT relief post-conviction because petition BROWN, J. Ret.* res by the doctrine of they are foreclosed State, Cutbirth judicata. CARDINE, Justice. Chief argu responds by (Wyo.1988). Kallas dismissing order appeal is from an This 1.04, that, with Rule accordance petitions post- Kallas’ appellant Dennis W.R.A.P., “appearing on the only matters relief. conviction appeal; an subject record” affirm. We not in the record because this issue is him not to ask counsel told guilty, judgment his trial pled Kallas to answer questions the crimes of pleas, on his entered any particular promised taking not been had degree sexual assault second issue, appear not sentence; and that this ap minor. Kallas with a indecent liberties record, have could not been convictions, ing in the affirmed and we pealed those Therefore, appeal. State, original in his (Wyo. raised P.2d 693 in Kallas v. June *Retired concludes, exhaustively pursued he should entitled to sen this court is
Kallas
evidentiary hearing
to create a
dissent Amin v.
In
the
Kallas’
dis-
first conviction since his factual efforts to
trict court found that all claims were
support
position
they
not raised in
would not have
barred because
were
been
original
petition
developments
Factual
pro se
which we decline to
available.
for
identify
post-conviction
petition.
required.
as a
relief
events outside of the record were
process
development
district court also found that all claims That
in
factual
petition
jurisdictions
raised
under review here
is
corpus
post-
most
habeas
they
were barred because
could have
Additionally,
been
conviction relief.
as in this
addition,
appeal.
In
case,
raised Kallas’
the first consideration of the direct
specifically
district court dealt
with each of
complaint
is
ineffectiveness
better ad-
Kallas' claims on its merits.
affirm
We
dressed to the attention of the initial trial
district court’s order because all matters
original
where the
trial counsel can
by
support
raised
Kallas in
of the claim of
provided
opportunity
explain
what
of trial
ineffective assistance
counsel could occurred if
doubt
created.
are, hence,
appeal
raised on
have been
disagreement
In direct
with the conclu-
by
judicata.
barred
the doctrine
res
majority,
apparent
sion of the
it is
that the
Cutbirth,
reason,
there can be no error in the district court’s complete addressing was as occurred what evidentiary hearing. refusal to conduct an not, however, during trial. It did address Affirmed. other factual arise in the contentions which question collateral ineffectiveness URBIGKIT, Justice, specially Again, juxtaposi- counsel. what we see in concurring dissenting in the result and language sug- tion taken and used is the opinion. in the gestion by majority appellate coun- In failing this second ineffectiveness of counsel sel was ineffective to deter forfei- rights case, my constitutional forfeiture ture or to avoid waiver for Kallas complete disapproval pathway pursued cho- appeal. conduct his initial given proceeding in trial court contrary cases was
My conviction is to approach the same petition will be followed present this case address will here. review nei substantively that in detail to establish nor counsel ineffective ther was petition, response to the the inevitable extremely careful anything court but by motion to dismiss was filed the State guilty proceedings to receive prior petition with a basis of and conse- of forfeiture is plea. All talk about waiver quent public waiver. The office of the proceeding initial ill-presented since the appointed represent defender was Kallas constitutionally proper and val legally legal provide and to resulted services which id; disposi My conception proper about including request petition, in an amended say just that and not tion of this case is to hearing. motion evidentiary Another wring ogres of forfeiture or infuse out again to dismiss was filed the State waiv now, definition did not constitute reciting by prior petition waiver Amin, (Urbig P.2d at 599 n. 2 substantively, er. that “an examination of the See kit, J., dissenting). file the claims cannot shows *4 provide Wyoming’s