Hoskovek v. State, 5456

• Decision Date: 26 June 1981
• Docket Number: No. 5456,5456
• Citation: 629 P.2d 1366
• Parties: Steven J. HOSKOVEK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1366

629 P.2d 1366

Steven J. HOSKOVEK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5456.

Supreme Court of Wyoming.

June 26, 1981.

Gerald M. Gallivan, Director, Wyo. Defender Aid Program, argued, and Michael B. Rosenthal, Student Intern, Wyo. Defender Aid Program, Laramie, on brief, for appellant.

Allen C. Johnson, Sr. Asst. Atty. Gen., argued, Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., Cheyenne, on brief, for appellee.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

ROONEY, Justice.

In this appeal, appellant-defendant contends that he was denied effective assistance of counsel in a criminal proceeding in which he was found guilty by a jury of the crime of aggravated robbery. Specifically, appellant contends that the public defender, who represented him at the trial, did not adequately investigate and prepare a "crucial" and "sole" defense premised upon appellant's lack of mental competence, capacity and legal sanity.

Inasmuch as we do not find factual support for the contention in the record, we affirm.

A criminal defendant is entitled to an "effective" assistance of counsel. Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). The standard which we have established to determine whether or not the assistance of counsel is effective is one of "reasonableness." Is the assistance rendered by counsel that which would reasonably be rendered by a reasonably competent attorney under the facts and circumstances of the case? If it is, it is effective. If it is not, it is ineffective. Galbraith v. State, Wyo., 503 P.2d 1192 (1972); Ash v. State, Wyo., 555 P.2d 221 (1977); Johnson v. State, Wyo., 562 P.2d 1294 (1977); Adger v. State, Wyo., 584 P.2d 1056 (1978). The burden rests upon appellant to establish the ineffectiveness of counsel's assistance inasmuch as there is a presumption that counsel is competent and that he performed his duty. Johnson v. State, supra; Galbraith v. State, supra.

Appellant has not carried this burden and has not established the ineffective assistance of counsel under the aforesaid standard.

It was not until the sentencing procedure on December 2, 1980 that there was any indication in the record relative to the possible existence of a mental problem or disorder on the part of appellant. At that time, appellant's father testified to unusual behavior by appellant about a week before the robbery and to similar behavior subsequent to the robbery after he was released on bail. During the latter period, appellant was hospitalized at Porter Hospital in Denver by his parents for treatment of "active hallucinations." Later, he underwent a diagnostic evaluation at the Jefferson County Diagnostic Unit in Golden, Colorado. The diagnostic impression was "schizoid personality disorder, with paranoid features."

The record does not reflect whether or not appellant's trial counsel was aware of these things. It does not reflect whether or not these things were deliberately concealed from such trial counsel by appellant and/or by his family, or whether or not such trial counsel made inquiry concerning them. The record does not reflect the extent, if any, that these things were discussed by appellant with his trial counsel, and, if they were discussed, whether or not appellant refused to allow a defense based thereon. ¹ It does not reflect whether or not appellant and his trial counsel decided that if a defense based on such things were presented it would have the potential to weaken the defense which was presented, ² and that it was decided that the better course was to proceed only with the defense presented. The record does not reflect whether or not these things would be sufficient to support legal defenses based on lack of capacity as a result of mental illness or deficiency.

In short, the record does not reflect that the assistance rendered by appellant's trial counsel was other than that which would reasonably be rendered by a reasonably competent attorney under the facts and circumstances of this case. Appellant has not carried his burden to establish an ineffective assistance of counsel.

At page 1196 of Galbraith v. State, 503 P.2d, we quoted the following from United States v. Rubin, 433 F.2d 442, 444 (5th Cir. 1970), cert. denied 401 U.S. 945, 91 S.Ct. 961, 28...