Summary 2012 WY 102

Summary of Decision July 30, 2012


Justice Voigt delivered the opinion for the Court. Reversed and Remanded.

Case Name: JERELE CRAIG COTHREN, JR., v. THE STATE OF WYOMING

Docket Number: S-11-0240

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

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

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

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Susan G. O’Brien, Senior Assistant Attorney General.

Date of Decision: July 30, 2012

Facts: The appellant, Jerele Craig Cothren, Jr., currently faces four separate sentences from three courts for unrelated crimes. The most recent sentence, and the one upon which the appellant’s appeal is based, required that the appellant serve his term of incarceration concurrent with a sentence for which the appellant is presently incarcerated, as well as consecutive to a probationary period that has yet to begin. Because it was impossible to meet both these requirements, and because the sentence as pronounced would require the period of incarceration to be interrupted by a period of probation, the sentence is illegal. The Court remanded to the district court for resentencing.

Issues: Is the sentence at issue an illegal sentence?

Holdings: The sentence under appeal was illegal because it was impossible to fulfill, and because it resulted in a period of incarceration interrupted by a period of probation. The Court reversed and remanded to the district court for imposition of a legal 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 2011 WY 152

Summary of Decision November 8, 2011


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is 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]

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

Case Name: Eckdahl v. State

Citation: 2011 WY 152

Docket Number: S-11-0042

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464771

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

Representing Appellant (Defendant): John Kevin Eckdahl, pro se.

Representing Appellee (Plaintiff): Gregory A. Phillips, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General.

Date of Decision: November 8, 2011

Facts: Appellant was sentenced of two (2) to four (4) years following his conviction for possession of a controlled substance with intent to deliver. As part of the plea agreement, the State agreed that the sentence should not exceed the sentence he received in a contemporaneous federal case and that should the Appellant become eligible for a sentence reduction in the federal case, the State would not object to Appellant bringing a motion for sentence reduction in this case to reduce the sentence such that Appellant would again serve concurrent time in the federal case. Appellant’s federal sentence was reduced from seventy (70) to sixty (60) months. He filed a motion to modify his sentence. The district court denied the motion as untimely pursuant to W.R.Cr.P. 35(b), which allows a motion for sentence modification “within one year after the sentence is imposed.” Appellant did not appeal the district court’s denial of his motion, but instead filed a petition for reconsideration, followed by another motion to reduce his sentence. The district court entered an order denying both the petition for reconsideration and the pending motion for sentence reduction. Appellant, appearing pro se, challenges the district court’s order.

Issues: Whether the State breached the plea agreement with Appellant, entitling him to withdraw his guilty plea. Whether defense counsel breached his obligations to Appellant. Whether Appellant’s due process rights violated. Whether a failure to appoint appeal counsel for Appellant denied him meaningful access to the law and to the courts.

Holdings: Appellant’s federal sentence was reduced from seventy months to sixty months. It was never reduced below the two to four year state sentence. Thus, under the terms of his plea agreement and sentence, Appellant was not entitled to seek a reduction of his state sentence. The State did not breach the plea agreement by opposing the motion for sentence reduction. Further, because he was not entitled to seek a sentence reduction, there is no merit to Appellant’s complaints against his defense counsel, or to his claim of due process violations.

As his final issue, Appellant argues that he was denied meaningful access to the law and to the courts by this Court’s denial of his motion for appointment of appellate counsel. There is, however, no requirement that a defendant be appointed counsel for motions seeking post-conviction relief. The Sixth Amendment right to counsel accrues at the time adversary judicial proceedings are initiated against the defendant. Counsel is required not just at trial, but at ‘critical stages’ both before and after trial in which the substantial rights of the accused may be affected. Additionally, under Wyo. Stat. 7-6-104(c)(vi) (2003), a needy person who is entitled to be represented is to be represented by counsel at every stage of the proceedings, from the time of the initial appointment by the court until the entry of final judgment, at which time the representation shall end, unless the court appoints counsel for purposes of appeal, correction or modification of sentence. As can be seen by § 7-6-104, there is no statutory requirement for appointment of counsel at every post-trial motion. Likewise, the United States Constitution does not require counsel for indigent defendants seeking post-conviction relief.

Appellant’s motions for sentence reduction were untimely. On that basis, the district court correctly ruled that it lacked subject matter jurisdiction to consider the motions. Further, the district court correctly ruled that petitions for reconsideration are not authorized under Wyoming law, so that it also lacked subject matter jurisdiction to consider Appellant’s petition for reconsideration. Because the district court had no jurisdiction, this court is without jurisdiction to consider the appeal. Appellant’s appeal is therefore dismissed.

J. Burke delivered the opinion for the court.

Summary 2011 WY 139

Summary of Decision October 4, 2011


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is 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]

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

Case Name: Hultgren v. State

Citation: 2011 WY 139

Docket Number: S-11-0023

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464528

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

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; and Kirk A. Morgan, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Prosecution Assistance Program; and Joshua Beau Taylor, Student Director.

Date of Decision: October 4, 2011

Facts: After a bench trial, the district court held Appellant in criminal contempt, due to his failure to comply with the terms of a dispositional order entered in a juvenile case. Despite the fact that the charge had been amended to allege only three violations, the district court’s Judgment and Sentence Order indicates that it held Appellant in contempt on six grounds for failing to (1) report change of address; (2) fully cooperate with DFS, the GAL, and CASA; (3) submit to extractions of bodily substances for testing; (4) comply with treatment recommendations from his substance abuse evaluation; (5) not use alcoholic beverages; and (6) not be in the presence of alcohol. Appellant filed a timely notice of appeal to challenge that order. After the parties filed their briefs in this appeal, the State of Wyoming filed a “Notice” informing this Court that in July of 2011 the district court entered a “Judgment and Sentence (Criminal Contempt of Court) Nunc Pro Tunc.” That order is included in the appellate record. In the nunc pro tunc order, the district court amended its earlier order to reflect that it found that Appellant violated the juvenile court order in three ways (not six): (1) He failed to comply with DFS requests that he submit, every weekend, to extractions of bodily substances for testing; (2) he consumed alcohol; and (3) he was in the presence of alcohol.

Issues: Whether Appellant was denied his right to a fair sentencing when the district court considered him in contempt of court for violating six provisions of its previous order, instead of just the three he was arraigned on, when proclaiming the sentence.

Holdings: Given the entry of the nunc pro tunc order, the basis for Appellant’s issue on appeal has disappeared. In the nunc pro tunc order, the district court clarified that it held Appellant in contempt based upon the three violations contained in the amended contempt charge. Thus, Appellant can no longer complain that the district court relied upon six violations when it imposed sentence. In sum, given the entry of the nunc pro tunc order, Appellant can no longer maintain his appellate issue. In addition, because Appellant does not take any other issue with the “Judgment and Sentence (Criminal Contempt of Court),” said order should be affirmed.

J. Hill delivered the opinion for the court.

Summary 2011 WY 116

Summary of Decision August 8, 2011


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is 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]

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

Case Name: Rathbun v. State

Citation: 2011 WY 116

Docket Number: S-10-0245

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464133

Appeal from the District Court of Laramie County, Honorable Michael K. Davis, Judge

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel.

Representing Appellee (Plaintiff): Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Justin A. Daraie, Assistant Attorney General.

