Stogner v. State

Amin, 695 P.2d at 1024-25. right sеarches. the case. the to conduct reasonable light fa- Viewing 672 P.2d at 1260 n. 4. We the evidence most Velasquez, prevailing party, to the v. adopt this view. vorable Wilde (Wyo.1985), we The Utah Court has also struck ruling Pena uphold the trial court’s that propriate competing balance between August 5th search of his consented to the parolee of the state and the vis-a- interests house. reasonable searches. The Utah Court vis require does not that a search warrant Finally, Pena seeks a reversal of his con- probable be- upon based cause be obtained upon viction based cumulative error. Oth- does, parolee may be searched. It fore testimony cowboy Pena’s er than the about however, “(1) require that hаrmless, evidence: boots, er- which was we find no suspicion parole officer a reasonable Justice, 775 P.2d at 1010-11. [had] ror. See parole parolee has committed a conviction affirmed. Pena’s crime, (2) that the search violation or parole reasonably related to the offi-

[was] Johnson, 748 P.2d duty.”

cer’s (Utah 1987) (citing Velasquez, 1260.). People P.2d at also See

Anderson, P.2d 189 Colo. (which suspicion is a Reasonable stringent probable than

less standard cause) parole officer “be requires Petitioner, STOGNER, III, Ralph R. point specific and articulable able that, in- together with rational facts taken Wyoming, Respondent. STATE of facts, reasonably ferences from those war- * * * pa- rant a that a condition of belief No. 89-185. being violated.” rolе has been or is John- Supreme Wyoming. Court son, 748 P.2d at 1072. provide flexibility approach This will May sys- operate parole its the state needs provide against tem. It will also a cheek upon parol-

possible state encroachment right fourth amendment to be free

ee’s

from unreasonable searches.12 parole

Whether officers’ need not be

search of Pena was reasonable statement,

resolved, given that we find his in,” his

“Okay. Come on evinced Sure. of his house. Amin

consent to search 1024-25

1985). to a war- An individual consent thereby

rantless search and waive requirement. warrant

fourth amendment

Stamper v. consent to a search was Whether deter

voluntary question is a of fact ‍‌‌‌​‌​​​‌​​‌​​‌‌​‌‌‌​‌​​‌‌​‌​‌‌​‌​‌​‌​‌​‌‌‌​‌‌​​‍to be circumstances of light

mined in of all the short, interpret- individual and the state have in a ruling both the our should not be denigration importance system operate parole that can to fulfill its ed as a against protection un- objectives. Fourth Amendment’s seizures, but an ac- searches and reasonable Velasquez, 672 P.2d at 1263. to the interests commodation of that adequately represent him

failed to on peal. following

Petitioner raises the issues: petitioner’s appellate I. coun- Whether adequately represent to on sel failed him appeal.

The Standard appellate A. pe- Whether counsel for ineffective because he titioner was bring to failed issue ineffectiveness of trial counsel.

The Standard Upon 1. The Facts Particular Inadequate Represen- Which Claim of By Appellate tation Counsel Rests. (a) Whether Counsel was ineffective at the trial level.

(1) Timely File Failure (2) Diligence Lack of Due (3) Essential Failure Call Witness- es

(b) Whether ineffective- Counsel’s prejudiced peti- ness at the trial level tioner’s defense. transgressed. The rule of law upon a

3. Adverse effect substan- right. tial petitioner Stogner B. Whether level prejudiced appellate due bring appellate counsel’s failure issue. supreme failed to

