Summary 2007 WY 90

Summary of Decision issued May 30, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Peterson v. Wyoming DOT, Drivers’ License Division

Citation: 2007 WY 90

Docket Number: 06-209

Appeal from the District Court of Uinta County, the Honorable Dennis L. Sanderson, Judge

Representing Appellant (Petitioner): Mike Cornia, Evanston, Wyoming.

Representing Appellee (Respondent): Patrick J. Crank, Attorney General; Robin Sessions Cooley, Deputy Assistant Attorney General; Douglas J. Moench, Senior Assistant Attorney General.

Issue: Whether the hearing examiner acted arbitrarily and capriciously in considering the breath test results.

Facts/Discussion: After being arrested for driving under the influence, the Wyoming DOT notified Peterson that his driver’s license would be suspended. Peterson requested and received a contested case hearing before the OAH who upheld the suspension. The district court also upheld the suspension.
Standard of Review: The Court reviewed the case as if it came directly from the administrative agency. Where both parties present evidence, the Court reviews the entire record to determine if the agency findings are supported by substantial evidence.
Peterson contended that because he was not strictly observed for fifteen minutes prior to having his breath analyzed for alcohol content, the hearing examiner should have excluded the breathalyzer test conducted at the police station. Wyo. Stat. Ann. § 31-6-105(a) sets forth the exclusive means and the mandatory procedure for determining an arrested suspect’s blood alcohol level. The Department of Health Rules and Regulations provides the subject must be observed for a minimum of fifteen minutes prior to testing to prevent residual mouth alcohol. The record showed that in compliance with the rule, the officer began observing Peterson at 1:25 am and continued to do so until at least 1:40 am. Because the first breath test occurred at 1:45 am, twenty minutes after the observation period began, Peterson contended he was not observed in accordance with the rules. The Court stated the record on appeal sufficiently established that Peterson was observed for the required amount of time. The machine was turned on, calibrated and relevant information entered between 1:39 and 1:45 am. The record did not indicate that the officer did not continue to observe Peterson while readying the machine. The Court noted that compliance does not require the officer to stare fixedly on the test subject.
The Court declined to adopt a strict compliance policy with the rules governing the administration of alcohol tests. Compliance is a question of fact to be decided under the circumstances of each case. The State’s prima facie showing of compliance with the regulation was sufficient.

Holding: The Court concluded that substantial evidence supported the hearing officer’s conclusion that the five minutes in question were allowable to prepare the machine and that the proposed suspension should be upheld.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/3yghaj .

Summary 2007 WY 91

Summary of Decision issued May 30, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Quinn v. Securitas Security Services

Citation: 2007 WY 91

Docket Number: 06-194

Appeal from the District Court of Converse County, the Honorable John C. Brooks, Judge

Representing Appellant (Claimant): Bill G. Hibbler, Bill G. Hibbler, PC, Cheyenne, Wyoming.

Representing Appellee (Respondent): Keith R. Nachbar, Keith R. Nachbar, PC, Casper, Wyoming.

Issue: Whether Quinn was injured while he was traveling in a vehicle of his employer pursuant to Wyo. Stat. Ann. § 27-14-102(a)(xi)(D).

Facts/Discussion: Quinn challenged the denial of benefits for injuries he sustained in a bus accident while traveling to work. Securitas employed Quinn as a security guard/EMT at the North Antelope Rochelle Coal Mine. As a courtesy, the mine allowed Securitas’ employees to ride a bus that the mine provided for its employees. Quinn was riding that bus when it was involved in an accident and he was injured.
Standard of Review: The Court reviews an agency action pursuant to Wyo. Stat. Ann. § 16-3-114. The Court reviews a summary judgment in the same light as the district court using the same materials and following the same standards.
The appeal focused on the language “transported by a vehicle of the employer” found in Wyo. Stat. Ann. § 27-14-102(a)(xi)(D). An injury within the meaning of the statute requires a causal nexus between the injury and some condition, activity, environment or requirement of the employment. Generally, the causal nexus is lacking when an employee is traveling to work. The recognized exceptions to the general rule find a causal nexus where the employer has in some fashion provided the employee with transportation or has reimbursed him for the costs of those travels. The Court agreed with the district court that the contract language between the mine and Securitas did not support Quinn’s theory that his injuries were compensable because Securitas was providing transportation for its employees. The Court stated that the circumstances were similar to those presented in Berg where they recognized that a benefit provided to employees for use at their discretion does not constitute a condition of employment. The record does not reflect that Securitas assumed the cost of the travel. Therefore the general rule applies and the injuries suffered by Quinn were not compensable.