Date of Decision: August 8, 2011

Facts: The appellant was convicted of attempted kidnapping and sentenced to life in prison. He appeals the denial of two pre-trial motions to dismiss, and raises two issues concerning sentencing.

Issues: Whether the appellant’s prosecution for attempted kidnapping was barred by the doctrine of double jeopardy due to his earlier guilty plea to battery. Whether the State was barred by the doctrine of res judicata from refiling the attempted kidnapping charge and seeking a second preliminary hearing after that charge was dismissed following a preliminary hearing where the circuit court judge found a lack of probable cause. Whether the district court applied the proper penalty range in imposing sentence. Whether the district court’s determination of the penalty range in imposing sentence violated the appellant’s right to trial by jury.

Holdings: No person may be placed in jeopardy more than once for the same criminal offense. Where the two offenses for which the defendant is punished or tried cannot survive the ‘same-elements’ test, the double jeopardy bar applies. The inquiry under the same-elements test is “whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars additional punishment and successive prosecution. The two offenses at issue in the present case are misdemeanor battery, in violation of Wyo. Stat. 6-2-501(b) and attempted kidnapping, a felony, in violation of Wyo. Stat. 6-1-301(a) and 6-2-201(a)(iii) and (d). Each of these statutes contains an element not contained in the other. Battery requires both the use of physical force and resultant bodily injury, neither of which element is contained in the crime of attempted kidnapping. Attempted kidnapping requires the intent to commit the crime of kidnapping, and a substantial step toward commission of that crime—which substantial step logically may or may not involve physical force or bodily injury—neither of which element is contained in the crime of battery. In cases such as this, where two crimes each contain elements not contained in the other, there is no preclusive effect, and the subsequent prosecution does not violate double jeopardy.

The doctrine of res judicata neither bars the refiling of charges nor a subsequent preliminary hearing on those charges, where there has been a dismissal of those charges based upon a failure of proof of probable cause at a preliminary hearing. Further, Wyoming law does not require the production of new or different evidence at the subsequent hearing, or that the subsequent hearing take place before the same circuit court judge or magistrate.

Kidnapping is a single crime described in Wyo. Stat. 6-2-201(a) and (b), and that subsection (c), rather than defining a lesser-included offense, describes mitigating conduct subsequent to the kidnapping that may allow for a reduced sentence. The appellant bears the burden of proving such mitigating conduct and, if competent evidence of such is produced, the question must be presented to the jury. It logically follows that, where there has not been a completed kidnapping, but instead an attempted kidnapping, the mitigating circumstances described in subsection (c) cannot occur. The potential “anomaly” in the statute that a person who completes a kidnapping but releases the victim unharmed could be subject to a lesser penalty than a person who merely attempts a kidnapping is recognized, but anomalies created by statute are not to be corrected by the court. The legislature has exclusive authority over criminal punishment and sentencing and because it would violate the constitutional principle of separation of powers, to supply what would appear to be omissions in a statute, or to correct what to be defects in a statute. The district court correctly applied the sentencing provisions of Wyo. Stat. Ann. § 6-2-201(d) after the appellant was convicted of attempted kidnapping.

A sentencing judge may not find facts that take a sentence beyond the sentencing range supported by the jury’s verdict alone. While facts in aggravation of sentence must be found by a jury, facts in mitigation of sentence may be found by the judge. If a required finding of fact exposes the defendant to a greater penalty than that authorized by the jury’s guilty verdict, that finding must be made by the jury. In the present action, there is one crime—kidnapping—for which the maximum sentence is as stated in Subsection (d). Where there has been a completed kidnapping, the defendant is at liberty to produce evidence to prove, in mitigation of sentence, that he or she voluntarily released the victim substantially unharmed. If that is not accomplished, the sentencing range remains as it is stated in Subsection (d). Of even more significance to the instant case is the inescapable conclusion, from the clear language of the statute, that any evidence in mitigation can only be evidence of post-kidnapping conduct, meaning that Subsection (c) does not apply to attempted kidnapping. Thus, there was no constitutional violation in the procedure by which the appellant was sentenced.

The appellant’s prosecution for attempted kidnapping was not barred by the doctrine of double jeopardy because battery is not a lesser-included offense to attempted kidnapping under the same-elements test. Neither the doctrine of res judicata nor the doctrine of collateral estoppel bars the refiling of a criminal charge and a subsequent preliminary hearing after a charge has been dismissed following a preliminary hearing where a lack of probable cause was found. The district court applied the proper punishment range in sentencing the appellant, and the district court’s determination of the appropriate punishment range did not violate the appellant’s right to trial by jury.

Affirmed.

J. Voigt delivered the opinion for the court.

Summary 2011 WY 108

Summary of Decision July 12, 2011


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is 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]

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

Case Name: K.C. v. State

Citation: 2011 WY 108

Docket Number: S-10-0247

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=463978

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

Representing Appellant (Respondent): Diane Lozano, State Public Defender; Tina N. Olson, Appellant Counsel; David E. Westling, Senior Assistant Appellate Counsel

Representing Appellee (Petitioner): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Jessica Y. Frint, Student Director, and Kevin Walton, Student Intern, of the Prosecution Assistance Program.

Date of Decision: July 12, 2011

Facts: Appellant, a juvenile, was adjudged delinquent. As part of her disposition, she was allowed to remain in a home environment and placed on supervised probation for three to six months. Appellant violated various terms of her probation. In response, her probation was revoked and her disposition changed to placement at the Wyoming Girls’ School for an indefinite period. Appellant appeals from the disposition.

Issues: Whether the trial court abused its discretion by acting in an arbitrary and capricious manner when it ignored Wyoming Statutes and case law concerning juvenile placements. Whether the trial court’s conduct of the probation revocation hearing denied Appellant due process of law.

Holdings: A juvenile court enjoys broad discretion in formulating a disposition for a juvenile adjudged delinquent, but that discretion is not unbounded. A juvenile court cannot enter a disposition that runs counter to law. Wyoming’s Juvenile Justice Act, Wyo. Stat. 14-6-201 to -252 (2011), delineates certain sanctions that may be imposed on a juvenile adjudged delinquent. The sanctions are divided into sanctions recommended for certain levels of delinquent behavior and a catch-all provision providing certain sanctions that are available for all sanction levels. The sanctions delineated are merely guidelines and a juvenile court is free to impose any sanction it deems appropriate to meet the specific needs of the juvenile before the court. The only qualification is that if a juvenile court deviates from statutorily delineated sanctions it must provide a written explanation on the record for the deviation. Section 14-6-247(a)(viii) provides that a juvenile court may order a juvenile to attend school as necessary for treatment. The Wyoming Girls’ School is a residential program offering rehabilitation treatment as well as education. Placement at the Wyoming Girls’ School falls within the statutorily allowable sanctions applicable to Appellant. The juvenile court, thus, was not required to provide a written justification for the placement.