II. Whether the court prоperly on review Munker, D. Defend- Leonard State Public contentions, Bachlet, opposition to these Jacalyn and L. Asst. Public er (State), pro- Wyoming Defender, appellee, State petitioner. Cheyenne, for this statement of issues: vides Gen., Joseph Meyer, Atty. B. John W. Respondent objects phras- to Petitioner’s Gen., Renneisen, A. Deputy Atty. Karen expansion beyond issues and Gen., Kaylin D. Atty. Byrne, Asst. Sr. Wyo- in the specifically those delineated Gen., Cheyenne, Kluge, Atty. Asst. Au- Supreme Court’s Order dated ming spondent. gust granting peti- Petitioner’s THOMAS, CARDINE, C.J., The issues tion for writ certiorari. Before GOLDEN, Supreme Court has URBIGKIT, which the MACY and JJ. are: proceeding confined this GOLDEN, Justice. petitioner’s appellate 1. Whether represent adequately failed (Stogner), III filed counsel Ralph Stogner, R. appeal in issues of presenting him August on for Writ Certiorari Petition are 25, 1989, counsel which ineffectiveness trial August 1989. On (1) timely failure to jurisdic- to include: noting probable intended an order entered present of vic- file motion evidence petition to review granting tion [to (2) conduct]; lack prior appellate tim’s sexual Stogner’s claim that his counsel court to writs of certiorari was estab- diligence inquiring into victim’s due [in conduct]; (3) failure to lished.3 sexual call essential witnesses could have [who ad- We certiorari in this case to testimony one corroborated the wit- petitioner’s claim that he was a vic- dress testify to to vic- ness who was available assistance of counsel on tim of ineffective conduct], tim’s sexual which errors which has been appeal. This is an issue petitioner post-convic- now contends in in recent repeatedly raised this court prejudiced his trial tion relief to have great years and resolution of the issue is of petition for defense from which denial Moreover, public importance.4 it is an is- appeal relief is taken post-conviction this A magnitude. sue of constitutional district by Petition for Writ ‍‌‌‌​‌​​​‌​​‌​​‌‌​‌‌‌​‌​​‌‌​‌​‌‌​‌​‌​‌​‌​‌‌‌​‌‌​​‍of Certiorari? ruling on the admission of evidence court’s Supreme Wyoming 2. Whether suscep- discretionary is not is and issue properly to review on Court failed appeal. Finally, we tible of full review on peal.1 adopted a rule which treats the issue have of effective assistance of trial counsel a new Stogner contends he has a appeal, on and waived unless raised direct conviction; how- trial or a reversal of his judicata purposes of its the issue is res for ever, deny we will relief. upon petition post-convic- for consideration THE State, WRIT OF CERTIORARI tion relief.5 Kallas v. 776 P.2d 198 (Wyo.1989); Amin v. reasoning clarify To the court’s for (Wyo.1989); Campbell v. certiorari, per- granting this writ of is reasons, (Wyo.1989). For these haps appropriate the historical to consider peti- give substantive consideration to shall Wyo.Const, development of the writ.2 See tioner’s issues. 5, Wyoming cele- art. 3. The State of § year year, statehood this brates its 100th FACTS it, Constitution, in our and 1890, Stogner’s authority of this This court reviewed conviction adopted in that the juncture Paragraphs and 2 the state's statement of 5.It should be noted аt this 1. governs which claims that are barred in quote the this court identified statute the issues issues petitions post-conviction granting petition. for relief matters was in the order Wyo.Sess.Laws amended in 1988. 1988 ch. 1; see, Wyo.Sess.Laws ch. 1. § § development appended is for 2. The historical following provision It includes the which now analysis easy include a reference. This does not Stogner’s origi- effective June became 1988. W.S. consideration of writs under 5-2- post-conviction petition was filed nal for relief (Cum.Supp.1989) and W.R.A.P. 13. pro The se on December 1987. district court represent Stog- appointed public defender to Wyoming’s provided: laws 3. 1886 session 22, 1988, petition April ner on and an amended reverse, vacate Writs of error and certiorari post-conviction filed December for relief was on modify judgments orders in civil or or final 19, 1988, ineffective which raised the issue of abolished; but courts shall have the cases are appeal. on The district assistance of counsel compel transcripts pro- power same court denied relief on this issue and dismissed containing judgment ceedings, and final entirety petition in its on March reversed, sought order to be to be furnished Stogner’s petition writ of certiorari was filed for they perfected as heretofore had under writ August in this court and certiorari. of error per- (Cum.Supp.1989), 7-14-103 states in XII, Wyo.Sess.Laws exact § ch. 801. The part: tinent understood, clearly limits of statute are not this (b) (a)(i) Notwithstanding paragraph very apparently was little call for the but there bars claims which could have section [which Supreme interpret Wyoming the stat- Court to appeal], may been raised on direct a court ute, adop- even after the remained extant petition hear a if: Constitution. tion of A A A A A A Annotation, only Adequa- (ii) finding peti- review the 4. One need The court makes Representation constitutionally cy Counsel’s Crimi- effective tioner was denied of Defense Regarding Appellate and Postconvic- counsel on his direct nal Client assistance of Remedies, (1982), get supreme finding A.L.R.4th 582 This be reviewed tion together cases further action of the the enormous number of some flavor of petition. generated. district court taken on the has this issue original appeal; incompetence at trial first-degree in 1984. sеxual assault6 are that: an Briefly, facts raised as issue. 8, 1982, [Stogner] confronted June

