Ash v. State

• Decision Date: 14 January 1977
• Docket Number: No. 4565,4565
• Citation: 560 P.2d 369
• Parties: Ronald E. ASH, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 369

560 P.2d 369

Ronald E. ASH, Appellant (Defendant below), v.The STATE of Wyoming, Appellee (Plaintiff below).

No. 4565.

Supreme Court of Wyoming.

Jan. 14, 1977.

GUTHRIE, Chief Justice.

Appellant herein having filed his petition for rehearing in the above matter, and it appearing to the court that said petition does not present any new facts or propositions of law but seeks to make a reargument based upon later discovered and subsequent authority, and is in effect seeking reargument upon points decided adversely to the appellant; and it appearing that the same should therefore be denied under the authority of Elmer v. State, Wyo., 466 P.2d 375, 376.

IT IS THEREFORE ORDERED that the petition for rehearing be and the same is hereby denied.

McCLINTOCK, Justice, dissenting, in which ROSE, Justice, joins.

By application for rehearing timely filed herein appellant sought to have this court consider a then unreported decision of the United States Court of Appeals for the District of Columbia Circuit¹ and has since furnished us with a complete copy of the opinion as rendered by that court.A majority of this court have elected to deny the application without further opinion.Although the matter has been presented by counsel in somewhat informal fashion, ² my own perusal of the proffered opinion strengthens the conviction expressed in my previous dissent that this court has committed serious error in the denial of the constitutionally-guaranteed right to a fair trial with the effective assistance of counsel and leads me to believe that there is a strong possibility that the court has arrived at an erroneous conclusion by either overlooking or giving inadequate consideration of the constitutional principle.I think that this is sufficient reason for granting a complete rehearing and at the least counsel should be allowed through brief to present his argument as to the pertinence of the cited case.

I continue generally to adhere to the long-standing rule ³ confirmed in Elmer v. State, 466 P.2d 375, 376(Wyo.1970), cited in the order denying rehearing in this case, that it is

'* * * basic that a rehearing will not be allowed merely for the purpose of reargument unless there is a reasonable probability that the court may have arrived at an erroneous conclusion or overlooked some important question or matter necessary to a correct decision. * * *'⁴

I also believe that statements in Olds v. Hosford, 359 P.2d 406(Wyo.1961), where in denying rehearing it was said that the record had been re-examined and the court was satisfied 'that the very question now insisted upon was sufficiently considered and disposed of in the original opinion,' and Braten v. Baker, 78 Wyo. 300, 301, 325 P.2d 880(1958), wherein rehearing was refused to consider matters 'fully dealt with in this court's original opinion' are consistent with the view I take.I believe that this court has not adequately considered and disposed of the question of constitutional fairness and has denied the appeal, not because they reject applicable standards pertaining to criminal defense, but as punishment for what they consider the defendant's dilatory and unreasonable tactics in (1) failing within five weeks after his arrest to arrange for counsel of his own choosing and at his own expense; (2) at the end of that period not accepting appointment of counsel by the court, some four weeks before the announced trial date; and (3) at the end of that period and on the day before trial requesting appointment of counsel.They balance the constitutional right of assistance of effective counsel against the trial court's discretion to grant or deny continuances and weight the scales in favor of denial.

Both DeCoster I and DeCoster II, supra n.1. should be considered as pertinent to this appeal.In the first appeal of his felony conviction the defendant contended that he had been denied his constitutionally-guaranteed right to the effective assistance of counsel.⁵The court determined that a factual hearing was necessary with respect to counsel's preparation and investigation, but made this observation pertinent to Ash's situation, 487 F.2d at 1201:

'This court does not sit to second guess strategic and tactical choices made by trial counsel.However, when counsel's choices are uninformed because of inadequate preparation, a defendant is denied the effective assistance of counsel. * * *'

It went on to declare applicable the American Bar Standards for the Defense Functions, and specifically:

'(1)Counsel should confer with his client without delay and as often as necessary to elicit matters of defense, or to ascertain that potential defenses are unavailable.Counsel should discuss fully potential strategies and tactical choices with his client.

'(2)Counsel should promptly advise his client of his rights and take all actions necessary to preserve them.* * *

'(3)Counsel must conduct appropriate investigations, both factual and legal, to determine what matters of defense can be developed. * * *'(487 F.2d at 1203-1204)⁶

Upon the second appeal the court found a violation of the standards which it had previously prescribed and then considered whether the violation was 'substantial.'The majority concluded that such substantiality had been established, thereby further establishing a violation of defendant's constitutionl right to effective assistance of counsel.This then thrust upon the government the burden of establishing that the constitutional violation was harmless.However, I think the case is most applicable to the case at Bar because of this statement page 20 of the opinion):

'In certain circumstances, however, the acts or omissions of counsel are so likely to have impaired the defense, and yet this consequence would be so difficult to prove, that, in accordance with well-established evidentiary principles, such an impairment can be presumed.

'For example, there is persuasive authority for indulging such a presumption when counsel is not appointed until the eve of trial, or when counsel has a clear conflict of interest.(Emphasis added)Only recently, a unanimous Supreme Court held that a petitioner whose right to effective assistance of counsel was infringed by an order issued during trial barring him from consulting with his attorney overnight between his direct and cross-examination need not demonstrate, or even claim, prejudice.⁷To use the language of the dissent in the present case, these are all instances in which there is 'inherent prejudice' in the nature of the violations.Dissentat 48.

'This case falls squarely within the same category.The violation here-a total failure to conduct factual investigations-makes this case analogous to ones in which counsel is not appointed until immediately before trial.Investigation is so central to the defense function that, except in the most extraordinary circumstances, a gross violation of the duty to investigate will adversely affect a defendant's rights.* * * Counsel here also failed to promptly determine whether there were additional witnesses to the alleged robbery or to appellant's alleged flight who could have aided the defense.Appellant...