Summary 2008 WY 79

Summary of Decision issued July 14, 2008

[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: Gibbs v. State

Citation: 2008 WY 79

Docket Number: S-07-0231

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

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina 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 Graham M. Smith, Assistant Attorney General

Date of Decision: July 14, 2008

Issues: Whether Appellant materially and substantially breach the plea agreement when he violated a number of the district court's orders prior to sentencing, thereby releasing the State from its obligations under the plea agreement.

Holdings: A plea agreement is a contract between the defendant and the State to which the general principles of contract law are applied. "When determining whether a breach of the plea agreement has occurred the court will: (1) examine the nature of the promise; and (2) evaluate the promise in light of the defendant's reasonable understanding of the promise at the time the plea was entered. The prosecutor must explicitly stand by the terms of any agreement; and if the State is unable to carry out the terms, the correct remedy is withdrawal of the plea. The State may not obtain the benefit of the agreement and at the same time avoid its obligations without violating either the principles of fairness or the principles of contract law.

In determining whether a breach has occurred, the court will: (1) examine the nature of the promise; and (2) evaluate the promise in light of the defendant's reasonable understanding of the promise at the time the plea was entered. Principles of general contract law guide the analysis of the government's obligations under the agreement. As in contract, a party should not be released from its obligations under a plea agreement absent another party's material or substantial breach of that agreement. A material or substantial breach is one that goes to the whole consideration of the agreement. Several factors are relevant to whether a breach is material or substantial, including the extent to which the non-breaching party will be deprived of the benefit it reasonably expected and the extent to which the breaching party's conduct comports with the standards of good faith and fair dealing.

In the present action, the district court deferred its decision as to the acceptance or rejection of the plea until there had been an opportunity for it to consider the presentence report. To the extent that the plea was one identified in W.R.Cr.P. 11(e)(1)(B), the district court was very explicit in telling Appellant that it was not bound by the plea agreement, and that he would not be allowed to withdraw the plea if the bargained for sentence was not imposed. Evidence does show that Appellant did not comply with the terms of the plea bargain, and he was the first to breach it. That does not necessarily justify a breach by the State, but Appellant was clearly on notice that the State's agreement was premised upon his obeying the law and the terms of his release on bond pending his sentencing hearing. Thus, the basis of affirmance of the district court's sentence relies entirely upon the district court's compliance with the strictures of W.R.Cr.P. 11(e)(2). The district court, in effect, deferred its acceptance of the guilty plea until the time of sentencing and opted not to accept it in light of Appellant's conduct in the month preceding his sentencing, and Appellant was fully informed of the possibility that the district court would not accept the plea bargain and that he would not be permitted to withdraw his guilty plea if that was the ultimate result.

The judgment and sentence of the district court are affirmed.

BURKE, Justice, specially concurred, with whom VOIGT, Chief Justice, joined.

The pivotal issue in this appeal, as identified by both parties, is whether the State breached the plea agreement. The majority opinion does not directly resolve this issue. Instead, it holds that the sentence should be affirmed solely because of "the district court's compliance with the strictures of W.R.Cr.P. 11(e)(2)." This holding implies that the State is free to breach a plea agreement so long as a defendant has been advised that the court is not bound by the agreement and the defendant has also been advised that he cannot withdraw his guilty plea if the court does not impose the recommended sentence. However, such an advisement is required in every plea agreement made pursuant to W.R.Cr.P. 11(e)(1)(B). If this advisement relieved the State of its obligation to comply with the plea agreement, it would render the State's promise to make a sentencing recommendation illusory.

The court's discretion to accept or reject a sentence recommended pursuant to a plea agreement does not relieve the State from complying with that agreement. When a defendant enters a guilty plea in exchange for a promise from the State to recommend a specific sentence, the State is obligated to make the agreed-upon sentencing recommendation. The court has discretion to accept or reject the recommendation, but the defendant is entitled to have the court consider the State's recommendation when determining the appropriate sentence. This approach is consistent with established precedent. When a plea of guilty rests to any significant degree on a promise or agreement by the State, that promise must be fulfilled.

Nevertheless, I would affirm the district court's decision because the record establishes that Appellant materially breached the plea agreement prior to the time when the State was obligated to perform. It is axiomatic that, if a defendant fails to comply with a plea agreement, the State is not bound by that agreement. I believe it is equally axiomatic, however, that when a defendant complies with a plea agreement, the State must also fulfill its part of the bargain. That obligation is not negated just because the court has discretion to accept or reject the sentencing recommendation.

