Kallas v. State , 776 P.2d 198 ( 1989 )

CARDINE, Chief Justice.

This appeal is from an order dismissing appellant Dennis Kallas’ petitions for post-conviction relief.

We affirm.

In 1984, Kallas pled guilty, and judgment was entered on his pleas, to the crimes of second degree sexual assault and taking indecent liberties with a minor. Kallas appealed those convictions, and we affirmed in Kallas v. State, 704 P.2d 693 (Wyo.1985). The facts of the case are adequately set out in that opinion.

In this appeal, Kallas asserts two issues. First, he claims that the petition under review is his first post-conviction relief petition. Wyoming Statute 7-14-103 provides that any claim not raised in an original or an amended petition is waived. This issue arises because prior to the filing of the petitions for post-conviction relief that are under review here, Kallas filed an untitled, pro se document in which he moved the court “pursuant to Title 28 U.S.C. 2254 et seq. to issue a post-conviction on the lesser sentence * * *.” As is often the case with pro se documents, it is difficult to ascertain the exact nature of this filing. Because of this uncertainty, we will not dispose of the case based on the waiver which might have arisen from the application of W.S. 7-14-103 to the facts of this case.

As a second issue, Kallas asserts that the district court erred in dismissing his petition without an evidentiary hearing. He claims a hearing was necessary because his trial counsel “guaranteed” him that, if he pled guilty, he would receive a three-to-five year sentence and further that trial counsel failed to object to various violations of his constitutional rights. The State responds to this argument contending these issues, not having been raised on appeal, were waived. It is a long-standing rule of law that issues that could have been raised on appeal are not open to challenge by a petition for post-conviction relief because they are foreclosed by the doctrine of res judicata. Cutbirth v. State, 751 P.2d 1257, 1261 (Wyo.1988). Kallas responds by arguing that, in accordance with Rule 1.04, W.R.A.P., only matters “appearing on the record” may be the subject of an appeal; that this issue is not in the record because his trial counsel told him not to ask any questions of the judge and to answer that he had not been promised any particular sentence; and that this issue, not appearing in the record, could not have been raised in his original appeal. Therefore, Kallas concludes, he should be entitled to an evidentiary hearing to create a record and establish his claim of ineffective assistance of trial counsel.

The Wyoming Rules of Criminal Procedure and the Wyoming Rules of Appellate Procedure are replete with means by which a record may be augmented so that all issues which can or should be treated on appeal may be supported by reference to a record on appeal. See Spilman v. State, 633 P.2d 183 (Wyo. 1981). It is abundantly clear from this record that Kal-las was fully aware of all facts which supported this claim at the time his appeal was perfected in this court. It is the appellant’s burden to insure the record on appeal is complete. Matter of Estate of Manning, 646 P.2d 175, 176 (Wyo.1982). Kallas may not so easily sidestep the bar to post-conviction claims that could have been asserted on appeal. Appellant’s failure to augment the record and present these issues on appeal is a bar to presentation in post-conviction relief. Cutbirth, 751 P.2d 1257.

In dismissing Kallas’ petitions, the district court found that all claims were barred because they were not raised in the original pro se petition which we decline to identify as a post-conviction relief petition. The district court also found that all claims raised in the petition under review here were barred because they could have been raised in Kallas’ appeal. In addition, the district court dealt specifically with each of Kallas' claims on its merits. We affirm the district court’s order because all matters raised by Kallas in support of the claim of ineffective assistance of trial counsel could have been raised on appeal and are, hence, barred by the doctrine of res judicata. Cutbirth, 751 P.2d 1257. For this reason, there can be no error in the district court’s refusal to conduct an evidentiary hearing.

Affirmed.