Summary 2008 WY 9

Summary of Decision issued January 30, 2008

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

Case Name: Brown v. State

Citation: 2008 WY 9

Docket Number: 06-251; S-07-0127

Appeal from the District Court of Sweetwater County, the Honorable Jere A. Ryckman, Judge

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; and David E. Westling. (Case No. 06-251)
Pro Se (Case No. S-07-0127)

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

Facts/Discussion: The Court consolidated the two appeals. In March 2000, Brown was adjudged guilty of the crime of operating an unlawful clandestine laboratory operation and misdemeanor possession of a controlled substance, after he entered nolo contendere pleas to those offenses. Brown contended that the State violated the terms of his plea bargain/immunity promise. Shortly after the State court proceedings associated with the plea agreement were concluded, Brown was charged with and convicted of several serious firearms crimes in Federal court. Brown contended that the court erroneously failed to suppress statements Brown made in exchange for an implicit agreement with state authorities. The record from the Court of Appeals demonstrated that the state prosecutor told Brown that any information he provided would not be used in state proceedings and that he would not receive protection from federal charges. Brown expressly acknowledged that he understood the terms. Brown’s clearly expressed complaint was that the State breached its plea agreement by cooperating with federal authorities with respect to prosecution against him in Federal court.
Subject matter jurisdiction is reviewed de novo. The record established that Brown did not actively pursue a remedy for the asserted breach of his immunity/plea agreement until six years after his State court sentencing. The Court noted that in Nixon v. State they presented a detailed discussion of the operative theories that apply in circumstances such as presented in the instant case. The general rule is that a case becomes final after judgment and sentence is entered and an appellate decision affirming the conviction has been made or the time for taking an appeal expires without perfection of an appeal or after the voluntary dismissal of such an appeal. Once a criminal case becomes final pursuant to the general rule, a trial court loses the power to act in that case unless it is expressly permitted to do so by statute or court rule.

Holding: The Court concluded the district court did not have the jurisdiction to entertain the pleadings filed by Brown. Therefore, the Court lacked jurisdiction as well. The appeals were dismissed and remanded back to the district court with directions to dismiss all of Brown’s pleadings for lack of jurisdiction. The Court determined that Brown has exhausted all of his state remedies with respect to the convictions at issue in the matter. The district court and Supreme Court clerks were authorized to decline to permit the filing of any further papers from Brown relating to these convictions, unless Brown obtains consent first.

Affirmed.

J. Hill delivered the decision.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2008 WY 8

Summary of Decision issued January 29, 2008

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

Case Name: Three Sons, LLC v. Wyoming OSHA Commission

Citation: 2008 WY 8

Docket Number: S-07-0077

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

Representing Appellant (Petitioner): John R. Hursh of Central Wyoming Law Associates, PC, Riverton, Wyoming.

Representing Appellee (Respondent): 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.

Facts/Discussion: Three Sons challenged the Commission’s decision to uphold a citation for failing to provide its employees with proper cave-in protection in an excavation. Three Sons claimed there was insufficient evidence to support the factual findings and asserted it was subjected to administrative bias. The Court reviews an appeal from a district court review of an agency action as if it had come directly to the Court from the administrative agency and they apply the substantial evidence standard. The conclusions of law are reviewed de novo. OSHA rules require cave-in protection for trenches which are more than 5 feet deep because such trenches present an imminent danger to workers.
Soil Classification: The Court reviewed the evidence provided at the hearing from Three Sons and the OSHA compliance officers. The Court stated that there was substantial evidence to support the hearing examiner’s finding.
Trench Measurements: There was conflicting evidence in the record regarding the measurement of the trench. It was the hearing examiner’s responsibility to judge the credibility of the witnesses and weigh the evidence. The examiner concluded that the OSHA measurements of the trench were more credible. The Court stated there was substantial evidence to support the hearing examiner’s findings on the depth and configuration of the trench. Three Sons also argued that this was a short term excavation and therefore had to meet a different set of requirements. Since the hearing examiner determined the soil was Class B and not Class A, the short term excavation requirements did not apply.
Employee’s Position in the Trench: Three Sons argued that OSHA’s measurements were taken at the south end of the trench but that there was no evidence that an employee was ever that far down in the trench. The Court was not persuaded. The shovel and footprint evidence from that part of the trench were sufficient to support the hearing examiner’s conclusion that an employee in the excavation was not protected from cave-ins by an adequate protection system.
Administrative Bias: Three Sons’ first claim raised the issue of whether an employee of the agency issuing the citation was prejudiced or biased against Three Sons in deciding to issue the citation. OSHA Rules Practice and Procedure indicated that the history of previous violations is a legitimate factor in deciding what penalty to assess. Given that the Court concluded that substantial evidence existed to support the hearing examiner’s factual findings regarding the citation, Three Sons could not establish prejudice even if it were true that the agency employee was biased against it when he decided to issue the citation. The second claim was that the hearing examiner was biased because she had heard another case involving Three Sons the day before. The hearing examiner is presumed to act with honesty and integrity. Three Sons made no attempt at the hearing to have the examiner disqualified, inquire into her bias or request a continuance. The Court found nothing in the record to overcome the presumption.

