Summary 2013 WY 163

Summary of Decision December 31, 2013

Justice Voigt delivered the opinion of the Court. Affirmed.

Case Name: ANDREW MASCARENAS v. THE STATE OF WYOMING

Docket Number: S-13-0027

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

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

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope, Assistant Attorney General; Prosecution Assistance Program: Darrell D. Jackson, Faculty Director, David E Singleton, Student Director, Sophie Dornbach, Student Intern. Argument by Ms. Dornbach.

Date of Decision: December 31, 2013

Facts: The appellant, Andrew Mascarenas, was convicted of felony driving while under the influence of alcohol, reckless driving, driving with a suspended license, and driving without an interlock device. He appeals these convictions, arguing that his constitutional right to a speedy trial was violated and the State failed to present sufficient evidence to support the reckless driving conviction.

Issues: 1) Did the appellant receive his constitutional right to a speedy trial? 2) Did the State present sufficient evidence to support the appellant’s reckless driving conviction?

Holdings/Conclusion: Although the appellant was incarcerated for 332 days pending the commencement of his trial, we find his right to a speedy trial was not violated. Further, the State presented sufficient evidence to support his conviction for reckless driving. 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 quotation, 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 2013 WY 162

Summary of Decision December 27, 2013

Justice Voigt delivered the opinion of the Court. Affirmed.

Case Name: KYLE B. ASKIN v. THE STATE OF WYOMING

Docket Numbers: S-13-0147, S-13-0148

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

Appeal from the District Court of Laramie County the Honorable Peter G. Arnold, Judge

Representing Appellant: Kyle B. Askin, pro se.

Representing Appellee: Peter K. Michael, Interim Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope, Assistant Attorney General; Jennifer E. Zissou, Assistant Attorney General.

Date of Decision: December 27, 2013

Facts: The appellant pled guilty to two counts of failure to register as a sex offender and received concurrent sentences of two to four and four to six years. The district court suspended the sentences, however, and imposed eight years probation. The appellant did not adhere to the terms of his probation, resulting in the State charging him with escape and seeking to revoke his probation. The district court revoked the appellant’s probation and reimposed the suspended sentence for failure to register. The appellant then pled guilty to the crime of escape and was sentenced to three to seven years, which was suspended in favor of four years probation to be served consecutively to the separate reimposed sentence. The appellant filed a motion to correct an illegal sentence, which was denied by the district court.

The appellant filed two separate appeals. However, both arise from the same set of facts, proceedings, district court, and are premised upon an identical issue. Accordingly, the appeals were consolidated.

Issue: Did the district court abuse its discretion by denying the appellant’s motion to correct an illegal sentence?

Holdings/Conclusion: The district court did not abuse its discretion when it sentenced the appellant to a period of imprisonment followed by a period of probation. 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 quotation, 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 2013 WY 161

Summary of Decision December 27, 2013

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

Case Name: KELLY SUZANNE BRUSH, f/k/a KELLY SUZANNE DAVIS v. ROGER RYAN DAVIS

Docket Number: S-13-0081

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

Appeal from the District Court of Natrona County the Honorable David B. Park, Judge

Representing Appellant: John D. Chambers, Casper, Wyoming.

Representing Appellee: Roger Ryan Davis, pro se.

Date of Decision: December 27, 2013

Facts: The district court modified custody and support for the parties’ minor child. Appellant Kelly Suzanne Brush f/k/a Kelly Suzanne Davis (Mother) appeals, claiming the district court did not have jurisdiction to grant a change of custody or support, she was denied due process of law when a default judgment was entered against her, and the district court abused its discretion when awarding child support.

Issues: I. Whether the district court lacked subject matter jurisdiction to grant a default judgment due to Appellee’s failure to comply with the statutory pleading requirements? II. Whether the Appellant was denied due process when default was improperly entered against her and subsequently, improperly upheld against Appellant? III. Whether the District Court abused its discretion in entering a child support [order] due to its failure to comply with statutory child support requirements?

Holdings/Conclusion: The district court had subject matter jurisdiction over Father’s petition. In the absence of a basis to set aside the default judgment, Mother was given the process she was due. The district court’s decision was reasonable under the circumstances; therefore, it did not abuse its discretion. 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 2013 WY 160

Summary of Decision December 24, 2013

Justice Davis delivered the opinion of the Court. We dismiss the appeal and remand to the district court with instructions to vacate the portion of the order accepting the relinquishment and consent.

Case Name: IN THE MATTER OF THE TERMINATION OF THE PARENTAL RIGHTS TO:
E.R.C.K., Minor Child, V.L.K v. STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES

Docket Number: S-13-0091

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

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

Representing Appellant: Peggy A. Trent, Trent Law Office, LLC, Laramie, Wyoming

Representing Appellee: Peter K. Michael, Interim Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Shawnna M. Herron, Assistant Attorney General. Argument by Ms. Herron.

Guardian ad Litem: Dan S. Wilde, Deputy Public Defender and Program Administrator; Aaron S. Hockman, Guardian ad Litem and Permanency Attorney, Wyoming Guardians ad Litem Program. Argument by Mr. Hockman.

Date of Decision: December 24, 2013

Facts: The Department of Family Services sought to terminate V.L.K.’s parental rights to her son, E.R.C.K., after its efforts to reunify the family in neglect proceedings were unsuccessful. V.L.K. failed to answer the Department’s petition, and default was entered. She was subsequently appointed counsel. The district court declined to set aside the default when asked to do so. During the course of the default termination hearing, V.L.K. decided to relinquish her parental rights and consent to adoption of E.R.C.K. The district court recessed the hearing, and V.L.K. provided a signed and acknowledged relinquishment and consent. The district court entered an order accepting the relinquishment and consent, and there were no further termination proceedings.

V.L.K. claims that the district court erred in not setting aside the default and in accepting the relinquishment and consent. We find her decision to provide the relinquishment and consent rendered any claimed error in declining to lift the default moot, and that the order accepting the relinquishment and consent is not appealable. Accordingly, we dismiss the appeal, but remand with instructions for the district court to vacate the portion of the order accepting the relinquishment and consent purporting to divest V.L.K. of her parental rights because this portion of the order is a nullity.

Issues: 1) Did V.L.K.’s provision of an admittedly voluntary relinquishment and consent to adoption render any error in not lifting an entry of default moot? 2) Is the order accepting the relinquishment and consent appealable under Wyoming Rule of Appellate Procedure 1.05?

Holdings/Conclusion: We find V.L.K.’s challenge to the entry of default moot in light of her decision to sign a relinquishment and consent to adoption. We also find the district court’s order not to be appealable. Accordingly, we dismiss the appeal and remand to the district court with instructions to vacate the portion of the order accepting the relinquishment and consent purporting to divest VLK of her parental rights.

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 quotation, 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 2013 WY 159

Summary of Decision December 24, 2013

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: HENRY R. SANCHEZ v. THE STATE OF WYOMING

Docket Number: S-13-0140

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

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

Representing Appellant: Henry R. Sanchez, pro se.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath; Jeffrey S. Pope, Assistant Attorney General.

