Summary 2007 WY 191

Summary of Decision issued December 10, 2007

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

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

Case Name: Smith v. Brito, Jr.

Citation: 2007 WY 191

Docket Number: S-07-0137

Petition for Writ of Review, From the District Court of Sublette County, the Honorable Norma E. Young, Judge

Representing Appellant (Defendant): Ralph E. Wood, Wood Law Office, Pinedale, Wyoming.

Representing Appellee (Plaintiff): Clark Stith, Rock Springs, Wyoming.

Issues: Whether the fact that Appellant was not a registered voter of the Town of Pinedale at the time he filed his application for election make him a person “not eligible to hold the office” when he received the highest number of votes cast in the subject election and was a registered voter of the Town of Pinedale on the date of the subject election and on the date he was sworn in to the position he was elected to. Whether the District Court erred in awarding costs to the Appellee where the Appellee did not archive [sic] the relief prayed for in his Verified Complaint.

Facts/Discussion: In a 2006 municipal election, Smith was elected to the Pinedale Town Council. Brito contested Smith’s election on two grounds, including that Smith was not a registered voter at the time he filed his petition for candidacy for the position.
Standard of Review: Since the order appealed from only granted partial summary judgment and was not certified as immediately appealable by the district court, it was not an appealable order. The Court has the authority to convert a notice of appeal to a writ of review under the most extraordinary of circumstances. The Court did so stating that the issues raised were of significant state importance. The Court reviews an award of costs for an abuse of discretion by the district court.
Annulment of Mr. Smith’s Election: Wyo. Stat. Ann. § 22-23-301 explicitly requires a person be a registered voter on the day the petition is filed. The petition form requires an applicant to swear or affirm they are a registered voter as of the closing of the municipal clerk’s office on the day the petition is filed. Smith did not meet that requirement, therefore he was not eligible to petition for candidacy, his name was not properly on the ballot and the votes he received and the election, must be considered null and void. Smith relied on Rue v. Carter which the Court noted was overruled by the Wyoming Legislature and which the Court discussed indirectly in Hayes v. City of Sheridan.
Costs: Brito was awarded costs pursuant to Wyo. Stat. Ann. § 22-17-104. Smith argued that costs should not have been awarded because the entire election was not annulled. The annulment of the election of a single elected municipal official can form the basis for the award of costs.
Appellate Sanctions: The Court did not believe the appeal warranted sanctions. Smith failed to win but his legal arguments were presented cogently and in good faith.

Holding: Because Smith was not a registered voter at the time he filed his petition for candidacy for office, Smith was not eligible to hold the municipal office to which he was elected. The district court correctly awarded costs to Brito however, the Court declined to award sanctions.

Affirmed.

J. Golden delivered the opinion.

Link: http://tinyurl.com/ypb2wm

Summary 2007 WY 190

Summary of Decision issued December 6, 2007

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

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

Case Name: Garvin v. State; Lockwood v. State

Citation: 2007 WY 190

Docket Number: S-07-0102

Appeal from the District Court of Albany County, the Honorable Jeffrey A. Donnell, Judge

Representing Appellants (Defendants): R. Michael Vang of Brown & Hiser LLC, Laramie, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and James Michael Causey, Assistant Attorney General. Argument by Mr. Causey.

Issue: Whether the Defendants’ rights to be free from unreasonable searches and seizures under Article 1 § 4 of the Wyoming Constitution and the Fourth Amendment of the United States Constitution would require suppression of evidence and dismissal of charges.

Facts/Discussion: Appellants entered conditional pleas of guilty to the charge of possession with intent to deliver a controlled substance. They reserved the right to appeal the district court’s denial of their respective motion to suppress the marijuana evidence discovered in Garvin’s rental vehicle following a traffic stop.
Standard of Review: When the Court reviews a district court’s suppression ruling they defer to the court’s findings on factual issues unless they are clearly erroneous.
In this consolidated appeal, Garvin and Lockwood contend the district court erred in denying their motions to suppress the marijuana evidence seized during a search of the rental vehicle Garvin was driving. Lockwood presented no argument on appeal that he was illegally detained or searched. The rights guaranteed by the Fourth Amendment are personal rights and only the person whose rights have been infringed may claim the benefits of the exclusionary rule. Since his rights were never violated, he had no standing to invoke the protections of that rule.
The reasonableness of a traffic stop is analyzed under the two-part test articulated in Terry v. Ohio which includes whether the initial stop was justified and whether the officer’s actions during the detention were reasonably related in scope to the circumstances that justified the interference in the first place. The existence of objectively reasonable suspicion of criminal activity is determined by evaluating the totality of the circumstances. The circumstances included the existence of a one-way rental agreement, the strong odor of air-fresheners and dryer sheets, the open display of religious symbols, the defendant exhibiting extreme nervousness through the entire process, and the rental agreement which stated the car was to have been returned six days prior to the day in question.

