Summary 2010 WY 60

Summary of Decision issued May 14, 2010

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

Case Name: DeLoge v. State

Citation: 2010 WY 60

Docket Number: S-09-0117

Appeal from the District Court of Laramie County, the Honorable Edward L. Grant, Judge.

Representing DeLoge: Pro se.

Representing State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.

Facts/Discussion: DeLoge appealed from the district court’s order dismissing his motion for return of property. The court ruled that since DeLoge’s property was in the possession of officials in another state, it did not have the authority to order its return to him. It also denied his request for damages to compensate him for the loss.

W.R.Cr.P. 41(e): As a general rule, a court does not have jurisdiction to grant a Rule 41 motion for return of property when the evidence establishes that the governmental defendant no longer has possession of the property. Applying the rationale from Stevens and Wetherbee to the circumstances presented, the Court concluded that the district court properly denied DeLoge’s motion. The undisputed evidence established that DeLoge filed his motion or return of property after the State had already transferred the property to the State of Mississippi and the property was still in possession of those authorities.
DeLoge then asked for compensation for the loss of his property. The facts showed that the property was transferred from the Cheyenne Police Department to an FBI agent who then transferred it to Mississippi authorities. The State contacted Mississippi to request an itemized list of all property in their possession. The Mississippi authorities did not cooperate and the State filed its motion to close the case. There was no indication that the State acted to dispose of DeLoge’s property after he filed his motion for return of the property. The Court agreed with the Tenth Circuit’s decision in Clymore and concluded that the concept of sovereign immunity applied to the request for an award of damages.
Exculpatory evidence: The Supreme Court stated in Osborne that states have flexibility to determine what procedures are needed in the context of post-conviction relief. The provision to preserve biological evidence was not in existence when the evidence was seized and DeLoge was convicted of his crime. In fact, it was not passed until about four years after he filed his motion for return of property. Thus he cannot claim that the State violated a statute that did not exist at the time the property was transferred.
Filing fees/ in forma pauperis status: The Court declined to consider the merits of the issue because DeLoge did not file a formal motion with the Court seeking the right to file without payment of the docket fee.

Conclusion: The evidence established that the property was no longer in possession of Wyoming so the district court no longer had jurisdiction. The provision to preserve biological evidence was not in place when the evidence in the instant case was seized and DeLoge was convicted of his crime. The Court did not consider the request for in forma pauperis status because DeLoge did not file a formal motion with the Court.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/282sv72 .

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2007 WY 119

Summary of Decision issued July 31, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Doles v. State

Citation: 2007 WY 119

Docket Number: S-07-0002

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

Representing Appellant (Defendant): Nicholas H. Carter of Carter Law Office, PC, Gillette, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; and David L. Delicath, Senior Assistant Attorney General.

Issue: Whether the Appellant’s acquittal on related criminal charges acts collaterally to estop the State from pursuing forfeiture.

Facts/Discussion: This is an appeal from a district court’s order of forfeiture in which order the district court found certain items to be “drug paraphernalia” as defined by statute and ordered their forfeiture to the State of Wyoming.
The Court reviews de novo a district court’s application of or refusal to apply the doctrine of collateral estoppel because it is a question of law. All three criminal charges against Appellant were based on Wyo. Stat. Ann. § 35-7-1056. Coffey v. United States is the seminal case in this area of law. While not relying directly upon the equitable doctrine of collateral estoppel, the United States Supreme Court declared that the acquittals in the criminal case barred the government from pursuing civil forfeiture. Appellant contended that the holding of Coffey endured citing the following cases: Lowther v. United States, United States v. One 1956 Ford Fairlane Tudor Sedan; Bramble v. Kleindienst; United States v. 86.9 Cases; and United States v. One De Soto Sedan. The Wyoming case in which collateral estoppel was applied to forfeiture proceedings after a criminal action is State v. Eleven Thousand Three Hundred Forty-Six Dollars & No Cents in United States Currency. The Court carefully limited its opinion as to the extent of the effect of collateral estoppel. The Court held the State was barred from relitigating the issue of whether the law enforcement officers had probable cause at the time of the seizure and arrest but that the State was not barred from attempting to prove, under another subsection of the forfeiture statute that the State Board of Pharmacy or the Attorney General otherwise had probable cause to believe that the money was traceable to violations of the controlled substances act. Thus the case did not involve the direct issue of the effect of an acquittal upon a forfeiture action.
Coffey has been overruled. The Supreme Court determined that Coffey did not apply to estop the government from pursuing a tax deficiency after an acquittal on related criminal charges because the recovery action required a different burden of proof. The Court stated they accepted and adopted the reasoning of 89 Firearms, One Lot Emerald and Helvering where a general verdict of not guilty in a criminal case does not answer the same question asked in a civil forfeiture action under Wyo. Stat. Ann. § 35-7-1049. Because the jury returned a general verdict of not guilty on the three charges in the instant case, the Court does not know what element of the crimes it found unproven beyond a reasonable doubt and therefore, they do not know whether the jury determined that the seized items were not drug paraphernalia.