Date of Decision: December 24, 2013

Facts: A jury convicted the appellant of attempted second-degree murder, aggravated assault and battery, possession of cocaine, and misdemeanor interference. He was sentenced to thirty to forty years for the attempted murder conviction, with lesser sentences to run concurrently. The appellant filed a motion for sentence reduction, which the district court denied. Not convinced the district court had all accurate facts available in making its decision, the appellant filed a motion for reconsideration and it too was denied. The appellant argues on appeal that the district court abused its discretion and violated his due process rights by denying his motions for sentence reduction and ensuing reconsideration. He contends the State committed prosecutorial misconduct by presenting false facts in its traverse to the motion for sentence reduction; as a result, the district court’s denial was improper.

Issues: 1. Did the district court abuse its discretion in denying the appellant’s motion for reduction of sentence? 2. Were the appellant’s constitutional due process rights violated by the district court’s denial of his motion to reconsider a sentence reduction? 3. Did the State commit prosecutorial misconduct by misstating facts in its traverse to the appellant’s motion for reduction of sentence?

Holdings/Conclusion: Finding no abuse of discretion by the district court, no violation of the appellant’s constitutional rights, and no prosecutorial misconduct, we affirm.

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 2013 WY 158

Summary of Decision December 23, 2013

Justice Davis delivered the opinion of the Court. Reversed and remanded.

Case Name: DEBORA McEWAN v. THE STATE OF WYOMING

Docket Number: S-12-0252

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

Appeal from the District Court of Big Horn County the Honorable Steven R. Cranfill, Judge

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Elisabeth M.W. Trefonas, Assistant Public Defender

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

Date of Decision: December 23, 2013

Facts: Appellant Debora McEwan was convicted of two felony counts of obtaining public welfare benefits by misrepresentation after entering guilty pleas without admitting guilt under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). Our recent decision in Balderson v. State, 2013 WY 107, 309 P.3d 809 (Wyo. 2013), requires us to reverse McEwan’s conviction and remand with instructions to reinstate her initial not guilty plea because the district court did not provide the required statutory firearms advisement when she changed her plea. Any other issues relating to the taking of a guilty plea can be addressed on remand if she chooses to enter a guilty plea rather than go to trial.

McEwan also claims that she was denied her constitutional and rules-based rights to a speedy trial. We find no violation of those rights. She also claims error in the district court’s order of restitution and the manner in which her original attorney was replaced, but we do not rule on those issues because her conviction will be vacated and the district court may resolve them on remand.

Issues: 1) Must her two guilty pleas be set aside because the district court failed to give the advisements required by W.R.Cr.P. 11 and Wyo. Stat. Ann. § 7-11-507? 2) Was she deprived of her constitutional right to a speedy trial or the complementary right provided by W.R.Cr.P. 48? 3) Did the district court abuse its discretion in denying McEwan’s motion to withdraw her guilty plea? 4) Was the district court’s order relating to restitution illegal? 5) Did the district court commit plain error by allowing one public defender to substitute for another in representing McEwan?

Holdings/Conclusion: We reverse McEwan’s conviction and remand with instructions to reinstate her not guilty plea because the district court did not advise her at the time of taking her guilty plea that a felony conviction would prevent her from possessing firearms and being employed in professions that require the carrying of a firearm. Because McEwan may choose to go to trial or enter a guilty plea on remand, this Court will not address other issues she raises relating to the district court’s advice to and colloquy with her at the time of taking her plea, issues regarding the denial of her motion to withdraw her plea, restitution, or substitution of counsel. We find no violation of the Sixth Amendment right to a speedy trial or of the speedy trial provisions of Wyoming Rule of Criminal Procedure 48.


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 quotation, 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 2013 WY 157

Summary of Decision December 20, 2013

Chief Justice Kite delivered the opinion for the Court. Reversed in part and affirmed in part.

Case Name: INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL UNION NO. 279 v. CITY OF CHEYENNE

Docket Number: S-13-0038

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

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

Representing Appellant: Julie Nye Tiedeken of McKellar, Tiedeken & Scoggin, LLC, Cheyenne, Wyoming.

Representing Appellee: Steven F. Freudenthal of Freudenthal & Bonds, P.C., Cheyenne, Wyoming.

Date of Decision: December 20, 2013

Facts: The International Association of Firefighters Local Union No. 279 (the Union) appeals from the district court’s declaratory judgment on issues related to its 2012-2013 collective bargaining session with the City of Cheyenne (the City). The district court ruled on summary judgment that under the statutory definition of “corporate authorities,” the City could negotiate through “either the mayor or any member of the city council” and a quorum of the city council was not required to negotiate. The district court also determined there were no justiciable controversies over whether the Public Meetings Act and the Public Records Act applied under the circumstances presented.

Issues: In its primary brief, the Union presents the following issues on appeal: 1.Was the District Court’s declaration that “either the mayor or any member of the city council is a corporate authority within the meaning of Wyoming Statute § 27-10-104” in error? 2. Did the District Court err in determining that it did not have jurisdiction to consider whether Wyoming’s Public Meetings Act applies to collective bargaining negotiations? 3. Did the District Court err in determining that there was no justiciable controversy on the issue of whether proposals exchanged by the parties during collective bargaining negotiations are public record? 4. Are proposals exchanged by the parties during collective bargaining negotiations public records?

The City restates the issues as: A. Under W.S. § 27-10-101(a)(ii), does a mayor and/or city council person constitute a corporate authority authorized to negotiate with the union or is a quorum of the city council the corporate authority that must conduct the negotiations? B. Does the obligation to “meet and confer in good faith” under W.S. § 27-10-104 impose a blanket rule that negotiations must be conducted in executive session? C. With respect to issues D and E, infra, is the Union seeking an advisory opinion? D. Assuming that a quorum of the city council is required to conduct the negotiations, is it mandatory for the negotiations to be conducted in executive session? E. Assuming that a quorum of the city council is required to conduct the negotiations and the city council properly votes to adjourn to an executive session, are proposals exchanged between the parties public records?

Holdings: We reverse the district court’s decision that the mayor and/or a single city council member are corporate authorities and conclude the statutes mandate a quorum of the city council to negotiate with the Union. We affirm its decision that the other two issues are not justiciable, although our reasoning differs on the public meetings issue.

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 2013 WY 156

Summary of Decision December 19, 2013

Justice Voigt delivered the opinion of the Court. Affirmed.

Case Name: LASHAWN SIDNEY KING v. THE STATE OF WYOMING

Docket Number: S-12-0187

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

Appeal from the District Court of Natrona County the Honorable Catherine E. Wilking, Judge

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Elisabeth M.W. Trefonas, Assistant Public Defender; Patricia L. Bennett, Assistant Public Defender. Argument by Ms. Bennett.