Holding: The Court stated there was sufficient evidence in the record to support the hearing examiner’s decisions. Three Sons did not overcome the presumption that the hearing examiner had acted with honesty and integrity.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/yty7kh .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2008 WY 7

Summary of Decision issued January 25, 2008

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

Case Name: Palmer, Jr. v. State

Citation: 2008 WY 7

Docket Number: 06-273

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

Representing Appellant (Defendant): Lynn Boak, Cheyenne, Wyoming.

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

Facts/Discussion: Appellant was convicted of three counts of sexual assault. He claimed that trial counsel was ineffective for allowing him to plead guilty and that the district court should have granted a post-sentence motion to withdraw his guilty plea. The examination of a claim of ineffective assistance of counsel requires a showing that counsel’s performance was deficient and that the performance prejudiced the defense. The standard for withdrawing a guilty plea is governed by W.R.Cr.P. 32(d).
Ineffective Assistance of Counsel: The Court had to determine whether or not trial counsel’s actions were outside the range of professionally competent assistance and if the representation so undermined the adversarial process that the outcome could not be relied upon as having produced a just result. The Court applied the two-part test from Rutti. They considered whether or not the recommendation of a reasonably competent attorney regarding the plea would differ from that given and whether or not, absent the error, the outcome of the case would have been more advantageous than the terms of the plea agreement. The Court’s decision in Rutti emphasized that if a defendant did not assert a plausible reason why he would have forsaken the benefits of the plea agreement had counsel’s advice been different, the probable outcome of a trial provides an objective measure of the risk he faced.
Appellant further complained that he was urged to plead guilty based upon the fact that he had confessed and could be convicted on his confession alone. From the record, it was apparent that defense counsel did not force Appellant to plead guilty, nor did he threaten him or promise him anything.
Motion to Withdraw Guilty Plea: Because Appellant moved to withdraw his guilty plea after sentence was imposed, he was required to demonstrate manifest injustice in order to succeed on his motion. The Court reviewed the record of what occurred at the re-arraignment when Appellant changed his plea from not guilty to guilty and stated that the record did not indicate that the plea or the factual basis for it was given other than voluntarily, knowingly and intelligently.

Holding: The record clearly showed that Appellant entered into the plea agreement fully informed of the charges to which he was pleading and aware of the maximum penalties. It was also clear that in exchange for the plea agreement that thirty-five other charges were dropped. Appellant did not meet his burden of showing the district court abused its discretion when it denied his motion. The Court stated that Appellant had not demonstrated that the district court’s ruling resulted in manifest injustice.

Affirmed.

J. Hill delivered the decision.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Technology in the Courtroom

If you're considering the use of technology in pretrial and the courtroom, or even if you've already jumped that hurdle and are running the tech race, here is a great article from a judge's perspective. The Judge's Take on Technology: Pretrial and in the Courtroom by Judge Herbert Dixon and Judge Christina Habas details a variety of suggestions for using technology in the court. In addition to technical examples, they include tips on how to introduce technology as an enhancement to understanding your presentation (for both the judge and jurors) and without interrupting the court.

One of the important points both judges stress is the need to prepare and communicate far in advance the type of technology you plan to use and how you plan to use it. Technology for technology's sake is not the answer. Technology to help make you better understood is.

