Sword v. Shillinger
| Decision Date | 17 November 1989 |
| Docket Number | No. 89-255,89-255 |
| Citation | 782 P.2d 1117 |
| Parties | Donald G. SWORD, Petitioner, v. Duane SHILLINGER, Warden of the Wyoming State Penitentiary and The Attorney General of the State of Wyoming, Respondents. |
| Court | Wyoming Supreme Court |
Donald G. Sword, pro se.
Joseph B. Meyer, Atty. Gen. and John W. Renneisen, Deputy Atty. Gen., for respondents.
Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.
The above captioned matter coming before the court upon the Motion for Leave to Proceed in Forma Pauperis, Motion for Appointment of Counsel and Petition for Writ of Certiorari, and/or Petition for Writ of Habeas Corpus filed by the Petitioner, Donald G. Sword, and the court having examined the file, having reviewed the matter and being fully advised in the premises finds that Petitioner, Donald G. Sword, qualifies as an indigent person and is entitled to proceed in this case in forma pauperis; and that the court having found insufficient grounds to grant relief, it is therefore
ORDERED that the Petitioner, Donald G. Sword, be, and he is hereby, granted leave to proceed in forma pauperis without being required to pay filing fees or costs; and, it is further
ORDERED that the Motion for Appointment of Counsel and the Petition for Writ of Certiorari, and/or Petition for Writ of Habeas Corpus be, and they are hereby, denied.
For nearly four years now, I have argued for one comprehensive and complete substantive state court system consideration of issues raised after initial appeal, if any, when the convicted individual would be afforded that substantive opportunity to address either sentencing or the process and merits of guilt determination. It was at least hoped that if this state court system would do a reasonably judicious job, shoving off Wyoming cases onto the federal court system would be deterred and some reasonable access to constitutionally protected rights to justice would still be secured for the convicted person.
These four years have seen a result totally contrary to that goal of a one-time, sincerely conducted post-conviction-review process. Rather than substance, we talk waiver and forfeiture of constitutional rights and also multiply the processes. Now, we are adding one more chapter to the book of substantive non-review by ignoring reality that simplicity would be served by doing something. By just explaining "why not," we do nothing.
Through an entire course of cases, the office of the attorney general has urged a result upon this court which this court has generally tended to accept, that we settle with the excuse of waiver or default as a basis to deny review. Consistently on all post-conviction-review applications, the office of the attorney general has contended no relief was available in our state courts. As this court acceded by defection from substantive adjudication, I warned insistently that we only push the responsibility onto the federal courts if we destroy state processes which could otherwise provide a What has now apparently happened, as illustrated here, is the office of the attorney general has now gone to the federal court and argued the petitioner has not exhausted state remedies while that same office has alternatively argued for denial of substantive review before the courts of this state's judicial system. Directly contrary faces spoke on the identical subject in the two different court systems. The incongruity of all this facade and subterfuge is that if the issues presented by the petitioners had been directly addressed in substantive review on the first opportunity presented (in the state courts), then res judicata would properly have been applied rather than confiscation by incompetence, which is the bell cow of forfeiture of constitutional rights by counsel default or neglect; and in the great majority of cases with processes satisfied, the guilt and sentence would be constitutionally justified and rationally affirmed.
realistic review of contended issues. 1 Consequently, petitioners such as Donald G. Sword accepted in conclusion what the attorney general claimed, what this court did, and what I said and thus have now filed their petitions to seek constitutional remedies in the federal courts
Without question, it is not within the jurisdiction of this court to deny to the office of the attorney general the opportunity to make directly contrary presentations between the federal and state courts when we give due deference to both the federalist system of judicial powers of this nation and the internal separation of powers as provided within our state constitution. The case is, however, now back before us by the justification argued in federal court by the office of the attorney general that Sword had not exhausted state remedies. In my opinion, it is time to stop the ball from being bounced and to end here directly contrary legal positions from being argued before different courts and to terminate this charade in process and paperwork of exhausted time and expended financial resources. Since the office of the attorney general argued in federal court that state remedies had not been exhausted, I would accede here to what they said there, so that we should substantively address the submitted issues. This would relieve further processing and disinformation by next stage return of the petitioners to the district courts and courts of appeal of the federal judicial system as we now do by this denial of the petition for writ of certiorari.
