Albert v. State, 3805

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: McINTYRE
• Citation: 466 P.2d 826
• Parties: Don Willard ALBERT, Appellant (Petitioner below), v. The STATE of Wyoming, Appellee (Respondent below).
• Docket Number: No. 3805,3805
• Decision Date: 20 March 1970

Page 826

466 P.2d 826 Don Willard ALBERT, Appellant (Petitioner below),
v.
The STATE of Wyoming, Appellee (Respondent below). No. 3805. Supreme Court of Wyoming. March 20, 1970.
Rehearing Denied April 28, 1970. See 468 P.2d 968.

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John A. MacPherson, Rawlins, William J. Knudsen, Jr., Laramie, for appellant.

James E. Barrett, Atty. Gen., Jack Speight, Special Asst. Atty. Gen., Cheyenne, for appellee.

Before McINTYRE and McEWAN, JJ., and PEARSON, District Judge.

Mr. Justice McINTYRE delivered the opinion of the court.

Don Willard Albert was found guilty in the District Court of Carbon County, Wyoming, on November 30, 1955, of the crimes of second degree murder and sodomy. After more than 12 years, on February 12, 1968, defendant made application for post-conviction relief under the provisions of §§ 7-408.1 to 7-408.8, W.S.1957, 1969 Cum.Supp.

It must be observed at the outset, the proceeding we are called upon to review is not an appeal from the judgment of conviction against the defendant. Time for such an appeal expired many years before the initiation of defendant's petition for post-conviction relief.

Although parties have not discussed the authority and jurisdiction of the district court to consider defendant's petition for relief under Wyoming's post-conviction act, we cannot avoid the giving of attention to that provision in § 7-408.1 which states:

'* * * No proceeding under this act shall be commenced more than five years after the conviction and sentence of the accused, unless the petitioner alleges facts showing that the delay was not due to his own neglect.'

Defendant's petition for post-conviction relief states, in the six years following enactment of the post-conviction act, petitioner filed several writs and motions for habeas corpus and mandamus and therefore cannot be said to have been neglectful in pursuing his statutory remedies. The petition fails to allege facts showing that the delay in filing for relief under the post-conviction act was not due to defendant's own neglect.

We fail to find in the record brought to us for review any evidence tending to excuse the delay in filing for relief under the post-conviction act. Since defendant did not apply for such relief within five years after his conviction and sentence nor within five years after enactment of the post-conviction act in 1961, we can only conclude he has waived any right to ask for relief under such act. Even on appeal, nothing has been suggested which would show that the delay in filing for post-conviction relief was not due to defendant's own choice or neglect.

No effort has been made to show that the five-year limitation for bringing an action under the post-conviction act is unconstitutional or inoperative. We have often said a law will not be declared unconstitutional unless its unconstitutionality is clearly shown. Kuntz v. Kinne, Wyo., 395 P.2d 286, 288-289; Bulova Watch Company v. Zale Jewelry Company of Cheyenne, Wyo., 371 P.2d 409, 417; Brinegar v. Clark, Wyo., 371 P.2d 62, 64.

However, in addition to defendant's petition for relief under the post-conviction act, he also brought a habeas corpus action in district court. It was consolidated with

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the post-conviction case. Then too, a habeas corpus action was brought in our court in addition to defendant's appeal inthe post-conviction case. We dismissed the habeas corpus action in our court, reserving to defendant the right to assert any claims for relief which were asserted in the habeas corpus action.

The right to assert such claims does not in any case afford the right to treat present proceedings as an appeal from the original trial in which defendant was convicted. Even if we assume, despite the delay in filing defendant's petition for post-conviction relief, that he can claim there was a substantial denial of his rights under the constitution of the United States or of this state, we need not review the original trial proceedings unless and until it is shown that such is necessary to review some claim having to do with the denial of constitutional rights.

The only claims asserted on behalf of defendant, in our court, are these:

1. Petitioner's constitutional rights were violated when his counsel failed to appeal his judgment of conviction.

2. Petitioner's constitutional right to counsel was denied in the 1955 trial when he and his codefendant, whose interests were in direct conflict, were represented by the same counsel.

3. Petitioner, in the post conviction proceeding filed in 1968, was entitled to a transcript of the entire proceedings of the 1955 trial.

We find no...