J. Hill delivered the opinion for the court.

Summary 2008 WY 78

Summary of Decision issued July 14, 2008

[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: Cohen v. State

Citation: 2008 WY 78

Docket Number: S-07-0082

Appeal from the District Court of Natrona County, Honorable W. Thomas Sullins, Judge

Representing Appellant (Defendant): Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; Donna D. Domonkos, 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; Paul S. Rehurek, Senior Assistant Attorney General

Date of Decision: July 14, 2008

Issues: Whether there was sufficient evidence to prove Appellant attempted to commit first degree homicide when there was no evidence of a substantial step towards committing first degree homicide. Whether there was sufficient evidence to prove Appellant committed aggravated assault as charged by the State since there was no evidence of a substantial step towards committing aggravated assault. Whether the district court erred when it denied Appellant's motion to suppress evidence seized after an illegal stop.

Holdings: When reviewing sufficiency of the evidence claims, any applicable inferences that may be reasonably drawn from it, are viewed in the light most favorable to the State. It is the jury's responsibility to resolve conflicts in the testimony, weigh the evidence and draw reasonable inferences from the facts. It is presumed that the jury resolved any conflict in the evidence in favor of the State. On appeal, the court will not reweigh the evidence or reexamine the credibility of the witnesses. It will only determine whether a quorum of reasonable and rational individuals could have found the essential elements of the crime proven beyond a reasonable doubt.

Whether a defendant has engaged in a substantial step toward the commission of a crime is a question of fact. Each case, therefore, must be analyzed within the context of its individual facts and circumstances. Since the jury is the ultimate finder of fact, the task in this case is to determine whether a "quorum of reasonable and rational individuals could have found" conduct constituting a substantial step. Among the evidence considered by the jury in this case was the fact that Appellant was resisting arrest, having already injured one officer, and leading officers on a high speed automobile chase. When finally cornered, he gave false information. Appellant refused to obey an instruction to keep his hands in plain sight and, instead, moved his left hand behind his back to retrieve a loaded and ready-to-fire handgun. Even after an officer pulled his weapon and told Appellant to stop, Appellant continued to pull the weapon out from his waistband and bring it forward, with his hand firmly on the grip. The only reason Appellant could not complete his intended action of shooting the officer was because of the officer's prudent actions in grabbing Appellant and dislodging the weapon from his grasp. This evidence is sufficient for a reasonable jury to find that Appellant engaged in substantial conduct strongly corroborative of his intention to murder the officer.

If the facts and circumstances surrounding Appellant's drawing of a loaded gun are sufficient to sustain his conviction for the attempted murder, they are likewise sufficient to sustain his conviction for attempting to cause bodily injury to the officer.

In his motion to suppress in the district court, Appellant invoked both the Fourth Amendment to the United States Constitution and Article 1, Section 4 of the Wyoming Constitution as grounds for suppressing the evidence. On appeal, Appellant bases his challenge to the legality of the stop exclusively on Fourth Amendment principles. Although he references the Wyoming Constitution, he does not provide an independent state constitutional analysis. The failure to present a proper argument supporting "'adequate and independent state grounds' . . . prevents the court, as a matter of policy, from considering other than the federal constitutional principles at issue.

A law enforcement officer may stop and temporarily detain a citizen if the officer has an objectively reasonable suspicion that the person has committed or may be committing a crime.

In order to establish the reasonable suspicion necessary to justify an investigatory stop, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences [drawn] from those facts, reasonably warrant that intrusion. Reasonable suspicion, like probable cause, is dependant upon both the content of information possessed by police and its degree of reliability. Both factors -- quantity and quality -- are considered in the 'totality of the circumstances -- the whole picture, that must be taken into account when evaluating whether there is reasonable suspicion. A review of the record in this case, shows that the officer possessed reasonable suspicion justifying the investigatory stop of the SUV. The record discloses the following facts: (1) the officer had been following the events over his police radio and knew there was a warrant out for Appellant's arrest; (2) Appellant was reported to be on foot in the area where the grid search was being conducted; (3) the radio reports indicated the direction towards a particular street Appellant was traveling after abandoning his car; (4) the officer saw a man cross the named street in the direction Appellant was known to be traveling about twenty minutes after Appellant abandoned the car; (5) the male suspect was sighted just a block away from the car; (6) the officer saw the suspect coming out from between two houses, not exiting a residence or other structure; (7) the officer knew from experience that this neighborhood normally had very little pedestrian traffic; (8) the officer was somewhat familiar with Appellant's physical appearance from his participation in a drug investigation involving Appellant a few months earlier; (9) the suspect was the "right size and shape" of Appellant, although his clothing was a little different from the description transmitted earlier over the radio for Appellant; (10) the suspect matched the physical description of Appellant contained in a flier posted at the police station; and (11) the officer observed the suspect enter the passenger door of a waiting vehicle. Under the circumstances, the officer was acting on more than a simple "hunch" when he stopped the vehicle. The totality of these factors, along with rationale inferences, supports a reasonable suspicion that Appellant, the person police were searching for, was a passenger in the stopped vehicle. Although there was a discrepancy in the clothing description, this discrepancy is insufficient to defeat the existence of reasonable suspicion in light of the other factors present in this case. The investigatory stop of the was constitutionally permissible under the circumstances.