[o]n DISCUSSION gun store in Rock victim with Springs working she was where opinion definitive on the is- This court’s accompany her him a trailer forced appellate sue of ineffective assistance gagged he her house where bound counsel Cutbirth multiple sexual assaults and committed There, we held that ineffec- for trial on on her. case set is not appeal tive assistance of counsel on 23, 1983, March March 1983. On [the a an issue which can be foreclosed as mat- prevent in limine filed a motion to State] ter of waiver or default because it not an prior sex- introduction of evidence of in the issue that could have been raised On March ual conduct of the victim. resolving appeal. at 1263. In initial Id. [Stogner] hearing for filed a motion issue, adopted “effective assist- pertain- admissibility on the of evidence of test from Strickland v. ance counsel” of the prior to the sexual conduct Washington, 466 U.S. 104 S.Ct. victim, inforr contending that he received reh’g 80 L.Ed.2d denied 467 U.S. 24,1983, that the victim mation March (1984).8 See, 3562, 82 104 S.Ct. L.Ed.2d prostitution in in the engaged acts of e.g., Frias neces- past and such evidence was support defense to the sexual sary to his a more In Cutbirth this established i.e., charge, that the sexual acts assault clearly defined so as to avoid ad standard voluntarily in the vic- engaged necessity proceed hoc decisions and them. anticipation payment for tim contrary to our waiver rule future cases: Stogner v. issue We conclude that the of whether facts of conse- Additional performance was constitution- counsel’s presented include quence to the issues * ** analyzed in ally deficient should be Stogner filed a motion continu- these: has way the same that this court much trial, contending the day ance the before concept plain analyzed the error. attorney interfered with a ma- prosecuting represen- submitting a claim of deficient who would have testified terial witness counsel, petitioner by appellate tation activities and that prostitution the victim’s proceeding must post-conviction in the he more time rehabilitate needed court, by ref- demonstrate the district develop testimony witness, as well as original trial the recоrd of the erence to theory to bolster his from other witnesses equivo- speculation resort to without heavily on the trial defense. He relies inference, the trial. occurred at cal what motion. The denial court’s denial of the particular upon facts claim based, part, upon defense counsel’s appellate representation by inadequate present timely file a motion to failure to presented. The rests must be counsel prior con- victim’s sexual evidence identify a clear and petitioner then must duct,7 Stogner’s well as the fact as those facts unequivocal rule of law which diligence in due did not exercise counsel a transgressed in clear demonstrate was alleged obtaining the victim’s evidenсe of obvious, way. merely arguable prostitute. Stogner, past activities Furthermore, petitioner must show The same counsel de- 1301. upon effect substantial him in the adverse represented at trial fending Stogner 6-4-302(a)(i) that counsel charged so serious were made that were Stogner under W.S. (June (now 6-2-302(a)(i) (Cum.Supp.1978) functioning W.S. accordance with was not furthermore, Repl.)). guarantee, constitutional performance prejudiced the the deficient (now (Cum.Supp.1978) W.S. 6-4-312 7. See pellant. (June Repl.)). 6-2-312 Cutbirth, P.2d at 1263-64. repre- demonstrated that counsel’s It must be showing errors sentation was deficient right perform- in order to claim that the FAILURE TIMELY FILE TO MOTION appellate ance of counsel was constitu- Wyoming, along most other tionally deficient because of a failure to jurisdictions, “rape-shield” enacted a stat raise the issue on The adverse bring long-standing ute to under control a upon effect a substantial in the rape tradition that victims could be discred appel- context of ineffective assistance of ited as witnesses based on sexual by demonstrating late counsel is shown (Cum.Supp.1978). conduct. W.S. 6-4-312 “ * * * faulty This tradition was that, based on the no probability reasonable but engaged tion that women who in nonmari- errors, unprofessional for counsel’s likely tal intercourse were immoral and result proceeding of the would have been engage any given in such conduct on occa different. A probability reasonable is a sion, prejudicial and was deemed and hu probability sufficient to undermine confi- Annоtation, miliating to the victim. Con dence in regard the outcome.” In this stitutionality “Rape Shield” Statute the test does address the fairness and Restricting Use Evidence Victim’s integrity judicial proceedings. Experiences, 1 Sexual A.L.R.4& probability The reasonable must be one (1980). have, These statutes almost with that demonstrates a more favorable exception, proper out be been found to appellant sult to the if the omitted issue constitutional, facially applied. both and as pursued. had been Id. at 287. (citations omitted). Id. at 1266-67 See also applied rape-shield This court the statute State, 206, Murray 776 P.2d State, 411, in Velos v. 752 P.2d 414-15 1988), holding prior that the victim’s following The matters are raised as the sexual behavior was irrelevant to the de- Stogner’s identity. basis for assеrtion of ineffective fendant’s defense of mistaken We held such evidence not be used to assistance of counsel: credibility. attack a victim’s See also timely 1. Defense counsel failed to file 608(b). W.R.E. a motion to admit evidence of the vic- State, 641, In Heinrich v. 638 P.2d -prior tim’s sexual conduct. W.S. 6-4- (Wyo.1981), rape-shield this court held the 312. protected statute the victim from embar- long Defense counsel had a time to rassment and abuse at trial and also en- defense, prepare Stogner’s tardy but couraged reporting the of sexual assaults discovering in evidence of the victim’s emphasized to the authorities. We the evi- past reputation. sexual conduct and likely dence at issue in that case would not defense, Stogner had claimed аs his since event, suggest- have been in admissible arrest, day the of his that the victim was clearly rather law Also, prostitute. since he had no other generally is that such evidence not ad- himself, evidence with which to defend Id., Annotation, citing missible. Modern against that was his word of the victim’s Admissibility, Rape Status in Forcible Stogner suggests at trial. that since Prosecution, Complainant’s Prior Sex- town, Springs compe- Rock is a small Acts, ual 94 A.L.R.3d See investigator tent should have been able Annotation, also Modern Status Admis- to uncover this evidence. Prosecution, sibility, Rape