post-con- relief under 27, 1986, January filed a Mo- On Kallas petition and that the should viction statutes Application for Post-conviction on tion for denied.” Addressed in the discussion citing 28 2254 the Lesser Sentence U.S.C. § presented in were those substantive issues 6-l-101(c), prayer a for the and W.S. petition. amended pro this se and counseled grant petitioner the Post- trial court “to Following non-evidentiary hearing, the a 1 In on a Lesser SENTENCE.” Conviction findings trial court entered a decision with dismiss the response, the State moved “to of fact and conclusions of law from which petition.” Reasons post-conviction relief appeal arises. by given judicata preclusion res or were by The inordinate effort the State found insufficiency the prior appeal the and in this record to avoid substantive decision filed to constitute a form of the document simplicity questions the belies the An proper post-conviction-relief petition. (1) trial court presented: discretion the denying application order the was entered hearing post- deny evidentiary on decided without a definition of issues (2) petition; and ineffec- conviction-relief attorney being and without an Kallas by of counsel in consideration tiveness provided. January requested either or On Kallas.2 Since the constituent of discretion 28, 1987, filing in form as a sufficient new thoughtful analysis informed deci- is and properly presented, a Petition for and sion, looking analyze by at the case separately Relief was filed Post-Conviction and then determine substantive issue case, stating fifteen claims for re- in each presented in of discretion is whether abuse proceed pauper- lief. A motion to forma evidentiary hearing. denial of the also appointment is of counsel was and provided: appropriate statute made. Combined consideration both 6-l-101(c), 6-l-101(c) petition, citing provides: presented. W.S. provision W.S. 1. The post-conviction, W.S. 7- was not addressed to pending or the effective In a case after 7-14-108, act, statutorily involving insuffi a crime committed 14-101 to and was date of this prior date, State, penalty to the effective under cient in form. See also v. 755 Sanchez — U.S.-, is different this act for the crime penalty from (Wyo.), P.2d cert. denied 109 245 law, prior shall under the the court J., (1988) (Urbigkit, 102 L.Ed.2d S.Ct. 131 impose lesser sentence. dissenting), majority determined that where the presented by challenges to sentences cannot be disposing of the first I have no trouble in post-conviction-relief petitions Whitney and v. improper of the State that this was an recitation State, (Wyo.1987). P.2d 745 902 petition. the first document second Whatever been, by challenged may as first the State have My speaks second con- dissent in Amin to the peti post-conviction-relief as a as insufficient tention of from non-inclusion waiver/forfeiture tion, fact insufficient under the statute. it was in majority appeal. Unquestionably, first proce to dismiss from the The sustained motion intrinsic determined to write out of waiver its pro filing se did not dural attack on the first meaning: component principal informed judicata validly prepared res when a constitute actual decision of the individual. subsequently properly petition refined 202 may proof
The court by receive profound affida- ai*e values green behind the vits, deposition, testimony oral door. other petitioner evidence and order the I would add that it should forgotten not be
brought
hearing.
before the court for the
that this desired fairness in
pro-
criminal
ceedings has a double dimension. In
7-14-106(a).3
addi-
W.S.
judicial
where
Okla.
hind the Green
of the more
There a Limit to Judicial
er there was an
sequently,
P.2d 635
this statute.
105 S.Ct.
lief
ly determined that the nature of the hear
principle: fairness.
through
These are balanced and harmonized
fundamental
equality,
mentally quintessential. There are four
This court has
to be
The essence of
alternative
petition
purview
[*]
(Wyo.1985);
the author
City
discretion is found in
(Wyo.),
provided
a
[*]
is matter of discretion
liberty,
U.L.Rev.
