Schreibvogel v. State

Decision Date07 February 2012
Docket NumberNo. S–11–0172.,S–11–0172.
Citation2012 WY 15,269 P.3d 1098
PartiesRandall D. SCHREIBVOGEL, Petitioner, v. The STATE of Wyoming, Respondent.
CourtWyoming Supreme Court

OPINION TEXT STARTS HERE

Representing Petitioner: W. Keith Goody, Cougar, Washington.

Representing Respondent: Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; Meri V. Geringer, Senior Assistant Attorney General. Argument by Ms. Geringer.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

VOIGT, Justice.

[¶ 1] We granted the appellant's Petition for Writ of Review in which we were asked to review the district court's dismissal of the appellant's Verified Petition for Post–Conviction Relief. We agree with the district court that the appellant's claim of ineffective assistance of trial counsel is barred by Wyo. Stat. Ann. § 7–14–103(a)(iii) (LexisNexis 2011). Therefore, the district court did not have jurisdiction to consider the petition. Having no better jurisdiction than did the district court, we likewise dismiss the petition before this Court.

ISSUE

[¶ 2] Where an appellant has raised a claim of ineffective assistance of trial counsel in his direct appeal, and that claim has been decided against him on the merits, may he raise a claim of ineffective assistance of trial counsel, based upon different allegations, in a petition for post-conviction relief?

FACTS

[¶ 3] The appellant was convicted of two counts of first-degree sexual assault and one count of robbery. Our opinion affirming those convictions upon direct appeal is found at Schreibvogel v. State, 2010 WY 45, 228 P.3d 874 (Wyo.2010). In that proceeding, the appellant alleged, inter alia, that his trial counsel was ineffective for failing to object to inadmissible evidence, and for failing adequately to cross-examine the victim in regard to the defense of consent. Id. at ¶¶ 47–49, 228 P.3d at 889–90. The appellant did not prevail on either allegation. Id. at ¶¶ 48, 50, 228 P.3d at 889–90.

[¶ 4] Just less than a year after losing his appeal, the appellant filed in the district court a Verified Petition for Post–Conviction Relief. In his petition, the appellant alleged that his appellate counsel was ineffective for not raising in the direct appeal two additional allegations of trial counsel's ineffectiveness: (1) failure to pursue as a defense the synergistic effect of the victim's simultaneous use of the prescription drug Paxil and alcohol; and (2) failure to investigate and pursue expert medical testimony as to the cause of an injury to the victim's face. In addition, the appellant also alleged that appellate counsel rendered ineffective assistance by failing to seek an evidentiary hearing under W.R.A.P. 21.

[¶ 5] The State responded to the petition by filing a Motion to Dismiss Petition for Post–Conviction Relief. The State cited Wyo. Stat. Ann. § 7–14–103(a)(iii) for the proposition that the appellant's claim of ineffective assistance of trial counsel was procedurally barred because it had been determined on the merits in the direct appeal. The district court heard the motion to dismiss and subsequently issued a lengthy decision letter and order dismissing the petition. The district court's conclusion was as follows:

The State's Motion to Dismiss Petition for Post–Conviction Relief is GRANTED. Mr. Schreibvogel's post-conviction claim of ineffective assistance of trial counsel is procedurally barred by Wyoming Statute § 7–14–103(a)(iii) because he raised a claim of ineffective assistance of trial counsel in his direct appeal, which was decided on the merits. Additionally, Mr. Schreibvogel's claim of ineffective assistance of appellate counsel is barred by Wyoming Statute § 7–14–101(b) because it is not a claim of error arising in the proceedings that resulted in his conviction.

[¶ 6] The appellant's response to dismissal of his petition was to file in this Court a Petition for Writ of Review. We granted that petition, the matter was briefed, and oral argument has been heard, bringing the case to its present posture.

RELEVANT STATUTES

[¶ 7] Post-conviction relief is a statutory remedy, with the following statutory provisions at issue in the instant proceedings:

Wyo. Stat. Ann. § 7–14–101(b) (LexisNexis 2011) provides in relevant part as follows:

(b) Any person serving a felony sentence in a state penal institution 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....

In turn, Wyo. Stat. Ann. § 7–14–103 provides in relevant part as follows:

(a) A claim under this act is procedurally barred and no court has jurisdiction to decide the claim if the claim:

(i) Could have been raised but was not raised in a direct appeal from the proceeding which resulted in the petitioner's conviction;

(ii) Was not raised in the original or an amendment to the original petition under this act; or

(iii) Was decided on its merits or on procedural grounds in any previous proceeding which has become final.

(b) Notwithstanding paragraph (a)(i) of this section, a court may hear a petition if:

....

(ii) The court makes a finding that the petitioner was denied constitutionally effective assistance of counsel on his direct appeal. This finding may be reviewed by the supreme court together with any further action of the district court taken on the petition.

....

STANDARD OF REVIEW

[¶ 8] Pursuant to Wyo. Stat. Ann. § 7–14–103(a), the question of whether a court may hear a petition for post-conviction relief is a question of jurisdiction. The question of jurisdiction is a question of law that we review de novo. Jones v. State, 2011 WY 114, ¶ 7, 256 P.3d 527, 531 (Wyo.2011). In the instant case, the district court treated the State's motion to dismiss as being similar to a motion under W.R.C.P. 12(b)(6) to dismiss for failure to state a claim upon which relief can be granted, which also presents a question of law. See Kennedy v. State, 443 P.2d 138, 139 (Wyo.1968) ( per curiam affirmance of dismissal of petition for post-conviction relief for failure to state a cause of action). A petition for post-conviction relief is, however, different from a W.R.C.P. 12(b)(6) motion to dismiss because the contents of the petition need not be considered as true. Harlow v. State, 2005 WY 12, ¶ 7, 105 P.3d 1049, 1059 (Wyo.2005); State ex rel. Hopkinson v. District Court, Teton County, 696 P.2d 54, 61–62 (Wyo.1985), cert. denied, 474 U.S. 865, 106 S.Ct. 187, 88 L.Ed.2d 155 (1985).

