Schuler v. State

THOMAS, Justice.

The primary question to be addressed in this case is whether a claim that a convict’s sentence is illegal can be raised in a proceeding initiated pursuant to §§ 7-14-101 to -108, W.S.1977.¹ There are collateral issues raised which assume jurisdiction in the district court. These need not be addressed. The appellant also presents a question of ineffective assistance of appellate counsel for failure to present the issue of whether his sentence should be adjusted in accordance with an amendment to the sentencing statutes that became effective following the entry of the judgment and sentence in his case but prior to the disposition of his appeal. That contention was not presented to the district court. We conclude that the claim presented under the guise of a petition for post-conviction relief in the district court could not be addressed as such, and we affirm the order of the district court dismissing the petition for post-conviction relief.

Schuler presented a pro se brief in this case in which he states the issue to be:

“Under 6-l-101(c), Wyoming Statutes 1983, defendant’s case was ‘pending’ and, as such, defendant’s habitual criminal sentence should be dismissed.”

A Brief of Appellant also was filed by the State Public Defender’s Office which presents the following four issues:

“1. Whether appellant’s right to due process under the United States and Wyoming Constitutions was violated by appellate court’s failure to apply the savings clause of a state statute that became effective during the pendency of appellant’s appeal and whether the appellate court disregarded constitutional separation of powers when it failed to apply the savings clause.

“2. Whether it is unconstitutional to sentence appellant to a life term for a non-violent crime.

“3. Whether failure by appellant’s counsel to brief the appellate court as to the change in the statute violated appellant’s right to effective assistance of counsel guaranteed by the United States and Wyoming Constitutions.

“4. Whether appellant was denied" due process by the failure of the district court to appoint an attorney to represent him in post-conviction relief.”

In its Brief of Appellee, the State of Wyoming sets forth six issues to be considered:

“I. Whether the issues raised by the appellant pro se and through counsel are cognizable in a post-conviction action?

“II. Whether the appellant’s case is a case described in W.S. 6-l-101(c) as ‘a case pending on or after the effective date of this act * * *.’?

“III. Whether the appellant’s case is a case described in W.S. 6-l-101(c) as one in which ‘the penalty under this act for the crime is different from the penalty under prior law * * V?

“IV. Whether the appellant’s sentence as a habitual criminal violates the Eighth Amendment?

“V. Whether the appellant received ineffective assistance of counsel on his direct appeal from conviction where counsel did not raise the issue of the change in statute?

“VI. Whether the appellant was denied due process when the district court declined to appoint counsel in this post-conviction action?”

Schuler’s conviction of burglary, which resulted in a sentence to life under the provisions of § 6-1-110, W.S.1977,² was reviewed on direct appeal by this court in 1983. Schuler v. State, 668 P.2d 1333 (Wyo.1983). The briefs in that appeal were filed prior to the effective date of the amendment to the statute upon which Schuler here relies, and, consequently, the question of whether he should have been sentenced pursuant to the amendment to the statute rather than the statute in effect at the time of his sentencing was not raised. Under the statute in effect at the time of the judgment and sentence, the life sentence was mandatory upon the finding of the jury at his trial that Schuler had committed three prior felonies.

This case was commenced on January 16, 1987, when Schuler filed a document entitled “POST-CONVICTION PETITION TO VACATE JUDGMENT AND SENTENCE, PURSUANT TO 7-14-101, ET SEQ, Wyoming Statutes 1977.” The petition is on a prepared form that includes a way for a petitioner to indicate whether he requests the assistance of appointed counsel. Schu-ler did check a box preceding the statement “I do request that counsel be appointed to represent me in this proceeding, pursuant to 7-14-104, Wyoming Statutes as amended.” The effect of checking the box is to manifest an affirmative request.

Schuler filed a memorandum with his petition in which he urged that the amendments to the habitual criminal sentencing statutes, which became effective while his case was on appeal to this court, mandate a conclusion that he was sentenced illegally. His point was that, although the statute in effect at the time of the entry of his judgment and sentence required the imposition of a life sentence, once he was found to be a habitual criminal on the basis of the commission of three prior felonies, the amended statutes do not justify that result. Instead, the new statutes permit one to be found a habitual criminal, with the imposition of a life sentence, only if he has been found to have committed a violent felony coupled with three prior felony convictions. Section 6-10-201, W.S.1977 (June 1983 Repl.). In support of this contention, Schu-ler argued that he was entitled to the benefit of sentencing under the amended statutes because of the provisions of § 6-1-101, W.S.1977 (June 1983 Repl.), particularly subsection (c) thereof.³ Schuler argued in his memorandum that not only did this statute manifest a legislative intent that the amended provision would apply if that would result in the imposition of a lesser sentence but, also, that any ambiguity in the application of the statutes must be resolved in his favor pursuant to the rule of lenity.

