Summary 2013 WY 111

Summary of Decision September 20, 2013

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: LEOBIGILDO URIOSTEGUI ALBARRAN v. THE STATE OF WYOMING
six
Docket Number: S-13-0030

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

Appeal from the District Court of Platte County, the Honorable John C. Brooks, Judge

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

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Jeffrey S. Pope, Assistant Attorney General

Date of Decision: September 20, 2013

Facts: The appellant was charged by Information with three crimes after a sexually charged attack on his sister-in-law. On the morning trial was to begin, the district court allowed the State to amend Count III of the Information in order to clarify that the charge was for aggravated burglary, not simply burglary. A jury convicted the appellant of aggravated burglary along with battery and third-degree sexual assault. The appellant contends the district court improperly permitted amendment of the aggravated burglary charge.

Issues: Did the district court abuse its discretion and deprive the appellant of his right to due process of law under the Sixth Amendment to the United States Constitution and Article 1, Section 10 of the Wyoming Constitution by granting the State’s motion to amend Count III of the Information before the trial began?

Holdings: The district court did not abuse its discretion in allowing amendment of the Information the morning of trial, and the appellant’s substantial rights were not prejudiced under the circumstances. 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 110

Summary of Decision September 18, 2013

ORDER OF PUBLIC CENSURE

Case Name: BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR v. NANA Y. BOACHIE YIADOM, WSB #6 3502

Docket Number: D-13-0006

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

This matter came before the Court upon a “Report and Recommendation for Public Censure,” filed herein August 14, 2013, by the Board of Professional Responsibility for the Wyoming State Bar. 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 Nana Y. Boachie-Yiadom should be publicly censured for his conduct, which is described in the attached Report and Recommendation. 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 Nana Y. Boachie-Yiadom shall be publicly censured for his conduct, in a manner consistent with the censure contained in the attached 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, Respondent shall reimburse the Wyoming State Bar the amount of $50.00, representing some of the costs incurred in handling this matter, as well as pay the administrative fee of $500.00. Respondent shall pay the total amount of $550.00 to the Clerk of the Board of Professional Responsibility on or before October 31, 2013; 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 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 the Order of Public Censure to be served upon Respondent Nana Y. Boachie-Yiadom.

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 109

Summary of Decision September 18, 2013

ORDER AFFIRMING JUDGMENT AND SENTENCE OF THE DISTRICT COURT

Docket Number: S-13-0064

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

Case Name: RALPH DANIEL SISNEROS v. THE STATE OF WYOMING

This matter came before the Court upon Appellant’s “Pro Se Brief” which was filed herein August 26, 2013. Pursuant to a plea agreement, Appellant entered an unconditional guilty plea to one count of incest, for having sexual intercourse with his adult daughter. In exchange for Appellant’s plea, the State dismissed two other charges based on the same incident (one count of first degree sexual assault and one count of second degree sexual assault). The district court imposed a sentence of 13½ to 15 years. Appellant took this direct appeal. On May 16, 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 entered its “Order Granting Permission for Court Appointed Counsel to Withdraw,” on June 4, 2013. That Order provided that the District Court’s “Judgment and Sentence” would be affirmed unless appellant filed a brief that persuades this Court that the captioned appeal is not wholly frivolous. In response to that order, Appellant filed his “Pro Se Brief.”

This Court has carefully reviewed Appellant’s Pro Se Brief. This Court finds that Appellant has not provided any precedent or cogent argument to establish that this appeal has merit. It is axiomatic that Appellant’s guilty plea waived non-jurisdictional claims. Kitzke v. State, 2002 WY 147, ¶¶ 8-9, 55 P.3d 696, 699 (Wyo. 2002) (“The only claims not waived by an unconditional guilty plea are those that address the jurisdiction of the court or the voluntariness of the plea….Examples of jurisdictional defects are unconstitutionality of the statute defining the crime, failure of the indictment or information to state an offense, and double jeopardy.”) Appellant does not provide any authority to establish that Wyoming’s incest statute is unconstitutional under these circumstances, and neither appellate counsel nor this Court was able to locate such authority.

Also, even assuming that Appellant’s claim of selective prosecution is jurisdictional, Appellant has not provided adequate grounds to support his claim. Misenheimer v. State, 2001 WY 65, ¶ 17, 27 P.3d 273, 281-82 (Wyo. 2001) (“A selective prosecution exists when it is demonstrated that others similarly situated have not been prosecuted and the prosecution of the defendant is based on an impermissible motive. Crozier v. State, 882 P.2d 1230, 1235 (Wyo. 1994). ‘The impermissible motivation must be demonstrated by showing that the charge was deliberately based on an unjustifiable standard or designed to inhibit the exercise of a constitutional right by the accused.’ Id.”)

