Kallas v. State, s. 87-241

• Decision Date: 21 June 1989
• Docket Number: 87-242,Nos. 87-241,s. 87-241
• Parties: Dennis KALLAS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff) (Two Cases).
• Court: Wyoming Supreme Court

Page 198

776 P.2d 198

Dennis KALLAS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff) (Two Cases).

Nos. 87-241, 87-242.

Supreme Court of Wyoming.

June 21, 1989.

Julie Naylor, Appellate Counsel, Public Defender Program, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., and Gerald P. Luckhaupt, Asst. Atty. Gen., for appellee.

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

CARDINE, Chief Justice.

This appeal is from an order dismissing appellant Dennis Kallas' petitions for post-conviction relief.

We affirm.

In 1984, Kallas pled guilty, and judgment was entered on his pleas, to the crimes of second degree sexual assault and taking indecent liberties with a minor. Kallas appealed those convictions, and we affirmed in Kallas v. State, 704 P.2d 693 (Wyo.1985). The facts of the case are adequately set out in that opinion.

In this appeal, Kallas asserts two issues. First, he claims that the petition under review is his first post-conviction relief petition. Wyoming Statute 7-14-103 provides that any claim not raised in an original or an amended petition is waived. This issue arises because prior to the filing of the petitions for post-conviction relief that are under review here, Kallas filed an untitled, pro se document in which he moved the court "pursuant to Title 28 U.S.C. 2254 et seq. to issue a post-conviction on the lesser sentence * * *." As is often the case with pro se documents, it is difficult to ascertain the exact nature of this filing. Because of this uncertainty, we will not dispose of the case based on the waiver which might have arisen from the application of W.S. 7-14-103 to the facts of this case.

As a second issue, Kallas asserts that the district court erred in dismissing his petition without an evidentiary hearing. He claims a hearing was necessary because his trial counsel "guaranteed" him that, if he pled guilty, he would receive a three-to-five year sentence and further that trial counsel failed to object to various violations of his constitutional rights. The State responds to this argument contending these issues, not having been raised on appeal, were waived. It is a long-standing rule of law that issues that could have been raised on appeal are not open to challenge by a petition for post-conviction relief because they are foreclosed by the doctrine of res judicata. Cutbirth v. State, 751 P.2d 1257, 1261 (Wyo.1988). Kallas responds by arguing that, in accordance with Rule 1.04, W.R.A.P., only matters "appearing on the record" may be the subject of an appeal; that this issue is not in the record because his trial counsel told him not to ask any questions of the judge and to answer that he had not been promised any particular sentence; and that this issue, not appearing in the record, could not have been raised in his original appeal. Therefore Kallas concludes, he should be entitled to an evidentiary hearing to create a record and establish his claim of ineffective assistance of trial counsel.

The Wyoming Rules of Criminal Procedure and the Wyoming Rules of Appellate Procedure are replete with means by which a record may be augmented so that all issues which can or should be treated on appeal may be supported by reference to a record on appeal. See Spilman v. State, 633 P.2d 183 (Wyo.1981). It is abundantly clear from this record that Kallas was fully aware of all facts which supported this claim at the time his appeal was perfected in this court. It is the appellant's burden to insure the record on appeal is complete. Matter of Estate of Manning, 646 P.2d 175, 176 (Wyo.1982). Kallas may not so easily sidestep the bar to post-conviction claims that could have been asserted on appeal. Appellant's failure to augment the record and present these issues on appeal is a bar to presentation in post-conviction relief. Cutbirth, 751 P.2d 1257.

In dismissing Kallas' petitions, the district court found that all claims were barred because they were not raised in the original pro se petition which we decline to identify as a post-conviction relief petition. The district court also found that all claims raised in the petition under review here were barred because they could have been raised in Kallas' appeal. In addition, the district court dealt specifically with each of Kallas' claims on its merits. We affirm the district court's order because all matters raised by Kallas in support of the claim of ineffective assistance of trial counsel could have been raised on appeal and are, hence, barred by the doctrine of res judicata. Cutbirth, 751 P.2d 1257. For this reason, there can be no error in the district court's refusal to conduct an evidentiary hearing.

