Paige Wheatland v. Warden, State Prison (2011)

DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT

DECISION

THE COURT:  I've considered this matter and I'm ready to decide.   For the following reasons the petitioner's motion for summary judgment is denied and the respondent's motion for summary judgment is granted.

As to counts one, two and three, I believe I am absolutely bound by State v. Walzer and State v. Williamson and that they govern this situation.

I do not believe that there are any reasons to distinguish them or any valid new arguments that I can rely on to say that they were wrongly decided, which I really don't have authority to do anyway.

But as to 53a–28, that was in effect at the time of Walzer and Williamson and presumably the appellate courts were aware of it and did not see it as preventing a state sentence consecutive to a federal sentence.

Furthermore, I believe that the language of the statute does not prevent the result here because 53a–37 simply does not address this situation, and so there's nothing in the sentence imposed in this case that is not in accordance with the title, with Title ․ I guess 53a, because Title 53a just does not address this situation and, therefore, 53a–28 is not violated.   I also do not believe that Walzer and Williamson are in any way affected by 1–2z.

First, to a certain extent, the Walzer court was not relying on the language of 53a–37, but rather the inherent power of the court.

Second, to the extent that Walzer was relying on the language of 53a–37, it said in its opinion at page 367 that essentially it was following the plain language rule.

It stated, “Where the language used is clear and unambiguous, we will not speculate as to some supposed intention,” and it interpreted the statute following that plain language rule as not applicable to a sentence imposed consecutively to a federal sentence.   So Walzer did apply the plain language rule.

Furthermore, even applying 1–2z on my own, I reached the same conclusion.   Looking at the plain language of 53a–37, it simply does not apply to a person who's been sentenced in another jurisdiction and who is currently before the court for a new sentence, and to say that it does apply I think is violating the plain language rule by adding another clause that:  and a court cannot sentence consecutively if a person is subject to a sentence from another jurisdiction.   It simply does not address that.

So I do not feel that Walzer and Williamson are affected by 1–2z.   Therefore, there's no reason why I should not follow Walzar and Williamson even if I felt I was not bound by them, which I do.   In short, while the issue raised by the petitioner is interesting, ultimately there is no merit to the issue.   Therefore, there was no deficient performance of counsel in failing to raise it or in the case of appellate counsel in failing to raise it properly.

Alternatively, there was no prejudice to the petitioner from any failure to raise the issue and, therefore, there was no ineffective assistance of counsel either by trial counsel or appellate counsel;  that warrants granting the respondent's motion for summary judgment, which applies only to counts one, two and three and denying the petitioner's motion for summary judgment as to counts one, two and three.

As to count four concerning sentence review, the petitioner presents insufficient facts to establish that trial counsel rendered ineffective assistance concerning sentence review and, in fact, really presents no facts.

The respondent has not cross moved for summary judgment on count four.   Therefore, the petitioner's motion for summary judgment on count four is denied and the petitioner is entitled to an evidentiary hearing on that count unless the matter can be resolved otherwise by agreement of counsel or by dispositive motion.

So, again, the petitioner's motion for summary judgment is denied.   The respondent's motion for summary judgment which reaches counts one, two and three is granted.

The court reporter will kindly prepare a transcript of my ruling, which will serve as the memorandum of decision.   This is not a final judgment of the case, so there's no need for notice of right to appeal or for a judgment file at this time.

I thank counsel for their cooperation and presentation.

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Schuman, J.

Schuman, Carl J., J.