Long v. State

misjudgment respect correct its jurisdiction, its and the scope mat- to do that obligated court is when its attention.

ter is called to

I would reverse. Munker, D.

Leonard State Public Defend- er, Serelson, A. Appellate and Carol Coun- LONG, Royal Russell sel, appellant. (Petitioner), Gen., Joseph Meyer, B. Atty. John W. Renneisen, Gen., Deputy Atty. Sylvia Wyoming, Appellee Hackl, Gen., Atty. appel- The STATE Lee Sr. Asst. (Respondent). lee. No. 86-304. BROWN, C.J., THOMAS, Before Wyoming. Court of CARDINE, MACY, URBIGKIT and JJ.

Nov. URBIGKIT, Justice. again requires our considera- indigent’s right

tion of an to counsel in a post-conviction-relief proceeding. We re- verse remand.

Considering unlikely this to be the appear appeal, last this case on time will brief of facts suffice. statement Royal Long, presents Appellant, Russell post-conviction-relief petition seq., W.S.1977,following et charges guilty plea kidnapping of a 1984 apparent homicide of Baldea- Sharon gle, age body never whose found, well as on another sexual assault filed, girl, age felony charges 15. Six plea negotiation guilty plea and after kidnapping entered to two counts of assault, aggravated with two life one of and a concurrent sentence of six sentences eight aggravated then years assault given. sentencing, Long months

About 20 after post-conviction-relief filed chal- lenging validity plea, effective- ness of and numerous correlative well-publicized matters involved pro-se peti- conjunction event. tion, Long filed a affidavit to motion and a motion proceed pauperis, in forma disqualification peremptory presid- of the 1. “Did the District Court err in dis- sentencing, missing judge Appellant’s a motion for petition post-con- pointment viction relief?” of counsel on the basis of indi- gency, supported by the affidavit to 2. “Was process denied due pauperis, ceed in forma and a motion for by the failure of the District Court to protective involving appoint order transfer represent him in Penitentiary during the the State relief?” pendency proceeding. We will address the second by issue remand of the case for the post-convic- Procedurally, petition the appellant’s representation flawlessly typed pages, tion in in the district court. Matured considera- 15, 1986, filed by October was reinforced in that tribunal should afford a more sup- attachments from the record and 32 defined basis for determination as to porting Responsively, affidavits. on Octo- hearing whether a or 28, 1986, held Attorney ber the office of the constitutional-right ruling is appropriate dismiss, General mailed a motion to with a post-conviction-relief under the process di- copy Long, supplemented by a letter to by rected to be addressed: judge, copy of which was not sent to Long, stating: “Any person imprisoned peniten- tiary who asserts that in the proceedings please copy “Enclosed find a which resulted in his conviction there Dismiss, State’s Motion to which has was a rights substantial denial of his sending filed with the clerk. I am under the constitution of the United you copy your convenience. States or of the Wyoming, state of upon Based a conversation I had with both, may proceedings institute under Evans, Mr. J. Scott I have also drafted this act 7-14-101 to [§§ 7-14-108]. and enclosed an order. * * * ” 7-14-101, Section W.S.1977. “If I may provide you with additional petition “The identify proceed- shall information, or if the order needs to be ing in convicted, which the reworded, please do not hesitate to con- give the date of the rendition of the final me.” tact judgment of, complained and shall clear- receipt by judge On date of of October ly respects set forth the peti- which 29,1986, obviously any opportu- before rights tioner’s constitutional were violat- nity response by Long, by execution of petition ed. The shall have attached the furnished order the trial court denied affidavits, records, thereto or other evi- relief: supporting allegations dence or shall “This having matter come before the why the same are not attached. upon Petitioner’s Petition for Post- petition identify any previous shall Relief; Conviction having State proceedings petitioner may have Petition, moved to dismiss the and to taken to secure relief from his conviction. deny all motions concurrently filed there- Argument, citations, and discussion of with; having reviewed the authorities shall pe- be omitted from the herein, record and the matters filed tition.” Section W.S.1977. having concluded that no basis Both statutes then effective are still sim- presented upon which re- ilarly procedure stated the new criminal granted; lief can be May code effective 1987: “IT IS HEREBY ORDERED that “Any person serving felony sentence in Petition for Post-Conviction Relief be penal a state institution asserts who dismissed, and that all motions filed con- proceedings which resulted currently therewith Petitioner be and conviction there was a substantial denial are denied.” of his under the constitution of the appeal, authored appoint- Wyo- United States or of the state of court, both, ed ming, recites two issues: proceedings institute ” requested petition, “If Section 7-14- this act. subject to the

