Summary 2011 WY 130

Summary of Decision September 16, 2011


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Case Name: Graham v. State

Citation: 2011 WY 130

Docket Number: S-11-0053

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464368

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

Representing Appellant (Defendant): James Phillip Graham, pro se.

Representing Appellee (Plaintiff): Gregory A. Phillips, Attorney General; Terry L. Armitage, Deputy Attorney General; Susan G. O’Brien, Senior Assistant Attorney General; D. Michael Pauling, Senior Assistant Attorney General.

Date of Decision: September 16, 2011

Facts: Appellant was charged with ten counts of obtaining property by false pretenses, in violation of Wyo. Stat. 6-3-407(a)(i) (1999). Pursuant to a plea agreement, he pleaded no contest to four of the counts, and the State dismissed the remaining six. After accepting Appellant’s plea, the district court sentenced him to 30 to 36 months imprisonment on Count III, to be served concurrently with a federal sentence that Appellant was also about to begin serving. The district court sentenced him to five to seven years on each of Counts IV, V, and VI, these sentences to be served concurrently with each other, but consecutive to the sentence for Count III. The district court then suspended the sentences on Counts IV, V, and VI, and instead ordered ten years probation, also to be served consecutive to the sentence for Count III. In accordance with the plea agreement, Appellant was ordered to pay restitution to nine victims of the crimes originally charged. Although Appellant had agreed to pay restitution, he reserved the right to contest the amount of restitution, and he appealed the district court’s order as imposing excessive restitution on two of the counts. The district court’s order was affirmed in part, reversed in part, and remanded with directions in part in Graham v. State, 2001 WY 5 (Wyo. 2001). On remand, the district court entered a stipulated order reducing the amount of restitution in accordance with our directions.

Appellant served his sentence on Count III concurrently with his federal sentence. He was released from federal prison in 2002, and immediately began serving his probation on Counts IV, V, and VI. When his probation was revoked in 2007, the district court reinstated the probation with certain additional conditions. When Appellant’s probation was revoked again in 2008, the district court ordered him to serve three and a half to seven years imprisonment on each of the three counts, the sentences to be served concurrently. In 2010, Appellant filed a motion in district court to correct an illegal sentence. After a hearing, the district court ruled that Appellant’s sentence was not illegal, and denied the motion.

Issues: Whether the court imposed an illegal sentence where there is no authority under the law to include a consecutive sentence of probation, after the court had sentenced appellant to prison; whether the court imposed an illegal sentence where the sentence of probation, in violation of law, began three years after appellant was sentenced to incarceration; Whether the court imposed an illegal sentence where the sentence of probation was three years beyond the maximum sentence that could have been imposed by the court; Whether the court imposed an illegal sentence by sentencing appellant to restitution for crimes for which he was never tried and convicted; Whether the court, having imposed an illegal sentence, was without jurisdiction to revoke appellant’s probation where jurisdiction under the law lies solely in the board of parole after incarceration in prison.

Holdings: W.R.Cr.P. 35(a) provides that a court may correct an illegal sentence “at any time.” But while there is no time limit on motions to correct an illegal sentence, other limitations still apply. Precedent makes it clear that res judicata is one applicable limitation. The doctrine of res judicata is not limited to only those issues which were actually decided in an earlier proceeding. Issues which could have been raised in an earlier proceeding may also be foreclosed from subsequent consideration. In the present action, Appellant could have raised his first four issues in his initial appeal, and he has not suggested any good cause for failing to do so. In his fifth issue, he challenges the revocation of his probation in 2008. It may be true that he could not have raised this issue before, as his probation had not yet been revoked at the time of his initial appeal. However, his argument that the district court lacked authority to revoke his probation is founded on the assertion that the underlying sentence of probation was illegal. Because res judicata bars his claims that the underlying sentence was illegal, there is no foundation for his challenge to the subsequent revocation of his probation.

He incorrectly asserts that his sentence was longer than the maximum allowed by statute. He points out that the statute under which he was convicted, Wyo. Stat. 6-3-407(a)(i), provides for a maximum sentence of ten years. He argues that he was sentenced to three years in prison followed by ten years of probation, for a total of thirteen years. However, he completely overlooks the fact that he was convicted on four separate counts of obtaining property by false pretenses. The district court could have imposed ten years imprisonment on each count, for a total of forty years. Appellant’s thirteen year sentence was, therefore, well within the maximum allowed by statute.

Appellant also argues that the district court lacked authority to sentence him to both imprisonment and probation. Although a sentence is illegal if it places a defendant on probation and in detention at the same time for the same crime, Appellant ignores the fact that he was convicted on four separate counts. He was sentenced to imprisonment on Count III, and consecutive to that, to probation on Counts IV, V, and VI. He was not sentenced to imprisonment and probation at the same time, nor for the same crime.

He further argues that the district court violated the requirement that a sentence must be imposed within one calendar year from the date guilt is established because it ordered the probation on Counts IV, V, and VI to begin after his three years of imprisonment on Count III. In Appellant’s case, the district court did not wait more than a year to impose sentence. It imposed prison sentences on all four counts, and did so on the very same day that it found Appellant guilty. It suspended the prison sentences on Counts IV, V, and VI in favor of probation, and ordered that the probation would be consecutive to the prison sentence on Count III. That was well within the district court’s sentencing discretion, and does not alter the basic fact that Appellant’s sentences were all imposed within one year of establishing his guilt.

Next, Appellant complains that the district court ordered him to pay restitution for crimes he was not convicted of committing. Appellant was ordered to pay restitution to nine of the victims. The rule is that a court has no authority “to order restitution where there was no admission of the crimes or agreement to pay restitution as part of the plea agreement.” During Appellant’s change of plea hearing, the district court questioned him about the plea agreement: “Now, you’ve also agreed to make restitution to alleged victims [in] the charges [that] are going to be dismissed. You’re agreeable to make restitution to those people also?” Appellant unequivocally responded “Yes, sir.”

Finally, Appellant claims that his sentence was illegal, and so the district court lacked authority to revoke his probation. Because the underlying sentence was not illegal, this claim is baseless.

Affirmed.

J. Burke delivered the opinion for the court.