Holding: The Court found the injuries Quinn suffered in the bus accident were not compensable. He was traveling to work when he was injured and the bus was not a “vehicle of the employer” under the applicable Wyoming statute. Accordingly, the hearing officer properly granted summary judgment to the employer.

Affirmed.

J. Burke delivered the decision.

J. Hill dissenting, joined by J. Kite: The Justices would have remanded the matter to the district court with directions to further remand to the OAH with directions to enter summary judgment in favor of Quinn. The Justices were not convinced the contract between Securitas and the coal company had anything to do with the case, but if it did, it ran afoul of the constitutional and statutory prohibition of a contract between a worker and an employer that operates as a waiver of benefits provided by the worker’s compensation statutes. The Justices opinion was that as a practical matter, Securitas provided Quinn with transportation to and from work and Quinn suffered an injury during that transport. Securitas’ extraction of what amounted to a waiver of benefits was contrary to both the letter and the spirit of the governing statutes.

Link: http://tinyurl.com/23vp9s .

Summary 2007 WY 89

Summary of Decision issued May 24, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Lessard v. State

Citation: 2007 WY 89

Docket Number: 05-295

Appeal from the District Court of Laramie County, the Honorable Peter G. Arnold, Judge

Representing Appellant (Defendant): P. Craig Silva of Williams, Porter, Day & Neville, PC, Casper, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric A. Johnson, Director PAP; Geoffrey L. Gunnerson, Student Director PAP; Jenny Staeben, Student Intern, PAP. Argument by Mr. Gunnerson.

Issues: Whether testimony elicited from two witnesses by prosecution and a transcribed statement of Lonnie Lessard which commented on Mr. Lessard’s right to remain silent violated his Fifth Amendment rights under the United States Constitution and the Wyoming Constitution. Whether the trial court abused its discretion when it did not sever the two sexual assault offenses against (SH) and (SG) thereby denying Lonnie Lessard his right to a fair trial. Whether Lonnie Lessard was denied his Sixth Amendment right to effective assistance of counsel by trial counsel’s deficient performance in defense of Appellant.

Facts/Discussion: Lessard appeals his convictions for burglary, first degree sexual assault and attempted first degree sexual assault.
Comments on right to silence: In analyzing right-to-silence claims, the Court considers the entire context in which the statements were made. The Court also considers whether the prosecutor asked improper questions, whether he emphasized or followed up on the silence issue and whether he attempted to exploit the issue in any way. The Court reviewed the three complaints made by Lessard and held that he did not demonstrate a transgression of a clear and unequivocal rule of law with respect to any of the challenged evidence.
Denial of motion to sever: The denial of a motion for severance is generally within the sound discretion of the district court and will not be disturbed on appeal absent a clear abuse of that discretion. An abuse of discretion occurs when joinder of separate charges deprived the defendant of a fair trial. W. R. Cr.P. 8(a) permits joinder of multiple offenses in a single information. The Court found that the sexual offenses were similar in character and so related as to constitute parts of a common scheme or plan. W.R.Cr.P. 14 allows the court to order separate trials if the defendant is prejudiced by the joinder of offenses. The Court applied the two part test for determining whether joinder prejudiced a defendant: whether the evidence relating to the similar offenses charged would be admissible in a separate trial of each offense and whether the evidence relating to the separate offenses would be so complicated that the jury could not reasonably be expected to separate them and evaluate the evidence individually on each charge. The Court stated the evidence concerning both victims would have been admissible in separate trials. The facts of the cases were uncomplicated and relatively easy to understand.
Ineffective assistance of counsel: When reviewing a claim of ineffective assistance of counsel, the Court determines whether in light of all the circumstances, trial counsel’s acts or omissions were outside the wide range of professionally competent assistance. Lessard set forth six claims of alleged ineffectiveness. However, he failed to support his various claims with a cogent legal analysis and explain how counsel’s acts or omissions fell below that of a reasonably competent attorney.

