Calene v. State, No. 90-264

CourtUnited States State Supreme Court of Wyoming
Citation846 P.2d 679
Decision Date05 February 1993
Docket NumberNo. 90-264
PartiesJohn CALENE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

Page 679

846 P.2d 679
John CALENE, Appellant (Defendant),
The STATE of Wyoming, Appellee (Plaintiff).
No. 90-264.
Supreme Court of Wyoming.
Feb. 5, 1993.

Page 680

Leonard D. Munker, State Public Defender, Gerald M. Gallivan, Director, Wyoming Defender Aid Program, and Darold S. Melchior, Wyoming Defender Aid Program, Student Intern, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., Jennifer L. Gimbel, Sr. Asst. Atty. Gen., Theodore E. Lauer, Director, Prosecution Assistance Program, P. Jaye Rippley and Beverly J. Montoya, Prosecution Assistance Program, Student Interns, for appellee.

Page 681


URBIGKIT, Justice.

This appeal tests the procedures utilized under Wyoming law when ineffectiveness of trial counsel is alleged by the convicted defendant.

This opinion will address the procedures available for appellant to factually develop any contention claiming ineffectiveness of his legal representation which was not documented within the original trial record. We reverse the decision of the trial court which denied a hearing on the motion for a new trial. This case is remanded for the trial court to hold a factual hearing on the validity of the allegations made by John Calene of ineffective representation following his conviction of four conspiracy and larceny offenses.


John Calene (Calene) was arrested and tried for the felonies of receiving stolen property, possessing a vehicle with an altered identification, accessory before the fact of felony larceny and conspiracy to commit larceny. He was convicted of all four charges and received sentences of two-to-four years on all four counts, with counts one and two to run concurrently with each other and counts three and four to run concurrently with each other, but the sentences for counts one and two were ordered to run consecutively with the sentences for counts three and four. Consequently, Calene received a total sentence of two consecutive two-to-four year terms.

The object of these charges was a Datsun 280Z which had been stolen in Lakewood, Colorado by other parties and delivered to Gillette, Wyoming, where it was repainted by Calene. The vehicle had been impounded in Gillette by the police and was then stolen from the police impound lot and returned to Colorado where it was again recovered as a stolen vehicle. The entire episode was initiated in Gillette by an anonymous call to the police. Identification of the anonymous caller was later established by the police, but the informant was not called to testify at Calene's trial.

Following his conviction, Calene wrote a letter to the trial judge describing claims of ineffective conduct of his appointed counsel. In this July 30, 1990 letter, he asked for a new trial. The letter was followed by a September 4, 1990 request by Calene's counsel to withdraw. Withdrawal was granted by court order and a successor counsel was appointed.

Second counsel refiled the motion for a new trial, alleging the same general grounds of ineffectiveness of the original trial attorney. That motion for a new trial was combined with the sentencing hearing and heard on September 13, 1990. The motion was summarily denied and the sentence was orally entered followed by a written order on September 30, 1990 denying the motion for new trial and entering the sentence.

At the September 13, 1990 new trial/sentencing hearing, the trial court stated:

THE COURT: Mr. Calene, the very first thing, we have to deal with is there is a motion filed for a new, new trial.

I received the letter that you sent me, and the court--or the letter, of course, is at best accusatory and simply conclusory in nature, and the court believes that even if the things that you claim in that letter are true, that they are properly handled on appeal.

For that reason, the court does not grant but rather denies your motion for a new trial. And if you wish to appeal, you may take those issues up on appeal.

The letter to the trial judge stated:

I'm writing to you in hope of having a mistrial declared on the grounds of improper representation by my court-appointed attorney, * * *.

There are several matters I feel weren't handled properly before and during my trial.

The first happened as I was to have my preliminary hearing in county court.

