Munoz v. Maschner

• Decision Date: 06 March 1979
• Docket Number: No. 4973,4973
• Parties: Rudy Patino MUNOZ, a/k/a Rudy Munoz, Appellant (Defendant below), v. Herb MASCHNER (Warden of Wyoming State Penitentiary), Honorable John T. Dixon (Fifth Judicial District Judge, Wyoming), Mr. J. E. Darrah and Mr. G. L. Simonton (Park County Prosecuting Attorneys), the People of the State of Wyoming, et al., Appellees (Respondents below).
• Court: Wyoming Supreme Court

Page 1352

590 P.2d 1352

Rudy Patino MUNOZ, a/k/a Rudy Munoz, Appellant (Defendant below), v. Herb MASCHNER (Warden of Wyoming State Penitentiary), Honorable John T. Dixon (Fifth Judicial District Judge, Wyoming), Mr. J. E. Darrah and Mr. G. L. Simonton (Park County Prosecuting Attorneys), the People of the State of Wyoming, et al., Appellees (Respondents below).

No. 4973.

Supreme Court of Wyoming.

March 6, 1979.

Rudy Munoz, pro se.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Gay V. Bartels, Asst. Atty. Gen., signed the brief on behalf of the appellees.

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

PER CURIAM.

The appellant-petitioner appeals pro se ¹ from an order of the district court dismissing his petition for post-conviction relief. ² In his original petition and in this appeal, appellant asserts he was entitled to relief for these reasons:

(1) The jury did not return a verdict which determined the value of the property stolen as required by § 7-11-502, W.S.1977.

(2) The court failed to instruct and ask the jury to return a verdict as to petitioner's status as an habitual offender.

(3) The trial court erred in sentencing him under the grand larceny statute when he was not tried, convicted and sentenced under that statute.

Petitioner further alleged that in each of the above instances, numerous of his constitutional rights, both state and federal, were violated.

We will affirm.

The post-conviction relief statute is cumulative and repeals no existing laws. § 7-14-108, W.S.1977. The right to claims for relief by petition for post-conviction relief does not afford the right to treat such proceedings as an appeal from the original trial; original trial proceedings will not be reviewed by post-conviction proceedings unless and until it is shown that such is necessary to review some claim having to do with denial of petitioner's constitutional rights. Albert v. State, Wyo.1970, 466 P.2d 826, 828, reh. den. 468 P.2d 968. It is virtually universally recognized that post-conviction relief is not a substitute for an appeal and the petition will not lie where the matters alleged as error could or should have been raised in an appeal or in some other alternative manner. 24 C.J.S. Criminal Law § 1606(9), pp. 696-705; see, West's Digest System, Criminal Law, Key Number 998(2). Relief may be granted only in extraordinary circumstances which strongly suggest a miscarriage of justice.

" * * * Contentions going to the regularity of the proceedings at the trial are not available in the statutory proceeding, and the proceeding cannot be used to raise a question whether errors were committed in the course of the trial. * * * " 24 C.J.S. Criminal Law, § 1606(6), p. 682. (Footnotes omitted.)

The issues raised by appellant relate only to claimed irregularities at trial which are not of constitutional dimensions. They are matters which are evident in the record and which could and should have been raised in an appeal. ³

Petitioner's first issue deals with a requirement that when an indictment charges larceny, the jury must, in their verdict, state the value of the property stolen. § 7-11-502, W.S.1977. ⁴ This court has held that it is mandatory that the value of property be specified in the verdict. State v. Chambers, 1952, 70 Wyo. 283, 249 P.2d 158. This court has subsequently considered a similar question in Kennedy v. State, Wyo.1977, 559 P.2d 1014. In Kennedy, a statutorily prescribed finding of sanity was omitted from the form of verdict, but this court there applied the usual considerations on appeal; error cannot be first asserted on appeal, there must be prejudicial error before a verdict is overturned and instructions must be considered as a whole to determine if the jury was called upon to determine various questions incorporated in a general verdict of guilt.

The question here is whether there is any constitutional violation involved in omission of a stated money value from the verdict of guilty. This court has not considered that question.

The requirements of procedural due process are applicable only upon a showing that protected liberty has been affected. The determination as to when the process demands are met requires a decision as to whether, upon the whole course of proceedings and in all the attending circumstances, there was a denial of fundamental fairness and this is a question of judgment and degree. Pinedo v. United States, 9th Cir. 1965, 347 F.2d 142. In State v. Maldonado, 1962, 92 Ariz. 70, 373 P.2d 583, the concept of due process is described by reference to Lisenba v. People of State of California, 1941, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166, 180, wherein it was said that denial of due process "(a)s applied to a criminal trial * * * is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it * * * (the Court) must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevent a fair trial."

