Dunn v. Cook, 880067

• Citation: 791 P.2d 873
• Decision Date: 02 April 1990
• Docket Number: No. 880067,880067
• Parties: Robert DUNN, Plaintiff and Appellant, v. Gerald L. COOK, Warden, Utah State Prison, State of Utah, Defendant and Appellee.
• Court: Supreme Court of Utah

Page 873

791 P.2d 873

Robert DUNN, Plaintiff and Appellant, v. Gerald L. COOK, Warden, Utah State Prison, State of Utah,

Defendant and Appellee.

No. 880067.

Supreme Court of Utah.

April 2, 1990.

David B. Watkiss, Debra J. Moore, and Carolyn Cox, Salt Lake City, for plaintiff and appellant.

R. Paul Van Dam and Dan R. Larsen, Salt Lake City, for defendant and appellee.

STEWART, Justice:

Robert Dunn's petition for a writ of habeas corpus was dismissed without a hearing on the ground that all the issues raised were waived because they could or should have been raised on Dunn's prior direct appeal. We reverse and remand to the trial court for a hearing.

A jury convicted Dunn of second degree murder and aggravated kidnapping. ¹ He was represented at trial by a court-appointed attorney. After the conviction, the attorney wrote to Dunn and advised against an appeal based on the attorney's belief that if the appeal were successful, Dunn could be resentenced to death at a retrial. The attorney's belief was incorrect. Utah Code Ann. § 76-3-405 prohibits imposition of a new sentence that is more severe than the prior sentence. ² Wisden v. District Ct. of Sevier County, 694 P.2d 605, 606 (Utah 1984); State v. Sorensen, 639 P.2d 179, 180-81 (Utah 1981); Chess v. Smith, 617 P.2d 341, 343 (Utah 1980). See Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981) (penalty phase of a capital proceeding is a trial on the issue of punishment and double jeopardy considerations apply; therefore imposition of a life sentence by a jury in a first trial precludes subsequent imposition of a death penalty following retrial).

Nevertheless, Dunn insisted on an appeal, and the attorney filed with this Court what purported to be an Anders brief and a motion to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Clayton, 639 P.2d 168 (Utah 1981). The brief summarily recited the prosecution evidence and the defendant's evidence and then framed four issues: whether the trial court erred in (1) denying a motion for a change of venue; (2) admitting a photograph of the victim's body; (3) refusing to suppress bullets found in Dunn's belongings; and (4) ruling that the evidence was sufficient to sustain a conviction. Each issue was stated in a single sentence, followed by a few case citations. The relevance of the cases was neither stated nor argued nor in any way related to the facts of the case. There certainly was no argument and no presentation of the law and facts of the case in the best light possible for defendant.

Dissatisfied with his attorney's efforts, Dunn filed what purported to be a pro se brief. Three of the issues listed in the brief were repetitious of three issues in the Anders brief. None of the issues presented by Dunn was supported by a statement of facts, argument, analysis, or authorities.

This Court granted defense counsel's motion to withdraw and affirmed Dunn's conviction in a per curiam opinion, State v. Dunn, 646 P.2d 709 (Utah 1982). Without any legal or factual analysis, the opinion simply held that the issues raised were "without merit." 646 P.2d at 711. The opinion disposed of the case without examining any of the points raised in either brief.

Thereafter, Dunn filed a pro se petition for a writ of habeas corpus in the district court, asserting primarily that his counsel had rendered constitutionally ineffective assistance at trial. Specifically, Dunn alleged that his counsel failed (1) to make proper objections, (2) to obtain evidence, and (3) to request jury instructions regarding accomplice involvement, and (4) he stipulated to the admission of evidence which should have been excluded. Dunn asserted that his counsel had refused to raise issues on appeal which Dunn had requested and had filed an Anders brief contrary to Dunn's desire. Dunn also alleged that the trial court erred in (1) denying his motion for a change of venue, (2) refusing to exclude a photograph of the victim's body, (3) refusing to suppress evidence found in a search of Dunn's belongings, and (4) admitting testimony of defendant's conviction of a prior crime. Dunn also argued that the trial court erred in the selection of the trial jury, that some jurors had prior knowledge of the case, and that jurors had access to information from the co-defendant's trial.

The State moved to dismiss Dunn's petition on the basis that the claims either had been raised on direct appeal or were waived because they should have been raised on direct appeal. The trial court agreed that all the issues either were raised or could have been raised on direct appeal and dismissed Dunn's petition. Dunn appeals that dismissal. For this appeal, this Court appointed counsel because it appeared there might be some merit to some of Dunn's issues.

