Summary 2007 WY 125

Summary of Decision issued August 3, 2007

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Case Name: McDaniel V. State

Citation: 2007 WY 125

Docket Number: 06-283

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

Representing Appellant (Defendant): Donald Eugene McDaniel, pro se.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General

Date of Decision: August 3, 2007

Issue: Whether the District Court properly denied Appellant’s motion to correct an illegal sentence.

Facts/Discussion: Claims brought pursuant to W.R.Cr.P. 35(a) are subject to the principles of res judicata. Additionally, the res judicata doctrine applies when a defendant could have raised such an issue in an earlier appeal or motion for sentence reduction but did not do so. In the present action, Appellant not only filed a direct appeal after his conviction, he also filed a motion for sentence reduction pursuant to W.R.Cr.P. 35(b). He could have presented his claim that his sentences should have merged in his direct appeal, but he did not do so. As a result, his present claim is barred under the doctrine of res judicata. It is also noted that Appellant did not appeal an earlier denial of his motion to correct an illegal sentence. This is an additional reason that his claim is res judicata.
Additionally, Appellant’s arguments are without merit. Whether a sentence is illegal is determined by referencing the applicable statute or constitutional provisions, and is subject to statutory interpretation. Appellant contends that his sentence was illegal because the conduct with which he was charged consisted of one criminal transaction, and the elements of both crimes were the same. He argues that, as a result, his sentences should have merged and run concurrently instead of consecutively. It has been previously determined that the Wyoming legislature intended to define sexual intercourse, fellatio and other acts of sexual intrusion as separate and distinct crimes. Separate and distinct acts of sexual intrusion, even those separated in time only by a matter of seconds, can properly be punished as separate crimes without violating double jeopardy protections.

Holdings: The district court did not err in denying Appellant’s motion to correct an illegal sentence where appellant was convicted of two counts of sexual assault for forcing both vaginal and anal intercourse upon the same victim. It is the individual acts of sexual intrusion which are prohibited under Wyo. Stat. 6-2-302.

The order of the district court denying the motion to correct an illegal sentence is affirmed.

D.J. Cranfill delivered the opinion for the court.

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