Sanchez v. State

• Decision Date: 07 June 1988
• Docket Number: No. 87-138,87-138
• Citation: 755 P.2d 245
• Parties: Israel SANCHEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 245

755 P.2d 245

Israel SANCHEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 87-138.

Supreme Court of Wyoming.

June 7, 1988.

Rehearing-En Banc Denied June 29, 1988.

Israel Sanchez, pro se.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., and Karen A. Byrne, Asst. Atty. Gen., for appellee.

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

CARDINE, Justice.

This appeal is from the denial of appellant Israel Sanchez's petition for post-conviction relief. The issues presented for our determination are whether appellant's sentence constitutes cruel and unusual punishment in that "good time" will not accrue to reduce his maximum sentence below the required minimum sentence of twenty-two years and whether his constitutional right to due process was violated by failure of the district court to appoint an attorney to represent him in the post-conviction relief proceeding.

We affirm.

By order filed February 14, 1984, appellant was sentenced to a term of not less than twenty-two years nor more than twenty-four years in the penitentiary, having been found guilty by jury of second-degree murder in violation of § 6-2-104, W.S.1977. On March 10, 1987, appellant filed an application for post-conviction relief in district court. He also filed a motion to proceed in forma pauperis and for appointment of counsel. The State, on March 20, 1987, filed a motion to dismiss and a memorandum in support thereof.

On May 15, 1987, the district court granted the State's motion to dismiss. Appellant's appeal from the order of dismissal was dismissed on July 10, 1987, for want of prosecution. We reinstated the appeal on July 24, 1987, and it is now before us for decision.

The issues presented in this case concern the sentence after conviction and appointment of an attorney. These identical issues were considered in Whitney v. State, Wyo., 745 P.2d 902 (1987), and decided adversely to the position of appellant in this case. As required by our pronouncements in Whitney and the doctrine of stare decisis,

We affirm.

URBIGKIT and MACY, JJ., each filed separate dissenting opinions.

URBIGKIT, Justice, dissenting.

In Whitney v. State, Wyo., 745 P.2d 902 (1987), without the benefit of litigant briefing or review, a majority of this court determined that sentencing questions would not be considered in the post-conviction review process of § 7-14-101 et seq., W.S.1977 by defining conviction as stated in the statute to exclude entry of the criminal sentence. Under the time constraints which existed to release that opinion concurrently with Long v. State, Wyo., 745 P.2d 547 (1987) and Alberts v. State, Wyo., 745 P.2d 898 (1987), a more extended dissent was improvident. Since this decision again raises the same constitutional and statutory concepts, an expanded analysis is justified for the problems and penumbra presented. ¹

In recognition of stare decisis, it is apparent that Sanchez is now intended to deny the right of counsel previously validated in Long, Alberts, and Fondren v. State, Wyo., 749 P.2d 767 (1988). Even if this court segments out constitutional issues of sentencing to only be subject to presentation in state court by Rule 36, W.R.Cr.P., ² counsel under Long, Alberts, and Fondren should be appointed as required in post-conviction proceedings to establish whether other issues should have been considered and resolved. Otherwise, the problem is magnified by what is now before this court for decision where initial contest on sentencing is made and then when post-conviction petition is filed, the argument is presented by the State that it is a second petition and consequently foreclosed. (See Kallas v. State, now pending before this court.) Denial of counsel when requested by the indigent for post-conviction relief under the Wyoming Constitution in sentencing questions would not only ignore the statute as recognized in Alberts and Long, but excise constitutional rights of due process provided by the Wyoming Constitution in Art. 1, § 6, and the right of accused to defend with counsel guaranteed in Art. 1, § 10, as well as the nondiscriminatory operation of law as implicit in Art. 1, § 34.

More divisively, however, as first in Whitney and as now repeated, this court renders a decision on an issue not briefed for appeal. This relegates judicial attention to what should be counsel responsibility, including research and analysis. My analysis of this court's exclusion of sentencing questions in post-conviction relief under the state and federal constitutions would not find precedential application in any other jurisdiction with similar procedures. Certainly the exclusionary approach, except under the Rule 36 methodology, in denial of a hearing on constitutional questions in post-conviction relief proceedings involving sentences, is not validated by federal processes, 28 U.S.C. §§ 2241 and 2255, nor by statutory post-conviction, habeas corpus and coram nobis writs of error in state courts. See Yackle, Post-conviction Remedies, § 38 at 169 (1981). See also United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954).