Summary 2008 WY 6

Summary of Decision issued January 23, 2008

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

Case Name: Barnes v. State

Citation: 2008 WY 6

Docket Number: 06-285, 06-286

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

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

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

Facts/Discussion: Appellant pled no contest to possession of cocaine with intent to deliver, but reserved his right to appeal the district court’s denial of his motion to suppress statements he made to police before his arrest. In a consolidated appeal, he also claimed the district court erred in concluding he was not entitled to credit for time served while he was awaiting disposition of the possession charge and another unrelated charge. The district court declined to give him credit for time served because he had violated the conditions of his parole in a different matter and was incarcerated partly because he was awaiting a parole revocation hearing.
Order Denying Motion to Suppress Statements: Appellant contended that he made his statements during a custodial interrogation but the State argued the statements were made during a valid investigatory stop and were prompted by Appellant’s medical complaints.
Investigatory Stop v. Custodial Interrogation: The Court reviewed the record and noted that no one factor necessarily establishes custody for Miranda purposes. Although only one officer was present and the questioning lasted a few moments in a neutral setting, Appellant had been forcibly taken to the ground and placed in handcuffs when he was asked about the substance in the bags. The Court stated it was likely, a reasonable person in Appellant’s position would have considered himself to be in police custody.
Public Safety Exception to Miranda: Once Appellant began complaining of dizziness and shortness of breath, the detective’s questions were necessary to protect him from harm. The Court stated that under the particular circumstances in question, the detective’s actions before arresting Appellant and without Miranda warnings was reasonable.
Denial of Credit for Time Served: A defendant is entitled to credit for time spent in pre-sentence confinement against both the minimum and maximum sentence if he is unable to post bond for the offense of which he was convicted but not when his confinement would have continued despite his ability to post bond. Neither the parole board nor the district court credited Appellant for the time served between his arrest and sentencing. The parole board’s failure to credit for time served resulted in an unlawful sentence. To cure the error, the Court reversed the sentence and remanded to district court with instructions to give credit for time served.

Holding: The district court’s order denying the suppression motion was affirmed. The case was remanded for correction of the judgment and sentence.

Affirmed in part, reversed and remanded in part.

J. Kite delivered the decision.

Link: http://tinyurl.com/3632s9 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

How-to: Online Social Networking & Ethics

Heard of MySpace and Facebook? How about LinkedIn? These are web sites you can use for professional social networking. Finding and meeting colleagues no longer has physical boundaries. Even if you haven't heard of these avenues for building professional ties, you can be sure many of the newbies you are hiring has and they may be utilizing these online services.

While this networking environment can definitely extend professional opportunities for you, especially in light of the realities of rural Wyoming and the oft-times impossibility of getting away from the office, some ethical implications must be considered. A Law.com Legal Technology article, Mind the Ethics of Online Networking by C. C. Holland, runs through some of these ethics.

According to Holland, there are three main areas covered by state ethics regulations regarding online networking: communications, solicitations and advertisements. Of course, the ethics rules for each state will differ. And when considering rules that govern advertising, there are likely state business laws to consider as well. Additionally, there is the tricky problem of jurisdiction. Since the Internet's audience is not limited to an attorney's home state, which regulation governs?

Holland brings up a point by Kevin O'Keefe, founder of LexBlog. Some of these same issues were brought up when the telephone was invented. Some chose not to use the telephone because of possible ethical issues. Others decided it was worth the risk as a tool for communication. Holland's advice? Proceed with caution while adhering to your state's ethics rules as closely as possible.

How-to: 2007 Microsoft Office

Okay, so we know by now that Microsoft Vista has issues, but how about MS Office 2007? Is it safe? Will it be a fairly painless upgrade like that past couple of Offices have been? What's up with this "ribbon" business, anyway?

According to MS, the ribbon replaces the traditional menus and toolbars. It is part of the Office Fluent UI (The Microsoft Office Fluent user interface overview). The ribbon presents commands organized by tabs that are grouped by common tasks. The tabs are meant to simplify the tasks that we previously have used through menus and toolbars because they are organized "in a way that corresponds directly to the tasks people perform in these applications." So says Microsoft.

Also, as mentioned by a Law.com Legal Technology article, Is Your Firm Ready for a New Desktop?, the file format for Office 2007 has changed. Files are no longer appended as .doc, .xls, .ppt, etc. They are saved as XML files and so will have an "x" appended to the previous extension (.docx, etc.). This format is not compatible with previous versions of Office without downloading the Microsoft Office Compatibility Pack.

Between these two changes, Office 2007 appears to be packed with some re-training needs. While you don't have to run Vista in order to upgrade to Office 2007, there are still some major changes to consider.

