Campbell v. State, 88-152

• Citation: 772 P.2d 543
• Decision Date: 11 April 1989
• Docket Number: No. 88-152,88-152
• Parties: Larry CAMPBELL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

Page 543

772 P.2d 543

Larry CAMPBELL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 88-152.

Supreme Court of Wyoming.

April 11, 1989.

Public Defender Program: Leonard D. Munker, State Public Defender, Steven E. Weerts, Appellate Counsel, and Jacalyn Bachlet, Student Intern, Cheyenne, for appellant.

Larry Campbell, pro se.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., Gerald P. Luckhaupt, Asst. Atty. Gen., Cheyenne, for appellee.

Before THOMAS, URBIGKIT, MACY and GOLDEN, JJ., and LANGDON, District Judge.

GOLDEN, Justice.

Petitioner Larry Campbell appeals the district court's denial of his amended petition for post-conviction relief. In that amended petition he raises the following issues:

1. Petitioner was denied his Sixth Amendment right to have compulsory process for obtaining witness (sic) in his favor, Debbie (Flagg) Tayon, Lori Kohl, Teresa McConnell, and Danny LaFluer, which denied him a right to present his defense and denied Petitioner a fair trial.

2. Defense counsel's decision not to call witnesses, Debbie (Flagg) Tayon, Lori Kohl, Teresa McConnell, and Danny LaFluer, requested by Petitioner constituted ineffective assistance of counsel in violation of U.S. Constitutional Amendments VI and XIV and Wyoming's Constitution, Article I, Sub. Sec. 10.

We affirm.

The facts of this case are set forth in Campbell v. State, 728 P.2d 628 (Wyo.1986), which affirmed Campbell's conviction on one count of first degree sexual assault. In that direct appeal Campbell raised the following issue:

Whether defense counsel's failure to call witnesses in appellant's behalf denied appellant of effective assistance of counsel.

Id. After reviewing that issue in light of the record and applicable case law this court held unanimously that Campbell had not shown a denial of effective assistance of counsel. Id. at 630.

After his direct appeal was affirmed, Campbell petitioned the district court for post-conviction relief under W.S. 7-14-101 through 7-14-108 (June 1987 Repl.), ¹ and for permission to proceed in forma pauperis. In conformity with this court's opinions in Alberts v. State, 745 P.2d 898, 901 (Wyo.1987); and Long v. State, 745 P.2d 547, 552 (Wyo.1987), the district court granted the In Cutbirth v. State, 751 P.2d 1257, 1261 (Wyo.1988), this court established a rule of procedural waiver in post-conviction appeals similar to the rule for procedural waiver in force in the federal courts. In Cutbirth, this court specifically stated:

motion to proceed in forma pauperis and appointed counsel from the Public Defender's office to advise Campbell in his post-conviction efforts on February 5, 1988. Campbell filed a motion to amend his original petition on March 7, 1988, and that motion was granted on March 28, 1988. On April 5, 1988, after receiving assistance from appointed counsel, Campbell filed his amended petition for post-conviction relief raising the two issues set out above and an affidavit in support of that amended petition. Three days later, the state filed a motion to dismiss the amended petition in response. One additional affidavit in support of Campbell's amended petition was filed on April 13, 1988. A hearing on the amended petition was held in the district court on April 15, 1988; Campbell was represented by appointed counsel at that hearing. On April 26, 1988, the district court entered an order granting the state's motion to dismiss Campbell's amended petition, thereby denying Campbell post-conviction relief. This appeal followed. Campbell was represented in this appeal by yet another attorney from the Public Defender's office and he filed a pro se brief on appeal and a pro se reply brief as well.

This court has taken a disciplined approach to post-conviction relief, pointing out that it is not a substitute for the right of review upon appeal from a conviction, nor is it to be treated as an appeal. Pote v. State, Wyo., 733 P.2d 1018 (1987); Hoggatt v. State, Wyo., 606 P.2d 718 (1980); Johnson v. State, Wyo., 592 P.2d 285, cert. denied, 442 U.S. 932, 99 S.Ct. 2864, 61 L.Ed.2d 300 (1979); Munoz v. Maschner, Wyo., 590 P.2d 1352 (1979). Questions which may be raised by motion for post-conviction relief are limited to those of constitutional magnitude which manifest a miscarriage of justice. Wright v. State, Wyo., 718 P.2d 35 (1986); Hoggatt v. State, supra. Those issues which could have been presented on appeal are not open to challenge by a motion for post-conviction relief because they are foreclosed by the doctrine of res judicata. Wright v. State, supra; Hoggatt v. State, supra; Munoz v. Maschner, supra.

