Summary 2007 WY 198

Summary of Decision issued December 13, 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: Fernandez v. State

Citation: 2007 WY 198

Docket Number: S-07-0120

Appeal from the District Court of Natrona County, the Honorable David B. Park, Judge

Representing Appellant (Defendant): Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan, Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Cathleen D. Parker, Senior Assistant Attorney General. Argument by Ms. Parker.

Facts/Discussion: Appellant appeals the judgment and sentence of the trial court after a jury found him guilty of two counts of aiding and abetting the crime of burglary and one count of conspiracy to commit burglary, contending that the trial court committed judicial misconduct when it repeatedly instructed defense counsel on time management and created an atmosphere during the trial which negatively impacted defense of his client and interfered with the attorney-client relationship.
Standard of Review: The Court has adopted an abuse of discretion standard in reviewing claims of judicial misconduct. The Court’s role on appeal is to determine whether the judge’s behavior was so prejudicial that it denied a defendant a fair trial. The defendant must show that the remarks were prejudicial and that he was harmed thereby.
The Court carefully read the record and considered the trial court’s remarks and did not find those remarks were calculated to belittle or disparage defense counsel or to create the impression to the jury that the defense was without merit so as to deprive Appellant of a fair and impartial trial.
After reviewing the trial court’s remarks, the Court agreed with the State that the record was clear that the comment in question was not uttered during defense counsel’s voir dire and could not reasonably be construed to have been directed at defense counsel.
Appellant challenged the propriety of the trial court’s hearing concerning defense counsel’s effective representation. His assertion was not sufficient to demonstrate the alleged interference.

Holding: The Court held the trial court did not err in any of the time management particulars alleged by Appellant. The Court held that the trial court did not commit judicial misconduct as contended and affirmed the trial court’s judgment and sentence. The Court held the trial court did not err in conducting the hearing in the instant case.

Affirmed.

J. Golden delivered the opinion.

Link: http://tinyurl.com/254ncv .

Summary 2007 WY 197

Summary of Decision issued December 13, 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: Rion v. State

Citation: 2007 WY 197

Docket Number: 06-178, 179

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

Representing Appellant (Defendant): Edward J. Battitori of Meek & Battitori, Baxter Springs, Kansas; and Raymond D. Macchia of Macchia & Associates, LLC, Cheyenne, Wyoming.

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

Facts/Discussion: Appellant appeals from his convictions for arson and felony property destruction on the ground that his trial counsel was ineffective.
Standard of Review: In reviewing the decision of the district court after remand, the Court defers to the district court’s findings of facts unless they are clearly erroneous, but they conduct a de novo review of the conclusions of law including the question of whether counsel’s conduct was deficient.

Holding: The Court stated Appellant’s brief was a recitation of the allegations with no analysis of either the allegedly deficient conduct or any prejudice that might have resulted. Therefore, they affirmed the determinations of the district court and Appellant’s convictions.

Affirmed.

C.J. Voigt delivered the opinion.

J. Hill, concurring, joined by J. Kite: In this appeal, Appellant contends that the validity of his convictions was undermined by the substandard performance of his attorney at trial. The majority opinion opted to “summarily affirm” based upon appellate counsel’s substandard performance. J. Hill stated that in his view the record showed that the district court’s findings were not clearly erroneous and its conclusion that trial counsel was not ineffective as a matter of law was sound.
If he were to agree with the majority’s characterization of appellate counsel’s performance, he would take the view that the Court must identify that performance as ineffective assistance of appellate counsel and order new briefing in the case.
Based on the briefs, the transcript of Appellant’s trial and the Calene hearing transcript, J. Hill would conclude that trial counsel was not ineffective and hence the judgment and sentence of the district court should be affirmed.

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

Summary 2007 WY 196

Summary of Decision issued December 12, 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: K.H. v. Wyoming Dep’t of Family Services

Citation: 2007 WY 196

Docket Number: C-07-2

Appeal from the District Court of Platte County, the Honorable Keith G. Kautz, Judge

Representing Appellant (Respondent): Matthew F.G. Castano, Brown & Hiser, LLC, Laramie, Wyoming.

Representing Appellee (Petitioner): Patrick J. Crank, Attorney Genera; Robin Sessions Cooley, Deputy Attorney General; Dan S. Wilde, Senior Assistant Attorney General; Stacey L. Obrecht, Assistant Attorney General. Argument by Ms. Obrecht.

Guardian Ad Litem: Eric Eugene Jones, Wheatland, Wyoming.

Issue: Whether the district court erred by terminating the parental rights of Mother when the Department of Family Services (DFS) had failed to comply with its own written policy of attempting to place children with relatives prior to placing them in non-relative foster care.

