Summary 2012 WY 137

Summary of Decision October 30, 2012

Judge Campbell delivered the opinion for the Court. Affirmed.

Case Name: LUKE EDWARD MICKELSON v. THE STATE OF WYOMING

Docket Number: S-11-0285

URL: http://www.courts.state.wy.us/Opinions.aspx

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

Representing Appellant: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; David Westling, Appellate Counsel; Wyoming Public Defender Program. Argument by Mr. Westling.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jeffrey Pope, Assistant Attorney General. Argument by Mr. Pope.

Date of Decision: October 30, 2012

Facts: Luke Edward Mickelson appealed his conviction for unlawful possession with intent to deliver a controlled substance, contending the Court improperly admitted lay opinion testimony concerning Mr. Mickelson’s level of intoxication, and that he was denied effective assistance of counsel.

Issues: Mr. Mickelson presented two issues for this Court’s consideration:

I. Was trial defense counsel ineffective?

II. Did the testimony of two bartenders about intoxication invade the province of the trier of fact?

Holdings: The testimony of Ms. Tonille and Mr. Groshart regarding Mr. Mickelson’s level of intoxication was properly admitted and considered by the trial court. Further, Mr. Mickelson was not denied effective assistance of trial counsel, and his conviction was affirmed.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 136

Summary of Decision October 30, 2012

Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: JUAN CARLOS VALDEZ VENEGAS v. THE STATE OF WYOMING

Docket Number: S-12-0025

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Albany County, Honorable Jeffrey A. Donnell, Judge.

Representing Appellant: Bert T. Ahlstrom Jr., Cheyenne, WY.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jeffrey Pope, Assistant Attorney General.

Date of Decision: October 30, 2012

Facts: After being charged with driving while under the influence, Juan Carlos Valdez Venegas (Venegas) appealed a district court’s denial of his motion to suppress based upon his contention that the officer’s stop was based upon an improper anonymous informant. Additionally, Venegas asserted that there was insufficient evidence for a jury to convict him.

Issues: Venegas states three issues:

1. Whether the decision of the lower court to deny the motion to suppress of the defendant was in error, or constituted an abuse of discretion, and/or was arbitrary and capricious under the facts and circumstances of this case.

2. Whether there was sufficient evidence to convict the defendant of the charge of driving while under the influence, as applied to him, and under the facts and circumstances of this case.

3. Whether the trial court erred in denying [Venegas’s] motion for new trial in light of the insufficiency of evidence adduced at trial.

Holdings: The district court’s denial of Venegas’s motion to suppress is affirmed. Furthermore, there was substantial evidence for a jury to convict Venegas at trial. Affirmed.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 135

Summary of Decision October 19, 2012


Justice Burke delivered the opinion for the Court. Affirmed in part. Reversed in part.

Case Names: THE WYOMING DEPARTMENT OF ENVIRONMENTAL QUALITY and YATES PETROLEUM CORPORATION AND MARATHON OIL COMPANY v. WYOMING OUTDOOR COUNCIL;

YATES PETROLEUM CORPORATION AND MARATHON OIL COMPANY v. WYOMING OUTDOOR COUNCIL and THE WYOMING DEPARTMENT OF ENVIRONMENTAL QUALITY

Docket Number: S-12-0002, S-12-0003

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Laramie County, Honorable Thomas T.C. Campbell, Judge.

Representing Wyoming Department of Environmental Quality: Gregory A. Phillips, Attorney General; Jay A. Jerde, Deputy Attorney General; Michael Barrash, Senior Assistant Attorney General; Christopher M. Brown, Senior Assistant Attorney General. Argument by Mr. Barrash and Mr. Jerde.

Representing Yates Petroleum and Marathon Oil Company: Eric L. Hiser and Matthew Joy, Jorden Bischoff & Hiser, PLC, Scottsdale, Arizona. Argument by Mr. Joy.

Representing Wyoming Outdoor Council: Steve Jones, Jones and Maxon Law Office, Jackson, Wyoming.