of the
challenging
subjectively
Bibbins
question
objective
We[d]n[e]sday to pros[e]cut[o]r years. time for the the maximum would be 20 When it was give point to his who was 0’[C]on[n]ell THE DEFENDANT: Yes. view, Judge give he asked if the THE COURT: Understood? I years. what see is me 17 to So THE DEFENDANT: Uh-huh. nothing lies from Weerts and but signed change plea by A Kallas stat- happened was So what 0’[C]on[n]ell. ed: given the Max on both sentences. was COMES NOW the defendant herein and I never I never been grant- moves the Court for Order was, plea a deal not know- [k]new change plea guilty, to of not leave time ing it was to state the within originally May entered 1984 and si[gn]ing. All I plea barga[i]n I did was 17, 1984, to a July guilty in ac- si[gn] things promis[]ed to was that was cording plea agreement. ato byme At sentence Weerts. plea agreement provided: further The Judge any point tell me at how didn[’]t * * * the defendant COMESNOW carried, leaving much time the crime plea negotiations informs Court bel[i]evQingit carried Five to Twen- [m]e entered into this matter and have been ty years. Even evaluation negotiations pursuant par- to those Eva[n]ston, the Doctor stat- was done following agree- charge ties have reached the ed that I on a was bel[ie]ved twenty. you see ment: five to So can some[]one, had me who was Weerts originally The defendant get
bel[ie]ving years five Intrusion, charged Inflicting Sexual not TEN to TWENTY. namely, anal intercourse in violation of 6-2-303(a)(v). agreed has State Re-reading presents compel- § a charge Taking reduce the Indecent ling rejection of Kallas’ conten- basis Liberties With Child violation agree- tions since this was a written agreed 14-3-105. defendant ment case. § charge plead guilty to the reduced arraignment, In initial the trial court Taking Indecent Liberties With Child to Kallas: stated *6 of 14-3-105. violation § understand, Okay. THE You COURT: charged also 2. The defendant was then, penalty that —Mr. Kallas —that the Taking a. Indecent Liberties with with assault, degree for second sexual if of 14-3-105. The in violation Child § you’re one, imprisonment convicted of agreed charge. to dismiss this State you’re years. for not more than 20 If 3. The defendant has also been both, you then convicted Intrusion, Inflicting charged with Sexual provi- subject penalty to the enhanced namely, fellatio violation statute, and, for the second sions of the 6-2-303(a)(v) agreed he has to to which conviction, to not you could be sentenced § plead guilty. penitentiary in the years less than five up to life. agreement 4. This contains the entire understanding parties. that? you Do understand Yes, I THE DEFENDANT: do. agreement, to the the second Pursuant inquiry: charge And in further reduced to indecent liberties charge During a third was dismissed. And, Okay. if convict- THE COURT: appearance the trial court Kallas’ before ed, happen you what could [in the] inquired: entry plea, the trial worst case? counsel], And, convicted, Mr. Weerts THE DEFENDANT: If [defense the situation here? see get what is possibly could five—no less than five agree- plea denoted life. files an instrument years a max —and it, sir? you ment. tell me about Could Okay. you’re THE That’s COURT: Yes, Honor. and this MR. Your convicted of the other offense WEERTS: charged Mr. Kallas THE with two DEFENDANT: Minimum five degree assault, counts 2nd sexual one years, twenty years. maximum count of indecent liberties. you THE COURT: Do understand'that agreement Through plea state a fine can be assessed in these matters in would dismiss the count of indecent one addition to the penitentiary sentence? minor, they liberties with would reduce Yes, THE Up DEFENDANT: sir. degree the one count of 2nd sexual as- $10,000. sault to a count of indecent liberties with Now, Kallas, THE COURT: Mr. plead a minor. The defendant would agreement, plea agreement there’s an guilty charge having to the reduced signed by you, your lawyer, the file plead indecent liberties minor and with a O’Connell, Mr. county attorney, rep- guilty degree to the one count of 2nd resenting the Wyoming. State of sexual assault. you you’re want to advise THE you, COURT: Thank counsel. only person agree that can to enter a And, O’Connell, Mr. position is that the guilty. Mr. Weerts can’t do that of the state? you; that; the court can’t do Yes, MR. O’CONNELL: Your Honor. county attorney can’t do that. You’re degree The count of 2nd sexual assault got one. It’s your free which the plead guilty defendant will action, and voluntary knowing your is in case number # and he would rights law, under the because in order to plead guilty charge to the amended enter guilty you’re going a valid # indecent liberties with a minor. rights, you to have to all those waive Kallas, THE COURT: Mr. is that the anything you can’t waive unless know you situation as understand it? you’re relinquishing, you what are Yes, THE DEFENDANT: sir. releasing in rights. the matter of THE Any questions COURT: at all your agreement? Is this plea agreement you’ve about Yes, THE DEFENDANT: sir. entered into Wyoming? with State of Now, THE COURT: has Mr. Weerts No, THE DEFENDANT: sir. represented you through[ou]t all these Kallas, THE you COURT: Mr. do feel proceedings? you you’re charged know what Yes, THE DEFENDANT: he has. at this time? THE you COURT: Are satisfied with Yes, THE DEFENDANT: sir. your lawyer? his services as THE you COURT: And would tell the Yes, THE DEFENDANT: sir. you’re with, then, charged court what your opinion? Following exchange, the trial court pursued an extensive course of charged
THE I'm advice DEFENDANT: degree willing- examination with Kallas 2nd sexual assault and as to his indecent *7 plead ness knowledge liberties with a minor. of the charges, as by plea well as results or you THE Do COURT: know what the conviction, specifically: penalties charges? are for those youDo penalty taking know what the is for inde- THE anyone you COURT: Has told cent liberties with a minor child? what the sentence of the court will or Yes,
THE do, DEFENDANT: sir. a deal has been made you’ll probation and that receive or some THE your COURT: What is under- other lenient standing? treatment? No,
THE THE DEFENDANT: Minimum DEFENDANT: sir. five years, years. maximum ten short, Kallas, THE COURT: In Mr. THE COURT: And how about 2nd de- plea agreements, other than the have gree sexual assault? imposed upon conditions you by been Yes,
THE anybody get you plead guilty? DEFENDANT: sir. THE COURT: What’s penalty? No, THE DEFENDANT: sir.
205
Now, sir,
acquittal
improved
after trial or
can
sentence if
THE COURT:
before
pleas
guilty
only
these
of
the court
convicted were minimal and
accept
realistic
inculpatory
that there are factual
terms
confession
must be satisfied
state-
charges.
suppressed.
each of these
ments could have
bases for
been
case,
presented
on the events
of two small
statement,
specific
the trial court then
In a
events,
multiple
children and
consecutive
determined:
possibility
sentences
of
a result
The court finds
THE COURT:
approaching
imprisonment
life
were not un-
competent to withdraw
Dennis Kallas is
following any
realistic alternatives
adverse
pleas in this mat-
previously entered
his
recognize
This is noted
verdict.
guilty to these
pleas
and to enter
ter
particularly
that the
decision was not
knowingly,
so
charges, that he has done
degree
guilt
irrational since a
was admit-
the nature
he understands
ted.
the direct conse-
charges, he understands
quences,
penalties provided
law.
petitioner
The convicted
needs an affida
Further,
original
attorney
or other
finds that Mr. Kal- vit from
the court
guilty
realistically believable corroboration of
pleas
entered his
volun-
las has
he contends was different from what
tarily,
any improper inducement what
without
justify
the court record to
has not
coerced is established
or conditions. He
been
action,
evidentiary
of counsel
taking
an ineffectiveness
into
heavy
understanding
hearing. That
burden faced Kallas
general
of the indirect
requirement
to create a factual con
consequences
pleas
guilty.
attempt
flict sufficient to even
to contra
Further,
the court finds that the
dict the official trial record of what
agreement
entered into and the
has been
responded.
and how he
trial court said
guilty given
consultation
pleas of
after
Bibbins,
Kallas knew what post-conviction-re- presented attorney plicit contention now made factual basis for petition provides lief no wrong as to guessing defendant require an exercised discretion to evidentia- might hypothetical. do is at best judge hearing supporting no record is improved ry final and that The chances of an result presented guilty pleas by to invalidate the
any claim of undemonstrated ineffective-
ness of counsel. Both the trial guilty plea proceed-
the defense counsel in properly required did what was them Wyoming justice delivery sys-
within
tem, exercising proper judgment pro-
viding adequate assistance of counsel. offer, review, based on a substantive presented by
that no basis for reversal is appeal. MURRAY,
Peter Kole (Petitioner),
Appellant Wyoming, Appellee
The STATE of
(Respondent).
No. 87-177.
Supreme Wyoming. Court of
June