in Forcible Complainant’s Reputation General 3. Defense counsel failed to call essen- (1979) (the Unchastity, 95 A.L.R.3d 1181 witnesses, Singleton tial such Karen as virtually reader will note that all cases House, intimated the Wendell as vic- August cited in the 1989 Latest Case Ser- (pimp?). Singleton’s tim’s “man” testi- proposition vice stand for that such mony prior about the victim’s sexual con- inadmissible). generally evidence is duct was excluded because the motion to untimely Heinrich, use it was and because the con- the court held that the dis- time) failing trict duct was remote court committed error required rape- only have procedures follow could or should been called. statute, error suggestion shield but concluded that the of an additional witness is who, according de- House rights did not affect substantial of the name of Wendell and, therefore, him prejudice Singleton, fendant or Karen the victim’s been plain If (pimp?) could not considered error. Id. “man” back evidence be Stаte, have from 645-46. In Weddle some sort could been obtained him, (Wyo.1980), 238-39 that fail- have the same indicated it would suffered from procedure required by problem ure to of Karen Sin- follow remoteness rape-shield significance, gleton’s. Stogner was of that in a small statute asserts preliminary hearing stage, Springs competent even like attor- at the town Rock ney could fatal to the introduction of such have been uncover some be should able to prostitution, on this matter evidence. witnesses yet he himself can offer no names of wit- hearing petitioner’s At motion that should have been called. On nesses sex introduce evidence victim’s hand, provided an affi- other state conduct, ual the district court made it clear Stogner’s that stated an davit from counsel being that the motion was denied because experienced investigator had been used in time of of untimeliness and remoteness inquire background; into the victim’s 652 P.2d conduct. Weathers unable the sort investigator was to uncover (Wyo.1982); Taylor v. evidence, i.e., prostitution, Stogner (Wyo.1982); Lonquest 1295 n. 5 Stogner’s A claims existed. letter from (Wyo.1972), cert. answering grievance, to a filed counsel denied, 409 U.S. S.Ct. Stogner with the Grievance Committee L.Ed.2d 299. Bar, appended the Wyoming State was also evi- the sexual conduct Because response it contained the state’s inadmissible remote- dence was held due to af- essentially the same information as the untimeliness, timely ness as mo- as well detailed The district court made fidavit. Al- similarly tion have been denied. would concluding Stogner’s counsel findings that though have met Stogner’s counsel should ineffective at trial or on had not been requirement, Stogner statutory filing the peal. a sub- cannot show adverse effect on that The inevitable conclusion is right. Because evidence was stantial this no simply there additional witnesses inadmissible, prob- no reasonable otherwise by should called that could or have been ability that the result would have exists allega The petitioner’s counsel. defense had the filed on been different motion been contrary unsupported to the are tions of evi- time. Decisions as to remoteness totally upon rely in the record and anything dence, admissibility, its rest and hence assist speculation. A claim of ineffeсtive trial court sound discretion upon premised cannot of counsel be ance upheld will absent clear abuse be none call witnesses where failure to discretion. not called are exist or where witnesses State, 746 Laing reasons. v. TO sound FAILURE DISCOVER 1247, 1249-50(Wyo.1987). People See P.2d OTHER WITNESSES Dillard, (Colo.App. 245 only at evidentiary The material Onishi, 1984); Haw. State petition Stogner’s affida tached to the (1981). had vit the conclusion that he which stated of counsel. effective assistance been denied FAILURE TO CALL (June 14—102(b) Repl.), re W.S. 7— WITNESSES ESSENTIAL “affidavits, attach, quires petitioner point be- belabor third supporting the will not other evidence We records or above, cause, record demon- why noted allegations [petitioner] shall state or were, or have are no stratеs no other witnesses are not attached.” There same have been, that should discovered counsel from additional witnesses affidavits chal- Singleton petitioner sought a writ of review Stogner asserts Karen called. lenging jurisdiction of the district court witness- and Wendell House were essential concluded, judgment committing daughter his es, already to enter as we have Sin- but Shepherd in Den- testimony properly barred on to the Home of the Good gleton's remoteness, as failure there was no grounds of as well ver. The court determined rape-shield vitality, statute. of review comply giving with statute the writ likely testimony would denied. Wendell House’s and was if he had been have met that same fate Cadle, Wyo. City Sheridan if the called as a witness. Even found and (1916). 293, 157 P. 892 testimony such motion to introduce as discre- The court described the writ filed, their timely we conclude been tionary, saying it not be used arbi- could excluded be- testimony could have been trarily capriciously and held the writ properly court could con- cause a district adequate reme- not issue if another would probative value of the evi- clude opinion identified dy available. The probability outweighed dence was keep trial courts certiorari as a tool to preju- have created that admission would jurisdiction of their within the bounds 6-4-312(a)(iv). Again, dice. W.S. jurisdiction concluded the district court had issue, argument spect Stogner’s to this appeal municipal quasi-criminal of a from a does not meet the test established Cut- The writ was denied. сourt. birth. Dahlem, Wyo. P. ' CONCLUSION the 1886 enactment limit- This court held Stogner has failed to demonstrate facts ing use of certiorari1 void because our support a which occurred at his trial and Constitution, adopted after the statute counsel, claim of ineffective assistance certiorari, as well authorized use of improperly failed to raise or that counsel Wyo.Const. art. as other writs. § Stogner’s origi- they made at trial in errors questioned jurisdiction Dahlem position appeal. Stogner nal governor to remove a sheriff from office rely rulings of the district having to disposal of whis- for unlawful removal discretionary proper that were and, recognized power key though we our Moreover, law. under established rules of writ, declined to to issue the we Stogner cannot demonstrate that the result relief, juris- finding governor did have different had of his trial would have been diction. The alleges the errors he not occurred.

