Alberts v. State, 86-221
Citation | 745 P.2d 898 |
Decision Date | 18 November 1987 |
Docket Number | No. 86-221,86-221 |
Parties | Paul C. ALBERTS, Appellant (Petitioner), v. The STATE of Wyoming, Appellee (Respondent). |
Court | United States State Supreme Court of Wyoming |
Leonard Munker, State Public Defender, and Gerald M. Gallivan, Director, Wyoming Defender Aid Program, for appellant.
Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., and David K. Gruver, Asst. Atty. Gen., for appellee.
Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.
This appeal is by an indigent who was denied the right to counsel in a post-conviction relief proceeding.
We reverse and remand.
On February 26, 1981, appellant Paul C. Alberts was convicted of aggravated robbery, aggravated assault with felonious intent, child stealing, and felony murder. He was sentenced to serve 20 to 30 years, five to ten years, and 20 to 30 years, said terms to run consecutively, and to "life" imprisonment, respectively, in the Wyoming state penitentiary. These convictions and sentences were appealed to this Court and affirmed in Alberts v. State, Wyo., 642 P.2d 447 (1982).
On May 28, 1986, Alberts filed a pro se post-conviction relief petition in the district court and an affidavit of indigency which requested the appointment of counsel. On June 9, 1986, the district court authorized Alberts to proceed as an indigent but declined to appoint counsel until the State had answered his petition. Alberts renewed his request for appointment of counsel through a motion filed July 16, 1986. On July 18, 1986, the district court issued an order denying Alberts' petition for post-conviction relief and appointment of counsel. This is an appeal from that order.
On appeal, Alberts raises the following issues:
The first issue is dispositive, and we address only that issue.
Alberts claims that, under the specific terms of § 7-14-104, W.S.1977, 1 he was entitled to court-appointed counsel upon the instigation of post-conviction relief proceedings. He asserts that the court was under a mandatory duty to appoint counsel for him if it was satisfied that he had no means for procuring counsel. He states further that § 7-1-110(c)(iii), W.S.1977, 2 was not applicable because § 7-14-104 of the post-conviction relief statutes was directly on point. He alleges that to apply § 7-1-110 in a context so as to supersede § 7-14-104 would amount to an implied repealer contrary to Wyoming case law.
Sections 7-14-104 and 7-1-110 stated in applicable part as follows:
(Emphasis added.)
* * *
* * *
"(iii) To be represented in any other post conviction proceeding that the attorney or the needy person considers appropriate, unless the court in which the proceeding is brought determines that it is not a proceeding that a reasonable person with adequate means would be willing to bring at his own expense." (Emphasis added.)
A needy person was defined in § 7-1-108(a)(iv), W.S.1977, 3 as
"a person who at the time his need is determined is unable to provide for the full payment of an attorney and all other necessary expenses of representation [.]" (Emphasis added.)
Recently, this Court was faced with a similar case involving post-conviction relief proceedings and the interpretation of §§ 7-14-104 and 7-1-110. In Long v. State, Wyo., 745 P.2d 547, 549 (1987), we stated:
"This court has uniformly said that the word 'shall' as used in legislation is mandatory, and the rule is constant, also to be applied to courts if not demonstrably invoking the exercise of discretion." (Emphasis in original.)
We went on to state:
"See also § 8-1-104, W.S.1977, entitled 'Identification of laws amended or repealed in amending or repealing acts.' " Id. at 551.
The contentions asserted by Alberts in this case for appointment of counsel at the post-conviction relief stage are almost identical to those used in Long v. State. We cannot disagree. The plain and clear language of § 7-14-104 dictated that, if a petitioner proved his indigence through affidavit and requested the appointment of counsel so as to receive benefit of one trained in the legal profession, counsel shall be appointed to represent him. Section 7-1-110 required that an additional step be taken. That section provided that the court also must determine that the proceeding was one which a reasonable person with adequate means would be willing to bring at his own expense. This amounts to a double standard and in effect an implied repealer of § 7-14-104.
