Summary 2007 WY 140

Summary of Decision issued August 29, 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: Sarr v. State

Citation: 2007 WY 140

Docket Number: 06-164

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

Representing Appellant (Defendant): D. Terry Rogers, Interim State Public Defender; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Senior Assistant Appellate Counsel.

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

Issues: Whether appellant’s sentence was illegal because the trial court sentenced him under the wrong version of the statute, sentencing him to a longer prison term than was allowed when the offense was committed. Whether the trial court erred in admitting uncharged misconduct evidence because said evidence was more prejudicial than probative.

Facts/Discussion: Sarr entered a conditional plea of no contest to one count of simple assault and battery, domestic violence, third or subsequent offense in ten years in violation of Wyo. Stat. Ann. § 6-2-501(b)(e)(f)(ii).
Standard of Review: The determination of whether a sentence is illegal is a question of law, which the Court reviews de novo.
Sentence: In accordance with the terms of the parties’ plea agreement, the district court sentenced Sarr to a term of 4 – 5 years in prison pursuant to § 6-2-501(f)(ii) (2006)which was the version in effect at the time of sentencing. The version in effect at the time the offense was committed provided not more than 2 years confinement. The Court’s review of the claim of an illegal sentence is limited to determining whether the sentence was illegal and if the Court finds it was, correcting it themselves if the record is sufficient to allow them to do so or if not, remanding the case to the district court for correction. The Court stated that Sarr did not meet his burden of proving his substantial rights were affected. The record is clear and the parties agree that at the time the district court entered the judgment and sentence, Sarr had already served 1,877 days in jail. The parties agreed and the district court ordered that upon imposition of the sentence, Sarr was to be released from custody because he had already served more than the maximum penalty. Under those circumstances, the imposition of an incorrect statute was harmless.
W.R.E.404(b) Evidence: The district court concluded prior to the second re-trial that the testimony concerning Sarr’s actions immediately before and after the alleged assault was not Rule 404(b) evidence because it described what occurred immediately before and after the charged conduct and it provided background as to a continuing sequence of events. The district court further concluded that it was relevant to show Sarr’s intent and that it was more probative than prejudicial. In its decision letter, the district court outlined the factors as identified by the Court in Gleason v. State.

Holding: The Court remanded the case for the purpose of correcting the record with directions to enter a new judgment and sentence referencing the applicable statute and imposing the maximum sentence of 2 years. The district court’s analysis of the evidence showed that a legitimate basis existed for its ruling. Sarr had not shown the challenged testimony had little or no probative value or that it was extremely inflammatory.

Affirmed; remanded for imposition of a corrected statute.

J. Kite delivered the decision.

Link: http://tinyurl.com/22at8r .