jury (cid:127) than sufficient facts before more Afton, Wyo. Call v. Town of rationally Stogner guilty beyond a it to find (1954). doubt. reasonable The court held a common law writ of denying The order of the district ‍‌‌‌​‌​​​‌​​‌​​‌‌​‌‌‌​‌​​‌‌​‌​‌‌​‌​‌​‌​‌​‌‌‌​‌‌​​‍court and denied a rem- certiorari is not available petition post-con- Stogner relief on his edy through party use of the writ to a who relief is affirmed. viction appeal by lack of had lost his diligence.

URBIGKIT, J., specially filed a concur- ring opinion. (cid:127) Hansen, ex rel. Pearson v. State (Wyo.1966). P.2d 769 APPENDIX again The court described the writ as (cid:127) Court, Wyo. Kelsey v. District discretionary only and issuable where no (1914). P. in- аdequate remedy exists and that other only in criminal mat- junction was available court concluded that writs of certio-

This abolished, an peti- attempt there is an to enforce but the ters when rari and error were vital, law and its enforcement pursuant to the unconstitutional tion in error was still (1910). irreparable injury. We de- will result in found in W.S. 5130 1886 statute 1. See W.S. 6392 municipal court’s determina-

reversed the tion. permitted of certiorari and re- dined use (cid:127) Adjutant Stamper proceedings against then

moval forward, noting go 1983).

