Stogner v. State

• Decision Date: 24 May 1990
• Docket Number: No. 89-185,89-185
• Citation: 792 P.2d 1358
• Parties: Ralph R. STOGNER, III, Petitioner, v. STATE of Wyoming, Respondent.
• Court: Wyoming Supreme Court

Page 1358

792 P.2d 1358

Ralph R. STOGNER, III, Petitioner, v. STATE of Wyoming, Respondent.

No. 89-185.

Supreme Court of Wyoming.

May 24, 1990.

Leonard D. Munker, State Public Defender and Jacalyn L. Bachlet, Asst. Public Defender, Cheyenne, for petitioner.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., Kaylin D. Kluge, Asst. Atty. Gen., Cheyenne, for respondent.

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

GOLDEN, Justice.

Ralph R. Stogner, III (Stogner), filed a Petition for Writ of Certiorari on August 16, 1989. On August 25, 1989, this court entered an order noting probable jurisdiction and granting the petition to review Stogner's claim that his appellate counsel failed to adequately represent him on appeal.

Petitioner raises the following issues:

I. Whether petitioner's appellate counsel failed to adequately represent him on appeal.

The Standard

A. Whether appellate counsel for petitioner was ineffective because he failed to bring issue of ineffectiveness of trial counsel.

The Standard

1. The Particular Facts Upon Which Claim of Inadequate Representation By Appellate Counsel Rests.

(a) Whether Counsel was ineffective at the trial level.

(1) Failure to Timely File

(2) Lack of Due Diligence

(3) Failure to Call Essential Witnesses

(b) Whether Counsel's ineffectiveness at the trial level prejudiced petitioner's defense.

2. The rule of law transgressed.

3. Adverse effect upon a substantial right.

B. Whether petitioner Stogner was prejudiced at the appellate level due to appellate counsel's failure to bring the issue.

II. Whether the supreme court failed to properly review on appeal.

In opposition to these contentions, the appellee, State of Wyoming (State), provides this statement of the issues:

Respondent objects to Petitioner's phrasing and expansion of the issues beyond those specifically delineated in the Wyoming Supreme Court's Order dated August 25, 1989 granting Petitioner's petition for writ of certiorari. The issues which the Wyoming Supreme Court has confined this proceeding to are:

1. Whether petitioner's appellate counsel failed to adequately represent him on appeal in presenting issues of ineffectiveness of trial counsel which are intended to include: (1) failure to timely file motion [to present evidence of victim's prior sexual conduct]; (2) lack of 2. Whether the Wyoming Supreme Court failed to properly review on appeal. ¹

due diligence [in inquiring into victim's prior sexual conduct]; and (3) failure to call essential witnesses [who could have corroborated the testimony of one witness who was available to testify to victim's prior sexual conduct], which errors petitioner now contends in post-conviction relief to have prejudiced his trial defense from which denial of petition for post-conviction relief this appeal is taken by Petition for Writ of Certiorari?

Stogner contends he has a right to a new trial or a reversal of his conviction; however, we will deny relief.

THE WRIT OF CERTIORARI

To clarify the court's reasoning for granting this writ of certiorari, it is perhaps appropriate to consider the historical development of the writ. ² See Wyo.Const. art. 5, § 3. The State of Wyoming celebrates its 100th year of statehood this year, and it was in our State Constitution, adopted in 1890, that the authority of this court to grant writs of certiorari was established. ³

We granted certiorari in this case to address petitioner's claim that he was a victim of ineffective assistance of counsel on appeal. This is an issue which has been repeatedly raised in this court in recent years and resolution of the issue is of great public importance. ⁴ Moreover, it is an issue of constitutional magnitude. A district court's ruling on the admission of evidence is discretionary and the issue is not susceptible of full review on appeal. Finally, we have adopted a rule which treats the issue of effective assistance of trial counsel as waived unless raised on direct appeal, and the issue is res judicata for purposes of its consideration upon petition for post-conviction relief. ⁵ Kallas v. State, 776 P.2d 198 (Wyo.1989); Amin v. State, 774 P.2d 597 (Wyo.1989); Campbell v. State, 772 P.2d 543 (Wyo.1989). For these reasons, we shall give substantive consideration to petitioner's issues.

