Johnson v. State, 5022

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: Before RAPER, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE; ROSE
• Citation: 592 P.2d 285
• Parties: A. J. JOHNSON, Appellant (Petitioner below), v. The STATE of Wyoming, Appellee (Respondent below).
• Docket Number: No. 5022,5022
• Decision Date: 23 March 1979

Page 285

592 P.2d 285 A. J. JOHNSON, Appellant (Petitioner below),
v.
The STATE of Wyoming, Appellee (Respondent below). No. 5022. Supreme Court of Wyoming. March 23, 1979.

Gerald M. Gallivan, Director, Wyoming Defender Aid Program, and William D. Hjelmstad, Student Intern, Wyoming Defender Aid Program, Laramie, for appellant.

John J. Rooney, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Sharon A. Fitzgerald, Legal Intern, Cheyenne, for appellee.

Page 286

Before RAPER, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE, J., Retired. ^*

ROSE, Justice.

This is an appeal from an order denying a petition for post-conviction relief. Defendant Johnson was convicted of aggravated robbery under § 6-4-402, W.S.1977, and was sentenced to eight to fifteen years in the Wyoming State Penitentiary. Johnson appealed the conviction, and the trial court's judgment entered on the verdict was affirmed by this court. Johnson v. State, Wyo., 562 P.2d 1294. Appellant then filed his petition for post-conviction relief under § 7-14-101, W.S.1977 ¹, and an order was thereafter entered denying the petition, whereupon Johnson has, once more, brought his appeal to this court.

Appellant raises four issues, which he identifies as: knowing suppression of a material witness by the prosecution; conviction obtained by a violation of the privilege against self-incrimination; conviction obtained by the unlawful failure of the prosecution to disclose evidence favorable to the appellant; and conviction obtained by unlawful use of opinion testimony.

The State, for one of its grounds for argument, contends that the defendant either did or could have raised these issues upon direct appeal and is, therefore precluded from raising them in this post-conviction proceeding under § 7-14-101, supra. We agree we will affirm on this ground and, therefore, there is no reason to consider the other arguments presented by the State.

A proceeding under a state post-conviction-relief statute such as Wyoming's §§ 7-14-101 through 7-14-108, W.S.1977, is not available unless the grounds relied upon are authorized by statute. 24 C.J.S. Criminal Law § 1606(6), p. 681 (1961). Under the Wyoming post-conviction statutes, only alleged deprivation of constitutional rights can furnish grounds for relief. Munoz v. Maschner, Wyo., 590 P.2d 1352 (No. 4973, decided March 6, 1979); and Albert v. State, Wyo., 466 P.2d 826, 828, reh. den. 468 P.2d 968 (1970). Relief of the post-conviction nature will be granted only in extraordinary circumstances where there is a likelihood that without it the defendant would not have been found guilty and the probability of the miscarriage of justice is strong. Munoz v. Maschner, supra.

The statute does not give a defendant the right to have the case tried over, and may not be employed as a substitute for an appeal. Munoz v. Maschner, supra; and Albert v. State, supra. ² It is intended to grant relief when the substance of a fair trial has been denied, followed by the imposition of a sentence. State v. Curran,

Page 287

10 Terry 350, 116 A.2d 782, aff'd 10 Terry 587, 122 A.2d 126, cert. den. 352 U.S. 913, 77 S.Ct. 151, 1 L.Ed.2d 120 (1955). The inquiry, under a statute such as ours, is limited to a determination of whether or not the defendant was denied the right to be represented by counsel, to have witnesses, and to have a fair opportunity to prepare and present his defense. 24 C.J.S. Criminal Law § 1606(6), p. 682 (1961). To warrant a new trial under our statute, it must first appear to the court that a retrial could reasonably be expected to result in a different verdict and judgment. State v. Curran, supra.

It is generally conceded that review of judgment by statutory petition is not restricted by res judicata, but a petition to vacate or set aside a judgment or sentence brought under our post-conviction statute does not offer remedies which have previously been pursued to completion. Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); and Church v. Gladden, 244 Or. 308, 417 P.2d 993 (1966). Issues disposed of on a previous appeal from the judgment of conviction cannot be reviewed by...