Appellant argues the juvenile court violated her right against self-incrimination as found in the Fifth Amendment to the United States Constitution. She refers specifically to her statement at the immediately preceding a multi-disciplinary team meeting (MDT) that she would not follow the rules of the a local residential treatment home. She argues there is no evidence she was informed of her right against self-incrimination before she made that statement in the MDT meeting and thus the juvenile court should not be allowed to use the statement in determining the appropriate disposition for her. The fallacy in Appellant’s argument is that the right against self-incrimination does not apply at the dispositional phase of delinquency proceedings. The privilege unquestionably applies to the adjudicatory phase of a delinquency proceeding. The dispositional phase occurs after an adjudication of delinquency. The sole issue before the juvenile court during the dispositional phase is the proper corrective action to be imposed. Any statement considered in the dispositional phase serves to assist the juvenile court in formulating the most appropriate individualized disposition. In other words, any statement considered is not used to incriminate a juvenile but rather to help the juvenile receive the most appropriate, individualized disposition.

Appellant next argues the juvenile court violated her due process rights by not properly advising her of the maximum penalty she might face if she admitted violating the terms of her probation. She cites to W.R.Cr.P. 11(b)(1) for the proposition that the juvenile court should have advised her she might face placement at the Wyoming Girls’ School if she admitted to getting bad grades and having unexcused absences from school. The Wyoming Rules of Criminal Procedure do apply to delinquency proceedings unless inconsistent with the Juvenile Justice Act. W.R.Cr.P. 1(a). The plain language of W.R.Cr.P. 11 reveals the rule does fall within the exception. Rule 11 is inconsistent with the Juvenile Justice Act in several ways. Most importantly, one of the purposes of a delinquency proceeding is “[t]o remove, where appropriate, the taint of criminality from children committing certain unlawful acts.” Wyo. Stat. 14-6-201(c)(ii)(B) (2011). The question for adjudication is whether the allegations contained in the petition alleging delinquency are true. A finding that the allegations are true “is not deemed a conviction of guilt, but is a determination that judicial intervention is necessary for the best interest and welfare of the child and the public.” Wyo. Stat. 14-6-225(b) (2011). Thus, a rule relating to criminal guilty or nolo contendere pleas is inapplicable in the juvenile delinquency setting.

It also is unworkable in a juvenile delinquency proceeding to comply with the advisement requirements of Rule 11, specifically as to minimum or maximum sentences. A juvenile delinquency proceeding entails no set minimum or maximum penalties. Rather, a juvenile delinquency proceeding envisions an individualized disposition taking into account the therapeutic needs of the juvenile based on the juvenile’s circumstances. A juvenile court faces minimal restrictions in formulating an individualized disposition. With the wide range of options available to the juvenile court in making a disposition, no advisement as contemplated by Rule 11 is practical. Consequently, the advisement provisions of Rule 11 are inconsistent with, and therefore inapplicable to, juvenile delinquency proceedings.

The district court’s placement of Appellant at the Wyoming Girls’ School is affirmed.

J. Golden delivered the opinion for the court.

Summary 2011 WY 56

Summary of Decision March 30, 2011

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is 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]

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

Case Name: Scott v. State

Citation: 2011 WY 56

Docket Number: S-10-0139

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461897

Appeal from the District Court of Campbell County, Honorable John C. Brooke, Judge

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Paul S. Rehurek, Senior Assistant Attorney General.

Date of Decision: March 30, 2011

Facts: The appellant was convicted of multiple counts of sexual assault, attempted sexual assault, and sexual abuse of a minor. The appellant asserts that the district court abused its discretion in failing to strike certain portions of the presentence investigation (PSI) report prior to sentencing.

Issues: Whether the district court abused its discretion when it denied the appellant’s motion to strike from the PSI report the sentencing recommendations of the probation and parole agent.

Holdings: Trial courts have broad discretion when imposing sentence to consider a wide range of factors about the defendant and the crime. They are free, in the exercise of their sentencing discretion, to consider victim impact statements, PSIs and other factors relating to the defendant and his crimes in imposing an appropriate sentence within the statutory range.

The preparer of a presentence report is to be a neutral and independent participant in the sentencing process. It necessarily follows that a parole or probation officer acts on behalf of an independent judiciary, not as an agent of the state, in preparing a presentence report. Like the sentencing court, the preparer of a presentence report is neither a party to nor bound by a plea agreement between the defendant and the state and, therefore, cannot breach the terms of that agreement in preparing the report. In the present action, the Appellant argues that the PSI writer did not make a neutral, rational recommendation and was “solely a victim advocate, and not a neutral factfinder for the trial court. However, it is common and appropriate for a PSI writer to make a sentencing recommendation. A sentencing recommendation contained in a PSI is one of the factors that a court may properly consider in determining the appropriate sentence to impose. A PSI writer’s recommendation that the sentencing deviate from the terms of the plea agreement is not inconsistent with the recognized role of a probation and parole officer compiling a PSI report. However, the recommendation may not be erroneous, extreme, inflammatory, or argumentative, and should not contain indications of personal animosity toward the appellant or undue sympathy for the victims. The recommendations made by the PSI author in the present action, when read and considered in their entirety, simply do not lead to the conclusion that they were inappropriate and should have been stricken. Although the PSI author urges the district court to make certain sentencing decisions, those recommendations do not possess the traits that have been condemned in the past. Therefore, it cannot be said that the district court abused its discretion when it denied the appellant’s motion to strike from the PSI report the sentencing recommendations of the probation and parole agent.

Affirmed.

J. Voigt delivered the opinion for the court.

2011 WY 53

Summary of Decision March 24, 2011

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is 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]

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

Case Name: Baker v. State

Citation: 2011 WY 53

Docket Number: S-10-0265

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461860

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

Representing Appellant (Defendant): Matthew Wayne Baker, pro se.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Justin A. Daraie, Assistant Attorney General.

Date of Decision: March 24, 2011

Facts: Appellant challenges an order from the district court denying him credit against a prison sentence for time spent in a community corrections facility as a condition of probation. Appellant also contends he is due credit for time spent in jail after violating the terms of his probation, in addition to the credit the district court granted for this time.

Issues: Whether the district court properly credited Appellant’s prison sentence with time served prior to imposition of the sentence when the court (1) granted credit for time spent in jail subsequent to Appellant’s probation violations and (2) denied credit for time spent at a community corrections facility as a condition of probation.


Holdings: It is well-established that a person residing in a community correctional program is in official detention, and that time spent in a community corrections facility must be counted against a sentence that is imposed upon violation of the terms of probation. Further, because absenting oneself from a community corrections facility may lead to an escape charge, time spent as a resident in such a facility must be counted against a sentence that is later imposed upon violation of probation. Additionally, a defendant is entitled to credit for time spent in pre-sentence confinement against both the minimum and maximum sentence if he was unable to post bond for the offense of which he was convicted as well as time spent in custody awaiting disposition of probation revocation proceedings must be credited against the probationer’s underlying sentence if the incarceration is directly attributable to the underlying criminal conviction.

The district court in this action properly granted Appellant credit for the time served subsequent to his probation violations, but erred in failing to award credit to him for the 207 days spent in a community corrections facility. Accordingly, the action is affirmed in part and reversed in part, and remanded to the district court for entry of an order consistent with this opinion.