Summary 2008 WY 5

Summary of Decision issued January 18, 2008

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

Case Name: Cooper. v. State

Citation: 2008 WY 5

Docket Number: S-07-0018, S-07-0049

Appeal from the District Court of Natrona County, the Honorable Scott W. Skavdahl, Judge

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

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

Facts/Discussion: A jury convicted Cooper of two counts of forgery, one count of obtaining goods by false pretenses, and one count of unlawful use of a credit card. Cooper argued on appeal that the district court should not have admitted the testimony of the handwriting expert and that the prosecution committed misconduct in its closing.
Expert Testimony: A decision to admit or reject expert testimony rests solely within the discretion of the district court and will not be disturbed absent a clear showing of an abuse of discretion. The Court adopted the reasoning in Daubert v. Merrell Dow Pharmaceuticals, Inc. A qualified expert witness may testify about scientific, technical, or specialized knowledge if such testimony will help the jury understand the case. Cooper contended that the officer was not qualified and that her testimony was not the product of reliable application of approved methods. The Court reviewed the record to determine whether or not the district court appropriately applied a Daubert analysis in the case. They stated that the court properly determined that the officer’s methodology was reliable and subsequently, that her testimony fit the facts of the case.
Prosecutorial Misconduct: Claims of prosecutorial misconduct are settled by reference to the entire record and hinge on whether or not the defendant’s case has been so prejudiced as to constitute the denial of a fair trial. Cooper did not object to the alleged misconduct at trial so the review was plain error. The purpose of closing argument is to give both the prosecution and defense counsel the opportunity to explain the significance of the evidence and how it should be viewed. The prosecutor is entitled to comment on the evidence and to draw reasonable inferences from it. The record provides no support for a claim that the comments were a purposeful attempt to inflame or mislead the jury. There was also no evidence that Cooper was materially prejudiced by the comments. Cooper did not show a transgression of a clear and unequivocal rule of law.

Holding: The Court was confident that under the Daubert model, the trial court properly determined that the officer’s methodology was reliable and that her testimony fit the facts of the case. The court’s decision was not an abuse of discretion. The prosecutor did not commit misconduct in his closing argument because the statements, when taken in context, were appropriate and did not prejudice Cooper.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/352g2n .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Wyoming Supreme Court Begins E-filing Pilot Project

Supreme Court Electronic Docket

From the Judicial Branch News:

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Effective January 2, 2008, the Wyoming Supreme Court will begin an electronic filing pilot project involving all criminal cases involving the Public Defender's Office and the Attorney General's office. The Court went live with a new case management system in April, 2007, and this is the second phase of the development. The Court now has a fully integrated system with case management and electronic filing. The length of time for the pilot project has not yet been determined, but it is the intention of the Court to open the entire Supreme Court docket to the Wyoming Bar for electronic filing within a year. More information will be available regarding training and instruction for bar members as we work through the pilot project and make those decisions regarding when to go live with all cases.

Also effective January, 2008, the Court's docket will be available for public access on the Court's website. Users will be able to view the cases, see due dates for filing of briefs, and see all of the docket entries and status of all open and closed cases from 2006 to the present. As documents are filed electronically, those documents will also be available for viewing. We believe this will be a valuable asset for the bar and the public, and are pleased to be able to offer this service to the citizens of Wyoming.

Summary 2008 WY 4

Summary of Decision issued January 14, 2008

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

Case Name: Yellowbear, Jr. v. State

Citation: 2008 WY 4

Docket Number: 06-246

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

Representing Appellant (Defendant): Sylvia Lee Hackl of Cheyenne, Wyoming.

