Thursday, April 17, 2014

Summary 2014 WY 50

Summary of Decision April 17, 2014

Justice Burke delivered the opinion for the Court. Affirmed.

Case Name: RONALD S. KAMMERER, JR. v. THE STATE OF WYOMING

Docket Number: S-13-0070

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Campbell County the Honorable Michael N. Deegan, Judge

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope, Assistant Attorney General. Argument by Mr. Delicath.

Date of Decision: April 17, 2014

Facts: Appellant, Ronald S. Kammerer, Jr., challenges his conviction for failure to register as a sex offender, in violation of Wyo. Stat. Ann. § 7-19-302(j) and Wyo. Stat. Ann. § 7-19-307(a)(d). He contends that Wyoming’s Sex Offender Registration Act (Wyo. Stat. Ann. §§ 7-19-301 through 7-19-307) (“WSORA” or “the Act”) violates the prohibitions against ex post facto laws contained in the United States and Wyoming Constitutions.

Issues: Appellant presents the following issues: 1. Does Wyoming’s Sex Offender Registration Act violate the United States Constitution, Art. 1, § 10, prohibition against enacting ex post facto laws? 2. Does Wyoming’s Sex Offender Registration Act violate the Wyoming Constitution’s prohibition of ex post facto laws?

The State presents an additional issue: 1. Did the district court commit plain error by not finding that the Wyoming Constitution provides greater protection than its federal analog and that the Wyoming Sex Offender Registration Act violates that greater protection?

Holdings/Conclusion: We agree with the State. Both constitutions clearly prohibit the passage of ex post facto laws. Consequently, in order to find that the Wyoming Constitution provides “greater” protection, we would be forced to conclude that Wyoming’s definition of an ex post facto law, as applied to this case, is broader than the definition of that term as it is used in the United States Constitution. We have no reason to draw such a conclusion, and Appellant has provided no cogent argument or persuasive authority to support a claim that Wyoming’s definition of an ex post facto law is broader than the federal definition. To the contrary, we expressly adopted the Supreme Court’s definition of an ex post facto law, as one “which makes more burdensome the punishment for a crime, after its commission,” in Smith v. State, ¶ 55, 199 P.3d at 1068. Accordingly, we find no merit in Appellant’s claim that the Wyoming Constitution provides greater protection against ex post facto laws than its federal counterpart. Affirmed.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2014 WY 49


Summary of Decision April 17, 2014

Justice Burke delivered the opinion of the Court. Reversed and Remanded.

Case Name: AUSTON DAVIS COY v. THE STATE OF WYOMING

Docket Number: S-13-0136

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Campbell County, the Honorable John. R. Perry, Judge

Representing Appellant: P. Craig Silva, Williams, Porter, Day & Neville, P.C., Casper, Wyoming.

Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope, Assistant Attorney General.

Date of Decision: April 17, 2014

Facts: Appellant, Auston Davis Coy, was arrested in 2011 and charged with three crimes. At the time of his arrest, Mr. Coy was on probation for crimes he had committed in 2008. In addition to charging Mr. Coy with the new crimes, the State also sought to revoke Mr. Coy’s probation. Prior to trial, Mr. Coy and the State entered into a plea agreement. The terms of that plea agreement are the crux of this appeal. Mr. Coy contends that the sentence imposed was not in accordance with his plea agreement. He seeks modification of the sentence to conform to the terms of the plea agreement.

Issue: Did the district court enter an illegal sentence?

Holdings/Conclusion: We find that the sentence imposed was not in accord with the plea agreement and was an illegal sentence because it cannot be completed in a “single stretch” or without interruption by another prison sentence. We reverse and remand for entry of an amended sentence.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note, when you look at the opinion, that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quotation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Friday, April 11, 2014

Summary 2014 WY 48

Summary of Decision April 11, 2014

Chief Justice Kite delivered the opinion of the Court. Reversed and Remanded.

Case Name: MARIAN I. ERDELYI v. BRADLEY T. LOTT

Docket Number: S-13-0116

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Teton County, the Honorable Timothy C. Day, Judge

Representing Appellant: C.M. Aron and Galen B. Woelk of Aron and Hennig, LLP, Laramie, Wyoming. Argument by Mr. Woelk.