Date of Decision: October 19, 2012

Facts: This appeal involved the issuance by the Wyoming Department of Environmental Quality (DEQ) of two general permits for the discharge of produced water from coal bed methane operations in northeastern Wyoming. Yates Petroleum Corporation and Marathon Oil Company (Yates and Marathon) appealed the DEQ’s decision to the Environmental Quality Council (EQC), challenging certain conditions of the two general permits. The Wyoming Outdoor Council (WOC) also sought EQC review of the DEQ’s decision to issue the general permits.

WOC claimed that general permits were rules, and had to be promulgated through the rulemaking procedures set forth in the Wyoming Administrative Procedure Act. The EQC rejected WOC’s claim, and WOC sought judicial review of that decision. The district court reversed the EQC, determining that DEQ was required to promulgate the general permits as rules. Because DEQ had not followed the statutory rulemaking procedures, the district court ruled that the general permits were void.

The district court also rejected the argument by Yates and Marathon that WOC was not entitled to seek EQC review of the DEQ’s decision to issue the general permits, but was limited to judicial review. The district court ruled that the Wyoming Environmental Quality Act did allow WOC to seek administrative review by the EQC. Yates and Marathon appealed.

Issues: The parties present a variety of statements of the issues on appeal. We think the issues are appropriately stated as follows:

Whether DEQ must employ the statutory rulemaking procedures for the issuance of general permits.

Whether WOC was entitled to administrative review by the EQC of DEQ’s decision to issue the general permits.

Holdings: The Court reversed the district court ruling that the DEQ was required to promulgate general permits as administrative rules, because they agreed with the EQC’s decision that the two general permits in question were issued following appropriate procedures. The Court affirmed the district court’s ruling that WOC was entitled to EQC review of the DEQ’s decision to issue these general permits.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 134

Summary of Decision October 18, 2012

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: IN THE MATTER OF THE WORKER’S COMPENSATION CLAIM OF: LANCE TALBOT v. STATE OF WYOMING, ex rel., WYOMING WORKER’S SAFETY AND COMPENSATION DIVISION.

Docket Number: S-12-0016

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Albany County, Honorable Jeffrey A. Donnell, Judge.

Representing Appellant: Bernard Q. Phelan, Phelan Law Offices, Cheyenne, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Brenda S. Yamaji, Assistant Attorney General.

Date of Decision: October 18, 2012

Facts: The appellant received disability benefits due to a work-related injury. Those benefits were terminated as a result of the appellant’s incarceration. Following his release, the appellant applied for reinstatement of the benefits. Although that application was initially denied, benefits were awarded following a contested case hearing. At that time, the appellant filed one application for retroactive benefits for the period during which his prior claim was contested and two additional applications for separate periods of prospective benefits. The Office of Administrative Hearings (OAH) denied all three claims for failure to comply with the Wyoming Worker’s Compensation Act. The district court affirmed the denial of two of those applications and the appellant appealed those denials.

Issues: Did the hearing examiner err as a matter of law in determining that the Wyoming Worker’s Compensation Act requires a separate examination for each period of certification of Temporary Total Disability benefits?

Holdings: The Wyoming Worker’s Compensation Act requires a separate physical examination prior to each certified period of disability. Because a health care provider did not perform a separate examination for each of the appellant’s applications for TTD benefits, the Court affirmed the district court’s decision to deny benefits to the appellant.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 133

Summary of Decision October 18, 2012

Justice Golden delivered the opinion for the Court. Remanded.

Case Name: SHAWN NATHAN STARRETT v. THE STATE OF WYOMING

Docket Number: S-11-0284

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Sweetwater County, Honorable Nena R. James, Judge.

Representing Appellant: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel; Wyoming Public Defender Program

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Justin A. Daraie, Assistant Attorney General.

Date of Decision: October 18, 2012

Facts: This appeal presented a question of first impression whether a criminal defendant’s judgment of conviction upon his plea of guilty to the felony of third degree sexual abuse of a minor must be set aside and he be permitted to plead anew because the district court failed to comply with Wyo. Stat. Ann. § 7-11-507 which states:

(a) No judgment of conviction shall be entered upon a plea of guilty or nolo contendere to any charge which may result in the disqualification of the defendant to possess firearms pursuant to the provisions of 18 U.S.C. §§ 922(g)(1), (9) and 924(a)(2) or other federal law unless the defendant was advised in open court by the judge:

(i) Of the collateral consequences that may arise from that conviction pursuant to the provisions of 18 U.S.C. §§ 921(a)(33), 922(g)(1), (9) and 924(a)(2); and

(ii) That if the defendant is a peace officer, member of the armed forces, hunting guide, security guard or engaged in any other profession or occupation requiring the carrying or possession of a firearm, that he may now, or in the future, lose the right to engage in that profession or occupation should he be convicted.