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

Facts/Discussion: Appellant was convicted of two counts of felony murder, and two counts of being an accessory to felony murder, all based upon the physical abuse and death of his daughter. In this appeal, Appellant questions whether the State had jurisdiction to prosecute him, whether the jury was properly instructed and whether the prosecutor committed misconduct during rebuttal closing argument.
Whether the crime occurred in “Indian country” as defined in 18 U.S.C. § 1151, thereby depriving the State of jurisdiction over the appellant: The Court reviews subject matter jurisdiction de novo. The specific question of whether the scene of the crime was under the jurisdiction of the United States or the State of Wyoming was also reviewed de novo. The Court reviewed the post-treaty history of the Reservation as well as the federal jurisprudence that developed concerning federal and state jurisdiction in “diminished” reservations. The Court focused on the Surplus Land Act of 1905. The City of Riverton lies north of the Big Wind River on land that was ceded in that act. The Court next determined what intent the 1905 Act had as to the ceded lands by reviewing Supreme Court precedent. The Court applied the Supreme Court’s analytical construct to the 1905 Act and concluded that Congress intended a diminished reservation with the ceded lands losing their status as “Indian Country.” The Court noted that the facts in State v. Moss where the Court concluded that Congress had placed the ceded land outside the reservation and that it was no longer “Indian country” were nearly identical to those in the instant case. The Court concluded that it was the intent of Congress in passing the 1905 Act to diminish the Wind River Indian Reservation. While the City of Riverton may be located on lands that at one time were within the external boundaries of the reservation, those lands were no longer part of the reservation, and were not “Indian country.” Therefore, the State had jurisdiction in this criminal case.
Whether the district court committed reversible error by instructing the jury as to a parent’s duty to protect his or her child: The State charged Appellant with four theories of liability under one count. The verdict form and judgment and sentence made it appear as though Appellant were charged with and convicted of four separate crimes. Appellant was afforded a preliminary hearing on only one crime, was arraigned on only one crime, and entered a plea to only one crime, leading to the conclusion that he could be convicted of only one crime. The jury separately considered and determined each theory of guilt. The Court’s review of the record indicated that there was sufficient evidence to support each of the findings of guilt. Inclusion of the parental-duty instruction was erroneous but such error was harmless given the above circumstances. Prosecutors must be aware that they cannot charge both that a defendant acted as a principal and as an accessory before the fact, as two separate crimes, in one count.
Whether the prosecutor committed misconduct during rebuttal closing argument by inserting his own credibility and beliefs, by arguing facts not in evidence, and by presenting an argument that was not properly a rebuttal argument: The Court stated that review of the issue was not plain error because it was raised and decided by the court below. Rather, the Court was reviewing the denial of the motion for mistrial and the denial of the motion for a new trial. With specific regard to claims of prosecutorial misconduct during closing argument, the Court considers the alleged misconduct in the context of the entire argument, and the entire record, with the determinative factor being whether, in the absence of the error, the verdict might have been more favorable to the accused. The Court’s assessment was that it violated neither the spirit nor the letter of the ABA standards adopted as guidelines for prosecutorial argument.

Holding: The crime occurred in a location that was not part of the diminished Wind River Indian Reservation – a location no longer “Indian country” under guiding federal precedent. The State had jurisdiction to pursue the criminal charge. It was error for the district court to instruct the jury as to common law parental duties that were not encompassed within the charged crime. The error was harmless beyond a reasonable doubt because the completed verdict form revealed juror unanimity as to Appellant’s guilt on all of the theories properly alleged under the statutes. The Judgment and Sentence should be amended to reflect the fact that only one charge was brought and that he was only convicted of one charge. The State’s rebuttal closing argument did not constitute prosecutorial misconduct in that nothing said therein was unfairly prejudicial so as to deprive the appellant of his right to a fair trial or otherwise impinge upon his substantial rights.

Affirmed, but remanded for amendment of the Judgment and Sentence.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/2gtn9k .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2008 WY 3

Summary of Decision issued January 10, 2008

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

Case Name: Booth v. State

Citation: 2008 WY 3

Docket Number: S-07-0004

Appeal from the District Court of Natrona County, Honorable Scott W. Skavdahl, Judge

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Donna D. Domonkos, Senior Assistant Appellate Counsel

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

Facts/Discussion: Appellant sought review of the district court’s judgment and sentence which found him guilty of first-degree, felony murder in the shooting death of a cab driver during a robbery and imposed a sentence of life without the possibility of parole. He entered into a plea bargain wherein he agreed to plead guilty to felony murder in exchange for the State deleting the premeditation aspect of first-degree murder and dismissing Count II of the complaint aggravated robbery as defined by Wyo. Stat. 6-2-401. He contended that the State breached the plea agreement by introducing evidence of premeditation and that, therefore, he be permitted to withdraw his guilty plea.

