Summary 207 WY 121

Summary of Decision issued August 1, 2007

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

Case Name: Wenger v. State

Citation: 2007 WY 121

Docket Number: 06-90

Appeal from the District Court of Carbon County, the Honorable Wade E. Waldrip, Judge

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender, PDP; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Senior Assistant Public Defender; Sylvia Lee Hackl, Cheyenne, Wyoming.

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

Issue: Whether the legislature intended § 35-7-1059(a)(iv), which prohibits conspiring with or aiding another to engage in a clandestine laboratory operation, to describe alternative means of committing one offense such that it supports only one conviction and one sentence.

Facts/Discussion: A jury convicted Wenger of one count of conspiring to engage in a clandestine laboratory operation and one count of aiding another person to engage in such an operation. The trial court sentenced him to two concurrent prison sentences of two to eight years.
Wenger claimed that the district court’s failure to merge his convictions at sentencing violated his right to be free from double jeopardy because the effect of the sentence was to punish him twice for a single offense. The State responded that Wenger was convicted of two separate and distinct offenses and the district court properly declined to merge the sentences. The Court states the determinative issue is whether the legislature intended the statute to describe alternative means of committing a single offense supporting a single conviction and sentence or whether the legislature intended to punish each act as described in the statute separately. Analyzing the plain wording of the statute, the Court noted it contains no express statement that the legislature intended a single punishment for conspiring with or aiding another in the operation of a clandestine laboratory. The Court noted that in Nowack they said that when the legislature creates two distinct offenses the presumption is that it intends to permit cumulative sentences. The Court also looked for guidance in the purpose of the statute which in this instance is to prevent the operation of clandestine laboratories that pose safety hazards. The acts prohibited by the statutes seem to be directed at preventing the same harm and are not sufficiently distinguishable to indicate the legislature intended to create separate offenses or authorize separate punishments. The Court next considered legislative intent. They commented that cumulative punishment is not authorized without a clear indication of legislative intent and concluded that the referenced statute was intended to describe alternative means of committing a single offense supporting a single conviction and sentence.

Holding: The Court reversed the judgment and sentence holding that Wyo. Stat. Ann. § 35-7-1059(a)(iv) was intended to describe alternative means of committing the same offense and does not support separate convictions for each act constituting the offense. The Court remanded the case to the district court for entry of a judgment and sentence finding Wenger guilty of one count in violation of the above statue and imposing one sentence.

Reversed and remanded.

J. Kite delivered the decision.

Link: http://tinyurl.com/2mz88c .