101(b), W.S.1977, Replacement. provisions of W.S. 7-6-101 through 7-6-114, appoint shall “(a) state: defender to iswho “(i) peti- in which the needy person determined to de- convicted; tioner was 8-7-102(a)(iv).” fined W.S. “(ii) rendition of the The date of the 7-14-104, W.S.1977, Replacement. judgment; final per- The of a “needy definition “(in) peti- show the The facts which son” is: rights were tioner’s constitutional vio- “As act: used lated; and “(iv) proceedings Any previous petitioner which the been involved “(iv) ‘Needy person’ means a his to secure relief from conviction. who at the his need is time determined “(b) accompanied petition provide pay- is unable to for the full affidavits, sup- evidence records or other ment of an and all nec- other allegations or shall porting why essary representation;” of expenses same are not attached. 7-6-102, W.S.1977, Section Re- 1987 “(c) argument, may contain placement, of citations and discussion authorities.” W.S.1977, 7-14-102, 1987 Re- Section “(c) needy person A who is entitled to be placement. represented by an under subsec- appeals This case is one four now of (a) of this is entitled: section

present recently this court considered denied counsel in where court had summary petition.1 disposition of “(iii) represented To be then in

post-conviction-relief statute effect appeal proceeding there- provided: through from under 7-14-101 7- W.S. petition alleges petitioner “If the 14-108 the court in unless which pay proceed- unable to is costs proceeding brought is determines that effect, ing, and makes affidavit to that proceeding it is not a that a reasonable order that the means would permitted proceed poor person. as a bring expense.” at his own

If is without 6—104(c)(iii),W.S.1977, 1987 Section 7— alleges means to he is without Replacement. counsel, state whether or cure he shall State’s motion dis Since neither the he wishes to be of miss nor the order the district court him. If of coun- subject substantially addressed of deni requested, sel is so the court shall request al of for the of peti- point counsel if satisfied that counsel, disregard any basis procure tioner has no means to 7-14-104, cannot W.S.1977 be discerned § counsel shall receive fee uni record. This court has in an fixed therefor amount as used word “shall” formly said that the fee out of the state paid which shall be legislation mandatory, and the rule treasury on of the state au- the warrant constant, applied to courts if not also to be made for such appropriations ditor invoking dis demonstrably the exercise of purpose.” W.S.1977. State, v. Mayland 568 P.2d cretion. Gas York North Central statute, code, in the 1987 897

That amended Co., Mau P.2d 845 Wyo. 69 237 states: - — State, 1987); State, Wyo., 741 115 Whitney Bibbins v. P.2d P.2d No. 86-266 18, 1987); State, (decided November Alberts v. — (decided November P.2d - No. 86-221 Stoner, Wyo. deprived 83 P. 218 herein him of to a fair Nelson, Wyo. Territory Wyoming v. trial and warrant a judg- vacation of the ment. “(c). Require the State to answer appellee’s ad- In the brief we are now Petitioner, portions and to forth vised, all has been the case a number of the record of this case and appeals, imperative the current transcribe proceedings all requirement previous- 7-14-104 was amended which have not § 7-l-110(c)(iii), ly by implication by W.S. been transcribed. phraseology of has the same which “(d). (60)days Allow sixty Petitioner be- needy person as now the definition evidentiary hearing fore held in applied identically in permit the compilation order counsel-appointment statutes: necessary documentation and the notifi- “ * * * the court in which the [U]nless witnesses, necessary cation of the brought proceeding is determines that it thirty (30) days allow Petitioner after the that a reasonable State’s after evidentiary answer and adequate person with means would be hearing in legal which to brief the issues expense.” to at his own by raised this Petitioner. added.) (Emphasis 7-6- “(e). promptly To determine the accom- 104(c)(iii),W.S.1977, Replacement. panying being priority giv- Motions with Appellant noted on page the cover of the Appoint- en to ‘Motion Petitioner’s “Wah- relief: of ment Counsel’. Feind,”2 und gegen rheit Freund and “(f). imprisonment Declare Petitioner’s presented captioned arguments: as constitutionally to be violation of his knowingly did “Petitioner not and volun- summarily to secured and order right waive to tarily by jury: his a trial judgment to vacated and all he fact was coerced and/or intimidat- findings of fact and law to be void and waiving right,” involuntarily ed into permitted plead that Petitioner be to de supporting argument

