Summary 2011 WY 139

Summary of Decision October 4, 2011


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Case Name: Hultgren v. State

Citation: 2011 WY 139

Docket Number: S-11-0023

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464528

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

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; and Kirk A. Morgan, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Prosecution Assistance Program; and Joshua Beau Taylor, Student Director.

Date of Decision: October 4, 2011

Facts: After a bench trial, the district court held Appellant in criminal contempt, due to his failure to comply with the terms of a dispositional order entered in a juvenile case. Despite the fact that the charge had been amended to allege only three violations, the district court’s Judgment and Sentence Order indicates that it held Appellant in contempt on six grounds for failing to (1) report change of address; (2) fully cooperate with DFS, the GAL, and CASA; (3) submit to extractions of bodily substances for testing; (4) comply with treatment recommendations from his substance abuse evaluation; (5) not use alcoholic beverages; and (6) not be in the presence of alcohol. Appellant filed a timely notice of appeal to challenge that order. After the parties filed their briefs in this appeal, the State of Wyoming filed a “Notice” informing this Court that in July of 2011 the district court entered a “Judgment and Sentence (Criminal Contempt of Court) Nunc Pro Tunc.” That order is included in the appellate record. In the nunc pro tunc order, the district court amended its earlier order to reflect that it found that Appellant violated the juvenile court order in three ways (not six): (1) He failed to comply with DFS requests that he submit, every weekend, to extractions of bodily substances for testing; (2) he consumed alcohol; and (3) he was in the presence of alcohol.

Issues: Whether Appellant was denied his right to a fair sentencing when the district court considered him in contempt of court for violating six provisions of its previous order, instead of just the three he was arraigned on, when proclaiming the sentence.

Holdings: Given the entry of the nunc pro tunc order, the basis for Appellant’s issue on appeal has disappeared. In the nunc pro tunc order, the district court clarified that it held Appellant in contempt based upon the three violations contained in the amended contempt charge. Thus, Appellant can no longer complain that the district court relied upon six violations when it imposed sentence. In sum, given the entry of the nunc pro tunc order, Appellant can no longer maintain his appellate issue. In addition, because Appellant does not take any other issue with the “Judgment and Sentence (Criminal Contempt of Court),” said order should be affirmed.

J. Hill delivered the opinion for the court.