General Pearson claim proceedings not criminal and a granted was to review non- Certiorari speculative contrary to the was and could denying the appealable district court order only a criminal sanc- be determined when motion for dismissal оf the defendant’s tion was enforced. grounds. complaint jeopardy on double (cid:127) Rocky Mountain Oil and Gas Associa- granted writ afford the defen- was tion v. jeopardy dant redress of his claim double used, held Though prop- exposure not occurred. We certiorari was before jeopardy that this court claim merit osition restated double was without questions properly address incidental remanded. are by parties but which bound to

raised Heiner, State v. P.2d 629 again rise in the case. The court indicated 1984). W.R.A.P. 12.122 authorizes use certiora- to the state to Certiorari ri, though other remedies are available. suppressing court’s order review district City Mengel, Laramie v. by investigators for an evidence collected (Wyo. case. company an arson insurance By using certiorari now the court was justifying use of the writ court said: great frequently more issues of redress rulings the district court were [T]he granted to importance. Certiorari upon grounds, premised constitutional judge’s municipal view a decision presentation in the to this which results (vi- 6—105(f)(1977) was unconstitutional 31— magni- court of issues of constitutional fifth amendment olation a defendant’s protections tude. Whether constitutional require right against self-incrimination to inculpatory respect to statements of test): sobriety juris- Some submission to from an accused and evidence obtained merely limit certiorari a use that dictions person property or of the accused are jurisdiction by tests the exercise of subor- private is a be еxtended to individuals courts, prohibition held that dinate but we question impression of first significant and, creating purpose both filled ** Consequently, State *. con- certiorari, prohibition and the framers of importance clude that because have intended some our constitution must suppressed the use the evidence each and did not in- different function for potentially to the denied used under tend to limit certiorari it was (cid:127) * *; magnitude of the constitutional identified as The case was common law. raised; importance and the of the issues required prevent one which review determining respect rule to such justice needed conclusive res- failure of and * * *, appropri- in the State matters [we] olution; of the writ was consistent issuance grant- in ately exercised discretion [our] discretionary of certiorari nature with the ** * certiorari in case. city appeal no from the because held the court had erro- Id. at 632-33. We ruling municipal judge; order of the evidence, neously dissolved suppressed great importance to the entire state was of stay proceedings, and remanded. impression; and the question and a first of- pled guilty to lesser included magnitude. Heiner of constitutional We issue was inaction, in ac- action or on administrative by Independent 12.12. Relief available 2. Rule compel administrative tions action, mandamus for action. applications in for writs of certio- review, and relief, in or redress available prevent ad- prohibition to review or rari аnd against agency injunction action or for suits thereof, shall be available inde- recovery ministrative action in actions for enforcement notwithstanding any petition declaratory judg- pendent action money, for a in actions status, legal filed. rights, relations based review ment charges pend- er case. such placed proba- fense of arson and was on ing and the case was decided the same tion. manner as in 1983. (cid:127) (cid:127) Sodergren, (Wyo. State v. 686 P.2d 521 Wright (Wyo. 707 P.2d 153