J. Burke delivered the opinion for the court.

Summary 2011 WY 15

Summary of Order February 3, 2011

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is 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]

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

Case Name: Saccatto v State

Citation: 2011 WY 15

Docket Number: S-10-0198

Appellant pled guilty to one count of aggravated vehicular homicide and guilty to three counts of aggravated assault and battery. The district court imposed sentences of 18 to 20, 8 to 10, and 8 to 10 years. Consecutive to those sentences, the district court also imposed a sentence of 8 to 10 years, which was suspended in favor of 10 years of supervised probation. Appellant took this appeal. On November 17, 2010, appellant's court-appointed appellate counsel filed a “Motion to Withdraw as Counsel,” pursuant to Anders v. California, 386 U.S. 738 (1967). Following a careful review of the record and the “Anders brief” submitted by counsel, the Court entered an “Order Granting Permission for Court Appointed Counsel to Withdraw,” on December 7, 2010. That Order provided that the District Court’s July 26, 2010, “Judgment, Sentence and Order of Incarceration” would be affirmed unless, on or before January 21, 2011, the appellant filed a brief that persuaded the Court that the appeal was not wholly frivolous. In response to the Court’s order, Appellant did file a “Brief of Appellant in Opposition to Anders v. California, 386 U.S. 738 (1967).”

The Court carefully reviewed Appellant’s brief. In reviewing appointed counsel’s Anders brief, the Court carefully considered the prosecutor’s statements about good time credit. The Court could not locate anything in the record to indicate that the district court relied on the prosecutor’s statements in imposing sentence. The Court also considered the sentencing proportionality claim. The concluded that it did not need to engage in a proportionality analysis because the length of Appellant’s sentence is not extreme or unusual when compared to the gravity of the offense. The Court then analyzed the sentences under its standard rubric for assessing the reasonableness of the sentence, which gives consideration to the crime, its circumstances, and the character of the defendant. In doing so, it concluded that there was nothing in the record to support a claim that the district court abused its discretion in imposing sentence. Overall, the Court concluded that Appellant’s brief did not provide any reason to conclude that his appeal has merit. It, therefore, ordered that the District Court’s “Judgment, Sentence and Order of Incarceration” be affirmed.

Summary 2011 WY 4

Summary of Decision January 19, 2011

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is 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]

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

Case Name: Robison v. State

Docket Number: S-10-0050

URL: http://tinyurl.com/4a3k9ku

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

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Paul S. Rehurek, Senior Assistant Attorney General.

Date of Decision: January 19, 2011

Facts: Appellant’s arrest was facilitated by a Report Every Drunk Driver Immediately (REDDI) alert that was called into the police department by an employee of the a café and lounge. The report was to the effect that a very drunk patron had left that establishment after he was refused service. Police were provided a description of the vehicle Appellant was driving. That report was forwarded via dispatch to an officer who was near the lounge and arrived on the scene as Appellant was driving away in the vehicle described in the REDDI report. The officer stopped Appellant. He ascertained that Appellant did not have a driver’s license (it was suspended). He also ascertained that Appellant was intoxicated and he was placed under arrest for that reason. The officer did not observe Appellant driving in a manner that would have suggested he was an impaired driver. The stop and subsequent arrest was based solely on the REDDI report.

Appellant was found guilty, after a jury trial, of driving while under the influence of alcohol in violation of Wyo. Stat. 31-5-233(b)(ii)(A) (2007). He appeared before the district court on November 9, 2009, for a Sentencing Enhancement Hearing pursuant to Wyo. Stat. 31-5-233(e) (fourth or subsequent offense. He contends that the district court imposed an illegal sentence by considering a prior conviction that occurred outside the five-year time limit set by the governing statute. He also contends that trial counsel’s failure to file a motion to suppress evidence obtained in connection with an illegal traffic stop constituted ineffective assistance of counsel and denied him due process of law.

Issues: Whether the failure of Appellant’s trial counsel to file a motion to suppress evidence based upon an illegal traffic stop constituted ineffective assistance of counsel which denied him due process of law. Whether the trial court imposed an illegal sentence by considering a conviction outside of the five-year time limit delineated by Wyo. Stat. 31-5-233(e) as a fourth or subsequent conviction so as to sentence Appellant to a felony.

Holdings: Although an anonymous REDDI report requires independent police corroboration (see McChesney v. State, 988 P.2d 1071 (Wyo. 1999)), the tip in the present action was not anonymous. The police department received detailed information from a lounge employee, who was identified as such to dispatch. Moreover, the vehicle described in that report was observed within minutes, if not seconds, driving away from the lounge. The limitations on stops such as those described in McChesney are not at issue here. When reviewing a claim of ineffective assistance of counsel, the paramount determination is whether, in light of all the circumstances, trial counsel's acts or omissions were outside the wide range of professionally competent assistance. To warrant reversal on a claim of ineffective assistance of counsel, an appellant must demonstrate that his counsel failed to render such assistance as would have been offered by a reasonably competent attorney and that counsel's deficiency prejudiced the defense of the case. Defense counsel’s failure to file a motion to suppress, given the facts and circumstances detailed above, does not suggest that counsel was unaware of a potential defense for his client. Rather, it suggests counsel was aware of REDDI report jurisprudence and recognized that his client did not have such a potential defense. Appellant’s defense attorney was thus not ineffective.

It can be distilled from Wyo. Stat. 31-7-102(a)(xi) (2007) that the actual date of the unlawful conduct to be punished, where multiple offenses are being considered, may have nothing to do with determining the five-year period that applies. Appellant in the present action was arrested for driving under the influence, in the state of Missouri, on June 16, 2002. A waiver, plea and judgment were entered on May 22, 2003, but sentence was deferred until December 15, 2004, when Appellant’s probation was revoked. Hence the five-year counting period began on December 14, 2004. The next occurrences were two DUIs that were based on two different stops that both occurred on July 7, 2007. Judgment in those two cases was entered on November 1, 2007 (they constituted the second and third qualifying convictions). The fourth “conviction” occurred on October 5, 2009. Judgment of conviction for the fourth DUI charge occurred on November 12, 2009. The counting period for the earliest charge was December 14, 2004, until October 5, 2009, a period of less than five years. Had Appellant successfully fulfilled the terms of his probation for his Missouri offense, then he might not have been “convicted” as contemplated by 31-7-102(A)(xi). However, on December 15, 2004, Appellant’s probation was revoked and sentence was imposed. On that date he was burdened by a “conviction” for the 2002 DUI as the term “conviction” is contemplated by the Wyoming statute. Thus, the district court’s sentence did not constitute an illegal sentence or a sentence that was otherwise erroneous as a matter of law.

The sentence imposed by the district court is affirmed.

J. Hill delivered the opinion for the court.

Summary 2010 WY 162

Summary of Decision December 10, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is 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]

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

Case Name: Tucker v. State

Citation: 2010 WY 162

Docket Number: S-10-0006

URL: http://tinyurl.com/24deumm

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

Representing Appellant (Defendant): Diane E. Courselle, Director, UW Defender Aid Program; Kevin Ward, Student Intern. Argument by Mr. Ward.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Assistant Attorney General. Argument by Ms. Pojman.

Date of Decision: December 10, 2010

Facts: Appellant challenged his convictions on two counts of aggravated vehicular homicide.