Holdings: When a plea of guilty is entered as a result of a plea agreement, any promises made by the State must be fulfilled and whether a prosecutor has violated an alleged agreement is a question that is reviewed de novo. A plea agreement is a contract between the defendant and the State to which the general principles of contract law are applied. When determining whether a breach of the plea agreement has occurred a court must: (1) examine the nature of the promise; and (2) evaluate the promise in light of the defendant's reasonable understanding of the promise at the time the plea was entered. The State may not obtain the benefit of the agreement and at the same time avoid its obligations without violating either the principles of fairness or the principles of contract law.
Appellant’s argument is that he entered into the bargain believing that the State would not be permitted to offer evidence of the sort of premeditation which typically is used to support first-degree, premeditated murder. At the sentencing hearing, the State produced evidence which arguably was directed at the subject of premeditation, over the objection of the defense. That evidence at least suggested he premeditated the murder of whomever the cab driver might have been who answered his call and, furthermore, that he did not feel remorse about the crime. Of course, it also went to establishing that Appellant had committed the robbery and murder “knowingly” and “purposely.”
The plea agreement in this case could best be described as “sketchy.” Appellant asked that the language -- “delete the premeditation aspect of first-degree murder”—be read to encompass a conclusion that the prosecution could not offer evidence which suggested that Appellant did anything other than accidentally fire the pistol during the course of the robbery. To be sure, it is evident that the State did not agree with that interpretation at the time defense counsel uttered the words he used to describe his understanding of the plea agreement, because the prosecutor stated that the operative language for consideration in the instant case was that Appellant “unlawfully, knowingly, and purposely, in the perpetration of any robbery kill another human being….” It is, of course unfortunate, if not inexcusable, that a plea bargain of this magnitude, and in a case with such profoundly significant consequences, was not reduced to writing so that its perimeters could be better defined and understood. However, based on the record, the State did not breach either the letter or the spirit of the plea agreement.

Affirmed.

J. Hill delivered the opinion for the court.

Link: http://tinyurl.com/yqbtck .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Free Online Seminar: Essential Westlaw Tips & Tricks for Beginners

For those of you who have Westlaw access, here's a free training opportunity from Westlaw.

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Sign up for this informative online seminar that will show you how to use Westlaw more effectively and efficiently in your day-to-day work. This live seminar will help you make the most of your Westlaw research sessions.
Some tips you'll learn include:

• How to save time and effort by using shortcuts to find information quickly
  
• How to set up your Westlaw tabs to match your research needs
  
• How to use basic word searching to get started with your research

What: Free Online Seminar: Essential Westlaw Tips & Tricks for Beginners
When: Choose a time convenient for you:

• Tuesday, January 22, 2008 - 10:00 a.m. Central Time
  
• Thursday, January 24, 2008 - 2:00 p.m. Central Time

How: Register by January 21

Summary 2008 WY 2

SUMMARY ISSUED BY THE WYOMING SUPREME COURT

January 8, 2008

Campbell County School Dist. v. State, Nos. 06-74, 06-75, 2008 WY 2 (Campbell IV).

The Supreme Court has concluded that because of the complexity and length of this opinion, a brief summary would aid the public in understanding the nature of the issues and the Court’s rulings. This summary is not intended to modify, supplement or alter in any way the content of the opinion. It is offered solely to assist the public in understanding the substance of the opinion and should not be cited or relied upon in any way as legal precedent.

All parties, the schools districts, the Wyoming Education Association, the Association of School Boards and the State of Wyoming, appealed various findings by the district court concerning whether the legislative and administrative actions of the state had satisfied the Supreme Court’s mandate in State v. Campbell County School Dist., 2001 WY 19, 19 P.3d 518 (Wyo. 2001) ( Campbell II). In general, the Supreme Court affirms the district court’s findings that the state’s actions were adequate and resulted in a constitutional system of school finance in Wyoming. As a result, the Supreme Court has determined it is no longer necessary for it to retain jurisdiction over the matter. Campbell IV, ¶ 4.

Operations

With regard to funding of school operations, the district court found that the state had made the necessary changes to address at-risk students, administrative and classified salaries, small schools and small districts, teacher beginning and average salaries, funding of health insurance costs, and external cost adjustments (inflation). In addition, the district court also found that the 2001 recalibration of the model used to determine and distribute adequate funding was cost-based and reasonably and accurately captured the cost of education. Campbell IV, ¶ 7. The Supreme Court concludes the evidence supports those findings. It also reiterates earlier rulings issued over a thirty year period that it is the legislature’s role to determine what should be included in an adequate education for Wyoming children and then it is the legislature’s responsibility to adequately fund the programs necessary to deliver that education. Campbell IV, ¶¶ 17, 47, 50, 52, 53, 68.

