Pote v. State, 86-120
| Decision Date | 06 March 1987 |
| Docket Number | No. 86-120,86-120 |
| Parties | Charles Arthur POTE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
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.
This appeal is from the district court's denial of appellant's petition for post-conviction relief. Appellant raises the following issues:
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:
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 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.
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:
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 conclude that these materials, designed to rile the district judge, resulted in him being biased and prejudiced. This we cannot do. Appellant has not met his burden.
The "bias" which is a ground for disqualification of a judge must be personal. Such conditions must exist which reflect prejudgment of the case by the judge or a leaning of his mind in favor of one party to the extent that his decision in the matter is based on grounds other than the evidence placed before him. Cline v. Sawyer, Wyo., 600 P.2d 725 (1979).
Appellant has the burden to demonstrate that the judge was biased and prejudiced. He has failed in that burden.
In appellant's second issue on appeal he complains that it was error for the district judge to act on his petition for post-conviction relief without an evidentiary hearing. The statutes pertinent to this issue provide in part:
"Any person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the constitution of the United States or of the state of Wyoming, or both, may institute proceedings under this act [§§ 7-14-101 to 7-14-108]. * * * " § 7-14-101, W.S.1977.
* * * " § 7-14-106, W.S.1977.
The post-conviction procedure set forth in the statutes does not require a formal hearing nor does it require that the petitioner be brought before...
To continue reading
Request your trial
-
Brown v. State
...this egregious mistake was restated again without further citation of authority by this court in Pote v. State, 733 P.2d 1018, 1020, 1024 (Wyo.1987) (Urbigkit, J., dissenting). This court swims upstream by this result-driven adaptation within the body of law to be totally alone on this issu......
-
Smallwood v. State
...analysis to the disqualification for cause. I disagree that our history and precedent justifies this casual critique. Pote v. State, 733 P.2d 1018 (Wyo.1987); Pote v. State, 695 P.2d 617 (Wyo.1985); Kobos By and Through Kobos v. Sugden, 694 P.2d 110 (Wyo.1985); Cline v. Sawyer, 600 P.2d 725......
-
Duffy v. State
...simply shifts the focus of the attack from the sentence itself to a comparison of Duffy's sentences with other sentences. In Pote v. State, 733 P.2d 1018 (Wyo.1987), we refused to permit an appellant to circumvent the doctrine of res judicata by simply shifting the focus of his Furthermore,......
-
Osborn v. Shillinger
...the proposition that a petitioner "must plead a substantial claim and demonstrate how the allegations can be proven." 7 Pote v. State, 733 P.2d 1018, 1021 (Wyo.1987). Wyoming cases in other areas that turn on the distinction between affidavits based upon personal knowledge and those based u......