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Sullivan v. State

Supreme Court of Wyoming

July 16, 2019

MONTY DWAYNE SULLIVAN, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Hot Springs County The Honorable Robert E. Skar, Judge.

          Office of the State Public Defender: Diane M. Lozano, Wyoming State Public Defender; Valerie Schoneberger, Senior Assistant Appellate Counsel. Argument by Ms. Schoneberger.

          Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Russell Farr, Senior Assistant Attorney General. Argument by Mr. Farr.

          Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

          DAVIS, Chief Justice.

         [¶1] Monty Sullivan filed a petition under the Post-Conviction Determination of Factual Innocence Act claiming new evidence showed he was innocent of the first-degree sexual abuse of a minor for which he was convicted in 2009. The district court dismissed the petition for failing to identify newly discovered evidence and for making conclusory claims, and Mr. Sullivan appeals. We affirm.

         ISSUES

         [¶2] Mr. Sullivan presents two issues on appeal, which he states as follows:

I. Did the district court err in finding Mr. Sullivan did not present newly discovered evidence in his post-conviction petition for determination of factual innocence?
II. Was this denial premature in light of the district court's refusal to grant Mr. Sullivan an evidentiary hearing?

         FACTS

         [¶3] Mr. Sullivan was convicted of two counts of first-degree sexual abuse of a minor in 2009. We described the underlying facts in our decision affirming the conviction:

In February of 2009, the Wyoming Department of Family Services (DFS) took K.T., a minor child who was then nine years old, to the Child Advocacy Project (CAP) in Casper, Wyoming, to be interviewed. During the interview, K.T. revealed that on two separate occasions in her grandmother's bedroom, Sullivan attempted to have sex with her but because it was too painful, K.T. stated that Sullivan anally raped her when she was seven and eight years old. K.T. also revealed that Sullivan made her taste his semen, and that there were occasions when Sullivan made her sit on his lap while he watched pornography on the computer. During one specific instance, K.T. recalled that Sullivan was rubbing K.T.'s private area through her clothes.
The Thermopolis Police Department interviewed Sullivan after learning of the CAP interview with K.T. They informed Sullivan of K.T.'s allegations, which he initially denied. Eventually, Sullivan admitted to law enforcement that he had done to K.T. what she alleged him to have done.

Sullivan v. State, 2011 WY 46, ¶¶ 3-4, 247 P.3d 879, 880-81 (Wyo. 2011) (footnote omitted).

         [¶4] In 2011, following this Court's mandate affirming the judgment against him, Mr. Sullivan filed a petition for post-conviction relief. He claimed that his trial counsel was ineffective and that his appellate counsel was ineffective in failing to assert ineffective assistance of counsel in his direct appeal. Mr. Sullivan argued several grounds for his ineffective assistance of trial counsel claim, including: 1) failure to challenge his confession to law enforcement; 2) failure to depose the victim's physician; 3) failure to present expert testimony regarding alleged defects in the victim interview; and 4) failure to present evidence of sexual abuse of the victim by her uncle. The district court denied Mr. Sullivan's petition, and this Court denied his petition for a writ of review.

         [¶5] On April 23, 2018, Mr. Sullivan filed a pro se petition for relief under the Post-Conviction Determination of Factual Innocence Act (hereinafter "Act" or "Factual Innocence Act"). As grounds for his petition, he asserted newly discovered evidence consisting of: 1) a defense counsel interview of the victim's physician during which the physician stated that he found limited signs of sexual abuse, that he referred the victim to a gynecologist, and that the record contained no indication that a rectal examination of the victim had been performed; 2) the victim's prior allegations against her biological father and uncle; 3) a February 22, 2018 newspaper article reporting that the victim's uncle, Glenn Tanner, had pled guilty to the 2007 ...


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