Summary 2011 WY 137

Summary of Decision September 28, 2011

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Case Name:  Winstead v. State of Wyo.

Citation:  2011 WY 137

Docket Number: S-11-0069

URL:  http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464520

Appeal from the District Court of Big Horn County,  the Honorable John C. Brackley, Judge

Representing Appellant (Defendant):  Craig Winstead, pro se.

Representing Appellee (Plaintiff/Defendant):  Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General

 Date of Decision: September 28, 2011

Facts:  Appellant entered a plea agreement in which he agreed to plead guilty to three counts alleging third degree sexual assault and the prosecutor agreed to dismiss three counts alleging incest. The district court convened a change of plea hearing followed by a sentencing hearing.  The district court sentenced Appellant to serve sentences of ten to fifteen years on each count with the sentence on the first count to be served first and the sentences on the second and third counts to be served consecutively to the first sentence and concurrently with each other.  Appellant subsequently filed a motion to correct an illegal sentence pursuant to W.R.Cr.P. 35(a), claiming his sentences should have merged and asking the court to order that he serve his sentences concurrently.  The district court denied the motion.  Appellant filed a timely notice of appeal; subsequently, however, he moved for dismissal of the appeal.  This Court granted the motion.  

A few months later, the prosecutor filed a motion to amend the judgment and sentence.  The prosecutor asserted the original judgment and sentence did not contain a finding of the period of pre-sentence confinement as required by W.R.Cr.P. 32(c)(2)(E) and (F) and sought clarification of whether Appellant was to serve count IV first and counts V and VI concurrently to each other but consecutively to count IV.  The record contains an affidavit from the detention center stating Appellant served 396 days pre-sentence confinement for which he should be credited.  The district court took no action on the motion. 

A few months after, Appellant also filed a motion for sentence reduction based on compliant behavior during his confinement.  The district court ordered the penitentiary to submit a progress report within thirty days.  The record contained nothing further concerning the motion or the court’s order.

Subsequently, Appellant filed a motion asking the district court to enter a judgment and sentence nunc pro tunc reflecting that he was entitled to credit for 396 days presentence confinement.  He attached the same affidavit referenced above.  The district court granted the motion and amended the judgment and sentence nunc pro tunc to require that Appellant receive credit for the presentence confinement.

A few months later, Appellant filed a motion to correct illegal sentence under W.R.Cr.P. 35(a) and asking for appointment of counsel.  He asserted that his sentence was illegal under the double jeopardy clause of the Fifth Amendment and the sentences should have merged.  He asked the district court to correct the sentence by ordering that the three sentences be served concurrently. After a hearing, the district court entered an order denying the motion, finding that the offenses involved three different victims and the sentences were not illegal.  Appellant appealed.                  

Issue:  Whether Appellant’s claim was barred from review by the doctrine of res judicata.  If not, whether the district court abused its discretion when it denied his motion for correction of an illegal sentence. 

Holdings:  The court affirmed the judgment and sentence, finding the appeal barred by res judicata. The Court found that Appellant had several opportunities to assert his claim that his sentence was illegal, but that he failed to do so and likewise failed to show that he had good cause for not bringing the issue to the courts’ attention. 

In an effort to show that he had good cause for not raising the issue, Appellant had asserted that in some instances he was not represented by counsel and was not schooled in the law and, in the instances in which he had representation, his attorney controlled the issues raised and he was not aware his sentence was illegal.  He argued that he became aware of the merger issue only after he was incarcerated and had access to legal research. The court noted that failing to recognize the factual or legal basis for a claim or failing to raise a claim despite recognizing it does not constitute good cause for not bringing an issue to the court’s attention  

Although holding Appellant’s appeal barred and determinative of his claim, the Court briefly addressed Appellant’s assertion that his sentences merged.  The Court observed that Appellant pled guilty to and was sentenced for sexually assaulting three different victims.  The facts showed that his acts in assaulting victim A could have been accomplished without assaulting victims B or C.  The assault against each of the three victims involved a distinct offense.  The Court stated that the concept of merger simply has no application when crimes are perpetrated against different victims.  Hannah v. U.S., 666 A.2d 845, 855 (D.C. Cir. 1995).

C.J. Kite delivered the opinion for the court.

J. Voigt in special concurrence, agreed with the result reached via the majority opinion, but wrote separately to repeat the concerns about the doctrine of sentencing merger that are set forth in Najera v. State, 2009 WY 105, ¶ 17, 214 P.3d 990, 995 (Wyo. 2009).