The doctrines of waiver and res judicata do not stand as an unyielding bar to the litigation of claims that either once were or could have been litigated in a prior proceeding. However, a few of our cases over the years have stated only part of the governing rule in this jurisdiction, thereby leaving the impression that waiver or res judicata might be an absolute bar. The policy of finality certainly does have a high place in our hierarchy of judicial values, but that policy is not so compelling as to be more important than the vindication of a person's constitutional right to a fair trial, notwithstanding the defaults of a defendant's attorney. Hurst v. Cook, 777 P.2d 1029, 1034-35 (Utah 1989).

Our cases are replete with instances where issues were addressed on the merits pursuant to a habeas corpus petition which had been addressed and resolved on direct appeal or should have been raised on direct appeal and were not. Recently, in Hurst, this Court described the interaction of the doctrines of waiver and res judicata and the priority accorded them on a habeas hearing for a post-conviction remedy:

The function of a writ of habeas corpus as a post-conviction remedy is to provide a means for collaterally attacking convictions when they are so constitutionally flawed that they result in fundamental unfairness and to provide for collateral attack of sentences not authorized by law. The general judicial policy favoring the finality of judgments cannot, therefore, always prevail against an attack by a writ of habeas corpus. As important as finality is, it does not have a higher value than constitutional guarantees of liberty. Protection of life and liberty from unconstitutional procedures is of greater importance than is res judicata.... "[H]owsoever desirable it may be to adhere to the rules, the law should not be so blind and unreasoning that where an injustice has resulted the [defendant] should be without a remedy."

This Court has frequently held that while habeas corpus is not a substitute for appeal, a conviction may nevertheless be challenged by collateral attack ... where an obvious injustice or a substantial and prejudicial denial of a constitutional right has occurred, irrespective of whether an appeal has been taken.

777 P.2d at 1034-35 (citations omitted, footnotes omitted) (quoting Martinez v. Smith, 602 P.2d 700, 702 (Utah 1979)). The same point was made in State v. West, 765 P.2d 891, 894 (Utah 1988), where we stated that a "defendant's failure to raise his claim on direct appeal is not dispositive" of his habeas corpus petition. See also Fernandez v. Cook, 783 P.2d 547 (Utah 1989); Chess v. Smith, 617 P.2d 341 (Utah 1980); Gonzales v. Morris, 610 P.2d 1285 (Utah 1980); Martinez v. Smith, 602 P.2d 700 (Utah 1979); Helmuth v. Morris, 598 P.2d 333 (Utah 1979); Rammell v. Smith, 560 P.2d 1108 (Utah 1977); Allgood v. Larson, 545 P.2d 530 (Utah 1976); Brown v. Turner, 21 Utah 2d 96, 440 P.2d 968 (1968).

Our cases are in accord with the rules governing post-conviction procedures. Rule 65B(i) of the Utah Rules of Civil Procedure expressly recognizes that a petition for a writ of habeas corpus may be filed after an appeal from a conviction has been taken. Subsection (2) of Rule 65B(i) states, "The complaint shall also state whether or not the judgment of conviction that resulted in the confinement complained of has been reviewed on appeal, and if so, shall identify such appellate proceedings and state the results thereof." The existence of prior appellate proceedings, however, does not ipso facto bar subsequent habeas corpus proceedings. Recently this Court, after a direct appeal had resulted in the affirmance of a conviction, used a writ of habeas corpus to order remand for an evidentiary hearing on the ground that the defendant had been deprived of the effective assistance of counsel. Fernandez v. Cook, 783 P.2d 547 (Utah 1989). The Court reasoned that counsel who represented the petitioner both at trial and on appeal could not have effectively presented an ineffective assistance of counsel claim on appeal when that argument would necessarily have challenged his own performance at trial and on appeal.

Nevertheless, not all petitions for writs of habeas corpus may be heard on the merits after a trial and appeal or the waiver of an appeal; finality does prevail unless a petitioner can prove the existence of unusual circumstances. As we noted in Hurst, ordinary types of trial error that are not likely to affect the outcome may not be challenged on petitions for writs of habeas corpus. 777 P.2d at 1035 n. 5. See Bundy v. DeLand, 763 P.2d 803 (Utah 1988). To be entitled to a writ, a petitioner must show that there was an obvious injustice or a substantial and prejudicial denial of a constitutional right. Hurst, 777 P.2d at 1035. In short, "the unusual circumstances test was intended to assure fundamental fairness and to require reexamination of a conviction on habeas corpus when the nature of the alleged error was such that it would be 'unconscionable not to reexamine' ... and thereby to assure that 'substantial justice [was] done'...." Codianna v....