Representing Appellee: James K. Lubing and Leah K. Corrigan of Lubing & Corrigan, LLC, Jackson, Wyoming. Argument by Ms. Corrigan.

Date of Decision: April 11, 2014

Facts: Marian I. Erdelyi filed an action against her stockbroker, Bradley T. Lott, for fraud and constructive fraud. After a trial, a jury found that Mr. Lott committed constructive fraud but that Ms. Erdelyi knew or in the exercise of due diligence should have known before February 10, 2007, that the fraud had occurred. Based on the jury’s findings, the district court entered judgment holding Ms. Erdelyi’s claims were barred by the statute of limitations and dismissed the action.
On appeal, Ms. Erdelyi contends the district court erred in instructing the jury on negligence and comparative fault in this fraud action. She also asserts the district court erred in instructing the jury, for purposes of applying the statute of limitations, to determine whether she knew or should have known with the exercise of due diligence before February 10, 2007, that the fraud had occurred, because there was no evidence to support the instruction.

Issues: Whether the trial court’s jury instructions, taken as a whole, misstated the law in the following particulars: (A) By instructing the jury to compare a victim’s fault on a claim of fraud, and including the victim on the verdict form; (B) By imposing a negligence standard on [Ms. Erdelyi] with regard to discovery of her stockbroker’s fraud; and (C) By instructing the jury to determine the date [Ms. Erdelyi] discovered her stockbroker’s fraud, when there was no evidence of any such discovery presented.

Holdings/Conclusion: We hold that when the law is properly applied, the evidence did not support a finding that Ms. Erdelyi could have discovered the fraud sooner and it was error to dismiss the case based on the statute of limitations. We, therefore, reverse the judgment and remand for a new trial.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note, when you look at the opinion, that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quotation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summary 2014 WY 47

Summary of Decision April 11, 2014

Justice Fox delivered the opinion for the Court. Affirmed.

Case Name: WILLIAM TALLERDY v. THE STATE OF WYOMING

Docket Number: S-13-0250

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Laramie County the Honorable Thomas T.C. Campbell, Judge

Representing Appellant: William Tallerdy, pro se.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jennifer E. Zissou, Assistant Attorney General.

Date of Decision: April 11, 2014

Facts: William Tallerdy appealed the district court’s order granting in part and denying in part his motion to correct his sentence.

Issue: The issue presented by Mr. Tallerdy is whether the district court properly credited him for time served.

Holdings/Conclusion: We find that the district court properly credited him an additional 169 days for time served, and therefore affirm.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Wednesday, April 09, 2014

Summary 2014 WY 46

Summary of Decision April 9, 2014

Justice Davis delivered the opinion of the Court. Reversed.

Case Name: SAMUEL P. SNELL v. THE STATE OF WYOMING

Docket Number: S-13-0164

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Campbell County, the Honorable Thomas W. Rumpke, Judge

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Diane E. Courselle, Director, and Grant Smith of the Defender Aid Program, University of Wyoming College of Law. Argument by Mr. Smith.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey Pope, Assistant Attorney General; Caitlin Young, Assistant Attorney General. Argument by Ms. Young.

Date of Decision: April 9, 2014

Facts: Appellant Samuel P. Snell was arrested and charged with driving while under the influence of alcohol. He filed a motion to suppress the results of his blood alcohol concentration (BAC) test, claiming that the affidavit supporting the search warrant authorizing his blood to be taken for testing failed to demonstrate probable cause. The motion was denied, and Appellant was subsequently convicted by a jury of driving with a BAC of at least 0.08% for a fourth or subsequent time in ten years, a felony. He now challenges the district court’s denial of the motion to suppress as well as the sufficiency of the evidence to support his conviction.

Issue: Did the affidavit supporting the application for a warrant to draw Appellant’s blood contain sufficient information for a judicial officer to make an independent judgment that there was probable cause that Appellant had been driving while intoxicated?