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

Date of Decision: December 19, 2013

Facts: The appellant, LaShawn Sidney King, was convicted of attempted first-degree murder, kidnapping, and two counts of aggravated assault and battery after he attacked the victim and hit her several times in the face and body with a sledgehammer. In this appeal, the appellant argues his convictions should be reversed because the district court improperly admitted evidence of the appellant’s previous violent behavior against the victim, a transcript was provided to the jury of a telephone conversation between the appellant and the victim, and trial counsel was ineffective for waiving the appellant’s right to a speedy trial. (In his brief, the appellant also argued that his two convictions of aggravated assault and battery should have merged for the purposes of sentencing. However, at oral argument, the appellant conceded that the issue was moot after this Court’s decision in Sweets v. State, 2013 WY 98, 307 P.3d 860 (Wyo. 2013).)

Issues: 1) Did the district court abuse its discretion when it determined that testimony regarding previous violence in the appellant’s relationship with the victim was admissible under W.R.E. 404(b)? 2) Did the district court abuse its discretion when it allowed the jury to review a transcript of a telephone recording between the appellant and the victim while the recording was being played at trial? 3) Was trial counsel ineffective because he requested a continuance and filed a waiver of speedy trial signed by the appellant, contrary to the appellant’s desire not to waive his right to a speedy trial?

Holdings/Conclusion: The district court did not abuse its discretion when it determined that testimony of previous violent acts committed by the appellant against the victim was admissible under W.R.E. 404(b). Further, the district court did not abuse its discretion when it allowed the jury to review a transcript of a recorded telephone conversation between the appellant and the victim while the jury was actively listening to the recording. Finally, the appellant did not receive ineffective assistance of trial counsel when his counsel requested and was granted a continuance of the trial date so counsel could consult with an expert witness. 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 quotation, 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 2013 WY 155

Summary of Order December 18, 2013

ORDER OF PUBLIC CENSURE

Case Name: BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, v. SCOTT M. POWERS, WSB #6 3188

Docket Number: D-13-0008

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

Date of Order: December 18, 2013

This matter came before the Court upon a “Report and Recommendation for Public Censure,” filed herein November 14, 2013, by the Board of Professional Responsibility for the Wyoming State Bar, pursuant to Section 16 of the Disciplinary Code for the Wyoming State Bar (stipulated discipline). The Court, after a careful review of the Board of Professional Responsibility’s Report and Recommendation and the file, finds that the Report and Recommendation should be approved, confirmed and adopted by the Court, and that Respondent Scott M. Powers should be publicly censured for his conduct. It is, therefore,

ADJUDGED AND ORDERED that the Board of Professional Responsibility’s Report and Recommendation for Public Censure, which is attached hereto and incorporated herein, shall be, and the same hereby is, approved, confirmed, and adopted by this Court; and it is further

ADJUDGED AND ORDERED that Scott M. Powers is hereby publicly censured for his conduct, which is described in the Report and Recommendation for Public Censure. The public censure shall include issuance of a press release consistent with the one set out in the Report and Recommendation for Public Censure; and it is further

ORDERED that, pursuant to Section 26 of the Disciplinary Code for the Wyoming State Bar, Mr. Powers shall reimburse the Wyoming State Bar the amount of $50.00, representing the costs incurred in handling this matter, as well as pay the administrative fee of $500.00. Mr. Powers shall pay the total amount of $550.00 to the Clerk of the Board of Professional Responsibility on or before January 31, 2014; and it is further

ORDERED that the Clerk of this Court shall docket this Order of Public Censure, along with the incorporated Report and Recommendation for Public Censure, as a matter coming regularly before this Court as a public record; and it is further

ORDERED that, pursuant to Section 4(a)(iv) of the Disciplinary Code for the Wyoming State Bar, this Order of Public Censure, along with the incorporated Report and Recommendation for Public Censure, shall be published in the Wyoming Reporter and the Pacific Reporter; and it is further

ORDERED that the Clerk of this Court cause a copy of this Order of Public Censure to be served upon Respondent Scott M. Powers.
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 quotation, 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 2013 WY 154

Summary of Decision December 18, 2013

Justice Burke delivered the opinion of the Court. Affirmed.

Case Name: STERRETT PROPERTIES, LLC, 3 CREEK RANCHES, LLC, Utah Limited Liability Companies, and MORRIS R. STERRETT, an individual, v. BIG-D SIGNATURE CORPORATION, a Wyoming Corporation

Docket Number: S-13-0126

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

Appeal from the District Court of Teton County the Honorable Dennis L. Sanderson, Judge

Representing Appellants: Patrick J. Crank, Crank Legal Group, P.C., Cheyenne, Wyoming.
Representing Appellee: David F. DeFazio and Sarah E. Tollison, DeFazio Law Office, LLC, Jackson, Wyoming.
Date of Decision: December 18, 2013

Facts: This matter is before this Court for a second time. In Big-D Signature Corp. v. Sterrett Props., LLC, 2012 WY 138, 288 P.3d 72 (Wyo. 2012), we affirmed the district court’s judgment against Appellants, Morris Sterrett, Sterrett Properties, LLC, and 3 Creek Ranches, LLC, and in favor of Appellee, Big-D Signature Corporation (Big-D), with respect to Big-D’s claims under Prime Contract Change Order (PCCO) Nos. 1 and 2. However, we reversed the district court’s order dismissing Big-D’s claims relating to PCCO Nos. 3 and 4. Our decision also affirmed the district court’s dismissal of the counterclaims asserted by Appellants. On remand, the district court granted Big-D’s voluntary motion to dismiss its remaining claims. In dismissing those claims the district court also dismissed all counterclaims of Appellants because they were “moot.” Appellants challenge the district court’s order dismissing their counterclaims. Appellants also challenge the district court’s denial of their request for costs and attorney’s fees.

Issues: 1) Did the district court abuse its discretion by dismissing Appellants’ counterclaims? 2) Did the district court abuse its discretion by not awarding costs and attorney fees to Appellants?

Holdings/Conclusion: The district court did not abuse its discretion in granting Big-D’s motion to dismiss. We find no abuse of discretion in the district court’s denial of Appellants’ request for costs and attorney’s fees. 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 quotation, 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 2013 WY 153

Summary of Decision December 18, 2013

District Judge Fenn delivered the opinion for the court. Affirmed.

Case Name: MICHAEL ANTONIO PATTERSON v. THE STATE OF WYOMING

Docket Number: S-13-0018

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

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

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee: Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney Gerneral; Jeffrey Pope, Assistant Attorney General; Brenda Yamaji, Assistant Attorney General.

Date of Decision: December 18, 2013

Facts: This is Michael Patterson’s third appearance before this Court. On his first appeal his conviction was affirmed, but he did not challenge his sentence. On his second appeal this Court determined that Appellant’s sentence was illegal, and remanded the case to the district court for resentencing. Appellant returns to this Court to challenge the Amended Judgment and Sentence issued by the District Court for the First Judicial District following remand.

Issues: Appellant phrases the issues as follows: 1. Have Michael Patterson’s constitutional due process rights been violated by the failure of the trial court to afford Mr. Patterson a timely and speedy sentencing? 2. Is Michael Patterson being held under an illegal sentence? 3. Has the trial court erred by subjecting Michael Patterson to double jeopardy in violation of the principles of constitutional due process? The State raises a fourth issue: Are Mr. Patterson’s speedy sentencing and double jeopardy claims barred by res judicata?

