Martin v. State, 88-155

Decision Date11 October 1989
Docket NumberNo. 88-155,88-155
Citation780 P.2d 1354
PartiesDonald Raymond MARTIN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Wyoming Public Defender Program: Leonard D. Munker, State Public Defender, for appellant.

Donald Raymond Martin, pro se.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Gerald P. Luckhaupt, Asst. Attys. Gen., for appellee.

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

THOMAS, Justice.

The essential concern of the court, in this case, is with the effective assistance of counsel in a post-conviction proceeding conducted pursuant to the provisions of §§ 7- 14-101 to 7-14-108, W.S.1977 (June 1987 Repl.). This issue is invoked by the pro se brief of the appellant. Woven into the question of effective representation is the validity of Donald R. Martin's plea of nolo contendere pursuant to which he was sentenced to the state penitentiary. Dependant upon the propriety of that plea, as a knowing and voluntary admission of guilt, is the resolution of whether the district court properly dismissed the petition for post-conviction relief for failure to state a claim. We hold that Martin's plea of nolo contendere was a knowing and voluntary plea; the effect of that plea is to waive all defenses to the charge other than a claim that the court lacked jurisdiction; the record presents no suggestion of any facts that would support a conclusion that the court was without jurisdiction; and the record does not disclose any failure of counsel under these circumstances. Consequently, we affirm the Order Denying Post-Conviction Relief entered by the district court in this case.

In the brief filed by counsel appointed to represent Martin, six issues are articulated as follows:

"1. Do Alberts, Long, and Fondren dictate that counsel must be appointed upon demand where a request is made but before the petitioner files his claim for post-conviction relief?

"2. What is the district court's responsibility in deciding to appoint counsel?

"3. What is counsel's responsibility after the appointment?

"4. Does a post-conviction claim require that the court make an evaluation of its meritorious or frivolous nature?

"5. How should the trial court treat the record of the proceedings where a guilty plea or nolo contendere plea has been accepted pursuant to Rule 15, W.R.Cr.P.?

"6. What is the applicable standard for review on appeal?"

In the pro se brief of the appellant, this statement of issues appears:

"Whether there was ineffective Assistance of Counsel.

"Whether the trial court was in violation of the Fifth and Fourteenth Amendments to The United States Constitution."

The only issue stated in the brief of appellee is:

"I. Was the petition properly dismissed for failure to state a claim upon which relief may be granted?"

The brief of appellant filed by appointed counsel contains a lengthy dissertation with respect to the propriety of appointing counsel in the post-conviction proceeding in an instance such as this. While that question is not without interest, we do not perceive that it should be addressed in this case because the fact is that the district court did appoint counsel to represent Martin. The State has not appealed that ruling, and the question simply is not present in this case.

Martin was charged with obtaining $1,247.05 from two people in Lyman by false pretenses and with intent to defraud in violation of § 6-3-407(a)(i), W.S.1977. 1 It appears that they agreed to pay him that money to refinish an antique "player piano." The money was paid in advance, and Martin then picked up the piano. Martin, the piano, and the cash all disappeared. Martin later was apprehended. The piano was returned with no work done upon it. The money paid was not recovered.

Martin was bound over to the district court following a preliminary examination and, at his arraignment, he entered a plea of "Not Guilty." He was again before the court for a potential change of plea some two and one-half months later but, after reporting extensive plea negotiations with the prosecuting attorney, counsel for Martin advised the court that Martin wished to persist in the plea of not guilty. A little more than a month after that, Martin again appeared in court with his counsel and, at the conclusion of some rather lengthy proceedings during which the court explored a possible claim of deprivation of the constitutional right to a speedy trial and a claim of excessive bail, the following appears of record:

"THE COURT: * * * How do you plead to that, Mr. Martin?

"DEFENDANT MARTIN: I plead nolo contendere."

Although not required to, the district court then proceeded to establish a factual basis for Martin's plea.