On the issue of regional cost adjustments, the Supreme Court concludes that both the state and the district court had misread its earlier ruling. In Campbell II, the Supreme Court held that the state’s method of adjusting salaries in areas with a higher cost of living had to include the cost of housing. That ruling made it clear that the state could use any reasonable formula to accomplish that result. The state interpreted that ruling as requiring it to also reduce funding in areas with below average cost of living. In this opinion, the Supreme Court makes it clear that such a reduction not only was not required by its earlier rulings, but was inconsistent with the state’s approach of relying on statewide averages as establishing the cost of education. Campbell IV, ¶ 66.

The only issue on which the Supreme Court disagrees with the district court is operation and maintenance funding for school facilities. The district court held that instead of putting limits on the number of square feet of facilities for which the state would provide funding, the state should have chosen a less onerous method of encouraging districts to eliminate excess square footage. The Supreme Court holds that the equal protection standard does not apply to this issue, the state did have a compelling state interest in achieving equality in facilities, and the approach chosen by the state did not prevent districts from providing programs authorized by law. Campbell IV, ¶¶ 34, 38, 41.

Capital Construction

Campbell II required the state to fund construction of school facilities from statewide wealth to eliminate wealth-based disparities. The district court found the statutes adopted by the state to accomplish that result were constitutional and the Supreme Court agreed. The state created the School Facilities Commission (SFC) and gave it the responsibility to adopt standards and determine, in consultation with school districts, what facilities should be constructed. Since 2002, the legislature earmarked about $990 million for school capital construction funding and placed large sums in the projected capital school construction account. However, the district court found that, at the time of trial in 2005, little actual construction had been approved and that, in some cases, the SFC had rejected facilities without considering whether exceptions to its standards should have been granted.

The Supreme Court concludes the district court’s findings were supported by the evidence and agrees that whether administration of the capital construction program met the constitutional and statutory mandates would best be determined on a case-by-case basis as the school districts have the right to appeal SFC decisions. The Supreme Court clarifies the standard that would apply to such decisions and notes that the state is constitutionally required to provide facilities necessary for the programs authorized by law which include state authorized activities and athletics. The Supreme Court reiterates that determination of the scope of those facilities remains the province of the legislature so long as similarly situated students have access to similar facilities. Campbell
IV, ¶ 126. Although the state conceded it had not complied with the Campbell II deadlines for replacing facilities the state had deemed inadequate, the Supreme Court concludes the state has acted with diligence in recognition of need for urgency and the Supreme Court’s mandate. Campbell IV, ¶¶ 101, 102, 106, 117.

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

Summary 2008 WY 1

Summary of Decision issued January 8, 2008

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

Case Name: RK v. State

Citation: 2008 WY 1

Docket Number: S-07-0072

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

Representing Appellant (Defendant): Larry R. Clapp and Scott J. Olheiser, Clapp & Associates, PC, Casper, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Ellen Rutledge, Assistant Attorney General.

Facts/Discussion: RK challenged the district court’s order establishing his parentage of MJ. In 1993, paternity Test 1 was performed. The results excluded RK as the father. In 1994, the court received a letter from the testing firm explaining an error had occurred and that the results of Test 2 could not exclude RK as the father. In 1999, RK submitted to Test 3 which results also showed him to be the father.
In this appeal, RK contested that the genetic testing statute in effect in 1992 required the district court to dismiss the suit on receipt of the Test 1 results. Next RK asserted that the evidence was irrelevant from Test 2 and 3 and that the district court applied the current statute concerning genetic testing rather than the one in effect in 1992 when the testing was commenced.
Dismissal After Test I: The Court reviewed the language of Wyo. Stat. Ann. § 14-2-111(f) de novo. The Court stated that the cases RK relied upon, E.g., Le Page v. State of Wyo., Dep’t of Health and Maryland v. State did not establish that the plain language mandated dismissal, nor did it require the district court to dismiss paternity cases on its own initiative. Because the case was never dismissed the Court stated there was no reopening of the case and they declined to further discuss that claim.
Failure to Rebut Test 1: Whether evidence is relevant is a decision within the trial court’s decision. The Court reviewed the evidence and stated that it all fit the definition of relevant evidence that had a tendency to make the evidence of RK’s paternity more probable than it would be without the evidence.
Incorrect Statute Applied: The Court evaluates a district court’s admission of evidence under the abuse of discretion standard. To meet the standard of W.R.A.P. 9.04, RK must have shown that the outcome of his trial would have been more favorable had the error not occurred. The Court noted the differences between the current statute for refuting genetic tests and the one in effect in 1992. The Court stated the error was harmless because the proffered evidence was insufficient as a matter of law. The lab made clear that the error with Test 1 was not the test itself but that they had accidentally switched the samples with another trio of subjects. Test 1 was irrelevant to whether RK was MJ’s genetic father. Once Test 1 was removed from consideration, Test 2 and 3 remained which supported the conclusion that RK was MJ’s genetic father. The district court’s error in applying the current paternity statute was harmless.

