Dotson v. State, 85-134

• Decision Date: 08 January 1986
• Docket Number: No. 85-134,85-134
• Citation: 712 P.2d 365
• Parties: George DOTSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 365

712 P.2d 365

George DOTSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 85-134.

Supreme Court of Wyoming.

Jan. 8, 1986.

Leonard D. Munker, State Public Defender, Martin J. McClain, Appellate Counsel, and Margaret Ann Maurer, Legal Intern, Wyo. Public Defender Program, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Sharon L. Gwin, Student Intern, for appellee.

Before THOMAS, C.J., ROONEY, ^* BROWN and CARDINE, JJ., and GUTHRIE, J., Retired.

GUTHRIE, Justice, Retired.

Appellant here was tried for the crime of knowingly making a false statement and document required for the sale and transfer of a motor vehicle in violation of § 31-4-318, W.S.1977. At trial in the justice of the peace court, he was found guilty, and sentence was imposed. An appeal was pursued to the district court, and that judgment was affirmed. This appeal is taken then from that action of the district court.

The prosecution in this case was conducted by Chris White, who was acting as a deputy county attorney in Park County, Wyoming. Mr. White was not at that time a member of the Wyoming State Bar, but was a member of the California State Bar and was admitted to the Wyoming State Bar approximately one month after this incident. It does not appear from the record that the appellant or his counsel was aware of this fact at the time of trial. When this became known to counsel and to appellant, a motion to dismiss upon this basis was made to the justice of the peace and was denied. This action and the conviction and judgment were affirmed by the district court on appeal.

In this case, the appellant's argument is grounded upon the following:

"Whether the failure to comply with the rules and statutes governing the practice of law in the State of Wyoming deprived the justice court of jurisdiction to prosecute Appellant."

The brief of the appellant here makes no claim of prejudice nor was any asserted in argument. Error which does not affect substantial rights is regarded as harmless and "shall be disregarded" on appeal. Rule 49(a), W.R.Cr.P.; Rule 23(g)(1), W.R.Cr.P.J.C. Our case law follows this rule. Appellant must show prejudice and has the burden of establishing that prejudice. Jackson v. State, Wyo., 624 P.2d 751, cert. denied 451 U.S. 989, 101 S.Ct. 2327, 68 L.Ed.2d 848 (1981), and authorities cited; Belondon v. City of Casper, Wyo., 456 P.2d 238 (1969), cert. denied 398 U.S. 927, 90 S.Ct. 1815, 26 L.Ed.2d 89 (1970). It is this rule, and the courts' frequent adherence to it, which apparently prompts this appellant to seek salvation upon the theory that a prosecution so conducted involves an error so grave that the court would lose jurisdiction of the case. The broad application of the rule requiring the demonstrated existence of prejudice in order to require reversal is so all-encompassing that even errors of constitutional dimension may not justify reversal as plain error. Hays v. State, Wyo., 522 P.2d 1004 (1974).

Appellant states in support of this contention that "[t]his concept is so fundamental to the fair administration of justice that it is a jurisdictional issue that cannot be waived, and can be raised at any time." Aside from this expression of opinion, we find no applicable authority for such a proposition as is contended for by the appellant. The brief would have greater value in a case involving the unlawful or unauthorized practice of law, but in no place does there appear to be any authority upon the narrow question which is directly posed here, which the Court conceives to be:

Does the appearance and prosecution of a case by a deputy county attorney who was not then a member of the Wyoming State Bar deprive the trial court of jurisdiction of the offense charged when the defendant is in no manner prejudiced?

The case of People v. Montoya, 44 Colo.App. 234, 616 P.2d 156 (1980), is applicable here because of its posture. In that case, as in this case, a motion to dismiss on the basis that the court lacked jurisdiction was made because members of the attorney general's office had been improperly appointed to appear as special prosecutors and, therefore, their appointments were invalid. In response to this contention, the court at page 162 observed:

" * * * The eligibility of members of the Attorney General's office for appointment as special prosecutors has no bearing on the ultimate determination of guilt or innocence; even if ineligible as special prosecutors, the members of the Attorney General's office acted as de facto officers whose authority to prosecute Montoya may not now be challenged. [Citation.]" (Emphasis added.)

In the case of Commonwealth v. Carpenter, 172 Pa.Super. 271, 94 A.2d 74 (1953), a defendant raised objection to the trial court having allowed private counsel to improperly participate in the prosecution. There the appellate court made the following observations at page 76:

"Likewise without merit is defendant's argument that the trial judge erred in permitting private counsel to participate in the prosecution. Defendant 'had no legal concern with the personality of those selected by the Commonwealth to conduct the...