Seel v. Van Der Veur

• Decision Date: 17 November 1998
• Docket Number: No. 950189,950189
• Citation: 971 P.2d 924
• Parties: Michael D. SEEL, Plaintiff and Appellant, v. Fred VAN DER VEUR, Warden, Central Utah Correctional Facility, Defendant and Appellee.
• Court: Utah Supreme Court

Page 924

971 P.2d 924

Michael D. SEEL, Plaintiff and Appellant, v. Fred VAN DER VEUR, Warden, Central Utah Correctional Facility, Defendant and Appellee.

No. 950189.

Supreme Court of Utah.

Nov. 17, 1998.

Michael D. Seel, Topeka, Kansas, pro se.

Jan Graham, Att'y Gen., Angela Micklos, Asst. Att'y Gen., Salt Lake City, for defendant.

ZIMMERMAN, Justice:

Michael D. Seel appeals from the dismissal of his petition for extraordinary relief after an evidentiary hearing in the district court. We affirm the dismissal with respect to the issues on which we ordered the hearing, but remand the case for further proceedings consistent with rule 65B(b) of the Utah Rules of Civil Procedure with respect to the issue raised in Seel's motion to amend his petition, granted by this court on July 18, 1996.

We set forth the facts and procedural history of this case before proceeding to the standard of review and our analysis. In the early morning hours of June 2, 1989, four businesses located in Ferron, Utah, were burglarized. Officers responding to the burglary reported witnessing an orange and white vehicle speeding away from one of the businesses shortly after an alarm sounded. Deputy J.D. Mangum, responding to a radio call, stopped the vehicle outside of Ferron a short time later. In the back seat of the vehicle, Mangum saw merchandise from the four burgled businesses, still wrapped in plastic, with price tags attached. Mangum arrested Seel and another individual and obtained a warrant to search the vehicle. The search revealed the stolen merchandise, a loaded .357 caliber pistol, boxes of ammunition, and various tools including pry bars, chisels, pliers, and a lock pick.

After a jury trial in September of 1989, Seel was convicted of four counts of aggravated burglary, all first degree felonies, in violation of section 76-6-203 of the Code, four counts of theft, violating section 76-6-404 of the Code in differing degrees, and possession of a firearm by a restricted person, a third degree felony, in violation of section 76-10-503(2) of the Code. Seel appealed his convictions to the Utah Court of Appeals, which affirmed the convictions and sentences. See State v. Seel, 827 P.2d 954 (Utah Ct.App.1992). Seel petitioned for rehearing by the court of appeals and for certiorari to this court. Both requests were denied.

On November 3, 1994, Seel filed a petition for post-conviction relief in the Seventh Judicial District Court in Emery County, alleging that (i) he was denied due process of law because the trial court failed to dismiss the aggravated burglary charge on the basis of insufficient evidence; (ii) the prosecution failed to prove unlawful entry into a building; (iii) he was denied a fair trial because the prosecutor knowingly presented false testimony and made improper remarks during closing argument; (iv) he was denied effective assistance of counsel because of numerous mistakes made by trial counsel; (v) he was denied due process when the trial court refused to continue the trial so he could obtain his alibi witnesses; (vi) he was subjected to double jeopardy; (vii) he was denied due process because even though the charge of being a habitual criminal was dropped before trial, the charge was nonetheless read to the jury; and (viii) his sentences are illegal because they are consecutive. ¹

On January 15, 1995, the district court summarily dismissed Seel's petition as frivolous on its face. Seel appealed that decision and, on July 20, 1995, we remanded the case with instructions to hold an evidentiary hearing on the following issues: (i) whether reading to the jury the count of being a habitual criminal was prejudicial to the outcome of Seel's trial; (ii) whether the failure of Seel's attorney to sever the charge of possession of a firearm by a restricted person was prejudicial to the outcome of Seel's trial; ² and (iii) whether the trial court's failure to grant a continuance of the trial constituted a due process violation. The State then moved to dismiss, contending that Seel's claims were procedurally barred because they were all either fully addressed on direct appeal or should have been raised on direct appeal. The district court eventually dismissed Seel's petition with prejudice.

Seel again appealed to this court, and on February 26, 1996, we again remanded the case to the district court with orders to hold an evidentiary hearing on the issues set forth above. The district court held the evidentiary hearing on September 17, 1996, after which it determined (i) that the habitual criminal count was not read to the jury; (ii) that the joinder of the charge of firearm possession by a restricted person was not prejudicial; and (iii) that the trial court did not prejudice Seel by failing to grant a continuance to allow Seel's counsel time to locate alibi witnesses to testify on Seel's behalf. The district court again dismissed Seel's petition. Seel once again appealed to this court, alleging that he was denied a full and fair evidentiary hearing and challenging the district court's conclusions.

We set forth the standard of review before proceeding with our analysis. "On appeal from denial of habeas corpus relief, 'we survey the record in the light most favorable to the findings and judgment; and we will not reverse if there is a reasonable basis therein to support the trial court's refusal to be convinced that the writ should be granted.' " Bundy v. Deland, 763 P.2d 803, 805 (Utah 1988) (quoting Velasquez v. Pratt, 21 Utah 2d 229, 443 P.2d 1020, 1022 (Utah 1968)). Furthermore, we will set aside the district court's findings of fact only if they are clearly erroneous, and we review its conclusions of law for correctness. See State v. Pena, 869 P.2d 932, 936 (Utah 1994).

Turning to our analysis, Seel contends that he was denied a full and fair evidentiary hearing. Having thoroughly reviewed the hearing transcript, we find nothing in the record to support this naked allegation, and we reject it.

Next, Seel contends that even though the habitual criminal charge was dropped before trial, it was nonetheless read to the jury and it prejudiced him. Seel's allegation that the habitual criminal charge was read is based solely on the original trial transcript prepared from the stenographic record of John Greenig, a court reporter. After Seel raised the issue on his direct appeal, this court ordered a hearing to determine whether the charge was in fact read. The district court conducted a hearing and found that the charge was not read. Greenig then filed a corrected transcript and affidavit.

At the evidentiary hearing, Seel was unable to present any evidence that the habitual criminal charge was read other than the original uncorrected transcript. On the other hand, Seel's trial attorney testified that although he could not specifically recall whether the charge had been read, he was sure he would have objected if it had been. Greenig was not present at the hearing, but the court also heard testimony from another court reporter who testified that she had discussed the issue with Greenig on several occasions and that Greenig repeatedly told her the charge had not been read. ³

Finally, the court gave Seel an additional sixty days from the date of the evidentiary hearing in which to find and subpoena Greenig, so that if there was any additional evidence to counter the finding that the charge...