Summary 2011 WY 51

Summary of Decision March 22, 2011

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Case Name: Bonney v. State

Citation: 2011 WY 51

Docket Number: S-10-0164

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461834

Appeal from the District Court of Laramie County, the Honorable Michael K. Davis, Judge

Representing Appellant (Claimant): Kathleen M. Karpan and Margaret M. White of Karpan and White P.C., Cheyenne, Wyoming

Representing Appellee (Respondent): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; David L. Delicath, Senior Assistant Attorney General

Date of Decision: March 22, 2011

Facts: In March 2008, the State charged Appellant with four counts of second degree sexual assault (sexual intrusion) under Wyo. Stat. Ann. § 6-2-303(a)(v) and one count of third degree sexual assault (sexual contact) under Wyo. Stat. Ann. § 6-2-304(a)(ii) for crimes alleged to have occurred in 2000 and 2001. The victims were both around eight years old at the time the offenses were committed, and Appellant was sixteen or seventeen years of age. Eventually, Appellant entered into a stipulated plea agreement wherein he agreed to plead guilty to two counts of second degree sexual assault in exchange for dismissal of the other counts. As part of that agreement, the State agreed to forego filing similar charges involving another minor victim and to recommend that Colorado authorities not pursue charges related to allegations that Appellant committed similar crimes with another minor victim in that state. The plea agreement also provided for Appellant to receive consecutive prison sentences of fifteen to twenty years, with the second sentence to be suspended in favor of probation.

Over one year later, Appellant, through new counsel, petitioned the district court for post-conviction relief, alleging multiple instances of ineffective assistance of trial counsel. Following an evidentiary hearing, and after careful consideration of Appellant’s claims and the evidence presented in support of those claims, the district court denied relief. Appellant did not timely seek review of that denial.

Appellant subsequently moved the district court, pursuant to W.R.Cr.P. 35(b), for a reduction of his sentence. The motion and the supporting memorandum filed relied extensively on the allegations and evidence underlying the post-conviction action and focused primarily on attacking his convictions, the victims, and trial counsel’s representation. After a hearing, the district court took the matter under advisement. In an order entered on April 27, 2010, the district court denied the motion. Appellant appeals from the order of the district court denying his motion for a sentence reduction.

Issue: Whether the district court abused its discretion when it denied Appellant’s motion for a sentence reduction.

Holdings: Appellant argues the district court improperly denied his W.R.Cr.P. 35(b) motion for a sentence reduction. Appellant’s argument is two-fold. He first argues the district court based its ruling on a mistaken belief that it was foreclosed by the stipulated plea agreement from reducing his sentence. He also argues the district court failed to consider the information he submitted in support of the motion before denying his request for a sentence reduction. The Court finds no merit in Appellant’s arguments.

The district court’s order clearly indicates that it considered the contents of Appellant’s motion, in conjunction with the court file. It is also abundantly clear the district court declined to reduce Appellant’s sentence after giving due consideration to that motion in light of the facts of the case, not because the court believed it was precluded from doing so by the plea agreement. The order of the district court denying Appellant’s motion for a sentence reduction is affirmed.

Justice Golden delivered the opinion for the Court.