and this affi- with 32 novo. davits; “(g). plea To process declare the in this peti- “The to Court’s failure advise the case and in all similar cases to be consti- finality of plea tioner such a and tutionally impermissible and to condemn agree- the State’s willful violation of the and thereafter the State fur- bar plea any bargain;” ment has voided participation ther and all so-called deprived right “The Petitioner was of his arguments.” negotiated plea counsel;” to effective assistance foregoing Recitation contentions and imply not factual does authentication

“Remaining exist, violations intrinsic to this ac- and justification since by tion preservation and Petitioner’s as- obviously more serious review evalua- until sertion such time communication analysis tion in counseled consid- established;” necessary to eration determine whether purview the constitutional-issue prayer for relief: conviction-relief statute ad- “WHEREFORE, the Petitioner asks equately presented. Court to: “(a). Appoint him. remaining For the few cases where “(b). prior applies, law court determines hearing evidentiary Conduct an at right post-conviction- proof may concerning that the which offered granted allegations proceedings statutorily factual of this Petition and at repealed by implication which the Petitioner enactment shall be afforded opportunity proof petitions of the Public Act for meet burden of Defender regard 1987, 22, May replacing with to whether the issues raised filed before against enemy. 2. Truth friend and 689, a court-as- reh. denied 324 U.S. counsel with Alabama, Avery “reasonable 89 L.Ed. 1435

sessed again follow Johnson means” test. We 84 L.Ed. 377 Inc., Stores, Wyo., 568 P.2d 908 Safeway Remington, Changing principle that (1977) and the established Role Judge the Trial in Criminal Cases strongly disfavored repeal by implication is —Ensuring that the Sixth Amendment incompati- applied if clear and will Right to Assistance Counsel is Effec- purpose. See bility language or exists tive, (1987).3 20 U.C. Davis L.Rev. 339 County also Board Commissioners of approach of either the new or the old County Youth Ser- County Teton v. Teton justification statute fails for counsel denial vices, Inc., Wyo., 652 P.2d in the record afforded to us in this case. Wyoming Constitu- Article 26 of the § presented This court takes the record as provides: attempt and will not to notice facts that amended, or or “No law shall be revised appear. have been but that do not here provisions thereof extended refer- Nicholls, Wyo., Nicholls v. 721 P.2d 1103 much only, ence to its title but so thereof Steger, Wyo., 713 P.2d Fiedler v. revised, amended, extended, as is length.” published be reenacted W.S.1977, entitled See also § conclude, It would also be reasonable of laws amended or re- “Identification although necessary disposition for the amending repealing acts.”