Holdings/Conclusion: We find that the affidavit in support of the search warrant is deficient because it contains bare conclusions. Consequently, we must hold that the district court erred in denying Appellant’s motion to suppress the results of his BAC test. We reverse.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note, when you look at the opinion, that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quotation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]


Tuesday, April 08, 2014

Summary 2014 WY 45

Summary of Decision April 8, 2014

Justice Davis delivered the opinion of the Court. Affirmed.

Case Name: TY ROUSH v. THE STATE OF WYOMING

URL: http://www.courts.state.wy.us/Opinions.aspx

Docket Number: S-13-0111

Appeal from the District Court of Fremont County, the Honorable Norman E. Young, Judge

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellant Counsel.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey Pope, Assistant Attorney General.

Date of Decision: April 8, 2014

Facts: Appellant Ty Roush entered a conditional guilty plea to a single count of third degree sexual assault, a violation of Wyo. Stat. Ann. § 6-2-304(a)(i), reserving the right to challenge the district court’s conclusion that the State could prosecute him under that statute, which was repealed in 2007.

Issue: Did Wyoming’s general saving statute, Wyo. Stat. Ann. § 8-1-107 (LexisNexis 2013), permit the State to initiate a third degree sexual assault prosecution in 2011 for conduct which preceded the repeal of Wyo. Stat. Ann. § 6-2-304(a)(i) (LexisNexis 2005) (repealed 2007) by more than four years?

Holdings/Conclusion: The district court correctly concluded that the State could prosecute Roush under a provision of the third degree sexual assault statute which survived that provision’s 2007 repeal by virtue of Wyoming’s general saving statute. We consequently affirm the district court’s denial of his motion to dismiss, and likewise affirm the judgment and sentence.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note, when you look at the opinion, that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quotation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

ORDER 2014 WY 44

Order Affirming Appellant’s Conviction and Sentence and Order Remanding to District Court for Correction of Sentencing Order

Case Name: Jacob Donald Fritz v. The State of Wyoming

Docket Number: S-13-0213

URL: http://www.courts.state.wy.us/Opinions.aspx

Date of Order: April 8, 2014

ORDER AFFIRMING APPELLANT’S CONVICTION AND SENTENCE AND ORDER REMANDING TO DISTRICT COURT FOR CORRECTION OF SENTENCING ORDER

This matter came before the Court upon its own motion following notification that Appellant has not filed a pro se brief within the time allotted by this Court. Pursuant to a plea agreement, Appellant pled guilty to one count of felony interference with a peace officer. Wyo. Stat. Ann. § 6-5-204(b). This is Appellant’s direct appeal from the resulting conviction. On January 16, 2014, Appellant’s court-appointed appellate counsel filed a “Motion to Withdraw as Counsel,” pursuant to Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967). Following a careful review of the record and the “Anders brief” submitted by counsel, this Court, on February 5, 2014, entered its “Order Granting Permission for Court Appointed Counsel to Withdraw.” That Order notified Appellant that the district court’s “Sentencing Order” would be affirmed unless, on or before March 25, 2014, Appellant filed a brief that persuaded this Court the captioned appeal is not wholly frivolous. Taking note that Appellant, Jacob Donald Fritz, has not filed a brief or other pleading within the time allotted, the Court finds that the Appellant’s conviction and sentence should be affirmed.

This Court also finds this matter should be remanded to the district court for correction of the “Sentencing Order.” The Court notes that, although Appellant was given an adequate firearms advisement (as required by Wyo. Stat. Ann. § 7-11-507(a)), the district court’s “Sentencing Order” does not include a statement to that effect, as required by W.R.Cr.P. 32(b)(1)(E) and Starrett v. State, 2012 WY 133, ¶¶ 11-12, 19, 286 P.3d 1033, 1037-38, 1040 (Wyo. 2012). It is, therefore,

ORDERED that Appellant’s conviction and sentence are hereby affirmed; and it is further
ORDERED that this matter is remanded to the district court for entry of an amended sentencing order, which shall include the firearms advisement required by Wyo. Stat. Ann. § 7-11-507(a).

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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