Holdings/Conclusion: Under W.R.Cr.P. 35(a), an illegal sentence may be corrected at any time. When a case is remanded for resentencing, the corrected sentence still must be imposed without “unnecessary delay” under W.R.Cr.P.32. However, the one year presumption set out in Yates does not apply to resentencing. The Amended Judgment and Sentence was imposed without unnecessary delay once this Court had determined that his previous sentence was illegal, so there was no violation of Appellant’s right to a speedy sentencing. Appellant’s corrected sentence of 240-267 months is not illegal; it complies with the sentencing statute and was not imposed without notice or an opportunity to be heard. It also indicates that the trial court considered probation and found it to be inappropriate. Because Appellant’s previous sentence was illegal, he had no justifiable expectation of finality in his sentence. Therefore, there was no double jeopardy violation when his sentence was increased by three months after he had begun serving it. The Amended Judgment and Sentence is 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 2013 WY 152

Summary of Decision December 11, 2013

District Judge Deegan delivered the opinion for the Court. Affirmed in part. Reversed and remanded in part.

Case Name: JAIME SOLIS v. THE STATE OF WYOMING

Docket Number: S-12-0246

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

Appeal from the District Court of Park County the Honorable Steven R. Cranfill, Judge

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Christyne Martens, Assistant Attorney General. Argument by Ms. Martens.

Date of Decision: December 11, 2013

Facts: Appellant appeals his dual convictions by jury for violating Wyo. Stat. Ann. §§ 6-2-303(a)(vi) and 6-2-303(a)(viii), each proscribing, in the disjunctive, Sexual Assault in the Second Degree. The district court merged the convictions for purposes of sentencing only, imposing concurrent sentences of not less than three (3) nor more than five (5) years incarceration. Separate financial assessments were imposed in respect of each conviction. Appellant appeals on the basis of sufficiency of the evidence to establish he was in a position of authority as required by Wyo. Stat. Ann. § 6-2-303(a)(vi), prosecutorial misconduct in two counts and violation of his constitutional right to not be exposed to double jeopardy by the sufferance of two convictions for the same criminal act under disjunctive provisions of one statute.

Issues: Whether or not there was sufficient evidence to support a jury finding of “position of authority” as required for conviction under Wyo. Stat. Ann. § 6-2-303(a)(vi). Whether or not the prosecutor, in his closing argument to the jury, engaged in prosecutorial misconduct when he attempted to define the term “reasonable doubt.” Whether or not the prosecutor, in his opening remarks and closing argument, as well as in development of the evidence, urged the jury to convict Appellant on an improper basis by painting the victim as a sympathetic figure, including eliciting impermissible victim impact evidence, eliciting an emotional response to the victim by the jury, and urging the jury to hold the Defendant accountable. Whether the constitutional protection against double jeopardy requires this court to vacate one of the two convictions under disjunctive provisions of one statute when both convictions rest upon the same criminal act.

Holdings/Conclusion: We affirm on all issues presented other than the last. As to it, the sufferance of two convictions for violations of disjunctive sections of Wyo. Stat. Ann. § 6-2-303, we reverse both convictions and remand for entry of a new judgment and sentence convicting the Defendant of one violation of Wyo. Stat. Ann. § 6-2-303 and imposing one sentence.

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 2013 WY 151

Summary of Decision December 11, 2013

Justice Voigt delivered the opinion for the Court. Remanded for new trial.

Case Name: JOHN C. McTIERNAN, BEAR CLAW CATTLE COMPANY, and GAIL SISTRUNK v. JAMES L. JELLIS

Docket Number: S-13-0109

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

Appeal from the District Court of Sheridan County, the Honorable Steven R. Cranfill, Judge

Representing Appellants: Jeffrey J. Gonda and Amanda K. Roberts of Lonabaugh and Riggs, LLP, Sheridan, Wyoming; and Bruce S. Asay and Gregory B. Asay of Associated Legal Group, LLC, Cheyenne, Wyoming. Argument by Mr. Gonda.

Representing Appellee: Kendal R. Hoopes of Yonkee & Toner, LLP, Sheridan, Wyoming.

Date of Decision: December 11, 2013

Facts: James Jellis is a rancher in Sheridan County, Wyoming, and owns a beefalo cattle herd. Pursuant to an oral agreement with John McTiernan, Jellis kept his herd on McTiernan’s ranch near Dayton, Wyoming. A dispute arose between the parties regarding their oral agreement, culminating in a lien being asserted by McTiernan and a legal action being filed by Jellis. The jury found, inter alia, McTiernan liable for conversion of Jellis’ beefalo herd, but also found McTiernan entitled to a lien against the same pursuant to Wyo. Stat. Ann. § 29-7-101 et seq. McTiernan filed a post-trial motion based on several theories, including that a new trial was warranted because of the inconsistent verdict.

Issues: The dispositive question in this matter is one that concerns whether a new trial is necessary because of an inconsistent verdict; for that reason, we restate the controlling issue as follows: Is the jury’s verdict finding McTiernan liable for conversion of a beefalo herd, while at the same time finding him entitled to a lien against the same pursuant to Wyo. Stat. Ann. § 29-7-101 et seq., contrary to law?

Holdings/Decision: A lien under Chapter 7 of Title 29 is possessory and its existence dependent upon possession of the subject personal property. As a result, the jury’s finding that McTiernan was liable for conversion is inconsistent as a matter of law with its finding that McTiernan was also entitled to a personal property lien pursuant to Wyo. Stat. Ann. § 29-7-101 et seq. We find the verdict is contrary to law and cannot be reconciled; therefore, we must conclude the district court abused its discretion in denying McTiernan’s motion for new trial. We remand to the district court for a new trial.

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 2013 WY 150

Summary of Decision December 10, 2013

Justice Kite delivered the opinion for the Court. Affirmed.

Case Name: THE ESTATE OF JOAN M. MARUSICH v. STATE OF WYOMING, ex rel., DEPARTMENT OF HEALTH, OFFICE OF HEALTHCARE FINANCING/EQUALITYCARE

Docket Number: S-13-0036

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

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

Representing Appellant: Craig C. Cook and Dennis C. Cook of Cook & Associates, P.C., Laramie, Wyoming. Argument by Mr. Craig C. Cook.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Kristin M. Nuss, Senior Assistant Attorney General. Argument by Ms. Nuss.

Date of Decision: December 10, 2013

Facts: After Joan M. Marusich died, the State of Wyoming ex rel. Department of Health, Office of Healthcare Financing/Equalitycare (Department) filed a lien against the home she owned with her husband, William Marusich, as tenants by the entirety. The Department sought to recover the cost of Medicaid benefits paid on behalf of Mr. Marusich, who had predeceased Mrs. Marusich. The Estate of Joan M. Marusich (Marusich Estate) filed a petition to remove a false lien. The district court granted summary judgment in favor of the Department, ruling that under the relevant federal and state laws, the lien was appropriate. After the district court entered a final judgment on the amount of the lien and denied the Marusich Estate’s motion to amend the petition, the estate appealed.

