Summary 2006 WY 157

Summary of Decision issued December 19, 2006

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Case Name: Gould v. State; Kolb v. State

Citation: 2006 WY 157

Docket Number: 05-291 & 06-1

Appeal from the District Court of Campbell County (No. 05-291), the Honorable John Perry, Judge

Appeal from the District Court of Sheridan County (No. 06-1), the Honorable John C. Brackley, Judge

Representing Appellants (Defendant): Pro se.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General: Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; James Michael Causey, Assistant Attorney General.

Issue: Appellants did not expressly set out their issues on appeal. Although the Court recognized they had the authority under W.R.A.P. 1.03 to dismiss the appeals because of deficiencies in the briefs, they considered Appellant’s claims. The State phrases the appellate issues as: Whether either district court erred in denying either appellant’s motion for correction of an illegal sentence. Whether either district court erred in denying either appellant’s motion for appointment of counsel.

Holding: Appellants were convicted for committing violent felonies in Wyoming and then were transferred by the Wyoming Department of Corrections (DOC) to a detention center in Texas to serve their sentences. Each Appellant filed motions to correct their illegal sentence and for appointment of legal counsel to assist them with their post-judgment efforts. Their motions were denied and they appealed. Their appeals have been consolidated for decision by the Court.

Standard of Review: The Court reviews the district court’s ruling of an illegal sentence for an abuse of discretion. The question of whether a specific rule applies to a given set of facts is a question of law, requiring a de novo review.

Pursuant to Wyo. Stat. Ann. § 7-6-104, the district court has discretion as to whether or not to appoint counsel at non-critical stages of a criminal proceeding, and the Court’s review is limited to determining whether or not the district court abused its discretion.

A. Motion to Correct Illegal Sentence: Pursuant to W.R.Cr.P. 35(a), a motion to correct an illegal sentence may be brought at any time. Appellants argue that the district court order denying their motions did not properly address their legal arguments; their convictions should have been merged for sentencing; their sentences were enhanced on the basis of improper factors; and their sentences were illegally executed because the DOC transferred them to a detention center in Texas to serve their sentences.

1. District Court’s Orders: Appellants argue their cases should be remanded to their respective district courts with directions requiring the courts to articulate the legal reasons for denying their motions to correct illegal sentence. The respective orders indicate the district courts did in fact consider the Appellants’ legal claims. In their arguments to the Court, Appellants did not identify any specific authority obligating the district courts to make more definitive findings and conclusions in support of their decisions.

2. Merger of Sentences: Appellants argue their convictions should have been merged for sentencing. The Court considered whether the claims were barred by res judicata which bars relitigation of issues raised and considered in a prior criminal proceeding. Appellant Gould pled guilty to aggravated assault and battery and burglary and was sentenced to consecutive terms for his actions. He initially filed a direct appeal but voluntarily dismissed that appeal before any action was taken by the Court. He had the opportunity to argue his sentences should merge for purposes of sentencing both in his direct appeal and his 2002 motion to reduce his sentence, which he did not appeal. Consequently, the Court concluded the merger issue was barred. Appellant Kolb was convicted after a jury trial of first degree murder and aggravated kidnapping. He appealed and the Court affirmed. Although he could have presented a claim that his sentences should have merged in his direct appeal, he did not do so. Under the Court’s precedent, it is clear he had an obligation to present his claim that his convictions should have merged for sentencing in a timely fashion. Having failed to do so, he is barred from litigation of that issue at this late date. The Court also noted Appellants’ claims that their convictions should have merged for sentencing were not well-founded. A cursory review of the facts demonstrated Appellant Gould could have committed either of his crimes without necessarily committing the other. His convictions would therefore not merge for sentencing purposes. Appellant Kolb was convicted of aggravated kidnapping and first degree pre-meditated murder. It was evident that although the crimes occurred during an on-going criminal episode, the kidnapping was not an essential element of the pre-meditated murder charge and so Appellant Kolb’s merger argument fails as well.

3. Sentence Enhancement: Appellants relied upon the United States Supreme Court decisions in Apprendi and Blakely to claim their rights under the Sixth Amendment were violated because the district courts “enhanced” their sentences by ordering them to be served consecutively without an admission by the accused or a determination by a jury as to that “enhancement.” Appellants were sentenced in accordance with Wyoming’s indeterminate sentencing statute (except for Kolb’s first degree murder conviction which mandated death or life imprisonment) Wyo. Stat. Ann. § 7-13-201 and their individual sentences fell within the maximums set out for their crimes. Consequently, in accordance with the Court’s decisions in Janssen and Smith, there was no obvious violation of the constitutional principles discussed in Apprendi and Blakely. The Court has long said the district court has discretion in determining whether the sentences will be served consecutively or concurrently. Appellants did not point to any specific error in the district court decision to order their sentences be served consecutively. The argument that judicial imposition of consecutive sentences violates the Sixth Amendment has been soundly rejected by other courts. The Court followed suit and concluded the district courts did not improperly enhance the Appellants’ sentences.

Transfer to Texas Detention Center: Appellants claim their sentences are illegal because the DOC transferred them to a facility in Texas to serve their terms of imprisonment. The threshold question is whether a Rule 35 motion is the proper procedural mechanism to challenge DOC’s actions. Cases which consider the propriety of a state’s actions in executing a sentence are typically brought by means other than a motion to correct an illegal sentence. Because Appellants were not contesting the legality of their sentences, but the way the DOC executed them, the issue was not properly before the Court.

Right to Counsel/Law Library: Appellants challenged the district courts’ denials of their requests for appointment of counsel. Their arguments also implicated the right of access to legal materials. W.R.Cr.P. 44(a)(1) states the criminal defendant’s right to appointment of counsel but does not indicate appointment is required for post-judgment proceedings. In order to establish a violation of the constitutional right to access to courts, a defendant must show an actual injury resulting from the claimed violation or deficiency. The lack of legal resources is the basis for their claim that they were entitled to appointment of counsel. Appellants make uncorroborated claims about the deficiencies in the legal resources available to them but do not establish the actual injury required to demonstrate a violation of their constitutional rights to access to courts. The Court did not find any abuse of discretion in the district court’s decisions denying their requests for appointment of counsel.

Affirmed.

J. Kite delivered the decisions.

Link: http://tinyurl.com/vdxdb .