There is sufficient evidence in the record to support Appellant's convictions for attempted first degree murder and aggravated assault and battery. Reasonable suspicion existed justifying the investigatory stop of the vehicle in which Appellant was a passenger.

Affirmed.

J. Golden delivered the opinion for the court.

New HeinOnline Feature!

Earlier this month HeinOnline began offering a new MyHein bookmarking tool that will allow you to create and organize bookmarks and save search queries into your own personal research account.

With the creation of a MyHein account, you can access your saved research anytime. You set up your own user name and password that only you will have access to.

If you do not wish to create an account, you still have the ability to use the MyHein features for your current research session. This means you can bookmark articles and search queries during your current HeinOnline session, and once you log out of HeinOnline or close your browser, your saved activity is deleted.

For more information and some training tools, see the HeinOnline blog: http://heinonline.blogspot.com/2008/06/myhein-to-be-released-on-monday.html.

Remember, HeinOnline is accessible in the law library, Wyoming State Library, and participating Wyoming county libraries.

Updated Wyoming Secretary of State Website

A new Wyoming Secretary of State website was unveiled in late June. According to their website blurb, "the public will find this site to be well-organized and easy to navigate with a focus on public need and use."

Check out the many new features including the Polling Place Locator, the Forms & Filings Tool, and the Free Certificate of Good Standings.

Note: While the home URL (http://soswy.state.wy.us/) has not changed, URLs within the website are often different. Here is the new URL for the Rules and Regulations: http://soswy.state.wy.us/AdminServices/RulesOverview.aspx.

Summary 2008 WY 77

Summary of Decision issued July 9, 2008

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

Case Name: Douglass v. WYDOT

Citation: 2008 WY 77

Docket Number: S-07-0110

Appeal from the District Court of Laramie County, the Honorable Nicholas G. Kalokathis, Judge.

Representing Appellant: Timothy C. Kingston of Graves, Miller & Kingston, PC, Cheyenne, Wyoming.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Michael L. Hubbard, Deputy Attorney General; Ryan Schelhaas, Senior Assistant Attorney General.

Facts/Discussion: Douglass sought review in the district court of a decision by the WYDOT denying him a salary increase. Douglass appealed claiming there was no final agency action starting the 30 days for filing a petition for review or alternatively, if there was final agency action the district court erred in dismissing his petition because he showed excusable neglect.
Final Agency Decision: Douglass sought review of both WYDOT’s decision that he was not entitled to a salary increase and A&I’s letter denying his request for a grievance committee. The Court did not find his assertion that the A&I letter was not a final agency decision contradictory to his petition seeking review of the A&I letter. Douglass was not estopped from seeking review of both agency actions and then making the argument that the district court erred in dismissing his petition because there was not final agency action by WYDOT. The A&I letter was not the final agency decision for purposes of W.R.A.P. 12.04.
The Court stated that it was not clear that the email from Collins at WYDOT ended the proceedings. It held that the email did not constitute the final agency decision for purposes of W.R.A.P. 12.04.
The Court stated that the final step in the administrative grievance process is the decision by the employees’ agency. In the instant case, the last step would have been WYDOT’s final decision to grant or deny his request for a salary increase. Given the Court’s determination that the email did not constitute a final agency decision, the 30 days for filing a petition for review had not been started.

Holding: After a reasonable time, an agency’s inaction is deemed a denial. The Court held that the period from Oct. 31, 2006 to Feb. 16, 2007 constituted a reasonable time. The Court deemed WYDOT’s inaction during that time to be a denial. Thus the petition for review was timely.