Issues: The Marusich Estate presents the following issues on appeal: Whether property owned by a married couple as tenants by the entireties may be subject to a lien against property in the estate of the surviving spouse for recovery of Medicaid expenses paid solely on behalf of the predeceased spouse. Whether the remedial provisions of W.S. § 29-1-601(b) may be invoked against appellee as claimant on a legally groundless and impermiss[i]ble recorded claim of lien. Whether the district court erred when it denied a motion to amend petition to conform the pleadings to the underlying cause of action in quiet title that was argued by the parties on cross motions for summary judgment. The Department’s issues are similar, though phrased differently.

Holdings/Decision: The district court correctly granted summary judgment upholding the Department’s lien. The district court stated in its decision letter that the Department was entitled to attorney fees and costs and the Department submitted an affidavit in support of its claim, the record does not indicate that the district court ever awarded fees and costs. In fact, the Marusich Estate concedes no such order was ever entered. We will not, therefore, further address the issue of whether the Department was entitled to attorney fees and costs. The quiet title claim propounded by the Marusich Estate was based upon the validity of the Department’s Medicaid lien. In fact, the motion to amend the petition specifically stated that the Marusich Estate “does not seek to amend or alter any factual allegation in its original Petition or prayer for relief. . . . The proposed amendment will not, in any way, alter Petitioner’s legal arguments already presented in this matter.” As the district court properly recognized, the validity of the lien had already been decided. Whether the Marusich Estate’s claim was restyled as a quiet title action or not, the result would be the same. The district court did not abuse its discretion by denying the Marusich Estate’s motion to amend the petition. 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 2013 WY 149

Summary of Decision December 10, 2013

Justice Davis delivered the opinion of the Court. Affirmed.

Case Name: CHRISTOPHER HARIGNORDOQUY v. LEE ANN BARLOW

Docket Number: S-13-0076

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

Appeal from the District Court of Teton County the Honorable Timothy C. Day, Judge

Representing Appellant: Christopher Harignordoquy, pro se.

Representing Appellee: Lea Kuvinka of Kuvinka & Kuvinka, P.C., Jackson, Wyoming.

Date of Decision: December 10, 2013

Facts: The parties to this appeal were divorced in the District Court for the Ninth Judicial District (Teton County). Appellant Christopher Harignordoquy contends that the district court erred in exercising child custody jurisdiction, in the determination as to whether his children might be entitled to possible dual citizenship as that finding might relate to child custody, in requiring a bond to permit visitation and limiting visitation to Teton County, and in other respects.

Issues: 1) Did Wyoming have home state jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act so as to permit the district court to make a custody determination? 2) Did the district court abuse its discretion in its custody and visitation decision because it found it unlikely that the parties’ children would obtain dual French citizenship if it awarded Appellant custody or increased visitation? 3) Are any of Appellant’s other arguments adequately supported by pertinent authority or cogent argument so as to permit review? 4) Is Appellee entitled to an award of sanctions under Wyoming Rule of Appellate Procedure 10.05?

Holdings/Conclusion: We find no error in the district court’s rulings, and we therefore affirm. We also award Appellee costs, attorney fees, and damages against Appellant as provided in Wyoming Rule of Appellate Procedure 10.05.

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 quotation, 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 2013 WY 148

Summary of Order December 4, 2013

Case Name: BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR v. WILLIAM D. BAGLEY, WSB#4-0956

Docket Number: D-13-0007

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

Order Suspending Attorney from the Practice of Law

Date of Order: December 4, 2013

[¶1] This matter came before the Court upon a “Report and Recommendation for Suspension,” filed herein October 29, 2013, by the Board of Professional Responsibility for the Wyoming State Bar. After a careful review of the Board of Professional Responsibility’s Report and Recommendation for Suspension, Respondent’s “Appeal; Response to Report and Recommendation; Appeal and Request that the Court Calendar the Matter for Briefs and Argument Pursuant to Section 21(c)(iv) of the Disciplinary Code,” and the file, this Court first finds that Respondent’s appeal and request for briefing and argument should be denied. Pursuant to Section 21(c)(i), “[a] response shall state explicit reasons for the exceptions to the report together with a brief prepared in accordance with Rule 7.01, W.R.A.P.” The response filed herein does not comply with subsection (c)(i), so this Court finds that the appeal and request for briefing and argument should be denied.

[¶2] Second, this Court finds that the Report and Recommendation for Suspension should be approved, confirmed and adopted by the Court; and that the Respondent, William D. Bagley, should be suspended from the practice of law for a period of ninety (90) days. It is, therefore,

[¶3] ORDERED that Respondent’s Appeal and Request that the Court Calendar the Matter for Briefs and Argument Pursuant to Section 21(c)(iv) of the Disciplinary Code be, and hereby is, denied; and it is further

[¶4] ADJUDGED AND ORDERED that the Board of Professional Responsibility’s Report and Recommendation for Suspension, which is attached hereto and incorporated herein, shall be, and the same hereby is, approved, confirmed, and adopted by this Court; and it is further

[¶5] ADJUDGED AND ORDERED that, as a result of the conduct set forth in the Report and Recommendation for Suspension, Respondent William D. Bagley shall be, and hereby is, suspended from the practice of law for a period of ninety (90) days, beginning December 16, 2013; and it is further

[¶6] ORDERED that Respondent shall comply with Section 22 of the Disciplinary Code for the Wyoming State Bar. That Section governs the duties of disbarred and suspended attorneys; and it is further

[¶7] ORDERED that, pursuant to Section 26 of the Disciplinary Code for the Wyoming State Bar, William D. Bagley shall reimburse the Wyoming State Bar the amount of $5,831.92, representing the costs incurred in handling this matter, as well as pay an administrative fee of $500.00, by paying the total amount of $6,381.92 to the Clerk of the Board of Professional Responsibility on or before April 1, 2014; and it is further

[¶8] ORDERED that, pursuant to Section 4(a)(iv) of the Disciplinary Code for the Wyoming State Bar, this Order Suspending Attorney from the Practice of Law, along with the incorporated Report and Recommendation for Suspension, shall be published in the Wyoming Reporter and the Pacific Reporter; and it is further

[¶9] ORDERED that the Clerk of this Court shall docket this Order Suspending Attorney from the Practice of Law, along with the Report and Recommendation for Suspension, as a matter coming regularly before this Court as a public record; and it is further

[¶10] ORDERED that the Clerk of this Court cause a copy of the Order Suspending Attorney from the Practice of Law to be served upon Respondent William D. Bagley.


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 quotation, 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.]

Order 2013 WY 147

Summary of Order November 27, 2013

Order Affirming the District Court’s Judgment and Sentence

Docket Number: S-13-0123

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

Date of Order: November 27, 2013

This matter came before the Court upon its own motion following notification that Appellant has not filed a pro se brief within the time allotted by this Court. Pursuant to a plea agreement, Appellant pled guilty to one count of aggravated assault and battery, for causing bodily injury with a deadly weapon. Wyo. Stat. Ann. § 6-2-502(a)(ii). This is Appellant’s direct appeal from the resulting conviction. On September 5, 2013, Appellant’s court-appointed appellate counsel filed a “Motion to Withdraw as Counsel,” pursuant to Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967). Following a careful review of the record and the “Anders brief” submitted by counsel, this Court, on September 24, 2013, entered its “Order Granting Permission for Court Appointed Counsel to Withdraw.” That Order notified Appellant that the District Court’s “Judgment and Sentence” would be affirmed unless, on or before November 12, 2013, Appellant filed a brief that persuaded this Court that the captioned appeal is not wholly frivolous. Taking note that Appellant, Kino Rama Beman, has not filed a brief or other pleading within the time allotted, the Court finds that the district court’s “Judgment and Sentence” should be affirmed. It is, therefore,

ORDERED that the District Court’s May 15, 2013, “Judgment and Sentence” be, and the same hereby is, affirmed.