Next, with regard to Appellant’s complaints that allegedly inaccurate and improper information was considered at sentencing, he has not established that the district court relied on any of that information in passing sentence. Manes v. State, 2004 WY 70, ¶ 9, 92 P.3d 289, 292 (Wyo. 2004); Sandoval v. State, 2009 WY 121, ¶ 11, 217 P.3d 393, 396 (Wyo. 2009). Finally, the remainder of Appellant’s claims are not support by cogent argument or authority. It is, therefore,

ORDERED that the District Court’s February 6, 2013, “Judgment and Sentence” be, and the same hereby 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 108

Summary of Decision September 18, 2013

ORDER AFFIRMING THE DISTRICT COURT’S “ORDER ON PROBATION REVOCATION AND ORDER OF INCARCERATION”

Case Name: RYAN J. PIAS v. THE STATE OF WYOMING

Docket Number: S-13-0062

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

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. In 2010, Appellant pled guilty to one count of delivery of marijuana. The district court imposed a four to eight year sentence, which was suspended in favor of five years of supervised probation. In February of 2013, the district court revoked Appellant’s probation and imposed the underlying sentence. Appellant filed this appeal to challenge the district court’s “Order on Probation Revocation and Order of Incarceration.” On July 1, 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 appellate counsel, this Court, on July 23, 2013, entered its “Order Granting Permission for Court Appointed Counsel to Withdraw.” That Order notified Appellant that the district court’s “Order on Probation Revocation and Order of Incarceration” would be affirmed unless, on or before September 9, 2013, Appellant filed a brief that persuaded this Court that the captioned appeal is not wholly frivolous. Taking note that Appellant, Ryan J. Pias, has not filed a brief or other pleading within the time allotted, the Court finds that the district court’s “Order on Probation Revocation and Order of Incarceration” should be affirmed. It is, therefore,

ORDERED that the district court’s February 14, 2013, “Order on Probation Revocation and Order of Incarceration” be, and the same hereby 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 107

Summary of Decision September 17, 2013

Justice Davis delivered the opinion for the Court. Reversed and remanded for further proceedings consistent with this opinion.

Case Name: CHRISTOPHER D. BALDERSON v. THE STATE OF WYOMING

Docket Number: S-12-0267

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: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel; Wyoming Public Defender Program

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

Date of Decision: September 17, 2013

Facts: After a day of jury trial, Appellant Christopher D. Balderson pled no contest to one felony count of aggravated assault and battery and one count of misdemeanor battery. Before taking his plea, the district court reminded him of the explanation of his constitutional rights given at arraignment, but failed to advise him of the potential loss of firearm rights, and any impact that loss might have on employment in occupations that require the use of a firearm, as required by Wyoming Statute § 7-11-507. Balderson claims that he should be permitted to withdraw his plea because he was not properly advised. He also contends that several other errors occurred during the change of plea and sentencing hearing.

Issues: Appellant summarizes the issues in this case as follows:Did the trial court commit reversible error by failing to advise Mr. Balderson of his rights as required by W.S. § 7-11-507? Did the trial court err by violating W.R.Cr.P. 11 and W.R.Cr.P. [32] to the extent that Mr. Balderson was denied due process of law? We find the first issue to be dispositive, and therefore decline to address the second.

Holdings: The State urges us to adopt a rule that would not require firearms advisements for defendants with prior convictions which disqualify them from possessing firearms under federal law. However, we cannot read an exception that the legislature has not enacted into the statute, and instead hold that § 7-11-507 applies to all defendants facing a charge which may under federal law result in loss of firearms rights and employment requiring possession of a firearm. The district court’s failure to advise Balderson as required by statute requires us to set aside the judgment of conviction and remand to that court for further proceedings consistent with this opinion. We need not address Balderson’s other claims of error during the change of plea hearing, as we have decided that he may withdraw his no contest plea if he wishes. If he decides to plead guilty or no contest rather than go to trial after remand, a new plea will have to be taken. We presume that the district court will comply with W.R.Cr.P. 11 and 32 and § 7-11-507 if that occurs. The district court failed to advise Balderson of the potential loss of his firearms rights under federal law as required by § 7-11-507, as well as the impact that might have on employment. We therefore reverse his conviction and remand for further proceedings consistent with this opinion.

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

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

Summary 2013 WY 206

Summary of Decision September 13, 2013

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: GEORGE M. SONNETT, JR. and WENDY Z. BURGERS SONNETT, Husband and Wife v. FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation, and FIRST AMERICAN TITLE INSURANCE COMPANY OF SUBLETTE COUNTY, a Wyoming corporation

Docket Number: S-12-0237

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

Appeal from the District Court of Sublette County the Honorable Marvin L. Tyler, Judge

Representing Appellant: George M. Sonnett, Jr. and Wendy Z. Burgers Sonnett of Washington, Virginia, pro se. Argument by Mr. Sonnett and Ms. Burgers Sonnett.

Representing Appellee: Stuart R. Day and Keith J. Dodson of Williams, Porter, Day & Neville, P.C., Casper, Wyoming. Argument by Mr. Day.