pealed made, here that a constitutional test Art. 10 of the addition to subject to two life-time confine- individual Constitution, 6, W.R.Cr.P., Rule realistically ments would not exclude the explicit statutory provision in and the person adequate “reasonable with means” of further au consideration indigency counsel-appoint- criterium for controlling, not thorities is instructive but years provided ment within the five upon appli predicated since this decision is 7-14-101(c). statute. Section law, cation of state and other case law or pro effort to structure a rational Judicial analysis is informative but authoritative applying statutory language in cess for Kamisar, precedential. Betts v. See 1—110(c)(iii), what was W.S.1977 and § 7— Right to Brady Twenty Years Later: The W.S.1977, 6—104(c)(iii), what now § 7— Values, 61 Counsel and Due Process Replacement, respect to a deter 1987 with (1962). Douglas 219 Mich.L.Rev. See also proceeding that a mination “that it is not a 353, 814, People, 9 v. 372 U.S. 83 S.Ct. adequate means reasonable with 905, 811, L.Ed.2d 373 U.S. 83 reh. denied to at his own ex would be 1288, (1963); S.Ct. 10 L.Ed.2d 200 Chan pense,” futility. is doomed to This statute 1, 3, Fretag, 348 75 S.Ct. 99 dler v. U.S. court affords discretion with (1954); Olson, 4 L.Ed. Hawk v. 326 U.S. counsel. respect 271, 116, (1945); 66 S.Ct. 90 L.Ed. 61 White is in by Discretion exercised trial courts 760, 978, 89 Ragen, 324 U.S. 65 S.Ct. Dieringer, formed discretion. State v. 1348, 807, 66 L.Ed. reh. denied 326 U.S. (1985); Highway 1 Wyo., 708 P.2d State 133, 90 L.Ed. 492 House v. S.Ct. v. Brasel Construc Mayo, 324 U.S. 65 89 L.Ed. Commission & Sims S.Ct. criteria, — U.S. -, knowledged primacy of state Pennsylvania Finley, Blackmun, concurrence, case, (1987), Justice in a rational 95 L.Ed.2d a recent make, representation way contrary issue of here reflected that the no to the decision we by order to avoid re be resolved under state law. since counsel was afforded in that case confusion, however, "plain supreme we here restate the quirement court under of the state law, Michigan Long, resulting subsequent appeal statement” test of state and the 3474-78, 1032, 1037-1044, derived from the United States (1983), authenticating that this accepting L.Ed.2d 1201 certiorari from an intermediate fide, sepa long rests on a bona disserta decision on review rate, state court decision. Without a ground independent, adequate absurdity position portrayed tion of the of the rendered, Wyoming and statu on the Constitution suffices to note that based tory provisions the decision relating to counsel. Rehnquist majority opinion ac Chief Justice Inc., Wyo., BROWN, C.J., Company, 688 P.2d 871 dissenting filed a State, Wyo., 664 Hopkinson v. P.2d opinion. 908, 104 U.S. cert. denied 464 S.Ct. CARDINE, J., dissenting filed a State, 78 L.Ed.2d 246 Williams v. opinion. (1982). Wyo., Cf. Ray 655 P.2d 273 J. Co., Hudson, Wyo., McDermott Inc. v. & BROWN, Justice, Chief dissenting. perceive We do not P.2d 364 a way judge that a can introspectively trial I am not greatly disturbed the result objectively develop adequate but informa of this but rather its ramifications. tion about what “a reasonable folk, whose return address is Box willing” means would to do in 400, Rawlins, playing are any given Consequently, instance. games justice system, criminal standard entirely for the determination is and this court is their cheerleader. The subjective. premised upon Discretion game starts the criminal defendant en- upon standard is unbridled. Reliance tering plea into a bargain. favorable subjective standard structures a situation Usually plea agreement some of the in which applicabil no one can establish the multiple charges are dismissed and/or the standard, ity of nor refute the failure prosecution agrees urge pen- a stiff it, to invoke nor can alty.1 judge. review of the trial decision See Stafford, Williams v. 589 P.2d 322 phase game, the next the con- victed lays criminal low for a season. He