Wyo. Stat. Ann. § 7-11-507 (LexisNexis 2011) (emphasis added).

Issues: The State’s issue statement adequately presents the issue before us:

When a defendant seeks to plead guilty to a felony, a court must advise him, pursuant to Wyo. Stat. Ann. § 7-11-507, that federal law disqualifies felons from possessing firearms. The district court never advised Starrett of this consequence when he pled guilty to felony sexual abuse of a minor. Even so, can Starrett’s conviction be affirmed because he does not suggest that receiving the advisement would have led him to plead differently?

Holdings: The district court’s failure to give Starrett that required advisement was a Rule 32 error. Consistent with the Court’s precedent dealing with Rule 32 error, the Court held that the district court’s failure to include in Starrett’s judgment of conviction upon his plea of guilty the advisement required by Wyo. Stat. Ann. § 7-11-507 required the Court to set aside Starrett’s judgment of conviction and remand to that court with directions that he be permitted to plead anew. It is so ordered.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 132

Summary of Decision October 12, 2012

Justice Burke delivered the opinion for the Court. Affirmed.

Case Name: IN THE MATTER OF THE ADOPTION OF AMP, a minor child. DLH v. JLA and JJA

Docket Number: S-12-0093

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Goshen County, Honorable Keith G. Kautz, Judge.

Representing Appellant: John R. Hursh, Central Wyoming Law Associates, P.C., Laramie, Wyoming.

Representing Appellee: James A. Eddington, Jones & Eddington Law Offices, Torrington, Wyoming.

Date of Decision: October 12, 2012

Facts: Appellant, DLH, challenged the district court’s order granting the adoption of his four-year-old son, AMP, without Appellant’s consent.
Issues: The parties raise the following issue:

Whether the district court abused its discretion in granting JJA’s adoption of AMP without Appellant’s consent pursuant to Wyo. Stat. Ann. § 1-22-110(a)(iv), due to Appellant’s willful failure to pay child support for a period of one year prior to the filing of the adoption petition, and his failure to bring his child support obligation current within 60 days after service of the petition.

Holdings: The district court’s conclusion that Appellant willfully failed to contribute to the support of his child is supported by the evidence. The evidence also supports the district court’s conclusion that Appellant failed to bring his child support obligation current within 60 days. Because it is undisputed that Appellant did not pay his accumulated arrearages, the Court cannot find that the district court abused its discretion in determining that this element of Wyo. Stat. Ann. § 1-22-110(a)(iv) was satisfied. Affirmed.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 131

Summary of Decision October 5, 2012

Chief Justice Kite delivered the opinion for the Court. Affirmed.

Case Name: CARL ANTHONY DIMINO v. THE STATE OF WYOMING

Docket Number: S-12-0014

URL: http://www.courts.state.wy.us/Opinions.aspx

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

Representing Appellant: Diane Lozano, State Public Defender, PDP; Tina N. Olson, Chief Appellate Counsel.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Lucas J. Esch, Senior Assistant Attorney General.

Date of Decision: October 5, 2012

Facts:  After conditionally pleading guilty to possession with intent to deliver marijuana, Carl Anthony Dimino challenged the district court’s denial of his motion to suppress evidence discovered during a search of his vehicle.  He maintained that he was unconstitutionally detained for a drug dog sniff after a traffic stop and that the subsequent search of his vehicle was illegal. 

Issues: Mr. Dimino states a single issue on appeal:

Did the trial court err in denying appellant’s motion to suppress evidence obtained as a result of his illegal detention and the subsequent search of his rental vehicle?

The State articulates two issues, which we rephrase:

Did the trooper have a reasonable articulable suspicion of criminal activity to justify detaining Mr. Dimino momentarily so the trooper’s drug dog could walk around the rental car for a free air sniff?

Did the trooper have probable cause to search Mr. Dimino’s rental car, with or without the drug dog alert?