Date of Decision: September 13, 2013

Facts: The appellants, George M. Sonnett, Jr. and Wendy Z. Burgers Sonnett, filed a complaint against the appellees, First American Title Insurance Company and First American Title Insurance Company of Sublette County (collectively “First American”). In their complaint, the Sonnetts alleged that First American breached the terms of the title insurance policy, was negligent, and acted in bad faith when it determined that damages the Sonnetts claimed they incurred due to a “Master Plan” associated with their property was not covered under the title insurance policy. After the parties filed competing motions for summary judgment, the district court granted summary judgment in favor of First American and dismissed the Sonnetts’ complaint. The Sonnetts now appeal that decision and other procedural matters.

Issues: 1. Did the district court err when it granted summary judgment in favor of First American regarding the Sonnetts’ breach of contract claim? 2. Did the district court err when it granted summary judgment in favor of First American regarding the Sonnetts’ bad faith denial of coverage claim? 3. Did the district court err when it granted summary judgment in favor of First American regarding the Sonnetts’ claims of negligence? 4. Did the district court abuse its discretion when it considered a decision letter it previously issued in a different civil action involving the Sonnetts and the same property at dispute in the present case? 5. Did the district court abuse its discretion when it struck portions of the Sonnetts’ affidavits that were attached to their motion for summary judgment? 6. Did the district court err when it granted First American’s motion for summary judgment despite the fact that it had already ordered the parties to mediate the case?

Holdings: These “arguments,” as presented by the Sonnetts, are substantively deficient. They lack any cogent argument or citation to relevant authority. Instead, they simply are conclusory allegations. We find that the district court properly granted summary judgment in favor of First American on all claims brought in the Sonnetts’ complaint. The order of the district court 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 105

Summary of Decision September 13, 2013

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: JEFFREY BARNES and SHERRIE BARNES v. MELISSA COONEY, VAL
PENDLETON, and COLDWELL BANKER COUNTRY ESTATES

Docket Number: S-13-0024

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

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

Representing Appellant: William R. Fix, William R. Fix, P.C., Jackson, Wyoming.

Representing Appellee: Matthew E. Turner, Mullikin, Larson & Swift LLC, Jackson, Wyoming.

Date of Decision: September 13, 2013

Facts: The appellants purchased a home in Lincoln County, Wyoming. Dissatisfied with some aspects of the construction and purchase of the home, the appellants sued a development company, the building contractor, the real estate agency involved in the transaction, a real estate agent, and, eventually, the real estate broker. The appellants alleged breach of contract, breach of express warranty, breach of the implied covenant of good faith and fair dealing, promissory estoppel, fraud in the inducement, professional malpractice, breach of fiduciary duty, and negligence. The defendants, some of whom are now the appellees in this appeal, filed a Motion for Summary Judgment, which motion was granted by the district court. This appeal followed.

Holdings: We will summarily affirm the district court’s ruling because the appellant’s brief fails in all respects to meet the requirements of W.R.A.P. 7.01(e)(2) and (f). The brief contains a statement of the standard of review, along with lengthy deposition excerpts. Beyond that, however, it is void of any factual analysis, cogent legal argument, or citation to pertinent authority that might enlighten this Court as to how the appellants were damaged by any conduct of the appellees. In addition to summarily affirming the district court, this Court will also, pursuant to W.R.A.P. 10.05, certify that there exists no discernible cause for this appeal, and will impose costs and attorney’s fees against the appellants, in favor of the appellees consistent with that rule. The appellees shall file an appropriate certificate of costs and attorney’s fees within fifteen days from the publication of this opinion. The resolution of this case in this manner should come as no surprise. This Court has a long history of rejecting deficient briefs and imposing sanctions where appropriate. 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 104

Summary of Decision September 4, 2013

Justice Hill delivered the opinion for the Court. Reversed.

Case Name: IN THE INTEREST OF: MF v. THE STATE OF WYOMING

Docket Number: S-13-0074

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: Timothy C. Cotton of Timothy C. Cotton, P.C., Casper, WY.

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

Date of Decision: September 4, 2013

Facts: Shortly before his sixteenth birthday, MF was adjudicated a “child in need of supervision,” pursuant to the Wyoming Child in Need of Supervision Act (CHINS Act). After two probation violations, and four months before MF’s seventeenth birthday, the juvenile court issued an order requiring that MF remain in the custody of the Department of Family Services (DFS) and on probation until his eighteenth birthday. MF appeals the juvenile court order, contending that any CHINS order must terminate when the child turns seventeen.

Issues: MF states the issue as follows: Whether the Trial Court exceeded its authority when it ordered jurisdiction, without consent of the minor child, in a Child In Need Of Supervision proceeding until his eighteenth birthday.

Holdings: The plain language of § 14-6-431(b) requires that all CHINS orders terminate when an adjudicated child reaches the age of seventeen, and the juvenile court therefore did not have the authority to issue a CHINS order that imposed conditions beyond MF’s seventeenth birthday. We reverse and vacate the court’s order to the extent the order purports to have effect beyond MF’s seventeenth birthday.

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]