Holding: After a review of the record, the Court held that the evidence did not constitute an impermissible comment on Lessard’s right to remain silent. The Court concluded the district court did not abuse its discretion in refusing to sever the criminal charges. The Court stated Lessard’s argument was insufficient to satisfy his burden of overcoming the Court’s strong presumption that counsel rendered adequate assistance.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/24hehc .

Summary 2007 WY 88

Summary of Decision issued May 23, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Negrette v. State

Citation: 2007 WY 88

Docket Number: 06-39

Appeal from the District Court of Crook County, the Honorable Dan R. Price, Judge

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Kate McKay, Student Intern. Argument by Ms. McKay.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric A. Johnson, Director PAP; Geoffrey L. Gunnerson, Student Director PAP; Jennifer Reece, Student Intern, PAP. Argument by Ms. Reece.

Issue: Whether the district court erred in denying Negrete’s motion to suppress because his detention was unconstitutional under both the federal and state constitutions.

Facts/Discussion: Negrete pled guilty to one count of possession of a controlled substance conditioned upon his right to appeal the denial of his motion to suppress evidence.
Standard of Review: The Court will not disturb a ruling on a motion to suppress absent a clear abuse of discretion. Whether an unreasonable search or seizure occurred in violation of constitutional rights presents a question of law and is reviewed de novo.
State Constitutional Analysis: The Court looked to the totality of the circumstances to determine whether the detention was reasonable. The circumstances included: the license plate on the pickup was not on fie; the registration had been altered; the plate number did not match the registration; the occupants of the pickup traveled from Illinois to Oregon for a two day visit; Negrete did not know the names of the people he had just visited; Negrete said he borrowed the pickup from a friend named Gilbert Mendoza but the proof of insurance card showed the name Gilberto Maldonado; the VIN was a duplicate; Negrete seemed to change the subject whenever the discussion made him uncomfortable; Negrete appeared nervous when he could not remember the names of the people he had just visited and the Deputy was unable to verify the license plates belonged on the pickup. Negrete relied on O’Boyle which the Court distinguished from the instant case both by the extensiveness of the questioning and the absence of a reasonable suspicion.
Federal Constitutional Analysis: The Court applied the two-part inquiry established in Terry v. Ohio, that is: was the initial stop justified and were the officer’s actions during the detention reasonably related in scope to the circumstances that justified the interference in the first place. The Court concluded the detention initially was appropriately tailored to the reason for the stop. The limited nature and duration of the questions as they sat in the patrol car waiting to hear from dispatch were not unreasonable.

Holding: The Court agreed the totality of the circumstances supported the conclusion that the Deputy had reasonable suspicion to believe Negrete had committed or might be committing a crime and to detain him. The detention did not violate either the Wyoming Constitution or the Fourth Amendment to the United States Constitution.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/363l8p .

Summary 2007 WY 87

Summary of Decision issued May 23, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Ecosystem Resources, LC v. Broadbent Land & Resources, LLC

Citation: 2007 WY 87

Docket Number: 05-277

Appeal from the District Court of Uinta County, the Honorable Dennis L. Sanderson, Judge

Representing Appellant (Defendant): Phillip William Lear of Lear & Lear, LLP, Salt Lake City, Utah.

Representing Appellee (Plaintiff): Clayton B. Thomas, Evanston, Wyoming; M. David Eckersley of Prince, Yeates & Geldzahler, Salt Lake City, Utah. Argument by Mr. Eckersley.

Issues: Whether the trial court erred as a matter of law in holding that a reservation of “all timber” created an estate in timber limited to a reasonable time rather than an estate in perpetuity. Assuming Wyoming law requires words of duration to create a perpetual timber easement; whether the trial court erred in holding that the reservation did not contain such language.

