Duffy v. State

• Citation: 837 P.2d 1047
• Decision Date: 28 July 1992
• Docket Number: Nos. 91-52,91-61,s. 91-52
• Parties: Scott DUFFY, Petitioner, v. The STATE of Wyoming, Respondent. Scott DUFFY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1047

837 P.2d 1047

Scott DUFFY, Petitioner, v. The STATE of Wyoming, Respondent.

Scott DUFFY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

Nos. 91-52, 91-61.

Supreme Court of Wyoming.

July 28, 1992.

Martin J. McClain, Tallahassee, Fla., for Scott Duffy.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Jennifer L. Gimbel, Sr. Asst. Atty. Gen., Larry M. Donovan, Sr. Asst. Atty. Gen., for the State.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT, ^* MACY and GOLDEN, JJ.

THOMAS, Justice.

The key issue in this case is whether Scott Lee Duffy (Duffy) was the victim of ineffective assistance by his appointed trial counsel who allegedly failed to advise him of the prospect of consecutive sentencing prior to the entry of his pleas of guilty. Duffy has endeavored to structure a cause celebre by claiming that the prime issue is deprivation of his right to counsel at a critical stage of the proceedings. He was brought into the presence of the court, with the prosecuting attorney present, interrogated about his prior convictions, and asked about his intention to change his plea to guilty when his attorney could not be present. Other issues asserted by Duffy are that his appellate counsel was ineffective because the deprivation of right to counsel at a critical stage of the proceedings was not raised in his initial appeal and, in an appeal from the denial of a motion to correct sentence, Duffy contends the sentences imposed were unlawful because they were disproportionate and disparate when compared to the sentences received by his accomplices.

We hold that the record does not sustain a claim of ineffective assistance of counsel with respect to the failure to advise Duffy of the prospect of consecutive sentences. Since the record demonstrates that Duffy was represented by counsel in connection with his change of pleas from not guilty to guilty, he has waived the claim of deprivation of counsel at a critical stage of the proceedings, although we note that the appearance was not truly a critical stage of the criminal proceedings. Duffy's right to counsel under either the Constitution of the United States or the Constitution of the State of Wyoming was not infringed. We hold no error occurred in the denial of his motion to correct an illegal sentence; the writ of certiorari in this case, in light of the facts disclosed by the record, was improvidently granted, and no error is sustained by either Duffy's brief or argument. The order of the trial court is affirmed, and any additional relief is denied.

In his Brief of Appellant, Duffy makes the following formal statement of the issues:

I. Whether Mr. Duffy was denied counsel at a critical stage in the proceeding and was forced to make statements against his interest without benefit of counsel, thus violating his Fifth, Sixth, Eighth and Fourteenth Amendment rights.

II. Whether Mr. Duffy was denied effective assistance of counsel during the proceedings in violation of his Fifth, Sixth, Eighth and Fourteenth Amendment rights.

III. Whether Mr. Duffy was denied his right to equal protection of the law and his Eighth Amendment protections by the disparate treatment and disproportional sentences he received.

As Respondent and Appellee, the State of Wyoming says that these are the issues:

1. Did Appellant's appearance, without counsel, at an aborted change of plea hearing, result in a violation of his Sixth Amendment right to counsel?

2. Was Appellant denied his right to effective assistance of counsel when he was not advised of the possibility of consecutive sentences and was appellate counsel ineffective for failing to raise this issue on appeal?

3. Was the Appellant denied equal protection and due process of law by way of a disparate and disproportionate sentence?

This is the third time Duffy has been before this court attacking his conviction of December 11, 1985 for a violation of Wyo.Stat. § 6-1-201(a) and (b)(i) (June 1983 Repl.) for being an accessory before the fact to the crime of aggravated robbery, as defined in Wyo.Stat. § 6-2-401(c)(ii) (June 1983 Repl.), and Wyo.Stat. § 6-1-303(a) (June 1983 Repl.) for conspiracy to commit burglary. In his first appeal, which we shall style Duffy I and is cited as Duffy v. State, 730 P.2d 754 (Wyo.1986), Duffy contended that the sentences that were imposed violated the indeterminate sentencing provision then in effect and found in Wyo.Stat. § 7-13-201 (1977). He also contended he was entitled to credit for time he had served in the Fremont County Jail while awaiting trial and that his sentences constituted an abuse of discretion. In that case, relief was denied as to all Duffy's allegations of error.