FACTS

This court reviewed Stogner's conviction [o]n June 8, 1982, [Stogner] confronted victim with a gun at a store in Rock Springs where she was working and forced her to accompany him to a trailer house where he bound and gagged her and committed multiple sexual assaults on her. The case was set for trial on March 29, 1983. On March 23, 1983, [the State] filed a motion in limine to prevent introduction of evidence of the prior sexual conduct of the victim. On March 25, 1983 [Stogner] filed a motion for hearing on the admissibility of evidence pertaining to the prior sexual conduct of the victim, contending that he received information on March 24, 1983, that the victim had engaged in acts of prostitution in the past and that such evidence was necessary to support his defense to the sexual assault charge, i.e., that the sexual acts were engaged in voluntarily by the victim in anticipation of payment for them.

for first-degree sexual assault ⁶ in 1984. Briefly, the facts are that:

Stogner v. State, 674 P.2d 1298, 1299 (Wyo.1984). Additional facts of consequence to the issues presented include these: Stogner filed a motion for continuance the day before trial, contending the prosecuting attorney interfered with a material witness who would have testified to the victim's prostitution activities and that he needed more time to rehabilitate the witness, as well as to develop testimony from other witnesses to bolster his theory of defense. He relies heavily on the trial court's denial of the motion. The denial was based, in part, upon defense counsel's failure to timely file a motion to present evidence of the victim's prior sexual conduct, ⁷ as well as the fact that Stogner's counsel did not exercise due diligence in obtaining evidence of the victim's alleged past activities as a prostitute. Stogner, 674 P.2d at 1301. The same counsel defending Stogner at trial represented him in the original appeal; incompetence at trial was not raised as an issue.

DISCUSSION

This court's definitive opinion on the issue of ineffective assistance of appellate counsel is Cutbirth v. State, 751 P.2d 1257 (Wyo.1988). There, we held that ineffective assistance of counsel on appeal is not an issue which can be foreclosed as a matter of waiver or default because it is not an issue that could have been raised in the initial appeal. Id. at 1263. In resolving this issue, we adopted the "effective assistance of counsel" test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh'g denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). ⁸ See, e.g., Frias v. State, 722 P.2d 135 (Wyo.1986).

In Cutbirth this court established a more clearly defined standard so as to avoid ad hoc decisions and the necessity to proceed contrary to our waiver rule in future cases:

We conclude that the issue of whether counsel's performance was constitutionally deficient * * * should be analyzed in much the same way that this court has analyzed the concept of plain error. In submitting a claim of deficient representation by appellate counsel, the petitioner in the post-conviction proceeding must demonstrate to the district court, by reference to the record of the original trial without resort to speculation or equivocal inference, what occurred at the trial. The particular facts upon which the claim of inadequate representation by appellate counsel rests must be presented. The petitioner then must identify a clear and unequivocal rule of law which those facts demonstrate was transgressed in a clear and obvious, not merely arguable way. Furthermore, the petitioner must show the adverse effect upon a substantial Id. at 1266-67 (citations omitted). See also Murray v. State, 776 P.2d 206, 209 (Wyo.1989).

                right in order to claim that the performance of appellate counsel was constitutionally deficient because of a failure to raise the issue on appeal.  The adverse effect upon a substantial right in the context of ineffective assistance of appellate counsel is shown by demonstrating a " * * * reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome."   In this regard the test does address the fairness and integrity of the judicial proceedings.  The reasonable probability must be one that demonstrates a more favorable result to the appellant if the omitted issue had been pursued
                

The following matters are raised as the basis for Stogner's assertion of ineffective assistance of counsel:

1. Defense counsel failed to timely file a motion to admit evidence of the victim's prior sexual conduct. W.S. 6-4-312.

2. Defense counsel had a long time to prepare Stogner's defense, but was tardy in discovering evidence of the victim's past sexual conduct and reputation. Stogner had claimed as his defense, since the day of his arrest, that the victim was a prostitute. Also, since he had no other evidence with which to defend himself, it was his word against that of the victim's at trial. Stogner suggests that since Rock Springs is a small town, a competent investigator should have been able to uncover this evidence.

3. Defense counsel failed to call essential witnesses, such as Karen Singleton and Wendell House, intimated as the victim's "man" (pimp?). Singleton's testimony about the victim's prior sexual conduct was excluded because the motion to use it was untimely and because the conduct was remote in time)

FAILURE TO TIMELY FILE MOTION

Wyoming, along with most other jurisdictions, enacted a "rape-shiel...