Page 682

[Defense counsel] wanted me to postpone the hearing so that he could have time to prepare for it. I was afraid of losing my right to a speedy trial so I asked for him to come visit me at the Detention Center before my hearing. Instead of coming to see me he sent [another attorney] to tell me the only choice I had was to postpone because he was to[o] busy with a jury trial. The jury trial he was in wasn't even assigned to him. He was just a spectator. I ended up postponing my hearing to give him time to prepare.

As the hearing approached I contacted him to see how things were going to only hear that he hadn't been able to look over my files. He ended up having me waive my preliminary hearing because he hadn't had time to prepare a defense.

During this delay he hired two investigators to do research on my case: * * *. I gave them both a list of several witnesses that would be needed in order to prove my innocence.

During my release from jail on bond I checked in with [defense counsel] about once a week to only hear that the investigators hadn't been able to contact my witnesses. I gave them all the information required to get in touch with them. I believe that the only people interviewed were the State's witnesses against me. Both of whom told conflicting stories to the investigators.

Then the day of my pretrial was set and he was sick that day and I was told I wasn't required to be there.

Further attempts to contact him regarding my case were futile because the next week he was on vacation. I was informed by his office to meet with him the following Sunday, an appointment that was not kept by [defense counsel]. The following week he was required to attend a trial advocacy school and another Sunday appointment was scheduled. He called me on that Sunday the day before my trial and asked me a few simple questions and told me he didn't need to see me.

The next day at my trial I felt there were several issues that need[ed] attention.

The first being lack of witnesses called on my behalf. My cousin * * * who wouldn't appear voluntarily because of being on his honeymoon should have been subpeoned [sic]. He could have verified the fact that I was hired by Mike & Brett to paint a car and that I had no knowledge of the fact that they had stolen the car until my trip to Denver with Mr. McMasters. Kirby Lyons should have been subpeoned [sic] to prove falacy [sic] with Shawn McMaster's testimony about talking with him the day the car was confinscated [sic] and to tell the court that I left town because I was afraid of what was going to happen with Mike & Brett wanting to steal the car back. Also I feel that he should have subpeoned [sic] Mr. Allard of the Gillette Tire Store to testify to the fact that I had never recieved [sic] a title from him or even inquired about one. Also my wife Patsy Martinez should have been subpeoned [sic] because she knew that I was just hired to paint the car. Also I feel he should have entered the tape of Shawn McMasters['] interview with Mr. Hanson to prove that he will say almost anything required to keep himself out of a jam.

[Defense counse] should never have stated that his client; (myself) was stupid in addressing the jury in his closing argument.

One other thing I thought to be wrong in my trial I felt that in your instructions to the jury you should have made it more clear that each charge was seperate [sic] from the other. And that they should be treated as such.

In light of the facts that I have brought to your attention I hope that you will grant me a new trial on the grounds that stand: Improper counsel on the part of the public defender; [defense counsel]. Thank you for taking this matter into consideration because I truly don't want to go to prison for crimes that I didn't commit.

The motion for a new trial by the second counsel stated as a basis, denial "of a fair trial due to ineffective assistance of counsel"

Page 683

and attached as an exhibit the letter which had been filed in July.


The structure of this case is presented with an appellate record which furnishes this court no basis for analysis of the validity or invalidity of the claims of ineffectiveness of counsel. Furthermore, the record demonstrates that the trial court did not exercise discretion, based on any factual finding, in rendering the decision to deny the new trial motion. Our determination will establish how the facts will be developed for appellate review since ineffectiveness of counsel, by our precedent, requires these issues to be presented during the initial appeal or otherwise be procedurally defaulted. The more defined issue involves procedures for those cases where evidence beyond the trial record is required to make a proper and informed judicial decision regarding the constitutionally-required competent assistance of legal counsel.

We reverse the order denying the motion for a new trial and remand for the trial court to hold an evidentiary hearing.