Holding: The plain language of the statute did not mandate dismissal nor did it require the district court to dismiss the paternity suit. The evidence fit the definition of relevant evidence. The application by the district court of the incorrect statute was harmless error because the proffered evidence was insufficient as a matter of law.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/2zp8qk .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2007 WY 208

Summary of Decision issued December 28, 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: Merchant v. Grey

Citation: 2007 WY 208

Docket Number: S-07-0060

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

Representing Appellant (Plaintiffs): Mary Elizabeth Galvan, Mary Elizabeth Galvan, Laramie, Wyoming; V. Anthony Vehar, Vehar Law Office, Evanston, Wyoming

Representing Appellee (Defendants): Patrick J. Crank, Attorney General; John William Renneisen, Deputy Attorney General; Theodore Rafael Racines, Senior Assistant Attorney General; Richard Rideout, Law Offices of Richard Rideout, Cheyenne, Wyoming.

Date of Decision: December 28, 2007

Issue: Whether the Supreme Court lacked jurisdiction because Appellants’ notice of appeal was not timely filed.

Facts: On December 18, 2006, the district court entered its “Order Granting Defendants’ Motions for Summary Judgment and Denying Plaintiffs’ Motion for Summary Judgment.” On February 1, 2007, the district court entered an “Order of Dismissal with Prejudice and Entry of Judgment.” On February 20, 2007, the Appellants filed their Notice of Appeal. Appellants filed their notice of appeal more than thirty days after the summary judgment order was entered. If that summary judgment order was an appealable order, then the Appellants’ notice of appeal was not timely. If the order of dismissal was the appealable order, then the Appellants’ notice of appeal was timely.

Holdings: W.R.A.P. 2.01(a) provides that an appeal from a trial court to an appellate court shall be taken by filing the notice of appeal with the clerk of the trial court within 30 days from entry of the appealable order. W.R.A.P. 1.03 states that timely filing of a notice of appeal is jurisdictional, and it has long been established that the Supreme Court lacks jurisdiction over, and must dismiss, an untimely appeal. W.R.A.P. 1.05(a) defines an appealable order to include an order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment.
It is well-established that the denial of a motion for summary judgment is not an appealable order. The general reasoning is that, when a motion for summary judgment is denied, the parties proceed to trial, and the judgment reached after trial becomes the appealable order. In the present case, the district court both granted the Appellee’s motion for summary judgment, and denied the Appellants’ motion for partial summary judgment. If that order completely resolved the case, then it was an appealable order. An examination of the record showed that there was no issue left unresolved by the district court’s summary judgment order. The ruling left nothing for future consideration, and determined the action. It was, therefore, an appealable order.
After granting summary judgment, the district court took the additional step of entering an order dismissing the case. The record does not explain why the district court entered this superfluous order. That second order was unnecessary and unauthorized and therefore a nullity. As a nullity, it could not extend the time or toll the deadline for the Appellants to file their notice of appeal.
It does appear that the district court, sua sponte, requested Appellee’s counsel to prepare the order of dismissal. Under a principle sometimes called equitable tolling, some courts have held that untimely filing of orders may be excused in circumstances where a party has been prejudiced by reasonable reliance on an erroneous action taken by the trial court. Wyoming jurisprudence has soundly rejected this approach. It is difficult to understand how a party may reasonably rely on a court’s error in applying rules counsel is charged with knowing. If counsel is aware of the error reliance cannot be reasonable; on the other hand, ignorance of the rules is neither reasonable nor excusable.
For these reasons, it is concluded that the district court’s summary judgment order was an appealable order; that the district court’s second order, dismissing the action, was a nullity; that the Appellants’ notice of appeal was therefore untimely; and that the Appellants may not invoke any equitable tolling or unique circumstances to excuse the late filing.

Dismissed.

J. Burke delivered the opinion for the court.

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

By Kathy Carlson