Holdings:  The Court affirmed, concluding the trooper had reasonable suspicion to detain him and the search was legal.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 130

Summary of Decision October 5, 2012

Justice Voigt delivered the opinion for the Court. Affirmed in part.

Case Name: TIMOTHY J. SMITH v. THE STATE OF WYOMING

Docket Number: S-12-0041

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Weston County, Honorable Michael N. Deegan, Judge.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jeffrey Pope, Assistant Attorney General.

Date of Decision: October 5, 2012

Facts:  The appellant, Timothy J. Smith, entered a plea of “no contest” to one misdemeanor count of reckless endangerment.  He was sentenced to one year in jail and was ordered to pay restitution to the two victims of his crime.  On appeal, he claimed that the district court abused its discretion when it ordered that he pay a total of $335,387.26 in restitution, and that it acted unlawfully when it ordered that the appellant make a “bona fide effort” to pay the restitution within five years.  The Court affirmed the district court’s order regarding the amount of restitution, but found that it did not have the authority to impose a deadline on when the restitution must be paid.

Issues:

1.                  Did the district court abuse its discretion when it ordered that the appellant pay $335,387.26 in restitution?

2.                  Did the district court have the authority to require the appellant to make a “bona fide effort” to have the total restitution paid within a five-year period?

Holdings:  The district court did not abuse its discretion when it ordered the appellant to pay over $335,000 in restitution to the two victims.  The district court did not make a finding that the appellant would be unable to pay restitution and, therefore, was required by Wyo. Stat. Ann. §§ 7-9-102 and 7-9-103(c) to order that restitution be paid.  Further, the amount of restitution was reasonable, as it was based upon verifiable costs associated with injuries and property damage that were incurred by the victims as a result of the appellant’s criminal behavior.  However, the district court did not have the authority to require the appellant to make a bona fide effort to have the restitution amount retired within five years.  The Court vacated the five-year pay off requirement and affirmed the remainder of the appellant’s sentence, including the amount of restitution owed.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 129

Summary of Decision October 2, 2012

Judge Park delivered the opinion for the Court. Reversed and Remanded.

Case Name: UINTA COUNTY, WYOMING; UINTA COUNTY SHERIFF LOUIS NAPOLI; and BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF UINTA v. JUDEE PENNINGTON

Docket Number: S-12-0020

 

URL: http://www.courts.state.wy.us/Opinions.aspx

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

 

Representing Appellant Uinta County Sheriff Louis Napoli: Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; and Misha E. Westby, Senior Assistant Attorney General.  Argument by Ms. Westby.

 

Representing Appellants Uinta County, Wyoming, and Board of County Commissioners of the County of Uinta: Richard Rideout of the Law Offices of Richard Rideout, PC, Cheyenne, Wyoming.

 

Representing Appellee: Mel C. Orchard, III, of The Spence Law Firm, LLC, Jackson, Wyoming; and V. Anthony Vehar of Vehar Law Offices, P.C., Evanston, Wyoming.  Argument by Mr. Vehar.

 

Date of Decision: October 1, 2012

Facts:  Judee Pennington was sexually assaulted by Todd Hoover, a Uinta County detention officer, while she was an inmate at the Uinta County Detention Center. Ms. Pennington filed claims under the Wyoming Governmental Claims Act, Wyo. Stat. Ann. § 1-39-101, et seq., against Hoover, Uinta County Sheriff Louis Napoli, and the Uinta County Board of Commissioners for damages stemming from this assault. The trial court denied the Sheriff’s and the County’s motions for summary judgment on claims against the Sheriff for negligent supervision and training, and on the Sheriff’s motion for qualified immunity; and also denied the County’s and the Board of Commissioners’ motions as to statutorily imposed liability. The Sheriff and the County appealed from the denial of their respective motions. Ms. Pennington did not appeal from the trial court’s ruling granting summary judgment in favor of the Appellants on her other claims.

 

Issues:  Appellants present several issues. The Court finds one question to be dispositive and does not consider the other matters presented. The dispositive issue presented on appeal is:

 

Does the record support the trial court’s ruling that Sheriff Napoli was not entitled to assert the defense of qualified immunity?

 

Holdings:  The Court reversed the decision of the trial court and remanded for entry of an order consistent with this opinion.

 

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]