A bartender stopped serving Appellant alcohol due to his level of intoxication. Approximately an hour later, Appellant asked the bartender for help starting his truck. The bartender then asked another patron, a mechanic, to help Appellant with his vehicle. The mechanic determined that the truck would not start because the clutch had not been pressed. During this time, Appellant was in the driver’s seat attempting to start the truck, the girlfriend was in the passenger seat with her head against the passenger door, and the girlfriend’s son was asleep in the backseat. After it was determined that the truck did not need a jump, Appellant got out of the truck momentarily while the mechanic got into the driver’s seat, pushed in the clutch, and started the truck. Appellant got back into the driver’s seat and the mechanic saw Appellant drive away. Approximately seven miles from town, the truck left the road, flipped over, and crashed into a tree. The girlfriend and her son were ejected from the vehicle and were found dead at the scene of the accident.

Prior to trial, the State filed a witness list designating the investigating officer as a witness. Appellant filed a motion which sought to prevent the investigating officer from testifying as an expert. The court granted the motion “in part” but also indicated that the officer could testify “in accordance with his designation.” Before the officer took the stand, another hearing was held concerning the anticipated testimony. The court stated that it would limit the officer’s testimony to the matters described in the witness designation and that it would give a curative instruction to the jury in the event that the officer’s testimony crossed into the realm of expert opinion. During the State’s examination of the officer, the prosecution asked him to describe his training in accident investigations and his experience in investigations involving ejections. The State also asked the officer to give his opinion as to where the victims were seated prior to being ejected from the vehicle. Finally, the officer was asked whether he thought the accident was influenced by alcohol impairment.

Defense counsel repeatedly objected to the State’s questions regarding the officer’s training and experience, and to the officer’s testimony regarding the position of the occupants of the vehicle, on the grounds that he was stating opinions that only an expert witness could provide. In response, the court instructed the jury several times that the investigating officer could not provide expert opinions and as to how much weight, if any, should be given to opinion testimony from a witness who is not an expert witness

Ultimately, the jury found Appellant guilty on both counts of aggravated vehicular homicide. Appellant was subsequently sentenced to 12 to 20 years for each conviction, with the sentences to be served consecutively.

Issues: I – Whether the district court abused its discretion when it admitted the portion of a trooper’s testimony challenged in the motion for new trial. II – Whether there was sufficient evidence of Appellant’s guilt. III -- Whether Appellant’s consecutive sentences were illegal.

Holdings: The Court held that the district court erred in admitting the investigating officer’s opinion as to the location of the occupants of the vehicle at the time of the crash and as to whether alcohol impairment was a factor in the crash. However, in light of the remaining evidence produced by the State, the Court held these errors were harmless. The evidence was sufficient to establish that Appellant was driving the vehicle and that his intoxication was the proximate cause of the crash and the resulting deaths of the victims. Finally, the Court held that Appellant’s constitutional rights against double jeopardy and against cruel and unusual punishment were not violated by the imposition of consecutive sentences of 12 to 20 years. For these reasons, the decision of the district court was affirmed.

J. Burke delivered the opinion for the court.

A special concurrence was delivered by J. Voigt.

Specifically, to address why the State did not offer the trooper/investigating officer as an expert witness under W.R.E. 702 and offer some form of Wyoming Criminal Pattern Jury Instruction No. 6.08A (2004), which instruction tells the jury how to consider the opinion of an expert witness.

The concurrence concludes that an expert in the field of accident investigation or reconstruction, particularly one who investigated the scene immediately after the accident and who interviewed the pre-accident witnesses, may opine as to the position of the occupants in the vehicle, assuming that he or she is able to testify as to a sufficient basis for that opinion.

Summary 2010 WY 88

Summary of Decision issued June 28, 2010

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

Case Name: Bloomer v. State

Citation: 2010 WY 88

Docket Number: S-09-0112

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

Representing Bloomer: Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel; Wyoming Public Defender Program.

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: A jury found Bloomer guilty of aggravated robbery and aggravated assault and battery and also found him to be a habitual criminal. Because he had three prior felony convictions, the district court imposed two life sentences.

Presumption of innocence instruction: No question existed that the district court failed to instruct the jury on the presumption of innocence. The cases cited do not establish a clear-cut rule mandating that the jury be instructed on the presumption of innocence in every criminal trial. The United States Supreme Court determined in Whorton that a criminal defendant is not automatically entitled to an instruction on the presumption of innocence and that the failure to give one does not in and of itself violate the constitution. The Court noted the better practice is to give the instruction as a matter of course. Plain error did not occur as a result of the district court’s failure to do so.
Habitual criminal sentencing enhancement: Bloomer argued that his Park County drug convictions were used improperly because they were not separately brought and tried. The State conceded that Bloomer’s life sentences were illegal and must be corrected since the drug convictions may only count as one previous conviction under the habitual criminal statute thereby limiting the range on Bloomer’s current convictions to that prescribed in § 6-10-201(b)(i). Secondly, Bloomer contended that since the underlying convictions were committed after the commission of the instant aggravated robbery and assault and battery cases, the drug convictions could not be used as a basis for the habitual criminal sentencing enhancement. The Court previously considered and rejected a similar claim in Green v. State. The Court determined that it was the sequence of convictions and not the sequence of the criminal acts that was relevant to the operation of the habitual criminal statute. Because the jury found that Bloomer’s previous convictions existed and because the record contains sufficient evidence of two prior separately brought and tried felony convictions that can be used as a basis for enhancing Bloomer’s punishment on the instant convictions, the Court found it appropriate for the district court to simply resentence Bloomer in accordance with the statute.
Ineffective assistance of counsel: Bloomer’s argument was insufficient to satisfy his burden of demonstrating that trial counsel rendered prejudicially deficient assistance. He did not establish that he was prejudiced by counsel’s alleged errors. Considering the facts of the case, the Court was unable to conclude a reasonable likelihood that but for counsel’s alleged errors, Bloomer would have enjoyed a more favorable verdict.

Conclusion: The Court affirmed Bloomer’s convictions. However, the Court held that Bloomer’s life sentences are illegal and reversed those sentences. The Court remanded to district court for resentencing in accordance with § 6-10-201(b)(i).

Conviction affirmed; sentence illegal and remanded.

J. Golden delivered the decision.

Link: http://tinyurl.com/2fd9wlg .

[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 2010 WY 64

Summary of Decision issued May 19, 2010

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

Case Name: Garza v. State

Citation: 2010 WY 64

Docket Number: S-08-0279

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

Representing Garza: Diane Lozano, Wyoming State Public Defender; Tina Kerin, Appellate Counsel; Kirk A. Morgan, Assistant Appellate Counsel.

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

Facts/Discussion: Garza appealed from the Judgment and Sentence convicting him of two counts of second degree sexual assault and imposing a combined prison sentence of twenty-one to twenty-seven years.