Holding: The district court correctly determined that the acquittal of the Appellant in the criminal case that preceded the forfeiture proceeding did not collaterally estop the State from pursuing forfeiture.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/2tgxz5 .

Summary 2007 WY 71

Summary of Decision issued April 27, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note 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.]

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

Case Name: DeLoge v. State

Citation: 2007 WY 71

Docket Number: 06-189

Appeal from the District Court of Laramie County, the Honorable Edward L. Grant, Judge

Representing Appellant (Defendant): Steven A. DeLoge, Pro se..

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda Pojman, Assistant Attorney General.


Issues: Whether the district court abused its discretion when it denied DeLoge’s Motion to Disqualify District Court Judge for cause. Whether the district court erred by denying DeLoge’s Motion for Appointment of Counsel. Whether the district court abused its discretion when it denied DeLoge’s Motion for Preservation and Return of Seized Property.

Facts/Discussion: DeLoge appealed from an order denying his post-conviction motion for return of seized property. He claimed he was entitled to immediate return of the property. He also challenged the denial of his motion to disqualify the district court judge and the denial of his motion for appointment of counsel. He claimed his trial and appellate counsel were ineffective.
Motion to Disqualify: The denial of a motion for disqualification of a judge for cause is reviewed under the abuse of discretion standard. To demonstrate judicial bias or prejudice, an appellant must show more than the fact that the trial court ruled against him correctly or incorrectly, on a particular matter. The district court properly referred the disqualification motion to another judge for resolution on the merits. That judge held a hearing, reviewed the file and ultimately found that DeLoge failed to establish judicial bias or prejudice mandating removal for cause. The Court found no error.
Assistance of Counsel: DeLoge has exhausted all of his state remedies with the exception of his motion for the return of his property. The Court addressed the claims which arose subsequent to the remand. DeLoge filed a motion for the appointment of counsel contending that his motion for the return of seized property was a critical stage in the proceedings and therefore he had a right to the effective assistance of court-appointed counsel. The Court disagreed stating that the motion was filed after the judgment and sentence was entered. Post-conviction motions for the return of seized property are considered civil proceedings. Therefore there is no constitutional right to effective assistance of counsel.
Motion for Preservation and Return of Seized Property: The general rule requires the return of seized property other than contraband to the rightful owner after the termination of criminal proceedings unless the government has a continuing interest in the property. The denial of a motion for the return of seized property is reviewed for an abuse of discretion. The Court found the district court erred by denying DeLoge’s motion without requiring the State to submit evidence regarding the government’s continuing interest in the retention of the property. As a result of this decision, the Court found it was premature to address DeLoge’s contention that his due process right to access exculpatory evidence was violated.

Holding: The Court affirmed the order denying the disqualification of the district court judge. They also affirmed the order denying DeLoge’s motion for the appointment of counsel. The Court reversed the district court’s Order Directing Final Disposition of Property Seized by Law Enforcement and remanded the case to the district court.

Affirmed in part and reversed in part.

J. Burke delivered the decision.

Link: http://tinyurl.com/2vzpck .