The statutory indigence test of objec- enjoys hospitality penitentiary for a easy and relatively apply. tive Further- few years, depending months or on the more, easy recognize it is mistake with During circumstances. this hiatus witness- respect application. its This court is against die, es felon convicted leave the persuaded should settle state or their memories become dim. Dur- indigence permit for the test of period hibernation, same pursue potential all avenues of relief for tidings felon receives to the effect that his indigent. convicted The effort to limit seriously pled violated when he process by invoking subjective stan- guilty. dard is ultimately inefficient and more ex- sedulously court now enters the pensive providing while less appropri- than game and determines that the convicted protection rights ate of the convicted lawyer, is entitled to a at taxpayer’s person. vague Such a standard cannot be course, expense of everything to check out sustained under the require- constitutional possibly and see if he or she can find error. equal ments of protection process, and due The game outcome of the is uncertain. It if only upon the case rested that statu- may go on forever. Some criminal cases tory phrase, required this court would be principals. outlive most of the strike language that as unconstitutional. Alabama, 45, Powell v. State 287 U.S. error, In its search for the majority of 55, (1932); 53 S.Ct. 158 Adger 77 L.Ed. v. ignored some principles basic that we have State, Wyo., (1978); 584 P.2d 1056 State v. set out in post-convic- earlier cases. The Gallegos, Wyo., P.2d Day 384 967 provide statutes relief depri- when (1961). v. Armstrong, Wyo., 362 P.2d 137 vations of constitutional have oc- Maschner, curred. Wyo., Munoz v. Reversed 590 and remanded for (1979). P.2d 1354 In public reviewing the office of the defender for representation post-conviction relief, thereafter, proceedings the in- in quiry spirit accord with the text and is limited to a determination of post-conviction-relief statutes. whether or not the defendant was denied exchange plea guilty, 1. In for a the state lant. charges against appel- dismissed three criminal tentiary. The defender need represented by will to be opportu enlarged staff to search for errors. a fair and to have