Admission of tape recordings: At trial, Garza’s girlfriend KV was called by the State to testify regarding her recollection of the events on the last day that JM alleged Garza assaulted her. Immediately before KV testified, the prosecutor, defense counsel, and the district court discussed the use of certain tape recorded conversations between Garza and KV which occurred while Garza was incarcerated awaiting trial. The prosecutor indicated she would use the recordings for impeachment only if KV denied making certain statements. Garza asserted reversible error in the admission of the tape recordings. He argued that the recordings were improper impeachment material and otherwise irrelevant, inadmissible evidence. The Court agreed with the district court’s ruling that they were admissible as statements by a party opponent under W.R.E. 801(d)(2)(A). The Court also agreed that the recordings were relevant because they showed an indicia of guilt.
Motion for new trial: Garza filed a motion for a new trial based on newly discovered evidence premised on a letter purportedly written by JM in which she recanted her allegations of sexual abuse. The Court’s review of the district court’s denial of the motion revealed no abuse of discretion. Based on his familiarity with the case, the district judge was in the best position to determine the credibility of the recanting evidence. The district court afforded Garza an evidentiary hearing and an opportunity to establish the validity of the victim’s alleged recantation.
Sentencing: The Court found no merit in Garza’s contention that the tenets of Apprendi and Blakely were transgressed. Those cases involved the determination of facts that resulted in an enhancement of a criminal penalty beyond the prescribed statutory maximum. The eleven-to-fifteen-year and ten-to-twelve-year sentences were well within the prescribed statutory range.
Jury instruction: Garza condemned the district court’s decision to give, over his objection, Instruction No. 17 which stated “Corroboration of a victim’s testimony is not necessary to obtain a conviction for sexual assault.” The Court agreed the instruction was improper but that it amounted to harmless error in the instant case. The testimony of the victim was corroborated by other evidence. In addition the district court expressly instructed the jury that it must reach a verdict on the charged crimes beyond a reasonable doubt.

Conclusion: Garza was not successful in his attempt to convince the Court that reversible error occurred with respect to any of the issues raised in the appeal.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/2ewq5st .

[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 2010 WY 30

Summary of Decision issued March 18, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is 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]

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

Case Name: Noller v. State

Citation: 2010 WY 30

Docket Number: S-09-0129

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

Representing Appellant (Defenadant): Diane Lozano, State Public Defender, PDP; Tina Kerin, Appellate Counsel; Kirk A. Morgan, Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny L. Craig, Assistant Attorney General.

Date of Decision: March 18, 2010

Facts: Appellant pleaded guilty to one count of aggravated vehicular homicide and two counts of driving under the influence (DUI) with serious bodily injury. At his sentencing hearing, Appellant moved to strike portions of the pre-sentencing investigation report (PSI) on the grounds that they were inflammatory and argumentative. The district court denied the motion and sentenced Appellant to terms encompassing the maximum period of incarceration on each count.

Issues: Whether the district court abused its discretion when it denied appellant's motion to strike inflammatory and argumentative language from the PSI and considered such language during sentencing

Holdings: Trial courts have broad discretion when imposing sentence to consider a wide range of factors about the defendant and the crime. They are free, in the exercise of their sentencing discretion, to consider victim impact statements, PSIs and other factors relating to the defendant and his crimes in imposing an appropriate sentence within the statutory range. Trial courts are permitted to consider a defendant's character when exercising their discretion to impose sentence. In evaluating character, the trial court may consider a broad range of reports and information. A defendant's cooperation with authorities and remorse for his actions are appropriate factors to be considered when imposing sentence. A sentencing recommendation contained in a PSI is one of the factors that a court may properly consider in determining the appropriate sentence to impose. However, in the present action, the agent's comments went beyond the information W.R.Crim.P. Rule 32 required her to provide. Rather than acting as an agent of the sentencing court, as a neutral and independent participant in the sentencing process, the PSI preparer in this case took on the role of a legal advocate, with many of her comments being more appropriate for the prosecutor's argument to the sentencing court than for a PSI. It is not the function of probation and parole agents to act as legal advocates but to be neutral participants and provide the information specified in Rule 32(a)(2) for consideration by the sentencing court.

However, reading the agent's comments in the context of the entire PSI and a review of the district court's statements leading up to the imposition of sentence shows that no abuse of discretion occurred. The PSI was lengthy and detailed. It contained extensive information concerning Appellant's criminal history, including several previous arrests and/or convictions for alcohol related driving offenses. It also contained the complete affidavit of probable cause, which described in detail the circumstances of the collision and the victims' injuries. The PSI also included the written statements of the deceased victim's husband and his daughter, who was driving the vehicle and was seriously injured in the crash. The agent's comments concerning the impact on the victims basically repeated statements made by the victims. Additionally, at the sentencing hearing, the district court pointedly questioned the prosecutor and the agent about some of the information contained in the PSI, which resulted in some clarifications and some information being stricken from the report. The district court heard directly from the two victims whose written reports were contained in the PSI. The district court also considered defense counsel's comments on Appellant's behalf.

Thus, Appellant has not shown the district court relied on the agent's comments in imposing sentence. From a review of the entirety of the record, it appears the district court relied primarily on the information contained in the affidavit of probable cause, Appellant's criminal history and the victims' statements. Thus, the district court acted reasonably in denying the motion to strike.

Affirmed.

J. Kite delivered the opinion for the court.

C.J. Voigt specially concurred. The presentence investigation report submitted in this case clearly violated the dictates of W.R.Cr.P. 32(a)(2)(B). It is not a report; it is a diatribe based apparently upon the writer's personal animosity toward the appellant and sympathy for the victims. Were it not for the excellent job done by the district court both in "distinguishing the wheat from the chaff," and in setting forth the specific record facts upon which the sentence was based, I would vote to reverse the sentence and remand to the district court for preparation of a new presentence investigation report, prepared by a different agent.

Link: http://bit.ly/a7ftxr.

Summary 2009 WY 142

Summary of Decision issued November 19, 2009

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

Case Name: Swain v. State

Citation: 2009 WY 142

Docket Number: S-08-0280

Appeal from the District Court of Laramie County, the Honorable Michael K. Davis, Judge.

Representing Appellant Swain: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel, Wyoming Public Defender Program.

Representing Appellee 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: Swain appealed the district court’s order denying him credit for time served on three separate probation revocation actions. He also appealed his conviction for indirect criminal contempt arising from his failure to comply with the district court’s order requiring him as a condition of probation to attend and complete an inpatient substance abuse treatment program.

Sentencing credit: Swain contended that his sentence was illegal because the district court did not give him credit for the time he served on the three probation revocation actions. The Court relied on Jackson v. State where it held that time spent in custody awaiting disposition of probation revocation proceedings must be credited against the probationer’s underlying sentence if the incarceration is directly attributable to the underlying criminal conviction. Like Jackson, the sole basis for Swain’s detention in each of the revocation proceedings was the accusation he had violated one or more conditions of his probation. No additional criminal charges were filed against Swain based on the alleged violations, and the justification for revoking probation was basically that Swain absconded from supervision and failed to report to and complete the Cheyenne Transitional Center’s program and the Cheyenne Transitions Residential Program. The Court also concluded that the time spent in custody pending resolution of the three revocation proceedings was directly attributable to his underlying battery conviction and consequently, he was entitled to credit against the underlying three-five year prison sentence.
Criminal contempt conviction: The Court focused on a procedural error in the contempt proceeding. Wyoming endorsed the Gompers “independent and separate proceeding” rule for indirect criminal contempt actions in Garber v. United Mine Workers of America. Proceedings in criminal contempts are independent criminal actions and should be conducted accordingly. The criminal contempt against Swain was not pursued as an independent criminal action. It proceeded as an aspect of the underlying criminal case in which the contempt arose bearing the same docket number as that case. This procedural misstep mandated the conclusion that the jurisdiction of the district court was never properly invoked.

Conclusion: The Court held that Swain was entitled to credit against his penitentiary sentence for the time he was detained pending resolution of the three probation revocation proceedings. The Court also held that his conviction for indirect criminal contempt cannot be sustained because the district court lacked jurisdiction over the contempt action.