Facts/Discussion: In the early 1900’s Union Pacific Railroad Company (UP) conveyed real property located in Uinta County to Broadbent Land & Resources, LLC’s (Broadbent) predecessors in interest, but reserved and excepted “all timber” on said lands. Nearly one hundred years later, Ecosystem Resources, LC (Ecosystem) acquired the timber rights and proceeded to harvest the timber. As surface owner, Broadbent asked the district court to quiet title to the timber in it.
Standard of Review: The Court reviews a district court’s decision granting a judgment on the pleadings pursuant to W.R.C.P. 12(c) de novo by applying the same standards used by the district court in ruling on the motion.
This is a matter of first impression for the Court, the duration of an interest in timber created in a deed when no time limit is set out in the language of the deed. The Court’s deed interpretation rules focus on deriving the intentions of the parties. The Court begins by reviewing the language of the deed giving it its plain and ordinary meaning and then if it is clear and unambiguous, the Court looks to the “four corners” of the deed to ascertain the parties’ intent. Even if the contract is unambiguous, the Court can examine the evidence of the circumstances surrounding the execution of the deed.
The plain language of the deeds did not limit the duration of the timber interests to a “reasonable time.” The district court resolved the case by applying the “reasonable time” rule found in cases from other jurisdictions but declined to consider Ecosystem’s proffered evidence regarding the facts and circumstances surrounding the execution of the UP Deeds. After reviewing many cases, the Court was not convinced the rule was “universal” or a clear majority rule in the United States in 1908 or 1909. Current treatises indicate there is no universal rule. The Court noted the policy expressed by courts when adopting the “reasonable time” rule may or may not be applicable in Wyoming because simultaneous use of different interests in the same real property is common in Wyoming.
If the Court were interpreting a simple contract or bill of sale for removal of standing timber, they would have had no difficulty in accepting the district court’s decision that, when no time is specified for completion of the contract, it must be performed in a reasonable time. The Court was being asked to interpret deeds purporting to reserve “all timber” to the grantor and they were reluctant to do so unless they were convinced that was the general intent of the parties when they entered into the UP deeds at issue.

Holding: After reviewing numerous cases, the Court concluded it would be imprudent as well as inconsistent with their jurisprudence to recite a general rule as to how long a timber interest should continue when there was no expression of duration in the conveying document. The Court stated the district court should have considered all of the facts and circumstances surrounding execution of the Union Pacific deed to determine the parties’ general intent.

Reversed and remanded.

J. Kite delivered the decision.

Link: http://tinyurl.com/3aorcm .

Summary 2007 WY 86

Summary of Decision issued May 23, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Arnold and Arnold, PC v. Day and Day

Citation: 2007 WY 86

Docket Number: 06-160

Appeal from the District Court of Uinta County, the Honorable Dennis L. Sanderson, Judge

Representing Appellants (Plaintiffs): George L. Arnold, of George L. Arnold, PC, and V. Anthony Vehar of Vehar Law Offices, PC; Evanston, Wyoming.

Representing Appellees (Defendants): Mark W. Harris of Harris Law Firm, PC, Evanston, Wyoming.

Issues: Whether the appeal should be dismissed for the failure of Arnold to bring a complete record to the Court for review. Whether the findings of fact and conclusions of law reveal any clear error of law.

Facts/Discussion: Arnold contended that the district court erred in granting a judgment in favor of the Days. The dispute arose because of the odor of permanent solution migrating from the Days’ hair salon into the common areas of the condominium spaces and the Arnold offices.
Standard of Review: The Court’s review was greatly restricted because they had no transcript of the trial. The record included exhibits. Failure to include a transcript restricted the Court to those allegations of error that did not require an inspection of the transcript.
Arnold contended that the district court’s decision letter and its findings of fact and conclusions of law constituted special findings and therefore a transcript was not required. He failed to support this assertion with cogent argument or pertinent authority. The Court noted that no request was made by either party for special findings, special findings were not made and special findings were not a substitute for a transcript.
The Court reviewed the decision letter and detailed findings of fact and conclusions of law and accepted the trial court’s findings as being the only basis for deciding the issues which pertained to the evidence. In the absence of anything to refute them, the Court sustains the trial court’s findings of fact and assumes the evidence was sufficient to support those findings. The Court noted they may affirm the district court upon any valid basis appearing in the record.

Holding: The Court concluded the district court’s judgment should be affirmed because the evidence supported the district court’s conclusion that the Days did not breach the contract between the parties.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/2morwn .

Summary 2007 WY 85

Summary of Decision issued May 22, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note 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.]