As illustrative, the ABA standard clearly encompasses the sentence within the post-conviction relief process:

"A post-conviction proceeding should be sufficiently broad to provide relief:

"(a) for meritorious claims challenging judgments of conviction and sentence, including cognizable claims:

"(i) that the conviction was obtained or sentence imposed in violation of the Constitution of the United States or the constitution or laws of the state in which the judgment was rendered;

"(ii) that the applicant was convicted under a statute that is in violation of the Constitution of the United States or the constitution of the state in which judgment was rendered, or that the conduct for which the applicant was prosecuted is constitutionally protected;

"(iii) that the court rendering judgment was without jurisdiction over the person of the applicant or the subject matter;

"(iv) that the sentence imposed exceeded the maximum authorized by law or is otherwise not in accordance with the sentence authorized by law;

"(v) that there exists evidence of material facts which were not, and in the exercise of due diligence could not have been, theretofore presented and heard in the proceedings leading to conviction and sentence, and that now require vacation of the conviction or sentence;

"(vi) that there has been a significant change in law, whether substantive or procedural, applied in the process leading to applicant's conviction or sentence where sufficient reason exists to allow retroactive application of the changed legal standard;

"(b) for meritorious claims challenging the legality of custody or restraint based upon a judgment of conviction, including claims that a sentence has been fully served or that there has been unlawful revocation of parole or probation or conditional release." IV ABA Standards for Criminal Justice, Standard 22-2.1 at 22.16.

Additionally, the direction this court now takes is antagonistic to the recommendation of the National Association of Prosecutors for whom the desired goal is achievement of the omnibus treatment and resolution of all post-conviction inquiries in one complete and final proceeding. Standard 18.3, National Prosecution Standards (National District Attorneys Association) (1st ed. 1977).

The Wyoming remedy for violation of constitutional rights (post-conviction-relief statute), Ch. 63, S.L. of Wyoming 1961, sponsored by two attorneys in H.B. 111, was passed in the session without major change and had not until the recent legislative session been amended significantly since initial passage except in modest provision relating to right to counsel by a 1987 recodification. Digest of the House of Representatives, House Bill 111, p. 357. See Alberts v. State, supra and Long v. State, supra. The Wyoming statute was originally enacted in response to Young v. Ragen, 337 U.S. 235, 69 S.Ct. 1073, 93 L.Ed. 1333 (1949), and similar decisions of the United States Supreme Court. See Case v. Nebraska, 381 U.S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1965). In text, the Wyoming bill followed the Illinois post-conviction hearing statute, now entitled Ch. 38 § 122-1 et seq., Ill.Ann.Stat., and since enacted by the Illinois legislature in 1949, has remained largely unamended except to change the limiting five years to 20 years to explicate an apparent problem of adequacy under the United States Constitution. ³ The significance of the history of post-conviction relief by examination of the jurisdiction of derivation shows an absence of any justification for the present court's decision for disparate treatment of constitutional sentencing inquiry. Any case precedent, as now continued for nearly 40 years after initial passage in Illinois and 26 years since enacted in this state, is lacking for the present decision. See People v. Dale, 406 Ill. 238, 92 N.E.2d 761 (1950), overruled on other grounds sub nom. People v. Warr, 54 Ill.2d 487, 298 N.E.2d 164 (1973); People v. Banks, 49 Ill.2d 243, 274 N.E.2d 34 (1971); People v. Jackson, 47 Ill.2d 344, 265 N.E.2d 622 (1970); People v. Bilyeu, 102 Ill.App.3d 130, 57 Ill.Dec. 795, 429 N.E.2d 912 (1981); People v. Placek, 43 Ill.App.3d 818, 2 Ill.Dec. 493, 357 N.E.2d 660 (1976); People v. Logan, 39 Ill.App.3d 656, 350 N.E.2d 40, cert. denied 430 U.S. 956, 97 S.Ct. 1603, 51 L.Ed.2d 807 (1976); People v. Chellew, 20 Ill.App.3d 963, 313 N.E.2d 284 (1974); People v. Hoffman, 25 Ill.App.3d 261, 322 N.E.2d 865 (1974); and People v. Barney, 89 Ill.App.2d 180, 232 N.E.2d 481 (1967). ⁴

It should be recognized that challenge to a facially constitutional sentence as contended to be substantially invalid, would likely first arise in post-conviction-relief appeal. Consequently, I find this decision indigenously and specifically contrary to the object to be served by Young v. Ragen, supra when, by present...