In his next appeal, which we shall style as Duffy II and which is cited as Duffy v. State, 789 P.2d 821 (Wyo.1990), Duffy argued that his conviction under the statute proscribing accessory before the fact of aggravated robbery and the statute proscribing conspiracy to commit burglary subjected him to double jeopardy. He there contended he had been prejudiced by the failure of the trial court to advise him of the possibility of consecutive sentences, and he reasserted the claim that his sentences were unlawful, arguing on that occasion that the sentences imposed inhibited his right to obtain a deduction for good time in connection with service of his sentence. As we did in the first appeal, this court affirmed the trial court in that case, finding no error in the proceedings and denying the relief sought.

The facts relating to the initial criminal offense are adequately articulated in Duffy II. We quote from that case:

The record demonstrated that Duffy, while he was incarcerated in Castle Rock, Colorado, had planned the robbery of his grandmother. He did this by telephone calls to two accomplices in Wyoming. Duffy explained to them how to gain entry into his grandmother's house and told them where they probably would find her valuables. The entire plan was that the two fellow conspirators would burglarize the grandmother's home, which was located in Fremont County, Wyoming, and they then would travel to Colorado to help Duffy escape from incarceration.

The two partners in crime went to the grandmother's home in accordance with the plan. One waited outside in a car while the other broke a window of the home to gain entry. The grandmother was awakened by the sound of the breaking glass, and she got up and went to the place where she had heard the noise. There, she discovered the burglar reaching through the broken window and holding a pistol in his hand. He ordered the grandmother to unlock the front door and, when she complied, he entered the house and demanded that she lead him to the safe where she kept her money. The grandmother took him into the bedroom where he removed a .38 caliber pistol from a nightstand. Duffy had told him of the location of that firearm. The robber then insisted that the grandmother show him her other valuables, and she complied with that demand. She took him throughout the house, showing him whatever valuable property he asked for. The robber collected the property in a pillowcase and returned to the waiting vehicle. Police officers successfully apprehended both principals before they could carry out the plan to help Duffy escape, and both of them confessed the robbery to the investigating officers, implicating Duffy in their statements.

Duffy II, 789 P.2d at 824.

We turn first to Duffy's stated second issue of ineffective assistance of trial counsel in connection with his plea. If that challenge were sustained, then the plea of guilty could not serve as a waiver of his claim of deprivation of counsel at a critical stage of the proceedings. It, therefore, becomes the key issue to be resolved in this case. In Duffy's petition, in connection with the writ of certiorari that was granted, his claim of ineffective assistance of trial counsel is predicated only on the failure of trial counsel to inform him of the possibility of consecutive sentences. We consider only that claim of the failure of trial counsel because any questions relating to preparation and competence of trial counsel, apart from the failure to advise Duffy of the possibility of consecutive sentencing, must be considered res judicata pursuant to Stogner v. State, 792 P.2d 1358 (Wyo.1990). Duffy's argument is that because his appointed trial counsel did not inform him of the possibility of consecutive sentencing, his plea of guilty was not voluntary. He contends that, had he known of the possibility of consecutive sentencing, he would not have entered a guilty plea.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984), the Supreme Court of the United States articulated the process to be invoked in considering the question of ineffective assistance of counsel. The court said that, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. It is to be noted that the court was focused upon the impact on a trial. In that case, the Supreme Court then developed a tandem analysis for determining whether counsel's conduct had so undermined the adversarial process that the trial could not be relied upon as having produced a just result. It required first, that the accused must demonstrate counsel's performance was deficient. Secondly, the deficiencies demonstrated prejudiced the defendant in some manner.

For purposes of this case, we will accept, without deciding, that the failure to inform a defendant of the maximum possible sentence before he enters a plea of guilty may be deficient performance on the part of counsel. The second step in the Strickland analysis, however, must be demonstrated,...