When one statute provides conditions where, if met, a mandatory result is demanded, another statute cannot impose additional requirements. As stated in Capwell v. State, Wyo., 686 P.2d 1148, 1152 (1984), quoting Nehring v. Russell, Wyo., 582 P.2d 67, 73 (1978):
" "
In this case, the State does not meet such a burden.
It also has been stated:
"Where the statutes being considered are a special statute and a general statute relating to the same subject, as in this case, the policy against implied repeals has special force, there being a presumption that the special or specific act was intended to remain in force as an exception to the general or broad act." 686 P.2d at 1152.
Section 7-14-104 dealt specifically with post-conviction relief, Chapter 14 being entitled "Remedy for Convicted and Imprisoned Persons Who Assert Violation of Constitutional Rights." Section 7-1-110 was in the chapter specifically designated as "General Provisions" and dealt with the representation by counsel for the needy at many stages in the criminal process. We see no reason why § 7-1-110 should have prevailed over § 7-14-104 as relating to the representation by counsel at the post-conviction relief stage.
Upon careful examination of the 1987 post-conviction relief statutes, we come to the same conclusion. Section 7-14-104 now reads:
"If requested in the petition, the court, subject to the provisions of W.S. 7-6-101 through 7-6-114, shall appoint the public defender to represent a petitioner who is determined to be a needy person as defined by W.S. 7-6-102(a)(iv)." (Emphasis added.)
Section 7-6-102(a)(iv) 4 of the 1987 statutes uses the same definition for "needy person" as was set out in former § 7-1-108(a)(iv). However, § 7-6-104(c)(iii), 5 which is similar to former § 7-1-110, again states:
"(c) A needy person who is entitled to be represented by an attorney under subsection (a) of this section is entitled:
* * *
* * *
"(iii) To be represented in any post-conviction proceeding or appeal therefrom under W.S. 7-14-101 through 7-14-108 unless the court in which the proceeding is brought determines that it is not a proceeding that a reasonable person with adequate means would be willing to bring at his own expense." (Emphasis added.)
Using the same arguments as those reasoned previously, we conclude that no justification for denial of counsel may be made under the new statute.
Simply stated, in Wyoming if a petitioner for post-conviction relief proves that he is "needy" and requests the appointment of counsel, the court shall appoint one to represent him.
At the time Alberts filed his petition, § 7-14-101(b), W.S.1977, stated in pertinent part:
"Any person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the constitution of the United States or of the state of Wyoming, or both, may institute proceedings under this act [§§ 7-14-101 through 7-14-108]."
In similar fashion, § 7-14-101(b) now reads in pertinent part as follows:
"Any person serving a felony sentence in a state penal institution who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the constitution of...
To continue reading
Request your trial-
Sword v. Shillinger
...denied despite a clear statutory right and this court's decisions in Fondren v. State, 749 P.2d 767 (Wyo.1988); Alberts v. State, 745 P.2d 898 (Wyo.1987); and Long v. State, 745 P.2d 547 (Wyo.1987). Then, he was not even given an opportunity as a pro se litigant to object before the untimel......
-
Martin v. State, 88-155
...2, 1987, Martin filed a motion for appointment of counsel for post-conviction relief citing this court's discussions in Alberts v. State, 745 P.2d 898 (Wyo.1987) and Long v. State, 745 P.2d 547 (Wyo.1987), accompanied by an affidavit of indigence. By order filed December 4, 1987, the distri......
-
Engberg v. Meyer
...Elizabeth Loftus was clearly qualified by national exposure and experience and particularly so since she had testified in Alberts v. State, 745 P.2d 898 (Wyo.1987). See E. Loftus & J. Doyle, Eyewitness Testimony: Civil and Criminal (1987). The next step in properly considered analysis is as......
-
Cutbirth v. State
...develop since appointment of an attorney was not requested in the petition. Fondren v. State, Wyo., 749 P.2d 767 (1988); Alberts v. State, Wyo., 745 P.2d 898 (1987); Long v. State, Wyo., 745 P.2d 547 (1987). See § 7-14-104, W.S.1977.2 "A combination for epigrammatic effect of contradictory ......