Friday, October 04, 2013

Summary 2013 WY 117

Summary of Decision September 30, 2013

Justice Burke delivered the opinion for the Court. Affirmed.


Docket Number: S-12-0278


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

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

Representing Appellee: Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney
General; Jeffrey S. Pope, Assistant Attorney General; Jennifer E. Zissou, Assistant Attorney General. Argument by Ms. Zissou.

Date of Decision: September 30, 2013

Facts: In 2005, Appellant was convicted of eleven counts of burglary relating to breakins at various businesses in Cheyenne. At his initial arraignment, Appellant peremptorily disqualified District Judge Nicholas G. Kalokathis under W.R.Cr.P. 21.1(a), and the case was assigned to District Judge Peter G. Arnold. After presiding over the trial, Judge Arnold recused himself from the sentencing proceedings in order to avoid the potential perception of bias resulting from his former attorney-client relationship with several of the victims. Judge Arnold assigned the case to Judge Kalokathis for sentencing. Judge Kalokathis proceeded to sentence Appellant to consecutive terms of 4 to 8 years for each of the convictions, for a total of 44 to 88 years. Perhaps as a result of the fact that the earlier motion to disqualify Judge Kalokathis was not reduced to writing, neither party realized, at the time, that the assignment to Judge Kalokathis was prohibited by the peremptory disqualification.

Appellant, Joel Randy Ferguson, challenges the district court’s order granting, in
part, and denying, in part, his motion to correct an illegal sentence. We conclude that
Appellant’s claims are barred by the doctrine of res judicata.

Issues: Appellant presents the following issues: 1. Whether the district court imposed an illegal sentence in violation of Mr. Ferguson’s rights to due process of law. 2. Whether the district court imposed an illegal sentence in violation of Mr. Ferguson’s rights to be protected from double jeopardy.

The State raises an additional issue: Does res judicata bar Mr. Ferguson’s current appeal of the
legality of his sentence?

Holdings: Appellant’s ad hoc assertion of ineffective assistance of counsel, raised in his reply brief, does not constitute good cause for failing to raise his present claims in the direct appeal from his convictions. Accordingly, we conclude that those claims are appropriately barred by the doctrine of res judicata. Notwithstanding our reliance on the principles of res judicata, however, we also find no merit in Appellant’s claim that his sentence violated due process or double jeopardy protections. The district court’s order granting, in part, and denying, in part, Appellant’s Motion to Correct Illegal Sentence is affirmed.

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

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