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

Case Name: Ramos v. State, ex rel., Wyoming Workers’ Safety and Compensation Division

Citation: 2007 WY 85

Docket Number: 06-100

Appeal from the District Court of Converse County, the Honorable John C. Brooks, Judge

Representing Appellant (Petitioner): Hampton M. Young, Jr., Casper, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; and Kristi M. Radosevich, Assistant Attorney General.

Issue: Whether the hearing examiner’s decision was arbitrary and capricious and not in accordance with the law when it failed to consider whether the work-related injury combined with the preexisting periodontal disease necessitated the dental treatment for which compensation was sought.

Facts/Discussion: Ramos sustained facial bone fractures in a work-related accident in 2003. Over ten years prior to the injury, he had been informed he had periodontal disease and had been advised to have his teeth extracted and replaced with dentures. The Division denied payment of $2470 for the dental treatment. Ramos requested a hearing where the OAH upheld the Division’s denial. The district court affirmed the hearing examiner’s opinion.
Standard of Review: The standard of review of a hearing examiner’s order in a contested case is governed by Wyo. Stat. Ann. § 16-3-114(c). The order is reviewed giving no deference to the district court’s decision and the conclusions of law are reviewed de novo. The arbitrary and capricious standard governs the judicial review of the order.
Ramos challenged the findings of fact in paragraphs 8 and 9 of the hearing examiner’s decision and pointed to undisputed evidence supporting his contention that the dental work was necessitated by the injury and was not a result of long-standing preexisting periodontal disease. The Court agreed and held that the hearing examiner’s decision was arbitrary and capricious.

Holding: After the Court’s review of the entire record, the Court found that Ramos proved by a preponderance of the evidence that his work-related injury substantially combined with his preexisting periodontal disease which necessitated the dental treatment.

Reversed and remanded to the district court.

J. Golden delivered the decision.

Link: http://tinyurl.com/35h8yx .

Summary 2007 WY 84

Summary of Decision issued May 21, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note 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.]

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

Case Name: Gray v. Pavey

Citation: 2007 WY 84

Docket Number: 06-277

Appeal from the District Court of Converse County, the Honorable John C. Brooks, Judge

Representing Appellant (Respondent): Cole N. Sherard, Wheatland, Wyoming.

Representing Appellee (Petitioner): James A. Hardee, Douglas, Wyoming.

Issue: Whether the district court abused its discretion by awarding custody of the parties’ minor child (C.G.) to her father, John Pavey.

Facts/Discussion: Mother (Gray) appeals from an order modifying child custody.
Standard of Review: The Court reviews a district court’s order on a petition to modify custody, visitation, and child support for an abuse of discretion.
Father bore the burden of demonstrating that a material and substantial change of circumstances affecting the child’s welfare has occurred and the modification would be in the child’s best interest. The Court reviewed the record and found there was sufficient evidence presented to demonstrate a material change in circumstances and that an award of primary custody to Father was in the best interests of the child. The district court heard evidence favorable and unfavorable to both parents.

Holding: After considering all of the evidence before it, the district court determined that Father was better able to provide an environment which could meet C.G.’s emotional, developmental, and educational needs. Sufficient evidence existed in the record to support the decision. As a result, the Court could not say that the court abused its discretion in this matter.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/38xye8 .

Summary 2007 WY 83

Summary of Decision issued May 18, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note 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.]

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

Case Name: Potter v. State

Citation: 2007 WY 83

Docket Number: 06-59 & 06-60

Appeal from the District Court of Laramie County, the Honorable Nicholas G. Kalokathis, Judge

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Ryan R. Roden, Senior Assistant Appellate Counsel. Argument by Mr. Roden.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Cathleen D. Parker, Senior Assistant Attorney General. Argument by Ms. Parker.

Issue: Whether Potter was denied his right to a speedy trial.