DATED this 27th day of November, 2013.

BY THE COURT:

MARILYN S. KITE
Chief Justice

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 2013 WY 146

Summary of Decision November 26, 2013

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

Case Name: SHELLEY MOORE v. THE STATE OF WYOMING

Docket Number: S-13-0006

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

Appeal from the District Court of Natrona County, the Honorable Catherine E. Wilking, Judge

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Christyne Martens, Assistant Attorney General. Argument by Ms. Martens.

Date of Decision: November 26, 2013

Facts: Shelley Moore was convicted after a jury trial of felony possession of cocaine and misdemeanor possession of marijuana. At trial, he sought to introduce Chauncey Swain’s out-of-court statements that the cocaine belonged to him. The district court excluded the statements because they were hearsay and did not meet the requirements for the “statement against interest” exception to the hearsay rule. On appeal, Mr. Moore claims the district court erred by refusing to allow Mr. Swain’s statements to be introduced into evidence.

Issue: Whether the district court abused its discretion when it ruled that Mr. Moore could not present evidence that the other occupant in the vehicle had asserted that the cocaine in the vehicle was his, under W.R.E. 804(b)(3).

Holdings/Conclusion: The district court did not abuse its discretion when it weighed the factors and concluded Mr. Moore did not present sufficient corroborating circumstances to establish the trustworthiness of Mr. Swain’s statements under W.R.E. 804(b)(3). Mr. Swain’s statements were properly excluded as inadmissible hearsay. 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 quotation, 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 2013 WY 145

Summary of Decision November 21, 2013

Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: MERIT ENERGY COMPANY v. DEPARTMENT OF REVENUE, STATE OF WYOMING

Docket Number: S-13-0056

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

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

Representing Appellant: Randy B. Reed; Gregory C. Dyekman; and Kevin Walton of Dray, Dyekman, Reed & Healy, P.C., Cheyenne, WY. Argument by Mr. Dyekman.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Martin L. Hardsocg, Deputy Attorney General; Cathleen D. Parker, Senior Assistant Attorney General; and Karl D. Anderson, Senior Assistant Attorney General. Argument by Mr. Anderson.

Date of Decision: November 21, 2013

Facts: This appeal concerns the 2006 valuation of natural gas from numerous gas wells in Lincoln, Sweetwater, and Uinta counties for which Merit Energy was a take-in-kind owner. The State of Wyoming Board of Equalization (SBOE) determined that Merit Energy failed to timely appeal several final Wyoming Department of Revenue (DOR) decisions regarding the amount of taxable gas it had received, resulting in a lack of jurisdiction by the SBOE. The SBOE dismissed Merit’s tax case with prejudice, and the district court affirmed the SBOE’s dismissal.

Issues: Merit lists three issues on appeal: 1. The Wyoming State Board of Equalization erred when it dismissed Merit Energy Company’s appeal for lack of jurisdiction. 2. The discrepancy letters sent by the Department of Revenue are not final administrative decisions. 3. The notice of valuation change sent by the Department of Revenue is a final administrative decision for purposes of appeal.

The DOR rephrases the issue as follows: Did the mineral assessments constitute final administrative decisions so that Merit had to appeal from them within thirty days and, therefore, did Merit’s delay divest the Board of jurisdiction to hear its eventual appeal?

Holdings/Conclusion: The 2008 tax assessment letters sent by the DOR to Merit Energy were final administrative decisions. Merit had thirty days in which to appeal these decisions and did not do so. We affirm the district court’s decision affirming the SBOE’s dismissal of Merit’s appeal as untimely. Furthermore, we conclude that even if this Court permitted Merit to appeal the Notice of Valuation Change, the doctrine of collateral estoppel precludes Merit from doing so. The underlying taxable value assessments were finalized by the 2008 tax assessment letters. 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 2013 WY 144

Justice Hill delivered the opinion of the Court. Affirmed.

Case Name: RICHARD REYNOLDS v. CHRISTOPHER BONAR

Docket Number: S-13-0100

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

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

Representing Appellant: Ronald G. Pretty, Cheyenne, WY.

Representing Appellee: Sean W. Scoggin of McKellar, Tiedeken & Scoggin, LLC, Cheyenne, WY.

Date of Decision: November 21, 2013

Facts: In 2011, Richard Reynolds filed a complaint against Christopher Bonar claiming personal injuries arising from a motor vehicle accident. That complaint was dismissed without prejudice for failure to comply with discovery orders. In 2012, Reynolds re-filed his complaint against Bonar. Reynolds’ second complaint was dismissed for failure to comply with discovery, this time with prejudice.

Issue: Did the Court have authority to dismiss [Reynolds’] case with prejudice?

Holdings/Conclusion: We find no constitutional violation in the district court’s dismissal of Reynolds’ complaint for failure to comply with the court’s discovery orders, and we affirm that dismissal with prejudice. Additionally, we impose sanctions upon Reynolds. Bonar shall submit a statement of costs and attorney’s fees associated with responding to Reynolds’ appeal. Upon review, we will award an appropriate amount in the form of sanctions. We affirm.

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 quotation, 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 2013 WY 143

Justice Davis delivered the opinion of the Court. Reversed and remanded with directions to vacate.

Case Name: SHIRLEY WEIDT v. THE STATE OF WYOMING

Docket Number: S-13-0053

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

Appeal from the District Court of Sheridan County The Honorable John G. Fenn, Judge

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey Pope, Assistant Attorney General; Brian J. Fuller, Student Intern. Argument by Mr. Fuller.

Date of Decision: November 19, 2013

Facts: Appellant Shirley Weidt was found guilty of indirect criminal contempt for failure to comply with an injunction and a nunc pro tunc amendment that allowed Sheridan County to enter her property and remove vehicles and trailers which violated county zoning ordinances.

Issue: Did the State present sufficient evidence to prove criminal contempt beyond a reasonable doubt?

Holdings/Conclusion: The evidence was insufficient as a matter of law to prove willful disobedience of a reasonably specific court order beyond a reasonable doubt. We therefore reverse Ms. Weidt’s conviction for indirect criminal contempt, and remand this matter to the district court with directions to vacate its judgment and sentence.


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 quotation, 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.]