The subsequent proceedings in the district court were awkward. Schuler filed a Notice of Appeal bn February 10,1987 with a request that the court file the notice on the date that the district court denied or dismissed his petition for post-conviction relief. The district court did not honor Schuler’s request, but filed the notice prematurely, which made it effective on the date the petition was denied or dismissed pursuant to Rule 2.01 W.R.A.P. A responsive pleading, a motion to dismiss the petition pursuant to § 7-14-105, W.S.1977⁴ and Rule 12(b)(6), W.R.C.P, was filed by the State of Wyoming on February 12, 1987. A memorandum was filed in support of the motion, which urged two grounds for dismissal: first, the State argued that Schuler was contesting only the legality of sentence and, for that reason, no relief could be afforded under the post-conviction statutes; second, the State argued that, if the post-conviction statutes were applicable, there was no merit in Schuler’s position. Schuler then filed a motion to amend his petition to “invoke the jurisdiction of this court under Rule 36, W.R.Cr.P., as well as the originally stated jurisdiction under 7-14-101, et seq, Wyoming Statutes as amended.” Schuler accompanied that motion with a memorandum that stated “ * * * Defendant herein is attacking the legality of his ‘life’ sentence, and is not attacking the legality of his conviction.” In addition to the motion and memorandum, Schu-ler filed an amended petition and a separate motion to deny the State’s motion to dismiss the petition.

There is no ruling of record specifically addressing the motion to amend filed by Schuler. In effect, it was resolved by the language of § 7-14-105, W.S.1977, which provides that no additional pleadings can be filed except by order of the court. On May 13, 1987, the district court entered its order providing:

“THE ABOVE MATTER HAVING come before the Court upon a petition for post-conviction relief,

“IT IS HEREBY ORDERED THAT the petition be dismissed for the reasons set forth in the memorandum filed by the state of Wyoming on February 12,1987.”

As noted, Schuler previously had filed the documents necessary to perfect his appeal, including a designation of the record on appeal, motion for leave to proceed in for-ma pauperis, an affidavit of indigence, and a motion for appointment of counsel. After the entry of its order on May 13, the court granted Schuler’s motion to appeal in forma pauperis. The only order appealed in this case is the order of May 13 dismissing Schuler’s petition for post-conviction relief. The premature notice of appeal that was filed raises issues properly emanating from that order.

The record supports the argument of the State that the essential issue raised by Schuler relates only to the legality of his sentence and does not extend to any attack upon the legality of his conviction. See Schuler, 668 P.2d 1333; Evans v. State, 655 P.2d 1214 (Wyo.1982). This case is controlled by our decision in Whitney v. State, 745 P.2d 902 (Wyo.1987). In that case, we applied a restrictive construction to the relief available pursuant to §§ 7-14-101 to -108, W.S.1977, and we held that this post-conviction relief statute could be invoked only for the purpose of asserting errors that resulted in the conviction of the defendant. We ruled, in effect, that the remedies available under §§ 7-14-101 to -108, W.S.1977 and Rule 36, W.R.Cr.P., are mutually exclusive. We went on to hold that, since the relief requested could not be afforded under the post-conviction relief statute, the court did not commit error in refusing to appoint counsel to assist the petitioner with the prosecution of his petition for post-conviction relief. We said:

“Because claimed constitutional error concerning sentencing cannot be reached under Wyoming post-conviction relief statutes, the court was correct in holding the application without merit, in refusing appointment of counsel, and entering an order of dismissal.” Whitney, 745 P.2d at 904.