Facts/Discussion: Pursuant to a plea agreement, Potter conditionally pleaded guilty to one count of felonious restraint in violation of Wyo. Stat. Ann. § 6-2-202(a). After timely appealing both the judgment and sentence and the order revoking his probation, the matters were consolidated.
Standard of Review: The Court reviews speedy trial claims to ensure that the mandates of W.R.Cr.P. 48 and constitutional guarantees have been met. The constitutional question of whether a defendant has been denied a speedy trial in terms of the Sixth Amendment are examined de novo.
W.R.Cr.P. 48: The Court calculated the time between Potter’s arraignment and conditional plea. The Court determined there were only 107 days of delay out of the 337 day total. One hundred seven is below the limit set forth in the Rule. The 230 days difference could be attributed to proceedings related to Potter’s mental illness or deficiency which made those days excludable from the speedy trial clock under Rule 48.
Constitutional Claim: The Court focused on the benchmark test that applies to constitutional speedy trial claims from Barker v. Wingo. The Court considers the length of delay; the reason for the delay; the defendant’s assertion of his right; and the prejudice to the defendant. The total length of the delay of 362 days between arrest and final dissolution warranted examination of the other three factors. The reason for the delay was largely attributable to Potter when he pleaded not guilty by reason of mental illness and requested an evaluation. Potter’s demands for a speedy trial and the fact that he did not object when the court continued the trial amounted to a less than vigorous assertion of his right. The defendant has the burden of showing actual prejudice as a result of the delay. Potter claimed prejudice but when the Court considered all of the factors together, they concluded he was not denied his constitutional right to a speedy trial.

Holding: The Court considered all of the factors together and concluded Potter was not denied his constitutional right to a speedy trial, especially considering his relatively weightier contribution to the delay.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/34no6x .

How-to: Safely Recycle That Computer

My dad loves to call me a tree-hugger (apparently learning foreign languages earns me a liberal tag). But I know I'm not--I'm perfectly willing to use Roundup on that nasty old thistle as anyone. And I would be the first to admit to not saving soda cans *gasp*.

I do cringe, though, whenever I think of all the old computers that might be running around in landfills. I've managed to pawn my old computers off on unsuspecting family members so far, but I've been waiting for that dread day when they catch on to my schemes. Now I am happy to report that there are several options for recycling your ancient (2 years old), slower-than-molasses-in-january (takes more than 5 seconds to load google), un-cool-looking (no fancy blue or green LED lights) computer.

This article by CNET.com covers methods for erasing the data off your hard drive before you recycle the old monster. The author also explains some of the why behind the necessity to make sure the hard drive is cleaned specific ways. While I don't think anyone is really going to go to a lot of trouble to retrieve the 852 cat pictures from my computer's banged up hard drive, I wouldn't take the chance with confidential client data. So, take a look at Robert Vamosi's Security Watch: Ready to recycle that old PC? Read this first.

The next article is even better (much less techie and more choices for doing good in the world). WikiHow's How to Safely Get Rid of an Old Computer lists some great ideas for recycling besides just making the retailer of your new computer recycle the old PC/Mac. Some of them might work even in Nowhere, Wyoming. For instance, it's always fun to put something out in your front yard with a free sign. It doesn't matter what it is, it will disappear.

How to: What Not To Put On Your Firm Homepage

Have you taken that leap into the 21st century and created a web site for your practice? How long has it been since it was updated? What kinds of questions did you ask yourself during planning and design? What was your goal for the web site presence? How do you know if it's effective?

Making a web site takes more than just code. You need to consider it as one more method for advertising your serves to prospective clients; and this takes some careful consideration.

Margot Teleki wrote an article for Law.com's Legal Technology that can help guide you through some dos and don'ts as far as home page content and design. Use Your Home Page as a Marketing Tool covers some of the issues you need to consider for drawing a prospective client from a search engine to your site, as well as what kinds of information to provide for them once they reach your home page. It's a fairly short article that can get you started on the right track.

Oh, and while I'm at it--here's another article by Teleki. It pretty much covers the same topic, but details more specifically the dos rather than the don'ts.

What Does Your Web Site Say About You?

Summary 2007 WY 82

Summary of Decision issued May 15, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note 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.]

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

Case Name: Vroman v. Town & Country Credit Corp.

Citation: 2007 WY 82

Docket Number: 06-170

Appeal from the District Court of Laramie County, the Honorable Nicholas G. Kalokathis, Judge

Representing Appellant (Plaintiff): William D. Bagley, of Bagley, Karpan, Rose & White, Cheyenne, Wyoming.