Order Reversing Judgment and Sentence 2013 WY 142

Order Reversing Judgment and Sentence November 14, 2013

Case Name: TAYLOR FORREST COBB v. THE STATE OF WYOMING

Docket Number: S-13-0175

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

Date of Order: November 14, 2013

ORDER REVERSING JUDGMENT AND SENTENCE

This matter came before the Court upon a “Stipulated Motion for Reversal and Remand,” e-filed herein October 28, 2013. After a careful review of the motion and the file, this Court finds as follows. Appellant pled guilty to three offenses: (1) possession of cocaine, a felony; (2) possession of marijuana, a misdemeanor; and (3) possession of heroin, a misdemeanor. Prior to entering his pleas, Appellant was advised that, if convicted of a felony, he would lose his “right to possess firearms under federal law.” The district court’s “Judgment and Sentence” was entered on July 31, 2013

In his appellate brief, Appellant contends that his felony conviction should be reversed because he was not given the firearms advisement required by Wyo. Stat. Ann. § 7-11-507. The State of Wyoming agrees.

This Court agrees as well. While the district court firearms advisement satisfied § 7-11-507(a)(i), the advisement did not satisfy § 7-11-507(a)(ii). Here is what that statute requires:

§ 7-11-507. Advisement of loss of firearms rights upon conviction.

(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.

As this Court has noted, “the legislature directed that no judgment of conviction be entered without advisement as to the potential loss of firearms privileges and its effect on employment in occupations requiring an employee to possess a gun.” Balderson v. State, 2013 WY 107, ¶ 21, 309 P.3d 809 (Wyo. 2013) (emphasis supplied). Therefore, based on Balderson and Starrett v. State, 2012 WY 133, 286 P.3d 1033 (Wyo. 2012), we reverse Appellant’s conviction and sentence for felony possession of cocaine. It is, therefore,

ORDERED that Appellant’s conviction for felony possession of cocaine, which is contained in the district court’s July 31, 2013, “Judgment and Sentence” be, and hereby is, reversed and vacated. This matter is remanded to the district court for proceedings consistent with this order.

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 2013 WY 141

Justice Davis delivered the opinion of the Court. Affirmed.

Case Name: EVELYN DIFELICI, f/k/a EVELYN BARNES v. CITY OF LANDER

Docket Number: S-13-0046

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

Appeal from the District Court of Fremont County the Honorable Norman E. Young, Judge

Representing Appellant: Sky D Phifer, Phifer Law Office, Lander, Wyoming.

Representing Appellee: Thomas A. Thompson of MacPherson, Kelly & Thompson, LLC, Rawlins, Wyoming.

Date of Decision: November 12, 2013

Facts: Appellant Evelyn DiFelici was injured when she fell after stepping into a hole drilled in the gutter of a street in the City of Lander. She sued the City, claiming that it was negligent in the operation of a public utility or service, and also that she was entitled to recover under a specific statute rendering cities and towns liable for injuries resulting from excavations or obstructions which make streets or sidewalks unsafe. The district court granted the City’s motion for summary judgment.

Issues: 1. Did the City’s failure to replace a grate over the drain inlet fall within the waiver of immunity for negligence of public employees in the operation of public utilities and services under Wyoming Statute § 1-39-108(a)? 2. Does Wyoming Statute § 15-4-307 provide a statutory basis on which Appellant was potentially entitled to recover from the City?

Holdings/Conclusion: The term “liquid waste” in Wyoming Statute § 1-39-108(a) does not include runoff or storm water, and there is thus no exception to immunity available to the Appellant. We also find that the hole drilled in the gutter of Washakie Street to drain water into a privately-owned irrigation ditch was maintenance of a street to compensate for weather conditions, and that the specific immunity of § 1-39-120 therefore also bars her claim. Finally, we conclude that Wyoming Statute § 15-4-307 does not create a cause of action based on the negligence of public employees of cities and towns for excavations or obstructions of streets. We therefore affirm.

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 quotation, 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 2013 WY 140

Summary of Decision November 8, 2013

Justice Burke delivered the opinion of the Court. Affirmed.

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

Docket Number: S-13-0071

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

Appeal from the District Court of Laramie County the Honorable Peter G. Arnold, Judge

Representing Appellant: Robert A. Nicholas, Nicholas Law Office, Cheyenne, Wyoming.

Representing Appellee: Gregory A. Phillips, Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Peter Howard, Student Intern.

Date of Decision: November 8, 2013

Facts: The Wyoming Workers’ Safety and Compensation Division awarded benefits to Appellant, Allen Trump, after he experienced a workplace injury to his knees in 1993. In 2009, Mr. Trump sought payment for a left knee arthroscopy that he claimed was related to his workplace injury. The Division denied the claim. Mr. Trump requested a contested case hearing, and the hearing examiner upheld the Division’s decision to deny benefits. Mr. Trump appealed to the district court, which affirmed the hearing examiner’s order. He challenges the district court’s decision in this appeal.

Issues: 1. Is the OAH’s decision supported by substantial evidence? 2. Did the OAH abuse its discretion in excluding hearsay testimony from Mr. Trump regarding the medical opinion of his treating physician?

Holdings/Conclusion: We conclude that the hearing examiner’s finding is supported by substantial evidence. We are unable to conclude that the exclusion of Mr. Trump’s hearsay testimony was an abuse of discretion. 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 quotation, 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 2013 WY 139

Summary of Decision November 8, 2013

Justice Davis delivered the opinion for the Court. Affirmed.

Case Name: JEREMIAH D. LEACH v. THE STATE OF WYOMING

Docket Number: S-13-0009

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

Appeal from the District Court of Uinta County the Honorable Dennis L. Sanderson, Judge

Representing Appellant: Nathan W. Jeppsen, Law Offices of Nathan W. Jeppsen, APC, Rock Springs, Wyoming.

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

Date of Decision: November 8, 2013

Facts: A Uinta County jury found Appellant Jeremiah Leach guilty of first degree sexual assault on a physically helpless woman. He contends that the district court erred in admitting statements he made to police, and that certain statements made by the prosecuting attorney in rebuttal closing argument were improper and prejudicial.

Issues: Leach raises two issues, which we condense as follows: 1. Did the district court abuse its discretion in admitting Leach’s statements to police? 2. Did the prosecutor improperly refer to facts not in evidence during his closing argument?

Holdings/Conclusion: The district court properly admitted Leach’s statements to the police, and the prosecutor did not improperly argue facts not in evidence in rebuttal closing. The Judgment and Sentence Nunc Pro Tunc of the District Court for the Third Judicial District is therefore 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 2013 WY 138

Summary of Decision November 4, 2013

Justice Voigt delivered the opinion for the Court. The district court decision is reversed and the OAH decision is reinstated.

Case Name: JOSEPH A. SCHWAB v. JTL GROUP, INC., d/b/a KNIFE RIVER

Docket Number: S-13-0057

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

Appeal from the District Court of Natrona County the Honorable David B. Park, Judge

Representing Appellant: Jeff S. Meyer, Murane & Bostwick, LLC, Casper, Wyoming.

Representing Appellee: John M. Kuker, The Kuker Group LLP, Cheyenne, Wyoming.