1984). 1985). granted Certiorari was to review a dis- granted Certiorari was a trou- review trict dismissing manslaughter court order policy question concerning blesome abuse who, charges against through a defendant sentencing. Wright’s of discretion sen- gross negligence, caused the deaths of two tence had been affirmed on persons in an automobile accident. The Wright (Wyo.1983). 670 P.2d 1090 court held that the homicide vehicular stat- This court reiterated the limited kinds of preempted ute3 trying the state from circumstances which certiorari would be manslaughter. defendant for We deter- granted, citing some of the cases. above mag- mined the issue was of constitutional granted pre- in Wright Certiorari was great public import; nitude and of how- justice. Wright vent a failure of was con- ever, the bar was served notice that the delivery marijuana victed of unlawful grant court would exercise its discretion to given prison sentence two to four certiorari under unusual circumstances and old, years. twenty years He was a first- only. on rare occasions Id. 528. The offеnder, felony time and an honor student vehicular homicide statute was held to be College. probation at Sheridan A officer unconstitutional and the case was remand- probation, part recommended for the manslaughter charges; ed for trial on the above, in part reasons outlined because Sodergren Sodergren was convicted. Wright marijuana sold a small amount of (Wyo.1986). 715 P.2d 170 they to undercover officers after broached (cid:127) Sugden, Kobos v. subject they with him as to where 1985). might drugs. Wright, obtain 707 P.2d at granted Certiorari was to review a claim sentencing practices 156-57. The of the assigned judge district was biased examined, district court were and we held and should be removed from a case. The probation Wright that denial of awas court declined to relief. departure practice from the court’s (cid:127) unsupported by reasons in the discernable Warner, Osborn remanded, record. The case directing Wright’s suspended sentence be and he be ‍‌‌‌​‌​​​‌​​‌​​‌‌​‌‌‌​‌​​‌‌​‌​‌‌​‌​‌​‌​‌​‌‌‌​‌‌​​‍granted par- Certiorari was to review a placed probation. summary judgment tial not a final order. This was done to resolve is- State v. District Court Second partition property sues in a case because District, Judicial possibility petitioner might suf- granted Certiorari was to the state to irreparable damage by partitioning fer parameters determine the of the substan- disposed before all claims could be of and pending appeal tive to release on bail appeal Summary judgment an taken. granted and whеre the defendant had been upheld and the case remanded. bail.4 Certiorari was because the State, Stamper (Wyo. v. 701 P.2d 557 challenged jurisdiction state of the 1985). grant court bail and because of the important statutory and constitutional is- granted was for the same rea- Certiorari right sue whether there is a to bail on Stamper son as the 1983 case. In the 1985 order, appeal Wyoming upheld under opinion, by unpublished law. We the 1983 bail, holding opinion pro- was withdrawn because no criminal of that statutes charges actually pending in the right earli- vided for a substantive of bail.5 5—1117(b) (now case, (Cum.Supp.1980) 3. W.S. 5.Since our decision in that 7-11-507 §§ 31— 2—106(b)(June Repl.)). repealed and have been 1988 7-11-511 and our hold- 6— longer in this case no reflect the status State, Story (Wyo.1986). v. 721 P.2d 1020 of current law.

1367 (cid:127) Denhardt, (Wyo. P.2d v. 760 988 State 1988). (cid:127) State, P.2d Murry v. 713 202 granted was where the state Certiorari State, 1986): P.2d 26 Murry v. 631 challenged county a court’s decision to (Wyo.1981). charging dismiss an information a defen- appeal was reinstated A defendant’s furnishing beverages to dant with alcoholic of un- which had been dismissed because operating occupying a minor who was a timely appeal. of for our notice basis right vehicle. The has no motor state Supreme decision was a United States prosecution by a is appeal where frustrated a case which held that where state Court court, of a lower but relief not action was it appeal right, due creates an denies granted in court Denhardt because this appeal if process to dismiss the dismissal agreed county with the court that the сrim- appel- from assistance of results ineffective inal information was deficient. Lucey, late counsel. Evitts v. 469 U.S. (cid:127) Langdon, v. 751 P.2d 344 denied, Carlson reh’g 83 L.Ed.2d 105 S.Ct. (Wyo.1988). L.Ed.2d 470 U.S. 105 S.Ct. 84 that an The effect of Evitts is was Certiorari where the district attorney’s justify will not loss mistake disqualify denied a motion to an at- court State, v.

the client’s Foote Although appealable torney. not an final (Wyo.1988); P.2d Price v. order, this court found review certiorari State, a serious unset- proper because: was (cid:127) State, (Wyo.1986); question jurisprudence; P.2d 37 our failure v. tled Yates (Wyo.1986); question early stage at an 720 P.2d 894 resolve Martin (Wyo. Shepard injustice; the case could have resulted discretion; 1986). and, an abuse of this involved charged responsibility with of su- court de- granted; was relief was Certiorari pervising Wyoming cоnduct however, presented nied, none because court ordered that the Bar members. This required. rare and unusual circumstances attorney disqualified repre- subject be from (cid:127) Tader, Tader v. senting specified client. 1987). (cid:127) (Wyo. Loper Shillinger, granted because of the was Certiorari 1989). issue, abrogation of in- importance granted to crimi- review a Certiorari despite immunity, tort the fact terspousal im- claim that a sentence nal defendant’s partial appealed sum- order from was pa- posed a crime committed while on concept judgment. The of inter- mary presumed to run concurrent- role should be immunity abrogated, both spousal tort ly original sen- the remainder of retroactively, case prospectivеly and by parole reinstated revocation. This tence judgment. a final yet presumption no exists. court held that such (Wyo. P.2d 1254 Smizer Company v. Continental Insurance 1988). Bank, (Wyo. First dismissed, calling attention Appeal (Cum.Supp.1988), which W.S. 7-14-107 review district was used to Certiorari post-con- review provides appellate divulge, requiring petitioner court order petitions sought must be relief viction privileged documents. We discovery, certiorari. also W.R.A.P. writ of See disregard district acted held the that strict adherence The court stated governing legal and its actions precepts required. procedure be Smizer would miscarriage gross justice. constituted a filing limit there is no time clarified Moreover, premised action our our except that for writ of certiorari petition general to exercise 13.02, obligation only constitutional applies in W.R.A.P. found “order, over lower courts. opinion superintending the control or decision to an This directed Wyo.Const, art. court appellate capacity.” court in its § district

