Summary 2011 WY 4

Summary of Decision January 19, 2011

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Robison v. State

Docket Number: S-10-0050

URL: http://tinyurl.com/4a3k9ku

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

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Paul S. Rehurek, Senior Assistant Attorney General.

Date of Decision: January 19, 2011

Facts: Appellant’s arrest was facilitated by a Report Every Drunk Driver Immediately (REDDI) alert that was called into the police department by an employee of the a café and lounge. The report was to the effect that a very drunk patron had left that establishment after he was refused service. Police were provided a description of the vehicle Appellant was driving. That report was forwarded via dispatch to an officer who was near the lounge and arrived on the scene as Appellant was driving away in the vehicle described in the REDDI report. The officer stopped Appellant. He ascertained that Appellant did not have a driver’s license (it was suspended). He also ascertained that Appellant was intoxicated and he was placed under arrest for that reason. The officer did not observe Appellant driving in a manner that would have suggested he was an impaired driver. The stop and subsequent arrest was based solely on the REDDI report.

Appellant was found guilty, after a jury trial, of driving while under the influence of alcohol in violation of Wyo. Stat. 31-5-233(b)(ii)(A) (2007). He appeared before the district court on November 9, 2009, for a Sentencing Enhancement Hearing pursuant to Wyo. Stat. 31-5-233(e) (fourth or subsequent offense. He contends that the district court imposed an illegal sentence by considering a prior conviction that occurred outside the five-year time limit set by the governing statute. He also contends that trial counsel’s failure to file a motion to suppress evidence obtained in connection with an illegal traffic stop constituted ineffective assistance of counsel and denied him due process of law.

Issues: Whether the failure of Appellant’s trial counsel to file a motion to suppress evidence based upon an illegal traffic stop constituted ineffective assistance of counsel which denied him due process of law. Whether the trial court imposed an illegal sentence by considering a conviction outside of the five-year time limit delineated by Wyo. Stat. 31-5-233(e) as a fourth or subsequent conviction so as to sentence Appellant to a felony.

Holdings: Although an anonymous REDDI report requires independent police corroboration (see McChesney v. State, 988 P.2d 1071 (Wyo. 1999)), the tip in the present action was not anonymous. The police department received detailed information from a lounge employee, who was identified as such to dispatch. Moreover, the vehicle described in that report was observed within minutes, if not seconds, driving away from the lounge. The limitations on stops such as those described in McChesney are not at issue here. When reviewing a claim of ineffective assistance of counsel, the paramount determination is whether, in light of all the circumstances, trial counsel's acts or omissions were outside the wide range of professionally competent assistance. To warrant reversal on a claim of ineffective assistance of counsel, an appellant must demonstrate that his counsel failed to render such assistance as would have been offered by a reasonably competent attorney and that counsel's deficiency prejudiced the defense of the case. Defense counsel’s failure to file a motion to suppress, given the facts and circumstances detailed above, does not suggest that counsel was unaware of a potential defense for his client. Rather, it suggests counsel was aware of REDDI report jurisprudence and recognized that his client did not have such a potential defense. Appellant’s defense attorney was thus not ineffective.

It can be distilled from Wyo. Stat. 31-7-102(a)(xi) (2007) that the actual date of the unlawful conduct to be punished, where multiple offenses are being considered, may have nothing to do with determining the five-year period that applies. Appellant in the present action was arrested for driving under the influence, in the state of Missouri, on June 16, 2002. A waiver, plea and judgment were entered on May 22, 2003, but sentence was deferred until December 15, 2004, when Appellant’s probation was revoked. Hence the five-year counting period began on December 14, 2004. The next occurrences were two DUIs that were based on two different stops that both occurred on July 7, 2007. Judgment in those two cases was entered on November 1, 2007 (they constituted the second and third qualifying convictions). The fourth “conviction” occurred on October 5, 2009. Judgment of conviction for the fourth DUI charge occurred on November 12, 2009. The counting period for the earliest charge was December 14, 2004, until October 5, 2009, a period of less than five years. Had Appellant successfully fulfilled the terms of his probation for his Missouri offense, then he might not have been “convicted” as contemplated by 31-7-102(A)(xi). However, on December 15, 2004, Appellant’s probation was revoked and sentence was imposed. On that date he was burdened by a “conviction” for the 2002 DUI as the term “conviction” is contemplated by the Wyoming statute. Thus, the district court’s sentence did not constitute an illegal sentence or a sentence that was otherwise erroneous as a matter of law.

The sentence imposed by the district court is affirmed.

J. Hill delivered the opinion for the court.