Date of Decision: November 4, 2013

Facts: The appellant sought worker’s compensation benefits for a low back injury sustained during the course of his employment. The Wyoming Workers’ Safety and Compensation Division (Division) at first denied the claim, but subsequently issued a redetermination finding the injury to be compensable and awarding benefits. The redetermination advised the parties they had fifteen days from the time of mailing to object and request a hearing with the Office of Administrative Hearings (OAH). The employer, however, did not file an objection until four days after the deadline had expired. Based upon the employer’s untimely objection, the OAH granted the appellant’s summary judgment motion without holding a contested case hearing, determining the undisputed facts established the employer failed timely to file its objection and request for hearing. The district court reversed and remanded the case to the OAH for further proceedings, finding genuine issues of material fact existed regarding the employer’s ability to avoid strict application of the objection deadline. The appellant now appeals to this Court, challenging the order of the district court. Although the district court’s order reversing and remanding to the OAH for further proceedings is not an appealable order pursuant to W.R.A.P. 1.05, we will consider the merits of the case by converting the appeal to a petition for writ of review.

Issues: Did the OAH err by granting summary judgment in favor of the appellant due to the employer’s untimely objection to a redetermination issued by the Wyoming Workers’ Compensation and Safety Division?

Holdings/Conclusion: We reverse the district court’s Order on Appeal and reinstate the OAH decision.

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 2013 WY 137

Summary of Decision October 31, 2013

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

Case Name: TIMOTHY JAMES RUSSELL v. THE STATE OF WYOMING

Docket Number: S-13-0044

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

Appeal from the District Court of Natrona County the Honorable Catherine E. Wilking, Judge

Representing Appellant: W. Keith Goody, Cougar, Washington.

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

Date of Decision: October 31, 2013

Facts: Timothy James Russell was charged with one count of conspiracy to deliver methamphetamine. Pursuant to a plea agreement with the State, Mr. Russell entered a plea of nolo contendere to the charge. The district court accepted the plea and scheduled a sentencing hearing. Thereafter, Mr. Russell retained new counsel who filed a motion to withdraw the plea. After a hearing, the district court denied the motion. Mr. Russell appealed, claiming the district court abused its discretion when it denied his motion to withdraw his plea.

Issues: The issue for this Court’s determination is whether the district court abused its discretion when it denied Mr. Russell’s motion to withdraw his plea.

Holdings/Conclusion: We find no abuse of discretion and affirm.

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 2013 WY 136

Summary of Decision October 31, 2013

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: JUDY E. BREDTHAUER v. DAVID J. BREDTHAUER

Docket Number: S-13-0114

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

Appeal from the District Court of Goshen County the Honorable David B. Park, Judge

Representing Appellant: W. Keith Goody of Cougar, Washington.

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

Date of Decision: October 31, 2013

Facts: The appellant and her husband sought a divorce and the matter proceeded to trial. Neither party timely requested the official court reporter to report and transcribe the proceeding pursuant to Rule 904 of the Uniform Rules for District Courts. Consequently, the official court reporter was unavailable for trial. Although the parties arranged for alternative court reporters to attend, the district court would not permit any resulting transcript to be considered an official transcript. The trial was held without a court reporter present, a divorce decree later issued, and this appeal followed. The appellant challenges the divorce decree and order denying her motion for a new trial, arguing that the district court erred by refusing to allow the trial proceedings to be transcribed by an unofficial court reporter.

Issues: Did the district court abuse its discretion by not permitting an unofficial court reporter to prepare an official transcript after the appellant did not timely notify the official court reporter of the proceeding as required under Rule 904 of the Uniform Rules for District Courts?

Conclusion: The district court abused its discretion in refusing to allow the appellant to use a substitute court reporter to transcribe the proceedings and prepare an official transcript, but we affirm because the appellant was not prejudiced by the ruling.

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 2013 WY 135

Summary of Decision October 24, 2013

Justice Davis delivered the opinion of the Court. Affirmed.

Case Name: IN THE MATTER OF THE WORKER’S COMPENSATION CLAIM OF: MARTY D. MCINTOSH v. STATE OF WYOMING ex rel. WYOMING WORKERS’ SAFETY and COMPENSATION DIVISION

Docket Number: S-13-0035

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

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

Representing Appellant: Margaret M. White of Karpan & White, P.C., Cheyenne, Wyoming.
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Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General.

Date of Decision: October 24, 2013

Facts: Appellant Marty D. McIntosh worked as a roustabout for Kissack Oil Field Service in Gillette, Wyoming. He sustained a second to third-degree burn to his right foot while he was steam cleaning a pumping unit. His injury was determined to be compensable and he received a 5% impairment rating. He later experienced right foot pain and difficulty standing and wearing work boots, and he therefore applied for permanent total disability (PTD) benefits. His claim was referred to a panel of the Medical Commission (“the Panel” or “the Commission”) for a contested case hearing. The Commission concluded that McIntosh did not meet his burden of proving entitlement to PTD benefits under the odd lot doctrine.

Issues: 1. Did the Commission adequately explain the rationale for its decision? 2. Does substantial evidence support the Commission’s conclusion that McIntosh did not meet his burden of proving a prima facie case of odd lot treatment? 3. Did the Commission err in finding that McIntosh’s preexisting conditions caused a significant portion of his symptoms? 4. Did the Commission err when it relied on the statements of two expert evaluators who suggested vocational rehabilitation? 5. Did the Commission act arbitrarily and capriciously because the Panel members examined McIntosh’s right foot at the contested case hearing?

Holdings/Conclusion: The Medical Commission reasonably concluded that McIntosh did not demonstrate entitlement to permanent total disability benefits under the odd lot doctrine, and its conclusions were not contrary to applicable law, arbitrary or capricious. Affirmed.

Summary 2013 WY 134

Summary of Decision October 24, 2013

Justice Voigt delivered the opinion for the court. Dismissed.

Case Name: GUILLERMO EDUARDO GOMEZ v. THE STATE OF WYOMING

Docket Number: S-13-0101

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

Appeal from the District Court of Natrona County the Honorable David B. Park, Judge

Representing Appellant: Guillermo Eduardo Gomez, Pro se.

Representing Appellee: Peter K. Michael, Chief Deputy Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope, Assistant Attorney General; Brian J. Fuller, Student Intern.

Date of Decision: October 24, 2013

Facts: The appellant pled guilty to one count of conspiracy to deliver methamphetamine and the district court imposed a sentence of fifteen to twenty years imprisonment. The district court also found the appellant to be a “qualified offender” under the Addicted Offender Accountability Act (AOAA), recommending the appellant complete intensive treatment for substance abuse. This Court affirmed the judgment and sentence. See Gomez v. State, 2010 WY 140, 241 P.3d 502 (Wyo. 2010). Soon thereafter, the appellant timely filed his first motion for a sentence reduction, which was denied by the district court and no appeal was taken. Two years after affirmance of his conviction, the appellant filed a second motion, pro se, seeking to modify his sentence. The district court denied the motion, finding it untimely, and the appellant now seeks relief from this Court.

Issues: The threshold issue is one that concerns jurisdiction; accordingly, we restate the controlling issue as follows: Did the district court have jurisdiction over appellant’s motion seeking to modify and reduce his sentence?

Holdings/Conclusion: The district court lacked jurisdiction to consider the appellant’s motion, and we, too, are without jurisdiction to consider the appeal. The appeal is dismissed.

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]