Had the trial court permitted Schu-ler to amend his petition and, under Rule 36, W.R.Cr.P., addressed his claims with respect to the illegality of his sentence on the merits, the result would be the same. The change in the statute upon which Schuler relies occurred between the time his appeal was briefed and the time when it was argued. At that juncture Attletweedt v. State, 684 P.2d 812 (Wyo.1984), had not been decided. In Attletweedt, we ruled that a sentence which was not imposed before July 1, 1983 had to be imposed under the new statute. We there alluded to the single exception with respect to which prior law was controlling and that was an original sentence imposed after the effective date. Attletweedt appears to be entirely compatible with State v. Duswalt, 153 N.J.Super. 399, 379 A.2d 1278 (1977), which unequivocally holds that a case is no longer pending after a final judgment (in Wyoming that is the judgment and sentence) has been entered in the trial court. The consideration of Schuler’s claim on the merits would have resulted in a denial of relief.

Because the rule of Whitney forecloses us from considering sentencing issues in connection with a petition for post-conviction relief, we cannot reach the issue stated in Schuler’s pro se brief nor the first and second issues in the brief presented by the State Public Defender. As to the fourth issue in the Public Defender’s Brief, Whitney clearly holds that no error occurred.

The third issue in the Public Defender’s brief is a claim of ineffective assistance of appellate counsel for not presenting this problem in the initial appeal. We noted above that the petition in the district court did not present any claim with respect to the lack of effective assistance of appellate counsel. As we said in Schuler, 668 P.2d at 1336:

“Under normal circumstances, we would not consider this contention [whether it was error to charge a defendant with being a habitual criminal in a separate information] because it was not brought to the attention of the trial court nor was it brought to the attention of this court until the issue was raised in argument here.”

We cited Matter of Parental Rights of PP, 648 P.2d 512 (Wyo.1982), and Pritchard v. State, Division of Vocational Rehabilitation, Department of Social Services, 540 P.2d 523 (Wyo.1975), for the proposition that this court ordinarily refrains from inquiring into questions not raised by the parties in the trial court.

We acknowledge the constitutional magnitude of the claim that effective assistance of appellate counsel was not afforded. See Cutbirth v. State, 751 P.2d 1257 (Wyo.1988). Even though this claim is one of constitutional magnitude, we conclude that the circumstances justify the refusal to consider it. In Cutbirth, we said:

“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 that 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 right in order to complete a claim that the performance of appellate counsel was constitutionally deficient because of a failure to raise the issue on appeal.” Cutbirth, 751 P.2d at 1266.

The circumstances of this case fail to suggest, in any manner, that a clear and unequivocal rule of law was transgressed in Schuler’s instance which would justify the district court in considering a claim of ineffective assistance of appellate counsel with respect to the failure to present the issue of illegal sentencing.

The order of the district court dismissing the petition for post-conviction relief is affirmed.

URBIGKIT, J., filed a dissenting opinion in which MACY, J., joined.

1 . These provisions were amended in 1987, after the filing of the petition in this case, but not in respects which are material to this appeal. Ch. 157, § 3, S.L. of Wyoming 1987 at 375-376, now found in §§ 7-14-101 to -108, W.S.1977 (June 1987 Repl.).

2 . Subsequent to Schuler’s conviction and the entry of judgment and sentence, the Criminal Code was revised by the legislature of the State of Wyoming (Ch. 75, S.L. of Wyoming 1982 and Ch. 171, S.L. of Wyoming 1983). The provisions are now found as §§ 6-10-201 and 6-10-202, W.S.1977 (June 1983 Rev.).

3 . Section 6-1-101, W.S.1977 (June 1983 Repl.), provides:

"(a) This act may be cited as the Wyoming Criminal Code of 1982.

"(b) This act does not apply to crimes committed prior to the effective date of this act. Prosecutions for a crime shall be governed by the law in effect on the date when the crime occurred. A crime was committed prior to the effective date of this Act if any of the elements of the crime occurred prior to the effective date of this Act.

“(c) In a case pending on or after the effective date of this act, involving a crime committed prior to the effective date, if the penalty under this act for the crime is different from the penalty under prior law, the court shall impose the lesser sentence."

4 . Section 7-14-105 provides:

"(a) Within thirty (30) days after filing the petition, or within any further time as the court may fix, the attorney general on behalf of the state shall answer or move to dismiss the petition. No other or further pleadings shall be filed except as the court may order on its own motion or on that of either party.

"(b) The court may grant leave to the petitioner, at any stage of the proceeding prior to entry of judgment, to withdraw the petition.

"(c) The court may by order authorize:

"(i) Amendment of the petition or any other pleadings; -

"(ii) The filing of further pleadings; or

"(iii) An extension of the time for filing any further pleading other than the original petition."