Representing Appellee (Defendant): Dale W. Cottam and Billie L.M. Addleman, of Hirst & Applegate, PC, Cheyenne, Wyoming.

Issues: Whether the district court erred in failing to award damages for the injury resulting from the admitted negligence and admitted breach of contract of Town & Country. Whether the district court erred in failing to award punitive damages.

Facts/Discussion: Vroman initiated the instant case seeking damages for a mortgage refinancing transaction gone awry. Town & Country admitted liability. The district court entered its Judgment and Order in favor of Town & Country because it found that Vroman was not entitled to damages.
Standard of Review: The Court reviews a district court’s findings of fact under a clearly erroneous standard.
The purpose of compensatory damages is to place the injured party in the position he or she would have been in had the wrongful conduct not occurred. The Court found that the district court’s decision in the matter did not leave Vroman in the position she would have been in if Town & Country had adequately performed its duty. Vroman incurred damages because Beneficial’s mortgage and WyHy’s mortgage were not satisfied and released during the refinancing. In light of the Town & Country’s admission of liability and the undisputed evidence relating to the additional mortgage payments, the Court concluded that the district court erred in failing to award damages to Vroman to recoup the $13,969.93 she paid.
The district court denied claims for damages for the amount of closing costs on her house and rental property and to compensate for damage to her credit rating. The breach did not cause Vroman to incur the closing costs, so the Court agreed with the district court’s decision to decline to award money with respect to those claims. Vroman failed to prove that her credit rating suffered. The Court agreed with the district court’s decision to reject the damages claimed for lost rental income because the amount of cash that would be disbursed was clearly identified on the settlement statements signed at closing. Fraud was also alleged by Vroman. It must be established by clear and convincing evidence. Vroman failed to direct the Court to any evidence in the record supporting the allegation of fraud and as a result, the Court was unable to find the district court had erred in denying the claim.

Holding: The Court affirmed the district court’s decision denying punitive damages. The district court’s failure to award compensatory damages for the amounts Vroman incurred to satisfy her second mortgages was clearly erroneous. The Court reversed the district court’s decision denying compensatory damages and remanded.

Affirmed in part, reversed in part and remanded in part.

J. Burke delivered the decision.

Link: http://tinyurl.com/2umf9e .

Summary 2007 WY 81

Summary of Decision issued May 14, 2007

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

Case Name: Lee v. State

Citation: 2007 WY 81

Docket Number: 06-116

Appeal from the District Court of Natrona County, the Honorable W. Thomas Sullins, Judge

Representing Appellant (Defendant): Robert W. Lee, Pro se.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Assistant Attorney General.

Issue: Whether the district court had jurisdiction to consider a motion entitled “Request for Clarification of Sentence” filed more than seven years after entry of conviction and sentencing where Appellant did not cite to any authority allowing the court continuing jurisdiction in the matter.

Facts/Discussion: Lee filed a Request for Clarification of Sentence with the district court on March 14, 2006. The district court entered an Order Denying Request for Clarification of Sentence on March 17, 2006.
The Court reviews subject matter jurisdiction de novo. If a trial court did not have jurisdiction to entertain an issue, the Court does not have jurisdiction to decide a subsequent appeal on that issue.
The trial court’s jurisdiction terminated with the entry of the judgment and sentence in the instant case, and the final disposition of Lee’s direct appeal. Lee’s motion did not appear in any rule or statute authorizing the district court to act on such a request more than seven years after his conviction and sentencing nor could the Court find any such rule or statute allowing it.

Holding: The Court concluded the district court was without jurisdiction to consider Lee’s “Request for Clarification of Sentence” and consequently, the Court was without jurisdiction to consider the appeal.

Dismissed.

C.J. Voigt delivered the decision.

J. Hill, Special Concurrence: The district court did have jurisdiction of Lee’s motion and the Court had jurisdiction of the appeal. W.R.Cr.P. 35 provides the district court may correct an illegal sentence at any time. W.R.Cr.P. 36 provides that clerical mistakes may be corrected by the court at any time. Lee’s motion properly invoked the district court’s jurisdiction under one or both of the rules but it failed to state any ground which would entitle Lee to relief. Therefore, the district court’s order should be affirmed.

Link: http://tinyurl.com/2xxb5a .