Reversed and remanded.

J. Kite delivered the decision.

Link: http://tinyurl.com/6kaakw .

[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 2008 WY 76

Summary of Decision issued July 3, 2008

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

Case Name: Board of Professional Responsibility, Wyoming State Bar v. William D. Elsom

Citation: 2008 WY 76

Docket Number: D-07-0004

Order Suspending Attorney From the Practice of Law

The matter came before the Court upon a “Findings of Fact, Conclusions of Law and Recommendation for Reinstatement” filed June 4, 2008, by the Board of Professional Responsibility for the Wyoming State Bar. The Court reviewed the Board’s report, the transcript of the Board’s hearing and the file. The Court accepted in part and rejected in part the Board’s recommendations.

The Board concluded that Elsom was eligible to be reinstated however the Court differed with the Board with respect as to how the period of suspension would be measured. The Court stated that Elsom was suspended from the practice of law for two years beginning September 25, 2007 and was required to pay $3,095.54 for the costs of the Board’s hearing. The Court noted that Elsom had a CLE suspension on which the Board of Continuing Legal Education had not yet recommended reinstatement and that he must resolve that suspension. The suspension shall be published in the Wyoming and Pacific Reporters and the information transmitted to the Board and the clerks of the appropriate courts in Wyoming.

The Findings of Fact, Conclusions of Law and Recommendation for Reinstatement can be found at the link.

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

Link: http://tinyurl.com/5pk7ds .

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

Summary 2008 WY 75

Summary of Decision issued July 1, 2008

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

Case Name: Haynes v. State

Citation: 2008 WY 75

Docket Number: S-07-0263

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

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

Representing Appellee: 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: A jury convicted Haynes on two counts of first degree sexual assault. He appealed claiming the evidence was insufficient to support his conviction for sexually assaulting a “physically helpless” victim; the prosecutor committed misconduct by misinforming the jury concerning the effect of its verdict and by using victim impact evidence to inflame the jury’s passion; and the district court erred in refusing to address the issue of his mental competency before sentencing.
Sufficiency of the Evidence: The Court’s task was to determine whether evidence was presented from which the jury could have found that each element of first degree sexual assault was proven beyond a reasonable doubt. The jury heard testimony from which it could have concluded that the victim was asleep and therefore physically helpless when the assault occurred. The jury also heard testimony from which it could have concluded that the victim woke during the sexual assault. The evidence was sufficient to support the jury’s verdict.
Prosecutorial Misconduct: The Court agreed with the district court that the prosecutor’s question of the forensic psychologist regarding whether the State could detain Haynes if he were found not guilty by reason of mental illness was highly improper. The prosecutor’s question raised the specter that a verdict of not guilty by reason of mental deficiency would result in Haynes’ release, a matter that was not within the province of the jury and had the potential to distract the jury from its fact-finding responsibility. The Court continued with their review considering whether a reasonable probability existed that the jury would have returned a verdict of not guilty or not guilty by reason of mental illness if the prosecution had not asked the improper question. After the Court reviewed the record, they stated that a reasonable possibility did not exist that the jury would have returned a verdict of not guilty or not guilty by reason of mental illness. The Court strongly cautioned Wyoming prosecutors from questions and arguments that inform or misinform the jury concerning the consequences of its verdict.
The State waved a photo of the victim in front of the jury during closing argument. The record reflects that the statement made and the photo shown occurred during closing argument. The law is clear that victim impact evidence is inappropriate during the guilt phase of a criminal prosecution. The Court referred to their non-exhaustive list of factors (from Trujillo) for evaluating whether material prejudice resulted. The comment was isolated in the instant case and there was nothing in the record to suggest the prosecutor made the remark or used the photo to divert the jury’s attention.
Mental Incompetence: A sex offender risk assessment was made of Haynes. Within the report was a statement that indicated that Haynes functioned at the level of a six or seven year old child. The record reflects that the district court compared the statements contained in the risk assessment with the earlier testimony presented on the competency issue and found that no new evidence was presented.

Holding: The State presented evidence from which a jury could reasonably concluded the victim in this case was asleep and therefore, “physically helpless” as required under the first degree sexual assault statute. Haynes was not materially prejudiced by the prosecutor’s improper comments during witness questioning and closing argument. The district court appropriately considered the issue of Haynes’ mental competence throughout the proceedings, including sentencing.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/6ancql .

[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.]