At the initial arraignment, and also at the change of plea hearing, the district court strictly complied with the requirements of Rule 15(c), W.R.Cr.P. It is clear that the court advised Martin of the nature of the charge to which the plea would be offered and the maximum possible penalty provided by law. Martin, who was represented by an attorney, was advised that he had the right to plead not guilty and to persist in that plea. His right to a trial by jury, and to the assistance of counsel at that trial, was explained to him. He understood that he had the right to confront and cross-examine adverse witnesses and, further, had the right not to be compelled to incriminate himself. Additional explanation was made of the fact that, if he should plead guilty or nolo contendere, there would be no trial and that, by such a plea, he waived his right to a trial. He was also informed that, if he should plead either guilty or nolo contendere, the court would be entitled to ask him questions about the offense to which he had pleaded and that the possibility of prosecution for perjury existed if he answered those questions falsely while under oath. The court, in accordance with Rule 15(d), W.R.Cr.P., addressed Martin personally in open court and determined that his plea was voluntary. The nature of the plea agreement process between the State and Martin was fully explored in accordance with Rule 15(e), W.R.Cr.P. The court went to some pains to expand upon the requirements of Rule 15, W.R.Cr.P., and explained to Martin those rights that he would be waiving by a plea of guilty or nolo contendere. The court also explored Martin's health problems, relating to a heart condition that had manifested itself during confinement, and explained that his condition would have to be treated at the penitentiary if he were incarcerated.

After all of this, Martin advised the court that he was pleading nolo contendere of his own free will and that the plea was what he wanted to do. The court specifically asked him if he was entering that plea because he felt forced to do so. Martin replied in the negative. From an examination of the entire record, there appears to be no basis to question the proposition that Martin's plea of nolo contendere was voluntarily and knowingly entered. Gist v. State, 768 P.2d 1054 (Wyo.1989).

This court has ruled that a plea of nolo contendere, within the criminal context, is the same as a plea of guilty. State v. Steele, 620 P.2d 1026 (Wyo.1980); followed in Keller v. State, 723 P.2d 1244 (Wyo.1986). If the plea of nolo contendere is treated as the substantial equivalent of a plea of guilty, it must follow that the effect of that plea is to waive all "non-jurisdictional" claims. Sword v. State, 746 P.2d 423 (Wyo.1987), citing Vallo v. State, 726 P.2d 1045 (Wyo.1986); and Tompkins v. State, 705 P.2d 836 (Wyo.1985), cert. denied 475 U.S. 1052, 106 S.Ct. 1277, 89 L.Ed.2d 585 (1986). Cf. Armijo v. State, 678 P.2d 864 (Wyo.1984).

This brings us to Martin's effort to seek post-conviction relief. Martin initially filed a motion for the appointment of counsel. Although there was no petition for post-conviction relief filed, the court appointed counsel to represent Martin. While the question of whether a proper proceeding had been initiated was being debated, Martin did file a pro se petition for post-conviction relief. In his petition, he contended that he had been denied due process under the Fifth and Fourteenth Amendments to the Constitution of the United States because:

1. He did not receive a quick and speedy trial 2. The State's filing, in the County Court, of three separate complaints with three separate charges represented prosecutorial misconduct and harassment;

3. The State refused to permit Donald R. Martin to take a polygraph test which would constitute exculpatory evidence;

4. The Court refused to set bail in an amount that defendant Donald R. Martin could make;

5. The defendant, Donald R. Martin, had been subjected to cruel and unusual punishment by being kept in the Uinta County Jail, and ultimately placed in the penitentiary, despite the fact that he had experienced a severe heart attack;

6. The State used the fact that he had contested extradition to justify its argument for a high bond and its prosecution on a criminal matter that should have been resolved more appropriately as a civil matter.

No additional claims of any constitutional bases for post-conviction relief were presented by counsel although counsel did brief the law with respect to the claims which Martin had asserted.

Subsequently, Martin filed a pro se response, supplemental to the one filed by counsel, to the State's motion to dismiss. In that document, he restated his claims relating to the filing of three separate complaints; his polygraph question; a denial of reasonable bail; and his subjection to cruel and unusual punishment. In addition, he complained that: his plea of nolo contendere had been coerced; he was not advised that he could have a direct appeal, and that both court and counsel failed in that regard; his plea was coerced; he was not allowed to withdraw his plea in accordance with Rule 30, W.R.Cr.P.; 2 papers he had prepared were...

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