have witnesses defense. present a nity prepare The court should resist the temptation to State, P.2d Morgan v. Wyo., 708 ways search for to reverse criminal convic- granted Relief can be 1244-1245 tions. *“ * * extraordinary only in circumstanc I affirm. that without there is a likelihood es where have been found it the defendant would not CARDINE, Justice, dissenting, with miscar probability of the guilty and the BROWN, Justice, whom Chief joins. * * * ” Johnson riage justice strong. I dissent. State, Wyo., 592 P.2d 285, 286, cert. v. undisputed The facts this case are that denied 61 L.Ed. appellant girls, seized two little twelve and 2d 300 years age. raped fifteen He the fifteen A is not a sub- post-conviction year escaped. Appellant old. She then * “ * remedy appeal. for an stitute crime, immediately left the area of his tak- permit does not review of error which could ing twelve-year-old girl with him. She brought by ap- direct or should have been Speculation found. has never been State, Hoggatt peal. [Citation.]” plea she was murdered. made a also, State ex 606 P.2d see bargain which he obtained a life sen- Court, Teton Hopkinson rel. v. District tence, avoiding thus the risk of a trial and County, Wyo., P.2d majority penalty. says death Maschner, Munoz supra, at 1354. has no the trial court discretion appellant a direct this case did take attorney to refuse of an but Court, Wyoming Supreme appoint public expense must proper which was the forum for considera- “thoughtful provide appel- review” of allegations. The district court tion of his bargain. disagree. plea Appoint- lant’s dismissing petition, acted mandatory in ment of an appellant’s since all of claims could or proceedings. leg- relief appeal. should have raised on direct unambig- islature has said so clear and legislation. uous The United States Su- enacted the When preme has held there is no federal statute, I am certain it did requirement that counsel be intend that the statute be a substitute relief. appeal, appeal, a substitute for an a second — for a motion for a new trial or to correct an Pennsylvania Finley, U.S. illegal sentence. (1987), -, 95 L.Ed.2d 539 the United States Court stated: authority Under the of this prisoners never held that have “We have provid- pears that there is no limitation on right counsel a constitutional to when seeking attorney an for a mounting collateral attacks to their con- alleg- post-conviction relief. If a Avery, victions, Johnson see 393 U.S. being joint and es that he is tired of 483, 488, 21 L.Ed.2d 89 S.Ct. out, way lawyer help wants a to him find a (1969), and we decline to so hold authority under this case he is enti- the right today. Our cases establish that the attorney attorney. This must tled to an appointed counsel extends to the first to irregularities. then search for and find right, and no further. appeal legislature intended that Surely, the never an incarcerated convict frivolous circumstance and could assert automatically any # # ^{[*] [*]} >)< attorney. relief is even further re- trigger of an “Postconviction than is is that from the criminal trial One of the ramifications of this case moved discretionary direct review. It up set a public defender will have to itself, proceeding and part of criminal peni- branch office within the walls is in to civil for attorney guilty plea (c) fact considered be hearing; an Noia, attorney for Fay jury nature. See trial in district 423-424, (d) an attorney appeal L.Ed.2d 837 for the Wyoming Supreme attorney It is collateral attack that nor- Court. The provided appeal mally occurs after the defendant Su- preme through Court is to search failed secure relief the record has to direct trial for constitutional error and er- review of his conviction. States have no other ror of law. obligation provide this to avenue re- lief, MacCollom, cf. United States Now this court holds that the State must 2086, 2090-2091, U.S. case, always, every provide attorney (1976) (plurality opinion), 48 L.Ed.2d 666 post-conviction for a relief proceeding, as in do, they and when the fundamental fair- this so again that the can ness mandated the Due Process search same record of the trial require Clause does not that the State constitutional error. It suggested is even lawyer supply a as well. that more than post-conviction one relief Sfc * Sfc ^[*] cessive post-conviction available, relief and that for suc- proceedings, contrary, “On this area States again provided counsel must public at develop expense have substantial discretion present to to additional claims implement programs prisoners to aid as ineffective assistant of counsel. To seeking postconviction to persons secure review.” most reasonable seem exhaustive, like an comprehensive, effec- Although majority sug- of this court tive, procedure detailed that would assure gests that post-convic- denial counsel for that there had been a fair and impartial pose relief may equal protection trial, appeal thoughtful review process problems, due constitutional I do guaranteeing rights. all constitutional But perceive to appli- that be correct. All it does not end here. The federal court appeal cants who their second before system is still thought- available for more post-conviction the court under relief are ful review of the trial record and search treated same under the same statute. error. They right have an absolute to an at expense for delay their trial The cost and built into the appeal their first to Wyoming Supreme justice system apparent. At a time when right Court. The to counsel for their sec- is struggling to balance its bud- post-conviction ond get, relief large de- decision will add sums pends upon government. determination the trial cost of If the benefits of court that a reasonable in their post-conviction real, cir- relief cumstance employ at differently; just his would feel but it anoth- expense pursue own post-conviction re- er of taxpayer money. ought waste It hardly process a denial of due eminently apparent entirely it is lief— equal protection, especially and this is true appropriate legislature make some provision when refusing United States has of coun- said there is no post-conviction coun- sel in relief cases are sel proceedings. The without at present merit all and that hope must least possi- even faint or a success have some bility deprivation semblance of merit and other- aof of a constitutional satisfy right. wise court before an attor- attempted do ney appointed. this, should be exactly but this court has a mind set against recognizing any legislation real- as Wyoming, The in existing State of the adopted istic and sensible as that the scheme, public pro- defender legislature. public expense vides at aas matter of needy (a) persons legislative The intent that the trial court court; preliminary hearing county (b) in determine in the first instance whether appoint- or not was termine whether counsel should should be be counsel existing represent petitioner post-con- ed to clear under statutes relief, commenced. At that proceeding viction intent was made even time in this Long’s petition more clear the revision the time and reenactment govern- legislature statutes of the state 7-14-104 as § attorneys post-con- in ing appointment of follows: proceedings provided as fol-

viction relief requested petition, court, “If lows: provisions subject to the of W.S. 7-6-101 7-14-104, W.S.1977, perti- in a. Section 7-6-114, through appoint part: nent defender to who is request- of counsel is so “If needy person determined to be a as de- ed, appoint the court shall counsel if sat- 7-6-102(a)(iv).” (Emphasis fined W.S. needy person] isfied that added.) [a * * procure has no means to 6—104(c)(iii) provides then that a 7— 7-1-110, W.S.1977, b. Section enacted needy person represented is entitled to be 7-14-104, subsequent supra, pro- to § unless the court which the proceeding pertinent part: vides in it is not a brought determines that ** needy person A “(a) is entitled: ceeding person that a reasonable with