1368 and, action, prelimi- the by

ri removed required nary constitutional issue from or assigned judge be to another be- the case permissive decision. apparent presiding judge’s the cause of bias, holding that court to affirm agree the district errone- I with the decision the ously required discovery post-conviction of the documents. denial the trial court simple lief on a The determined basis. Company V-l Oil v. Honorable Rob- rape admittedly this and de- facts of Ranch, (Wyo.1989). ert B. monstrably Nothing in na- horrible. the grantеd to review the Certiorari dis- history ture of the victim’s earlier consti- motion denying trict court’s order V-l’s to guilt in questioning tuted relevance consid- stay proceedings Wyoming court un- severity the crime on the eration of parallel case filed in Utah was decided. til a charged. date witnesses or Undisclosed filed a creditor’s claim in an estate and V-l involving testimony, further all character Wyo- filed actions Utah and then both attack, provide relevant could no defense. it uncertain as to the ming because was rape is firm can occur without The law term court” meaning “proper found regard reputation for the or character of (July Repl.). 2-7-718 order 1980 perpetrator and the cannot es- the victim discretion, and correct аn abuse of cape responsibility by criminal his trial time of the administra- further best interests attack on the victim’s character. justice, granted this relief and tion of court directly dispose I of the entire In an older would stayed the action. by claim sweep result of the ineffectiveness con a similar was achieved use case mistake, prohibition. significant insig v. that no a writ of Osborne Dis- clusion District, nificant, subject trict Ninth Judicial occurred where matter Court of by appellant argued does not constitute any clearly committed. defense the crime Roth, (Wyo. v. Gooder any probability Without of consent what occurred, alleged appel evidence of granted where this court Certiorari appropriate evidentiary lacks lant function. that a court’s order determined district Annotation, Constitutionality “Rape respondents partial judg- granting Restricting Statute Use Evi Shield" (an unappeala- liability the issue of ment on Experiences, 1 dence Victim’s Sexual only damages left for deci- ble order which (1980). procedural To the A.L.R.4th unfounded, sion) and an unreasonable underpinnings to the decision to affirm con of the court’s discretion. dis- abuse stated in Stogner viction judgment partial trict court (Wyo.1984), I would add here an 37(d) a sanction under W.R.C.P. because equally valid answer substantive allegedly identify their petitioners failed to effect. case law same The criminal is ex for The record did expert witnesses trial. justification tended with conviction justify the sanction. regardless against appellant rendered this URBIGKIT, Justice, specially any present contention victim concurring. may history. have had clouded legisla- Comes, Ill.App.3d 166, People either the I do not conclude that (1980); constitutionally deny Ill.Dec. 399 N.E.2d 1346 or this court can ture Parsons, (Iowa defendant-petitioner App. N.W.2d 205 opportunity to if, 1986); by any 242 Kan. post-conviction Redford, relief rea- State v. peal inference, (1988); trial error 301 Md. constitutional Thomas soned (1984), in a 483 A.2d 6 cert. denied 470 Appellate review ‍‌‌‌​‌​​​‌​​‌​​‌‌​‌‌‌​‌​​‌‌​‌​‌‌​‌​‌​‌​‌​‌‌‌​‌‌​​‍criminal occurred. rights 85 L.Ed.2d 153 guaranteed under the the U.S. S.Ct. case continue as Denial of character evidence about Wyoming Constitution should case, rape in this post-conviction relief the forcible victim cannot statute long as exists, pursued have occurred when inad- need not further however but be was, as it a valid ineffec this did certiora- missable create time since State, 722 P.2d issue. Frias tiveness Cf. MKM, A

In the Interest of

Minor Child. (Petitioner),

DF, Appellant WS, (Respondent). Appellees

MLM and

No. C-89-6. Wyoming.

Supreme Court of

May

Case Details

Case Name: Stogner v. State

Court Name: Wyoming Supreme Court

Date Published: May 24, 1990

Citation: 792 P.2d 1358

Docket Number: 89-185

Court Abbreviation: Wyo.