Facts/Discussion: Mother appeals the district court’s decision terminating her parental rights.
Mother claimed that DFS should have placed her children with Grandmother because DFS’s Family Services Manual encourages its employees to place children with family members rather than in foster homes. DFS had initiated home evaluations for each of the relatives that Mother had submitted. DFS was justified in declining to place the children with Grandmother considering the risk to their well-being as revealed by the home evaluations.
Mother relied on MB v. Dep’t of Fam. Svcs. The Court noted that MB was factually distinguishable from the instant case. Mother did not dispute that she knew her case plan and that DFS notified her of the goals she would have to meet to achieve family reunification.

Holding: The Court reviewed the record and determined that even if they had evaluated DFS’s placement actions, they would not have concluded that DFS violated its rules. The children had been in foster care for 15 of the previous 22 months and accordingly, DFS was empowered by statute to commence termination proceedings.
In light of the Court’s resolution of Mother’s substantive claim, they did not address her ineffectiveness of counsel issue.

Affirmed.

J. Burke delivered the opinion.

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

Summary 2007 WY 195

Summary of Decision issued December 11, 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: Mueller v. Zimmer

Citation: 2007 WY 195

Docket Number: S-07-0043

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

Representing Appellants (Plaintiffs): Robert John Logan, Logan & Powell, LLP, Thayne, Wyoming.

Representing Appellees (Defendants): John R. Hursh, Central Wyoming Law Associates, PC, Riverton, Wyoming.

Issue: Whether the district court abused its discretion in awarding Appellees attorney fees and costs in the amount of $4,241.99.

Facts/Discussion: Appellants appeal the district court’s order awarding attorney fees and costs to Appellees.
Standard of Review: The Court reviews an award of attorney fees for an abuse of discretion.
The Court noted that Appellants did not contest the reasonableness of the $150 hourly rate charged by Appellees’ attorney. They argued that because Appellees failed to provide an itemized statement reflecting only fees and costs incurred in defense of the ultra vires claim, there was insufficient evidence in the record to support the award and that the failure to provide the separate itemization was fatal to the claim. They relied on Miles v. CEC Homes and Jensen v. Fremont Motors Cody, Inc. The Court stated the reliance was misplaced.
In contrast to the situation in Miles, the record here contains a factual basis for the district court’s decision. Defense counsel’s ledgers and affidavit provided information allowing the district court to make an informed decision regarding a proper attorney fee award. The district court was intimately familiar with the parties, the issues and the overall litigation and so was in an excellent position to evaluate whether Defendants’ documentation and calculations fairly attributed reasonable costs to the particular claim at issue.
Appellants’ case was distinguishable from Jensen. It was undisputed that Appellants were entitled to attorney fees for their defense of the ultra vires claim whereas in Jensen, the denial was warranted because Jensen had failed to establish that he had prevailed on his claim for past due wages.

Holding: Case counsel provided an explanation for his failure to segregate the fees for each of the claims and the district court found that the segregation of fees was a practical impossibility. There was sufficient evidentiary basis for the district court’s award. The Court found no abuse of discretion.

Affirmed.

J. Burke delivered the opinion.

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

Summary 2007 WY 194

Summary of Decision issued December 11, 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: Crapo v. State

Citation: 2007 WY 194

Docket Number: 06-258

Appeal from the District Court of Natrona County, the Honorable David B. Park, Judge

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender, PDP; Ryan R. Roden, Deputy Public Defender; Tina N. Kerin, Appellate Counsel.

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

Issue: Whether the district court had statutory authority to order Mr. Crapo to pay restitution to burglary victims when he did not plead guilty to the burglaries or conspiracy to commit the burglaries and did not as part of his plea agreement, agree to pay restitution to the burglary victims.

Facts/Discussion: Appellant pled guilty to the crime of receiving, concealing, or disposing of stolen property. As part of his sentence, the district court ordered him to pay restitution.
Standard of Review: The standard of review the Court employs in evaluating a restitution order depends on whether the appellant is challenging the factual basis for the restitution order or is challenging the trial court’s authority to make the restitution award. Appellant contended his challenge was to the district court’s authority to order the contested restitution award. The proper standard of review is de novo.
The Court has held that restitution is not an inherent power of the district court. Rather, it is a power that exists solely by statute. The district court has authority to order restitution only for those losses resulting from the defendant’s criminal activity. The defendant must plead guilty to the crime, be convicted of the crime or admit to the crime.
Appellant’s situation is similar to that presented in Penner. It is undisputed that Appellant was never charged with committing any of the burglaries. The record does not contain any evidence that Appellant admitted to committing the crimes, nor does it contain any evidence of an agreement to pay restitution resulting from those crimes. Accordingly, the district court’s authority to order restitution was limited to pecuniary damages incurred by victims arising from that criminal activity. The State appeared to rely upon inferences to be drawn from Appellant’s guilty plea. The Court stated there was no support in the record for the State’s position. Given the lack of support in the record for a restitution order, the Court was unable to determine any proper restitution amount.
The Court noted that because of double jeopardy implications, restitution orders overturned for failure of proof will not be remanded for the purpose of relitigating the restitution issue.

