Fondren v. State, 87-140

Citation749 P.2d 767
Decision Date05 February 1988
Docket NumberNo. 87-140,87-140
PartiesJames FONDREN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming

Leonard D. Munker, State Public Defender, Carol A. Serelson, Appellate Counsel, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Paul S. Rehurek, Asst. Atty. Gen., for appellee.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

URBIGKIT, Justice.

This is a denied post-conviction-relief petition now presented after initial trial-court conviction of second-degree murder and appeal denial. A request for counsel to assist petitioner in the trial-court post-conviction proceeding was denied, although thereafter granted by this court for the appeal process. We reverse and remand for appointment of counsel, and do not now consider substantive issues including pretrial detention and confession, contended trial errors, or ineffectiveness of counsel at trial and for the resulting appeal. See Fondren v. State, Wyo., 724 P.2d 461 (1986).

Following second-degree murder conviction and affirmation on appeal, James Fondren, incarcerated in the Wyoming State Penitentiary by a life sentence, filed a post-conviction-relief petition pursuant to § 7-14-101, et seq., W.S.1977, 1987 Replacement, on March 4, 1987, as an apparent general-form document consisting of eight pages with 19 numbered items, including:

"18. I am am not x (check one) able to pay the costs of this proceeding.

"19. I do x do not (check one) request that counsel be appointed to represent me in this proceeding, pursuant to 7-14-104, Wyoming Statutes as amended,"

together with declaration under penalty of perjury subscribed and sworn to before a notary public. The petition was supported by attached affidavits describing a number of bases for conviction reversal.

In response to the petition, the State filed a motion to dismiss with supporting memoranda, contending that confession-suppression issues could have been raised in post-conviction appeal, and that the claims are otherwise refuted by the record. The requested appointment of legal counsel was not addressed by the State in motion or responsive memorandum, and was in effect rejected by nonappointment when the relief sought in the petition was disallowed by the trial court without hearing.

Long v. State, Wyo., 745 P.2d 547 (1987), and most recently Alberts v. State, Wyo. 745 P.2d 898 (1987), are dispositive. We will not consider substantive issues, if any do exist, that may have been presented to the court or may later be provided in amended petition pursuant to provision for amendment in § 7-14-105(c), W.S.1977, 1987 Replacement, from which further trial-court consideration and appropriate proceedings may be conducted and properly concluded.

The State argues that petitioner "did not offer an affidavit of indigence to support his request for appointed counsel." We conclude that the quoted questions and answers in the petition, supported by signatures "under penalty of perjury" and "subscribed and sworn to" clearly suffice, and that a separate, self-standing affidavit to say the same thing is not required. Additionally, in review of the original trial petition, it is discerned that the defendant (1) was without significant funds or assets when the offense occurred; (2) was granted public defender representation for trial and appeal; and (3) would unlikely be sufficiently funded since serving a life sentence.

Reversed and remanded to the trial court for the appointment of the public defender pursuant to § 7-14-104, W.S.1977, 1987 Replacement, and for further proceedings pursuant to statute. 1

CARDINE, Justice, dissenting, with whom BROWN, Chief Justice, joins.

I dissent for the same reasons stated in my...

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5 cases
  • Sword v. Shillinger
    • United States
    • Wyoming Supreme Court
    • November 17, 1989
    ...of counsel and that request had been specifically denied despite a clear statutory right and this court's decisions in Fondren v. State, 749 P.2d 767 (Wyo.1988); Alberts v. State, 745 P.2d 898 (Wyo.1987); and Long v. State, 745 P.2d 547 (Wyo.1987). Then, he was not even given an opportunity......
  • Martin v. State, 88-155
    • United States
    • Wyoming Supreme Court
    • October 11, 1989
    ...by this writer, the counsel appointment request had accompanied a filed petition for post-conviction relief. See also Fondren v. State, 749 P.2d 767 (Wyo.1988). This egregious mistake, repeated in appellate brief, adds little challenge to acceptability of the contentions made as to why the ......
  • Cutbirth v. State
    • United States
    • Wyoming Supreme Court
    • March 11, 1988
    ...The right-to-appointed-counsel issue did not develop since appointment of an attorney was not requested in the petition. Fondren v. State, Wyo., 749 P.2d 767 (1988); Alberts v. State, Wyo., 745 P.2d 898 (1987); Long v. State, Wyo., 745 P.2d 547 (1987). See § 7-14-104, W.S.1977.2 "A combinat......
  • Sanchez v. State
    • United States
    • Wyoming Supreme Court
    • June 7, 1988
    ...it is apparent that Sanchez is now intended to deny the right of counsel previously validated in Long, Alberts, and Fondren v. State, Wyo., 749 P.2d 767 (1988). Even if this court segments out constitutional issues of sentencing to only be subject to presentation in state court by Rule 36, ......
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