With Wyoming post-conviction relief decimated, if not destroyed by decisions of this court for most cases, disemboweled by the office of the attorney general's demands and concurrence by the public defender followed by action of the legislature, Sword, by this proceeding, accepted the assertions of the office of the attorney general that the state rights to relief had been exhausted, although none had been provided. The office of the attorney general then argued to the contrary before the federal court. In the interest of conservation of paper, if nothing else, I would also accept that last offering of the office of the attorney general and address, substantively, arguments made by this incarcerated individual which consider the invalidity of his conviction and sentence.
A history of the Sword litigation is informative. Sword's conviction was a product of the Campbell County grand jury sessions of 1984 and 1985. See Hennigan v. State, 746 P.2d 360 (Wyo.1987), which spanned volumes of appellate litigation within its many indictments. Sword is one of the few, or perhaps only one, of those An initial appeal after sentence, although the issue of violated plea bargain was never considered, the law student public defender function of the University of Wyoming Law School provided the appellate briefing and raised only issues of the grand jury process, see Hennigan, 746 P.2d 360, and abuse of discretion and extent of confinement time resulting from a three charge consecutive sentence. Issues of a state prosecutorial violation of the plea agreement and, of course, ineffectiveness of either trial or appellate counsel did not appear. The apparent plea agreement breach resulted after the prosecutor had agreed to stand mute at sentencing as part of the deal and then strongly argued to the trial court for an extended sentence after plea when appearing at the sentencing hearing. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). The apparent basis for the prosecutor to ignore the agreement which he had made in the plea bargain was the statement that Sword did not adequately identify other participants in the Campbell County drug dealing after he pleaded out and before he was sentenced. Judicial consideration has never been given by any court for this purported justification whereby the prosecutor violated the plea bargain agreement.
involved who still remains incarcerated for his conviction which was the result of a "bargained" guilty plea.
In Sword v. State, 746 P.2d 423 (Wyo.1987) (Sword I), this court affirmed the grand jury proceedings, as it had in Hennigan, 746 P.2d 360, albeit for a different reason, and also affirmed the length of sentence on an abuse of discretion inquiry. Sword then filed a petition for post-conviction relief pro se and requested the appointment of counsel. The text of the petition is not present in the files of this court, but the general subject can be discerned from the findings and conclusions of the trial court as a dismissal order which was entered December 6, 1988, or one day before the petitioner's objection to the proposed order had been received and filed in Campbell County. Sword had specifically asked for the appointment of counsel and that request had been specifically denied despite a clear statutory right and this court's decisions in Fondren v. State, 749 P.2d 767 (Wyo.1988); Alberts v. State, 745 P.2d 898 (Wyo.1987); and Long v. State, 745 P.2d 547 (Wyo.1987). Then, he was not even given an opportunity as a pro se litigant to object before the untimely order was accepted, signed and entered by the trial court.
Issues raised in that proceeding included (a) violation of W.R.Cr.P. 15(c) regarding advice at sentencing; (b) ineffective assistance of counsel at sentencing; (c) breach of plea bargain by the prosecutor at sentencing; and (d) ineffective assistance of appellate counsel for failure to raise those same issues on direct appeal and particularly so relative to the breached plea bargain.
The State's response was that these issues were not "cognizable under the Wyoming Post-Conviction Relief Act" and "were frivolous." Since the trial court did not grant relief to...
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Duffy v. State, 87-160
...before December 11, 1990, including conduct of the trial court and clear question of ineffectiveness of counsel. See Sword v. Shillinger, 782 P.2d 1117 (Wyo.1989), Urbigkit, J., dissenting. IV. RIPENESS The claim that some presently presented arguments do not present cognizable claims that ......