Reversed and remanded.

J. Golden delivered the decision.

Link: Access is currently limited to the Judiciary website link located here: http://www.courts.state.wy.us/Opinions.aspx .

[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 in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 136

Summary of Decision issued November 6, 2009

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

Case Name: Legarda-Cornelio v. State

Citation: 2009 WY 136

Docket Number: S-09-0083

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

Representing Appellant (Defendant): Esteban Cornelio LeGarda, Pro se.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Justin A. Daraie, Prosecution Assistance Program, Student Director and Intern.

Facts: The appellant was convicted and sentenced in state court and then in federal court for unrelated offenses. He subsequently filed a W.R.Cr.P. 35(b) motion with the state district court asking it to order that his state sentences run concurrently with his federal sentences, which motion the district court denied. The appellant appeals that denial.
Issues: Whether the district court abused its discretion in denying the appellant’s W.R.Cr.P. 35(b) motion.

Holdings: Although it appears that the district court was amenable to the appellant’s request that his state sentences run concurrently with his impending federal sentences, the district court never explicitly ordered that, nor could it. If a defendant is subject to prosecution in more than one court, the decision regarding how the sentences will run with respect to one another should be made by the last judge to impose a sentence. The underlying rationale for this theory is that a judge cannot require a sentence to be served consecutively to a sentence that has not yet been imposed. Moreover, a state district court cannot bind a federal court with such sentencing restrictions. Thus, the district court did not abuse its discretion in refusing to order the sentences to run concurrently.

With regard to the appellant’s claim that his good behavior justified a sentence reduction, it is clear from the record that the district court considered not only the appellant’s W.R.Cr.P. 35(b) motion, which included the certificates and documentation of the self-improvement courses, but it also considered additional material, such as the appellant’s Presentence Investigation Report. After considering everything as a whole, the district court denied the appellant’s motion. While it is commendable that the appellant has chosen to turn his life around and take a proactive role in completing self-improvement courses while he has been incarcerated, those facts alone do not require the district court to grant the appellant’s W.R.Cr.P. 35(b) motion. Nor do those facts alone provide grounds to find that the district court abused its discretion in denying the appellant’s motion. After reviewing the entire record and giving the required deference to the district court’s determination, it cannot be said that it abused its discretion.

The state district court did not have authority to determine whether the appellant’s state sentences were to run concurrently with or consecutive to the appellant’s impending federal sentences. The district court was not the last court to impose a sentence on the appellant. Moreover, the district court properly denied the appellant’s W.R.Cr.P. 35(b) motion because it was still without authority to issue an order that it could not have entered in the first instance. Also, the district court was not required to grant the appellant’s W.R.Cr.P. 35(b) motion simply because the appellant demonstrated commendable behavior and achievement while he had been incarcerated.

Affirmed.

C.J. Voigt delivered the opinion for the court.

Link: http://tinyurly9rehgx .

[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 in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 108

Summary of Decision issued September 2, 2009

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

Case Name: Moore v. State

Citation: 2009 WY 108

Docket Number: S-08-0276

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

Representing Appellant Moore: Timothy D. Moore, Pro se.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General.

Facts/Discussion: Moore was convicted of four felonies. Three of his felonies were ordered to be served concurrently with each other. Those three concurrent sentences were ordered to be served consecutively to the fourth felony sentence. Moore argued that the Order Granting Motion for Sentence Reduction made all of his sentences concurrent. He submitted that when the district court granted his motion for sentence reduction, it granted the only relief requested in the motion – that all sentences run concurrently. He claimed that the reduction in the maximum term (from 10 to 8 years) was a grant of additional relief. He also asserted that the Order Denying Sentence Modification was so confusing that he was compelled to seek clarification.

Jurisdiction: Moore’s 2005 pleadings were actually a series of letters, the first of which was a request to clarify the Order Granting Motion for Sentence Reduction. The Court found authority for Moore’s “motion” in W.R.Cr.P. 36 which allows error in the record to be corrected. The Court stated there was a lack of clarity in the Order. The Court found that the letters were a proper motion to correct clerical error and concluded that the district court had jurisdiction.

Res Judicata: The Court focused on whether Moore raised or had the opportunity to raise, the same issue presently before the Court in any previous proceeding. The district court clarified the 2004 Order Granting Motion for Sentence Reduction with its 2005 Order Denying Sentence Modification. The 2005 order clearly denied Moore’s requests for relief regarding the interpretation of the order including Moore’s argument that the prior order made all his sentences concurrent. The district court did not grant Moore any relief in its 2005 order. Moore did not appeal from the 2005 order. Thus, any claims denied by that order, were res judicata.

Conclusion: The district court did not grant Moore any relief in its July 12, 2005 order. It denied the requested relief. And it granted no affirmative relief. The district court’s September 18, 2008 order was entirely consistent with the July 12, 2005 order. The district court’s Order Clarifying July 12, 2005 Order Denying Sentence Modification was affirmed.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/ldkv5y .

[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 in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 105

Summary of Decision issued August 21, 2009

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

Case Name: Najera v. State

Citation: 2009 WY 105

Docket Number: S-08-0203

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

Representing Appellant (Plaintiffs): Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.

Representing Appellee (Defendant): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Assistant Attorney General.

Appellant was convicted of two counts of second-degree sexual assault, four counts of third-degree sexual assault, and six counts of incest. He contends that there was insufficient evidence to sustain his convictions on five of the six sexual assault counts and that the sentences for the incest convictions should merge with the sexual assault sentences.

Issues: Whether the trial court erred in denying Appellant’s motion for acquittal on counts I and III-VI. Whether the incest counts should merge for charging and sentencing with the sexual assault charges.