A petitioner seeking post-conviction relief has the burden of showing that he has been denied constitutional safeguards. Brooks v. Gladden, 1961, 226 Or. 191, 358 P.2d 1055, cert. den. 366 U.S. 974, 81 S.Ct. 1942, 6 L.Ed.2d 1263. Petitioner has failed in that regard. We cannot see any absence of fundamental fairness in the procedural irregularity of failing to note the value of stolen property on the verdict. The evidence did show that without a doubt the petitioner stole gasoline, and we would be devoid of common sense to believe that gasoline has no money value. There could be no prejudice. We should not be understood to mean that courts need not adhere to the legislative direction that the value should show on the verdict. It does serve a more valuable purpose when grand larceny is charged to make sure that the jury finds stolen property to be of a value in a statutory amount of "one hundred dollars ($100.00) or upwards," § 6-7-301, W.S.1977. Nor should we be understood as suggesting what our decision would be had this question been presented on appeal, rather than in a post-conviction proceeding.

The defendant was charged with petit larceny, but it was alleged in the information that he had been previously convicted of petit larceny in this state. Under § 6-133, W.S.1957 (now § 6-7-302, W.S.1977 ⁵) a person found guilty of petit larceny, it being the second conviction of petit larceny, "shall suffer the punishment prescribed for those convicted of grand larceny." The jury found the defendant guilty "as charged in the Information," ⁶ but the question of it being a second offense of petit larceny was not presented to the jury nor was that part of the information given to the jury. ⁷ No objections to the instructions were made.

The trial judge considered the punishment on the basis of the evidence he had before him but not presented to the jury that the defendant had been convicted previously of petit larceny in 1974, as well as auto theft. Those appeared in the presentence report by the probation department and defendant was personally accorded an opportunity to correct any errors in the report. He had no disagreement with the facts set out with respect to previous convictions. The petitioner, during his testimony at the trial, admitted that he had been convicted of a felony, i. e., auto theft. That, however, was for purposes of impeachment.

The old case of Bandy v. Hehn, 1902, 10 Wyo. 167, 67 P. 979, as precedent, must be overruled in part. In that instance, the defendant was charged with grand larceny. No allegation of a previous conviction of petit larceny appeared in the information nor did he have any other notice of the consequences of a plea of guilty to petit larceny. He tendered a plea of guilty to petit larceny which was accepted. At sentencing time, "without any evidence being introduced against him, or his identification as one who had been previously convicted of the same offense, and without a jury, and against his objection, and over his request to withdraw his plea of guilty of petit larceny and plead not guilty," 10 Wyo. 169, 67 P. 979, he was, in the trial court, adjudged guilty of grand larceny on the basis of a journal record showing a former conviction for petit larceny. This court then held the judgment void because the defendant was denied due process that he must be charged in the information with the previous conviction "And proved like any other fact " to the jury. We overrule only that part of Bandy which would require proof along with the facts of the basic offense of a previous conviction to the jury.

The procedure of proving a previous crime to a jury as part of the charge has been severely criticized and justifiably so. See case note, "Recidivist Procedure," III Land and Water Law Rev. 191 and "A Criticism of Wyoming's Habitual Criminal Act," 6 Wyo.L.J. 311. Justice Blume, in his concurring opinion to Waxler v. State, 1950, 67 Wyo. 396, 419, 224 P.2d 514, 522, in discussing the process of introducing into evidence the former convictions of a defendant at the same time that the defendant is tried for the later offense stated,

" * * * The fairness of that procedure may well be questioned. We said in Perue v. State, 43 Wyo. 322, 328, 2 P.2d 1072, 1073, that: 'There can be no question of doubt, nor is it of trivial moment, that an accused is prejudiced in the minds of a jury, when evidence appears against him which would indicate habitual criminalty.' (sic) That is just as true today as it was when the case cited was decided. * * * "

The court, in Waxler, was considering §§ 9-109 to 9-111, W.C.S.1945. ⁸ In 1973, the legislature established a bifurcated procedure:

"(a) In charging a person with being an habitual criminal, the information or indictment shall set forth the felony committed within the state and shall allege the two or more...