Summary 2010 WY 88

Summary of Decision issued June 28, 2010

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

Case Name: Bloomer v. State

Citation: 2010 WY 88

Docket Number: S-09-0112

Appeal from the District Court of Park County, the Honorable Steven Cranfill, Judge.

Representing Bloomer: Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel; Wyoming Public Defender Program.

Representing State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.

Facts/Discussion: A jury found Bloomer guilty of aggravated robbery and aggravated assault and battery and also found him to be a habitual criminal. Because he had three prior felony convictions, the district court imposed two life sentences.

Presumption of innocence instruction: No question existed that the district court failed to instruct the jury on the presumption of innocence. The cases cited do not establish a clear-cut rule mandating that the jury be instructed on the presumption of innocence in every criminal trial. The United States Supreme Court determined in Whorton that a criminal defendant is not automatically entitled to an instruction on the presumption of innocence and that the failure to give one does not in and of itself violate the constitution. The Court noted the better practice is to give the instruction as a matter of course. Plain error did not occur as a result of the district court’s failure to do so.
Habitual criminal sentencing enhancement: Bloomer argued that his Park County drug convictions were used improperly because they were not separately brought and tried. The State conceded that Bloomer’s life sentences were illegal and must be corrected since the drug convictions may only count as one previous conviction under the habitual criminal statute thereby limiting the range on Bloomer’s current convictions to that prescribed in § 6-10-201(b)(i). Secondly, Bloomer contended that since the underlying convictions were committed after the commission of the instant aggravated robbery and assault and battery cases, the drug convictions could not be used as a basis for the habitual criminal sentencing enhancement. The Court previously considered and rejected a similar claim in Green v. State. The Court determined that it was the sequence of convictions and not the sequence of the criminal acts that was relevant to the operation of the habitual criminal statute. Because the jury found that Bloomer’s previous convictions existed and because the record contains sufficient evidence of two prior separately brought and tried felony convictions that can be used as a basis for enhancing Bloomer’s punishment on the instant convictions, the Court found it appropriate for the district court to simply resentence Bloomer in accordance with the statute.
Ineffective assistance of counsel: Bloomer’s argument was insufficient to satisfy his burden of demonstrating that trial counsel rendered prejudicially deficient assistance. He did not establish that he was prejudiced by counsel’s alleged errors. Considering the facts of the case, the Court was unable to conclude a reasonable likelihood that but for counsel’s alleged errors, Bloomer would have enjoyed a more favorable verdict.

Conclusion: The Court affirmed Bloomer’s convictions. However, the Court held that Bloomer’s life sentences are illegal and reversed those sentences. The Court remanded to district court for resentencing in accordance with § 6-10-201(b)(i).

Conviction affirmed; sentence illegal and remanded.

J. Golden delivered the decision.

Link: http://tinyurl.com/2fd9wlg .

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