[¶ 9] It may be helpful if we restate the question before us in a different form: As applied in the context of alleged ineffective assistance of trial counsel, does the word “claim” in Wyo. Stat. Ann. § 7–14–103(a) mean the broader concept of the constitutional right to the effective assistance of counsel, or does it mean the narrower concept of each separate factual assertion of alleged ineffectiveness? As stated in this form, the question is a question of statutory construction, which also is a question of law that we review de novo. Roden v. State, 2007 WY 200, ¶ 5, 173 P.3d 369, 371 (Wyo.2007).

The fundamental purpose of statutory construction is to ascertain, if possible, what the legislature intended by the language it used. We begin with an inquiry into the ordinary and obvious meaning of the words employed by the legislature, according to the manner in which those words are arranged. If the legislative pronouncements are written in unambiguous terms, then we are bound by those words. Moreover, we construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe together all parts of the statute in pari materia.

Demeulenaere v. State, 995 P.2d 132, 134 (Wyo.2000) (internal citations omitted). If we determine that a statute is unambiguous, we do not further apply rules of construction, and we do not extend statutes to matters that do not fall within its express provisions. State ex rel. Wyo. Dep't of Revenue v. Hanover Compression, LP, 2008 WY 138, ¶ 8, 196 P.3d 781, 784 (Wyo.2008).

DISCUSSION

[¶ 10] This discussion must take place in the context of our post-conviction relief jurisprudence, in which we have been steadfast in holding that post-conviction relief is a strictly confined statutory remedy. See, e.g., Rathbun v. State, 2011 WY 116, ¶ 13, 257 P.3d 29, 34 (Wyo.2011) (both the statute and the doctrine of res judicata forbid raising matters in post-conviction relief that were, or could have been, raised on appeal); Harlow, 2005 WY 12, ¶ 6, 105 P.3d at 1057 (“only substantial violations of constitutional rights amounting to a miscarriage of justice will warrant relief”); Taylor v. State, 2003 WY 97, ¶¶ 8–9, 74 P.3d 1236, 1239 (Wyo.2003) (policy favoring finality in criminal proceedings forbids use of post-conviction relief as a substitute for direct appeal); Nixon v. State, 2002 WY 118, ¶¶ 9–26, 51 P.3d 851, 853–58 (Wyo.2002) (statute reflects policy favoring finality, statute has a res judicata effect, and court's exercise of jurisdiction outside the statute would violate constitutional doctrine of separation of powers); Kallas v. State, 776 P.2d 198, 199–200 (Wyo.1989) (statute has res judicata effect); Amin v. State, 774 P.2d 597, 599 (Wyo.1989) (matters raised on appeal are procedurally barred, and matters not raised that could have been raised, are procedurally waived under post-conviction relief statute); Whitney v. State, 745 P.2d 902, 903 (Wyo.1987) (statute applies only to proceedings which resulted in conviction, so does not apply to sentencing); Diefenderfer v. State, 745 P.2d 556, 557 (Wyo.1987) (courts have no jurisdiction under the statute unless the petitioner is in the penitentiary); Hoggatt v. State, 606 P.2d 718, 722 (Wyo.1980) (relief under the statute requires “extraordinary circumstances which strongly suggest a miscarriage of justice”); Johnson v. State, 592 P.2d 285, 286 (Wyo.1979) (...

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  • Harnetty v. State
    • United States
    • Wyoming Supreme Court
    • June 8, 2022
    ...is procedurally barred is a question of jurisdiction. The question of jurisdiction is a question of law that we review de novo. Schreibvogel v. State , 2012 WY 15, ¶ 8, 269 P.3d 1098, 1101 (Wyo. 2012) ; Goetzel v. State , 2019 WY 27, ¶ 9, 435 P.3d 865, 868 (Wyo. 2019) (whether claims are ba......
  • Sullivan v. State
    • United States
    • Wyoming Supreme Court
    • July 16, 2019
    ...the petition’s factual allegations as true as it must when considering a motion to dismiss a complaint under W.R.C.P. 12(b)(6). Schreibvogel v. State , 2012 WY 15, ¶ 8, 269 P.3d 1098, 1101 (Wyo. 2012) (citing Harlow v. State , 2005 WY 12, ¶ 7, 105 P.3d 1049, 1059 (Wyo. 2005) ). We have expl......
  • Webb v. Wyo. Dep't of Corr. Medium Corr. Inst. Warden
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • March 15, 2021
    ...of appellate counsel claims if there was a claim of ineffective assistance of trial counsel on direct appeal. See Schreibvogel v. State, 269 P.3d 1098, 1103 (Wyo. 2012) ("Where the appellant has raised the claim of ineffective assistance of trial counsel in his direct appeal," he may not "r......
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    • U.S. Court of Appeals — Tenth Circuit
    • May 15, 2013
    ...defendant from bringing an ineffective assistance claim on direct appeal. See Wyo. Stat. Ann. §§ 7-12-308, 7-14-103; Schreibvogel v. State, 269 P.3d 1098, 1102 (Wyo. 2012). From a practical perspective, it appears Mr. Parkhurst was unable raise his claim on direct appeal—but the state of Wy......
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