To make a decision for this case, this court will examine the processes available under the particular structure of Wyoming's ineffectiveness of counsel law in order to provide the system for factual development by the trial court in its initial decision. That record and decision will then be available for review on appeal or subsequent proceedings in the federal court system, if pursued, by constitutional inquiry to that jurisdiction. It is recognized that Wyoming law, on this subject, differs generally from most jurisdictions. 1 This court applies a procedural default, waiver of constitutional right,...

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42 practice notes
  • Griggs v. State, No. S–14–0200.
    • United States
    • United States State Supreme Court of Wyoming
    • February 2, 2016
    ...the district court for a hearing on his claim that he received ineffective assistance from trial counsel. See generally Calene v. State, 846 P.2d 679 (Wyo.1993)(first addressing the remand procedure for ineffective assistance of counsel claims). We granted his motion, and the district court......
  • Eaton v. Wilson, Case No. 09-CV-261-J
    • United States
    • United States District Courts. 10th Circuit. District of Wyoming
    • November 20, 2014
    ...convictions and death sentence. Eaton v. State, 192 P.3d at 49-51. The Wyoming Supreme Court granted a remand pursuant to Calene v. State, 846 P.2d 679 (Wyo. 1993), for the limited purpose of conducting an evidentiary hearing on Petitioner's claims of ineffective assistance of counsel. The ......
  • Barkell v. Crouse, No. 05-8045.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • November 7, 2006
    ...Wyoming law, however, allows criminal defendants to raise ineffectiveness claims only on direct appeal. See Calene v. State, 846 P.2d 679, 683 (Wyo. 1993). To supplement the trial record with evidence of ineffectiveness, the defendant must move the state supreme court (the state's sole appe......
  • Yellowbear v. State, No. 06-246.
    • United States
    • United States State Supreme Court of Wyoming
    • January 14, 2008
    ...131 P.3d 963, 972 (Wyo. 2006); Gunnett, 2005 WY 8, ¶ 18, 104 P.3d at 780; Black v. State, 869 P.2d 1137, 1141 (Wyo.1994); Calene v. State, 846 P.2d 679, 684 (Wyo.1993); Garcia v. State, 777 P.2d 603, 609 (Wyo.1989); Gist v. State, 737 P.2d 336, 343 [¶ 68] Boiled down to its essence, the pro......
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42 cases
  • Eaton v. Wilson, Case No. 09-CV-261-J
    • United States
    • United States District Courts. 10th Circuit. District of Wyoming
    • November 20, 2014
    ...convictions and death sentence. Eaton v. State, 192 P.3d at 49-51. The Wyoming Supreme Court granted a remand pursuant to Calene v. State, 846 P.2d 679 (Wyo. 1993), for the limited purpose of conducting an evidentiary hearing on Petitioner's claims of ineffective assistance of counsel. The ......
  • Woods v. State, 06S00-9403-PD-224
    • United States
    • Indiana Supreme Court of Indiana
    • November 23, 1998
    ...counsel acted as appellate counsel). Wyoming's approach resembles Oklahoma's and the State's proposed rule here. See Calene v. State, 846 P.2d 679 (Wyo.1993). The parties do not contend in this case that Indiana's rules of procedural default present any similar concerns as to reasonable opp......
  • Teniente v. State, 05-171.
    • United States
    • United States State Supreme Court of Wyoming
    • October 18, 2007
    ...schedule and remanded the matter back to the district court to develop the record regarding the jury's note, pursuant to Calene v. State, 846 P.2d 679, 692 3. During cross-examination, the prosecutor asked, ". . . you've been in jail since last October, haven't you?" to which Riojas replied......
  • Olsen v. State, 98-62.
    • United States
    • United States State Supreme Court of Wyoming
    • April 14, 2003
    ...on appeal where the trial record is insufficient to determine the claim. Arner v. State, 872 P.2d 100, 104 (Wyo.1994); Calene v. State, 846 P.2d 679, 692 (Wyo.1993). Despite the lack of record, we do not find that the assumption that counsel's performance was deficient leads to the conclusi......
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