Affirmed.

URBIGKIT, Justice, specially concurring in the result and dissenting in the opinion.

In this second ineffectiveness of counsel constitutional rights forfeiture case, my complete disapproval of the pathway chosen by this court is exhaustively pursued in my dissent in Amin v. State, 774 P.2d 597 (Wyo.1989) and is reiterated. Furthermore, I do not concur with the majority that everything could have been raised on the first appeal even if the appellant, Dennis Kallas (Kallas), had been provided adequate assistance of appellate counsel to then address what is now being presented. The bland contention that this majority permits augmentation of an appellate record for events completely beyond the issues determined in the original proceedings from which an appeal could be taken is, at the very least, newsworthy.

In this decision, the majority says that we should now forfeit Kallas' rights because something was not properly done by his appellate counsel. This case illustrates even more explicitly why this jurisdiction drifts to solitude among all jurisdictions within its development of forfeiture/waiver obstacles to substantive disposition. As cogently related by Kallas, the issue of ineffectiveness of counsel could not be considered on the appellate record from his first conviction since his factual efforts to support that position would not have been available. Factual developments for events outside of the record were required. That process of factual development in most jurisdictions is habeas corpus or post-conviction relief. Additionally, as in this case, the first consideration of the direct ineffectiveness complaint is better addressed to the attention of the initial trial judge where the original trial counsel can be provided the opportunity to explain what occurred if doubt is created.

In direct disagreement with the conclusion of the majority, it is apparent that the appellate record for the first proceeding was complete as addressing what occurred during trial. It did not, however, address other factual contentions which arise in the collateral question of ineffectiveness of counsel. Again, what we see in juxtaposition taken and language used is the suggestion by the majority that appellate counsel was ineffective in failing to deter forfeiture or to avoid waiver for Kallas in the conduct pursued in his initial appeal.

My conviction is to the contrary and I will address this case and present petition in detail to establish substantively that neither was counsel ineffective nor was the trial court anything but extremely careful in the proceedings to receive the guilty plea. All talk about waiver of forfeiture is ill-presented since the initial proceeding was legally proper and constitutionally valid. My conception about a proper disposition of this case is to say just that and not wring out ogres of forfeiture or infuse what by definition did not constitute waiver. See Amin, 774 P.2d at 599 n. 2 (Urbigkit, J., dissenting).

On January 27, 1986, Kallas filed a Motion for Application for Post-conviction on the Lesser Sentence citing 28 U.S.C. § 2254 and W.S. 6-1-101(c), with a prayer for the trial court "to grant the petitioner Post-Conviction on a Lesser SENTENCE." ¹ In response, the State moved "to dismiss the post-conviction relief petition." Reasons given were res judicata or preclusion by the prior appeal and insufficiency of the form of the document filed to constitute a proper post-conviction-relief petition. An order denying the application was entered without a definition of any issues decided and without an attorney for Kallas being either requested or provided. On January 28, 1987, as a new filing in sufficient form and properly presented, a Petition for Post-Conviction Relief was separately filed in each case, stating fifteen claims for relief. A motion to proceed in forma pauperis and for appointment of counsel was also made. Combined consideration of both cases was given in trial court proceeding and the same approach will be followed for my review here.

In response to the petition, the inevitable motion to dismiss was filed by the State with a basis of prior petition and consequent waiver. The office of the public defender was appointed to represent Kallas and to provide legal services which resulted in an amended petition, including a request for evidentiary hearing. Another motion to dismiss was filed by the State again reciting waiver by prior petition and now, substantively, that "an examination of the court file shows that the claims cannot provide relief under Wyoming's post-conviction statutes and that the petition should be denied." Addressed in the discussion were those substantive issues presented in this pro se and counseled amended petition. Following a non-evidentiary hearing, the trial court entered a decision with findings of fact and conclusions of law from which this appeal arises.

The inordinate effort by the State found in this record to avoid substantive decision belies the simplicity of the questions presented: (1) discretion of the trial court to deny an evidentiary hearing on a post-conviction-relief petition; and (2) ineffectiveness of counsel in plea consideration by Kallas. ² Since the...