Holding: Because the trial court improperly ordered restitution for losses not attributable to Appellant’s criminal activity and because the record does not provide any evidence to support a proper calculation of pecuniary damages that are properly attributable to Appellant’s criminal activity, the Court vacated the entire restitution portion of the judgment and sentence.

Reversed and remanded for entry of an amended judgment and sentence.

J. Burke delivered the opinion.

Link: http://tinyurl.com/2w9tzj .

Summary 2007 WY 193

Summary of Decision issued December 11, 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: Sinning, Jr. v. State

Citation: 2007 WY 193

Docket Number: S-07-0081

Appeal from the District Court of Campbell County, the Honorable John R. Perry, Judge

Representing Appellant (Defendant): Diane M. Lozano, Public Defender, PDP; Tina N. Kerin, Appellate Counsel; Donna D. Domonkos, 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; Leda M. Pojman, Assistant Attorney General.

Issue: Whether the district court abused its discretion by revoking Mr. Sinning’s probation.

Facts/Discussion: Appellant pled guilty to one count of forgery and one count of conspiracy to commit forgery. The district court sentenced him to a period of incarceration in the Wyoming State Penitentiary but recommended him for the boot camp program. Later, the district court modified the sentence so that upon successful completion of boot camp, Appellant’s original sentence would be suspended and he would be placed on probation. One of the conditions of probation was that he be accepted into and complete an Adult Community Corrections (ACC) program. He did not complete the program as required and after a hearing the district court revoked his probation and reinstated the original sentence.
Standard of Review: A district court’s decision to revoke probation and impose a sentence is discretionary and will not be disturbed unless the record shows a clear abuse of discretion.
Probation revocation proceedings are governed by W.R.Cr.P.39. Notice to a probationer of the grounds for revocation is fundamental and failure to provide such notice is a defect affecting a substantial right. The Court stated that in Mapp, they applied the standards under circumstances quite similar to those in the instant case.
The Court reviewed the record of the instant case and stated it presented abundant evidence that the district court made a conscientious judgment to revoke Appellant’s probation. The testimony during the adjudicatory phase was uncontested and Appellant’s testimony in the dispositional phase did not persuade the district court that the information contained in the termination report should be disregarded.

Holding: Appellant was afforded due process of law prior to the revocation. In considering whether to revoke his probation, the district court was entitled to look to reports submitted to the court by authorized agencies for guidance. The reports together with Appellant’s testimony supported the district court’s determination that his probation should be revoked and the original sentence reinstated.

Affirmed.

J. Kite delivered the opinion.

Link: http://tinyurl.com/3ceud5 .

Summary 2007 WY 192

Summary of Decision issued December 11, 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: Yother v. State

Citation: 2007 WY 192

Docket Number: S-07-0041

Appeal from the District Court of Teton County, the Honorable Nancy J. Guthrie, Judge

Representing Appellant (Petitioner): David M. Gosar, Jackson, Wyoming.

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

Issues: Whether the order denying permanent partial disability benefits was supported by substantial evidence and/or was the decision arbitrary and capricious. Specifically, did the OAH err when it failed to consider Yother’s overtime earnings in its calculations, and consequently, mistakenly conclude that jobs were available paying a comparable amount to his pre-injury employment earnings. Whether the OAH erred as a matter of law when it concluded that Yother could return to work at a comparable wage to the wage he was earning at the time of injury.

Facts/Discussion: After sustaining a work related injury, Yother applied for worker’s compensation benefits. The Division awarded him medical, temporary total disability and impairment benefits. Later, after undergoing surgery, he applied for permanent partial disability benefits. The Division denied the claim. Yother had a hearing with OAH who affirmed the denial. He then appealed to the district court which also affirmed the denial.
Standard of Review: In an appeal from a district court’s decision on a petition for review of administrative action, the Court affords no deference to the district court’s decision and instead reviews the case as if it came directly from the agency.
The Court’s review of the record disclosed two difficulties with the hearing examiner’s findings and conclusions. The findings and conclusions do not explain why the hearing examiner disregarded Yother’s claim that he was earning $14.12 per hour at the time of his injury. Also, it appeared from the record that the hearing examiner’s finding that Yother was earning $12.25 per hour at the time of his injury was based on the vocational evaluator’s miscalculation.

Holding: The failure of any essential finding to be supported by substantial evidence results in an arbitrary and capricious decision and must be reversed. The Court has the authority to adjust factual findings based on the overwhelming evidence in the record and to correct errors of law. Based upon undisputed evidence in the record, the information received from the employer showed that Yother was earning $14.10 per hour rather than the $12.25 calculated by the vocational evaluator. Thus the hearing examiner’s conclusion that Yother failed to meet his burden of proving that no jobs were available at a comparable or higher wage was arbitrary and capricious and not supported by substantial evidence.

Reversed and remanded.

J. Kite delivered the opinion.

Link: http://tinyurl.com/3yld7x .