The issues Campbell raised in his amended petition were presented to the district court with the aid of appointed counsel; that appointed counsel was not the same attorney that assisted Campbell in either his trial or in his direct appeal. Campbell was allowed to amend his original petition for post-conviction relief and to further support it with affidavits. After the state filed its motion to dismiss, the district court held a hearing on Campbell's petition, and after reviewing Campbell's brief and carefully considering the arguments of his counsel, denied the amended petition finding the issues it raised to have been disposed of in the direct appeal or otherwise procedurally waived.

Campbell had a fair opportunity to challenge his conviction under the post-conviction relief statutes and the district court denied his amended petition finding the issues it raised to be procedurally barred under Wyoming law. See Harris v. Reed, 489 U.S. 255, ----, 109 S.Ct. 1038, 1043-44, 103 L.Ed.2d 308, 316-19 (1989). We defer to the district court's decision.

Affirmed.

URBIGKIT, Justice, specially concurring and dissenting.

It is their perception of a system that provides fairness and due process, and not primarily achievement of acquittal nor imposition of conviction, that determines the attitudes of the criminally accused toward the justice delivery system and serves to establish rehabilitation as a purpose rather than retribution as an infliction.

For all men strive to grasp what they do not know, while some strive to grasp what they already know; and all strive to discredit what they do not excel in, while none strive to discredit what they do excel in. This is why there is chaos.

Chaung-tzu.

To understand how that psychological constant applies to appellant Larry Campbell At trial, Campbell was not provided any realistic defense; without a single witness or any other defending favor except ineffective cross-examination of the victim and other eyewitness and final argument implausibly texted in unattainable reasonable doubt; leaving him without evidence which even implied why not to convict. There is an undeniable thesis in criminal defense that if you cannot--don't try; but look for the best plea bargain possible. However, Campbell contends that a defense could have been made, and it is the denial of that opportunity to try, as initially rejected, which now continues as his purpose in appeal.

(Campbell), age 19 at time of arrest, born out of wedlock to an Indian mother and a disappearing Polish father, requires retracing his exposure to the adjudication of guilt which he then and since has constantly, but ineffectively, denied.

At this juncture, Campbell's appellate complaint to seek fairness, propriety and due process again arrives following rejected conviction appeal and denied post-conviction relief in trial court. Essentially, Campbell challenges a justice system which he alleges to have visited upon him drastic and vicarious punishment without provision for realistic opportunity to defend.

In concurrence with the majority, I agree on res judicata for issues decided in Campbell's first appeal. However, I reject procedural default to hide other claims which have never been addressed within our substantive responsibility for the validity of the justice delivery system and the propriety of according constitutional due process and equal protection to Campbell. To analyze my distress and Campbell's contentions, we need to follow what happened down the path of this case since the guilty verdict was rendered.

Immediately following conviction, Campbell, first pro se and then through counsel, filed a motion for new trial which the counsel-prepared document formally addressed pursuant to W.R.Cr.P. 34:

1) Ineffective assistance of counsel during Trial which violates the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Wyoming Constitution.

2) Biased and prejudicial jurors which violates the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Wyoming Constitution.

3) Newly discovered evidence.

4) Defendant's failure to testify in his own behalf which violates the Fifth Amendment to the United States Constitution and Article I, Section 11 of the Wyoming Constitution.

The portion of the motion addressing the question of newly discovered evidence was deleted by oral statement of counsel at argument on the motion for new trial, after which the motion itself was orally denied and the trial court then moved on to sentencing. No written denial order was entered.

First appeal followed, and of the three issues included in the denied motion for new trial, the only issue presented on appeal, through the continued representation of the office of the public defender, was whether "defense counsel's decision not to call witnesses requested by appellant constituted ineffective assistance of counsel in violation of the United States Const. Amends. 6 and 14 and Wyo. Const. Art. 1, § 10;" or, as otherwise stated in the statement of the issues, "whether defense counsel's failure to call witnesses in appellant's behalf denied appellant of effective assistance of counsel."

This court, as then called to addressed that single question, affirmed in Campbell v. State, ...