adequate bring means would be expense. at his own represented To be “(c)(iii) any other suggests court that * * * unless post proceeding 6—104(c)(iii), recognized by will not be § 7— * * * the court determines that it is the court a determination of who is because per- not a a reasonable that a reasonable for whom counsel adequate son with means would be will- appointed by should be the district court is expense.” (Em- at his own basis, futility.” “doomed to for that added.) phasis statement, according to the is that opinion court its holds that perceive way do not that a trial “[w]e supra, modify does § judge introspectively objectively can but 7-14-104, that 7-1-110 is ineffective to § § develop adequate information about what govern that 'a reasonable means ” simply ignored, 7-1-110 will and that § willing’ any given to do in in- would be always appointed. counsel must That is Consequently, stance. the “standard for patently is no absurd result. There entirely subjective” the determination is legal reasoning precedent sound nor that disagree. says strongly the court. supports the result of this case. We must impose upon statute does not pari consider 7-14-104 and 7-1-110 §§ anything that is more difficult than the Kinne, materia, Kuntz v. 395 P.2d myriad rulings and decisions ad- of other being cognizant And court’s discretion. Sim- dressed to a trial fact that 7-1-110 was enacted subse- § stated, determining plistically whether controls, quent 7-14-104 and that appointed, the court counsel should be Stores, Inc., Wyo., 568 Safeway Johnson v. length appli- should consider the (1977), plain meaning P.2d 908 and that its served, sentence, already the time cant’s clear, appellant I would conclude confinement, situation of his i.e. wheth- court-appointed entitled to otherwise, left to be er trustee or the time (1) indigent, conviction relief if: he is served, early release or probability (2) person having if a reasonable application probation, the merits of the money money pur- own use I do not see relief. expense sue relief at his own as the statute very subjective. these considerations provides. the court must Upon objective these facts whether coun- anyone If make a determination as to doubted that the intent of the is much the appointed. It was that the district court de- sel should courts, who bone require pursuant same as a medical doctor finds a I would effect, to the objective facts such obser- statutes in fracture as consider the showing person claiming made x-ray indi- vation and and then must determine gency and to ascertain in the exercise of its whether fracture should be treated discretion under all the facts and circum- open splinted. or closed reduction or cast or stances of the case and the petition for made, judgment These are some calls to be relief, post-conviction requested whether judge. post- as district court appointed. counsel should be relief, applicant requests if duty it is his case I would reverse and remand furnish to the court information affidavit to develop district court facts and form sufficient for the court to ascertain evidence sufficient to determine whether appointed whether of counsel in his counsel should be in this proceeding. conviction relief ceeding appropriate necessary the statute.

Giving legislative effect enact-

ment, by permitting the court to determine

when appointment of counsel post-conviction

made in proceedings, state,

will benefit the citizens ac- give

knowledge and force and to all effect relief, governing statutes DIEFENDERFER, Daniel W. saving judi- and result considerable (Defendant), cial expense resources and to the citizens of Wyoming. the state trial Wyoming, STATE identify will be able meritless claims (Plaintiff). Appellee post-conviction proceedings for which pointment of No. 87-151. public expense an justified. Wyoming. Court of The reasonable identified in Nov. 7-1-110, supra, is a in the same or appellant similar circumstances

sufficient funds of his own with which to Thus,

employ attorney. an if example, $5,000, an cost of $5,000

appellant had he could use for enjoyment, pleasure,

his own and necessi-

ties, he, in would a case without merit success, expend

chance of it for attor-

ney’s just fee? He probably

give away egg nothing. his nest prison

would assume that even there are

some to having money. benefits A reason- person in

able same similar circum- might

stances conclude that he had deprived of a

could be considered in re-

lief, merit, that his claim was without expend employ

would not funds own attorney. trial court could

refuse appellant

this situation.

Case Details

Case Name: Long v. State

Court Name: Wyoming Supreme Court

Date Published: Nov 18, 1987

Citation: 745 P.2d 547

Docket Number: 86-304

Court Abbreviation: Wyo.