Holdings: Wyo. Stat. 6-2-303(a)(vi), 6-2-304(a)(iii) required the jury to find that Appellant was “in a position of authority over the victim and use[d] this position of authority to cause the victim to submit.” It is uncontested that Appellant, as the victims’ father, occupied a position of authority over the victims. It is also uncontested that he committed the sexual acts that provided the foundation for the charges. He contends only that the State failed to present sufficient evidence that he used his position of authority to cause the victims’ submission. The record in this case, viewed in the light most favorable to the State, establishes that Appellant exercised considerable control over the children. He disciplined them on occasion. He also threatened them. The victims testified that they were afraid that Appellant would either punish them or that they would otherwise get into trouble if they told anyone about the abuse. The facts surrounding the incidents themselves are evidence that Appellant used his status as the victims’ father to gain compliance. With one exception, all incidents of abuse occurred in each victim’s bedroom. For the most part, Mother was absent when the assaults occurred, leaving Appellant as the sole authority figure in the house. Appellant’s argument in this appeal appears to be founded upon the premise that the statute requires the defendant to have overtly threatened the victim prior to committing each act. Appellant cites no authority for this proposition, nor does he present compelling reasons that the statute should be interpreted in this manner. Thus, the State presented sufficient evidence to allow a jury to conclude, beyond a reasonable doubt, that Appellant used his position of authority to cause the victims’ submission.
Merger of sentences implicates a defendant’s constitutional right to be free of multiple punishments for the same offense. This right is one component of the constitutional prohibition against double jeopardy. Consequently, the analytical framework necessary to resolve this issue is derived from the elements test set forth by the United States Supreme Court in Blockburger v. United States. Pursuant to the elements test, two offenses are different when each requires proof of an element that the other does not. Although the elements test is ordinarily applied to the statutory text, questions involving merger of sentences require this test to be applied somewhat differently. Specifically, the focus necessarily expands to embrace those facts proven at trial. The ultimate question becomes whether those facts reveal a single criminal act or multiple and distinct offenses.
In the present case, however, five of the six sexual assault charges required proof that Appellant was the father of the victims and was, therefore, in a position of authority as required by the applicable statute. The incest charges also required the State to prove that Appellant was the father of the victims. All sexual assault charges required either sexual intrusion or sexual contact, and so did the incest charges. In short, it would be impossible for Appellant to commit second- or third-degree sexual assault based upon the use of his position of authority as father of the victims without also committing incest. Thus, Appellant concluded that the incest counts should merge, for the purpose of sentencing, into the sexual assault counts. However, Appellant was also charged with third-degree sexual assault pursuant to Wyo. Stat. Ann. § 6-2-304(a)(ii) on the basis that the victim was under the age of fourteen years and Appellant was an adult. The State was not required to prove that Appellant was the victim’s father or that he used his position as her father to cause submission. In securing the conviction for the related incest charge, the State was not required to prove that she was younger than fourteen or that Appellant was an adult. Simply put, these two crimes have different elements. Each requires proof of an element that the other does not. Thus, these two counts do not merge for the purpose of sentencing.
Sufficient evidence was presented to support Appellant’s conviction of second-degree sexual assault, as alleged in counts I and IV, and third-degree sexual assault, as alleged in counts III, V, and VI. Five of the six incest convictions, counts VII, IX, X, XI, and XII, merge for the purpose of sentencing into the respective sexual assault convictions, counts I, III, IV, V, and VI.

The convictions are Affirmed on all counts. However, the action is reversed and remanded for entry of a new Judgment and Sentence consistent with this opinion.

J. Burke delivered the opinion for the court.

C.J. Voigt issued a concurring opinion: If two crimes do not bear a lesser- and greater-offense relationship to one another because they each contain an element not contained in the other, the legislature intended that multiple punishments could be imposed, even if the two separate offenses are based upon one underlying set of facts. In the instant case, the appellant could have been sentenced on each and every count upon which he was convicted.

Link: http://tinyurl.com/n7b4dp

[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 in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 99

Summary of Decision issued August 18, 2009

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

Case Name: Greene v. State

Citation: 2009 WY 99

Docket Number: S-09-0014

Appeal from the District Court of Sweetwater County, the Honorable Jere A. Ryckman, Judge.

Representing Appellant Greene: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny Lynn Craig, Assistant Attorney General.

Facts/Discussion: Greene entered guilty pleas to three felony charges of obtaining controlled substances by misrepresentation and no contest to a charge of attempting to obtain property by false pretenses.

Felonies or misdemeanors: The crimes for which Greene was convicted were committed in 2006-2007 and he was charged in 2007 and early 2008. During all of that time, the Wyoming statutes specified that the crime of obtaining controlled substances by misrepresentation was a felony. In 2008, the legislature amended the statute making Greene’s first two convictions misdemeanors while the third and subsequent offenses remained felonies. Greene pleaded guilty and was convicted and sentenced after the effective date of the amendment. As a result of the Wyoming “savings” statute, which states that a pending prosecution will not be affected in substance or remedy by an amendment to a statute unless that intent is expressly stated, the Court concluded that the 2008 amendment did not affect Greene’s prosecutions.
Addicted Offender Accountability Act: The Act provides alternatives for sentencing “addicted qualified offenders.” Under the Act, a qualified offender may receive probation or a suspended sentence but there is no language requiring that result. The district court determined that it was appropriate to incarcerate Greene whether or not he was a qualified offender. It does not matter whether the district court documented in writing its determination of Greene’s status as a qualified offender.

Conclusion: The 2008 amendment to the statutes did not affect Greene’s prosecutions. The record confirmed that the district court’s actions and determinations complied with the requirements of the Addicted Offender Accountability Act.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/ogjogw .

[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 in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 79

Summary of Decision issued June 17, 2009

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

Case Name: Royball v. State

Citation: 2009 WY 79

Docket Number: S-08-0234

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

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

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

Facts/Discussion: Royball was charged with three counts of first degree sexual assault and one count of kidnapping. The parties subsequently entered into a plea agreement in which the State agreed to amend the information to charge two counts of third degree sexual assault in place of the first degree sexual assault counts and dismiss the remaining sexual assault and kidnapping charges. In exchange, Royball agreed to plead guilty to the amended counts of third degree sexual assault. At the change of plea hearing, the district court judge made statements concerning the plea agreement which caused Royball to terminate the hearing and file a motion for change of judge on the grounds of bias or prejudice. The circuit court denied the motion.

Motions to disqualify a judge based upon bias or prejudice are governed by W.R.Cr.P. 21.1(b). Royball asserted that the district court judge’s comments demonstrated that he had prejudged Royball’s conduct and formed the opinion that he raped the victim and should be sentenced accordingly. Royball contended the prejudgment was based on allegations contained in the probable cause affidavit filed in support of the original charges which the prosecutor had agreed to dismiss and amend. The district court judge stated that he didn’t understand how anybody could read the Affidavit of Probable Cause and believe it was appropriate to reduce two first degree rape charges to third degree sexual assault. In addition he commented that it was not his role to “second guess the DA’s office” or to “interfere with the discussions between the DA’s office and the victim.” When the judge’s comments were reviewed in the context of all of his statements during the proceedings, the Court concluded that the district court judge was not swayed and that he was able to exercise his functions impartially.

Conclusion: It could be reasonably concluded from the judge’s statements that he understood his duty was to sentence Royball only for the offenses he admitted to having committed and to which he pled guilty and on the basis of all the factors presented at the time of sentencing.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/mczpja .

[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 in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 15

Summary of Decision issued February 9, 2009

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

Case Name: Guinn v. State

Citation: 2009 WY 15

Docket Number: S-08-0130

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

Representing Appellant (Guinn): Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.

Representing Appellee (State): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jeremy C. Schwendiman, Student Intern.

Date of Decision: February 9, 2009

Issues: Whether the district court improperly punished the appellant for exercising his constitutional right to a jury trial.

Facts: The appellant was convicted by a jury of third-degree sexual assault. He complains on appeal that, in imposing sentence, the district court improperly punished him for exercising his right to a jury trial.

Holdings: There is a clear rule of law allowing courts to grant leniency in sentencing to someone who has acknowledged guilt by pleading guilty, but forbidding courts from penalizing or punishing someone who has exercised his or her constitutional right to a jury trial. The district court positively declared at sentencing that it was appropriate to consider the fact that the appellant chose to go to trial. At the very least, the record certainly leaves open the possibility that the district court's sentencing decision was based in part upon that consideration. Courts simply may not punish defendants for the exercise of constitutional rights. The district court violated the appellant's constitutional right to a jury trial by considering at sentencing his exercise of that right.

The judgment is affirmed, but the sentencing order is reversed and the case is remanded to the district court for a new sentencing hearing.

C.J. Voigt delivered the opinion for the court.

Link: http://tinyurl.com/b6rowg .

[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 in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]