Pote v. State, No. 86-120

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: Before BROWN; BROWN; URBIGKIT; URBIGKIT
• Citation: 733 P.2d 1018
• Decision Date: 06 March 1987
• Docket Number: No. 86-120
• Parties: Charles Arthur POTE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

Page 1018

733 P.2d 1018 Charles Arthur POTE, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff). No. 86-120. Supreme Court of Wyoming. March 6, 1987.
Rehearing Denied March 30, 1987.

Page 1019

Richard Wolf, Cheyenne, for appellant (defendant).

Charles Arthur Pote, pro se.

A.G. McClintock, Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., Terry L. Armitage, Asst. Atty. Gen., Cheyenne, for appellee (plaintiff).

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

BROWN, Chief Justice.

This appeal is from the district court's denial of appellant's petition for post-conviction relief. Appellant raises the following issues:

I

"Did the Court err in not disqualifying himself from hearing the Petition for Post Conviction Relief?

II

"Did the Court err in not granting Appellant a hearing on the Petition.

III

"Were Appellant's constitutional rights to due process of law violated when the state failed to comply with discovery in the Appellant's trial.

IV

"Was Appellant denied due process of law when the Court imposed a criminal sentence which was disproportionate to the crime."

We will affirm.

Appellant Charles Arthur Pote was convicted in 1983 by a Park County jury of numerous crimes, and on September 30, 1983, appellant was sentenced as follows:

"Count I, aiding and abetting second-degree murder, in violation of § 6-4-104, W.S.1977. Count II, aiding and abetting attempted second-degree murder, in violation of § 6-4-104, W.S.1977. Count III, unlawful possession of deadly weapon with intent to threaten, in violation of § 6-1-101, W.S.1977, a single sentence of life imprisonment at the Wyoming State Penitentiary, with eligibility for parole after serving twenty-five years and a fine of $41,000.

"Count V, attempted first-degree murder of a police officer, in violation of § 6-4-101, W.S.1977, a sentence of life imprisonment without parole, such sentence to be served consecutive to the sentence imposed on Counts I, II and III, and a fine of $1,000.

"Count VI, concealing stolen goods, in violation of § 6-7-304, W.S.1977. Count VIII, concealing stolen goods, in violation of § 6-7-304, W.S.1977, a single sentence of ten years at the Wyoming State Penitentiary, with eligibility for parole after having served seven years and six months, said sentence to be served consecutive to the sentences previously imposed, and a fine of $1,000.

"Count VII, criminal trespass, a sentence of three months in the Park County jail in Cody, Wyoming, and a fine of $750. Appellant received 92 days credit against this sentence."

Subsequently, this court affirmed appellant's 1983 conviction and sentence. See Pote v. State, Wyo., 695 P.2d 617 (1985).

On September 17, 1985, appellant filed a petition for post-conviction relief. On March 31, 1986, Mr. Pote's petition for post-conviction relief was denied by the district court and this appeal from the district court's order of denial followed.

In appellant's 24-page petition for post-conviction relief he attempts to identify numerous circumstances that denied him a

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fair and impartial trial in 1983. Generally, these matters were urged by appellant in his original appeal or could have been and should have been brought to our attention in the first instance. I

The main thrust of this appeal is that it was error for the district judge to refuse to disqualify himself from hearing and determining appellant's petition for post-conviction relief.

Although appellant sometimes speaks of peremptory disqualification, his remedy if any, is under Rule 23(e), Wyoming Rules of Criminal Procedure, "Disqualification for cause." He exercised his peremptory disqualification against Judge Dixon before his 1983 trial. The petition here for post-conviction relief is the same case (State ex rel. Hopkinson v. District Court, Teton County, Wyo., 696 P.2d 54 (1985)), and appellant is not entitled to an additional peremptory disqualification.

Appellant persists in the perverse notion that he can try to create bias and prejudice by his own conduct and then disqualify the trial judge. For example, before the original trial in 1983 appellant attempted to disqualify Judge Nicholas from conducting the trial. He had previously exercised a peremptory disqualification of Judge Dixon. In support of his motion to disqualify the trial judge appellant filed an affidavit. In the affidavit he vilified Judge Nicholas at great length, and in conclusion, stated that if Judge Nicholas was not prejudiced against him before the affidavit, he would be now after reading it. In the present case appellant appears to be trying to do the same thing.

On October 7, 1985, appellant filed a motion to disqualify Judge Nicholas from hearing his petition for post-conviction relief. He based his motion on:

1) Material in the record and court file.

2) Material alleged in his petition for post-conviction relief.

3) Appellant's pending grievance against Judge Nicholas before the Wyoming Bar Association and the Judicial Ethics Committee [sic].

4) Anticipated federal litigation by appellant against Judge Nicholas.

The circumstances referred to in appellant's petition, more than two dozen in number, occurred before his trial, during trial, before and at sentencing or while he was in the Park County jail, some of which had nothing to do with Judge Nicholas. These allegations are not supported by affidavits or depositions, are conclusionary, and some are irrelevant and argumentative. Furthermore, the great bulk of these allegations were considered by the court in connection with one of appellant's issues in his original appeal.

Appellant asks this court to search the record for materials which he claims will demonstrate that Judge Nicholas was biased and prejudiced. The record consists of 221 pages and contains separate documents. Most of these entries are copies of letters and other communications authored by appellant, and apparently sent to various and sundry people. For example, there is a letter to the President of the United States with receipt requested, and also, a petition requesting that appellant be granted asylum in absentia and recognized as a political prisoner. The record on appeal mainly consists of numerous copies of letters to the Governor of the State of Wyoming, the Wyoming Supreme Court, Judge Nicholas, Judge Dixon, and others.

Appellant's petition for post-conviction relief with respect to Judge Nicholas' bias and prejudice are merely bare allegations unsupported by affidavits, depositions or any other evidence that may be admissible at a hearing. The myriad of letters and other communications in the record do not support the allegation in the petition.

Appellant's petition is patently insufficient and does not comply with Rule 23(e), Wyoming Rules of Criminal Procedure, which provides:

"Disqualification for cause.--Whenever the grounds for such motion [motion for disqualification] become known, the state or the defendant may move for a change

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of district judge on the ground that the presiding judge is biased or prejudiced against the state, the prosecuting attorney, the defendant or his attorney. The motion shall be supported by an affidavit or affidavits of any person or persons stating sufficient facts to show the existence of such ground. Prior to a hearing on the motion any party may file counter-affidavits. The presiding judge shall rule on the motion, and if he grants the same shall immediately call in another district judge to try the action. A ruling on a motion for change of district judge shall not be an appealable order, but the ruling shall be entered on the docket and made a part of the record, and may be assigned as error in an appeal of the case."

Appellant has not demonstrated to us that Judge Nicholas was biased and prejudiced and should have been disqualified from hearing the motion for post-conviction ruling. He has merely brought to our attention a mass of vexatious materials created by him, directed to Judge Nicholas. Appellant apparently asks us to...