Summary 2012 WY 35

Summary of Decision March 9, 2012


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Case Name: Gary Allen James v. The State of Wyoming

Docket Number: S-11-0158

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465173

Appeal from the District Court of Albany County, Honorable Wade E. Waldrip, Judge

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

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; Terry Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Robin Sessions Cooley, Deputy Attorney General.

Date of Decision: March 9, 2012

Facts: Gary Allen James was convicted of two counts of aggravated assault and battery and two counts of DUI with serious bodily injury. The district court imposed four consecutive sentences, but James contends on appeal that the convictions should have merged to two convictions for sentencing purposes.

Issues: James presents one issue for consideration: Whether the district court erred when it imposed consecutive sentences in violation of [James’] constitutional right against multiple punishments for the same offense.

Holdings: The Court found that the convictions in this case should not have merged at sentencing, and the district court is affirmed.

Justice Hill delivered the opinion for the court; Justice Voigt filed a special concurrence, in which Justice Golden joined.

I agree with the result reached in the majority opinion. I write separately only to encourage this Court finally to abandon the fact or evidence approaches to the issue of merger and to adopt as our only standard the statutory elements test. See Winstead v. State, 2011 WY 137, ¶ 16, 261 P.3d 743, 746 (Wyo. 2011) (Voigt, J., specially concurring); Baker v. State, 2011 WY 123, ¶ 23, 260 P.3d 268, 274 (Wyo. 2011) (Voigt, J., specially concurring); and Najera v. State, 2009 WY 105, ¶ 17, 214 P.3d 990, 995 (Wyo. 2009) (Voigt, C.J., specially concurring). For too long, we have ignored the fact that the United States Supreme Court rejected the “conduct” or “evidence” test in favor of the statutory elements test by overruling Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) in United States v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 2860, 125 L.Ed.2d 556 (1993). We should follow suit.