Vol. 35, No. 1, 52. Court Summaries.

• Author: by P. Craig Silva

Wyoming Bar Journal

2012.

Vol. 35, No. 1, 52.

Court Summaries

Wyoming LawyerIssue: February, 2012Court Summariesby P. Craig SilvaSteven A. Deloge v. State of Wyoming Workers' Safety and Compensation Division 2011 WY 154 S-11-0072 November 9, 2011

This is a workers' compensation case involving compensability for injuries caused by illegal activity. Mr. Deloge is an inmate in the Wyoming State Penitentiary. He was injured while working in the kitchen. He got in a verbal argument with Scott Bronson who ended up head butting Mr. Deloge in the face. Mr. Deloge suffered a broken nose. Mr. Deloge filed a workers' compensation claim. The Division relied upon Wyo. Stat. § 27-l4-102(a)(xi)(E), which precludes compensation for injuries by prisoners for any harm resulting from illegal activity. According to the Division, Mr. Bronson's conduct was a criminal battery and thus illegal activity preventing compensability. The Wyoming Supreme Court agreed.

Varo Ken v. State of Wyoming 2011 WY 167 S-10-0103 December 22, 2011

This is a criminal case involving ineffective assistance of counsel. The case is insightful in that it shows a valid claim and it also shows procedurally how to bring the claim. On August 7, 2009, Varo Ken was charged with attempted first degree murder and aggravated assault. The allegations stemmed from Varo Ken firing a weapon at Rachel Garcia, her five-year old son, and her fiance, Lance Mendard, in an Evanston parking lot.

Mr. Ken was convicted of both counts. Twenty-seven days after the jury verdict, defense counsel filed a motion for judgment of acquittal and a new trial. The district court denied the motion as untimely. W.R.Cr.P. 29(c) requires that the motion be filed 15 days after a verdict. After filing his notice of appeal, Mr. Ken, pursuant to W.R.A.P. 21, sought a remand to develop the facts necessary for the ineffective assistance of counsel claim. That motion was granted. The district court found that trial counsel was ineffective for not timely filing motions for new trial and judgment of acquittal particularly in light of the fact that the district court would have granted the motion for new trial on the attempted first degree murder trial. The Wyoming Supreme Court then resumed jurisdiction over the case. One of the primary issues on appeal was the ineffective assistance of counsel claim.

The Wyoming Supreme Court recognized that a motion for a new trial is not required in every case, but in cases where one is filed, it must be filed timely. Failure to properly file the motions amounts to a breach of the applicable standard of care to the degree that it would deny the defendant his 6th Amendment right to effective assistance of counsel. The trial court indicated that if the motion had been timely filed, it would have been granted; consequently, the error has prejudiced Mr. Ken. The Wyoming Supreme Court decided the case should therefore be remanded for new trial.

Justice Golden concurred and dissented in part which was joined by Justice Voigt. Justice Golden's dissent focused on whether Mr. Ken was actually prejudiced by counsel's performance. One of the problems with the evidence on remand, as pointed out by Justice Golden, was that there was no exploration of why Mr. Ken's counsel did not file a motion for new trial There may have been very legitimate reasons why Mr. Ken's counsel did not file the motion and without that evidence in the record, Justice Golden would not have found ineffective assistance of counsel. This is especially true where the analysis lacked detail of why the trial judge would have granted the motion for a new trial.

Justice Voigt also wrote concurring and dissenting in part which was joined by Justice Golden. According to Justice Voigt, there cannot be ineffective assistance where both the trial court and the appeals court do not support a judgment of acquittal, which means both of those courts conclude there is sufficient evidence to find Mr. Ken guilty. He really questioned the need for a new trial. There cannot be a judgment of acquittal because everyone agrees there is sufficient evidence for a conviction.

Excel Construction, Inc. v. Town of Lovell, Wyoming 2011 WY 166 S-11-0001 December 20, 2011

This is a governmental claims case. Excel Construction, Inc. entered into a contract with the Town of Lovell to replace the Town's water and sewer...