Holding: After looking at the whole picture, the Court agreed with the district court’s legal conclusion there was reasonable suspicion of criminal activity to detain Garvin until the arrival of the canine unit. The aggregate of all the information available created reasonable suspicion that criminal activity was afoot, thus warranting Garvin’s further detention.

Affirmed.

J. Golden delivered the opinion.

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

Summary 2007 WY 189

Summary of Decision issued December 5, 2007

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

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

Case Name: In the Interest of MN, S(e)N, S(h)N: LM v. Laramie County Dep’t of Damily Services

Citation: 2007 WY 189

Docket Number: C-06-12

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

Representing Appellant (Respondent): Dameione S. Cameron of Parsons Law Offices, PC, Cheyenne, Wyoming. Argument by Mr. Cameron.

Representing Appellee (Petitioner): Patrick J. Crank, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Dan S. Wilde, Senior Assistant Attorney General; Sue Chatfield, Senior Assistant Attorney General; and Nancy D. Conrad, Assistant Attorney General. Argument by Ms. Chatfield.

Issue: Whether the language of Wyo. Stat. Ann. § 14-2-312 gives the district court any choice other than to appoint a guardian ad litem for the children or to find that none is required because the interests of the children will be represented by the petitioner or another party.

Facts/Discussion: The Appellant appeals the termination of her parental rights, arguing among other things, that no guardian ad litem was appointed to represent her children.
Standard of Review: The Court reviews questions of law such as statutory interpretation, de novo. The Court begins by making an inquiry relating to the ordinary and obvious meaning of the words employed.
The Court noted that they have repeatedly found the word “shall” in a statute to be mandatory which readily led them to the conclusion that Wyo. Stat. Ann. § 14-2-312 is an unambiguous mandatory statute that does not allow the district court discretion. The statute leaves no room for an assumption that the Department of Family Services will adequately represent the interests of the child(ren) in a termination action.

Holding: Wyo. Stat. Ann. § 14-2-312 is an unambiguous mandatory statute that requires the district court in a parental rights termination action either to appoint a guardian ad litem to represent the involved child(ren) or to make a finding that no guardian ad litem is necessary because the petitioner or another party to the action will adequately represent the interests of the child(ren) and the interests of the child(ren) are not adverse to that party.

Reversed and remanded.

C.J. Voigt delivered the opinion.

Link: http://tinyurl.com/35hfjq .

Summary 2007 WY 188

Summary of Decision issued December 4, 2007

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

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

Case Name: Layland v. Stevens

Citation: 2007 WY 188

Docket Number: S-07-0046

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

Representing Appellant (Plaintiff): Robert T. Moxley of Robert T. Moxley, PC, Cheyenne, Wyoming.

Representing Appellee (Defendant): Patrick J. Crank, Attorney General; Christine Cox, Senior Assistant Attorney General; Thomas W. Rumpke, Senior Assistant Attorney General. Argument by Ms. Cox.

Issue: Whether Deputy Stevens was entitled to qualified immunity from suit for constitutional violations allegedly arising out of Mr. Layland’s arrest.

Facts/Discussion: Layland was arrested and charged with kidnapping and witness intimidation. He filed a claim under 42 U.S.C. § 1983 against Stevens alleging various civil rights violations. Both parties filed motions for summary judgment and after a hearing the district court granted Stevens’ motion and dismissed the case.
Standard of Review: The issue the Court found determinative was whether qualified immunity barred Layland’s claims against Stevens. The presence or absence of qualified immunity is a question of law the Court reviews de novo.
Qualified immunity shields public officials from suit on § 1983 civil rights claims when they are performing discretionary functions unless their conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” To avoid that defense, Layland was required to show that Stevens’ arrest of him without a warrant violated his Fourth Amendment right and that the contours of that right were sufficiently clear that a reasonable official would have understood his actions violated the right. In concluding that Laylands’ rights were not violated, the district court relied on U.S. v. Little. The factors for determining whether a person has been illegally seized include: the threatening presence of several officers; the brandishing of a weapon; physical touching; aggressive language; retention of the person’s personal belongings by an officer; a request to accompany the officer to the police station; the absence of other members of the public; and whether the interaction occured in a nonpublic, small or enclosed space. The district court applied the factors and concluded that Layland failed to show that he had a clearly established right not to be arrested. On that basis they concluded Stevens was entitled to qualified immunity.
The Court used a different analysis stating that controlling precedent makes it clear that qualified immunity shielded Stevens from suit for damages if a reasonable officer could have believed Layland’s arrest was lawful in light of established law and the information Stevens possessed. Even if Stevens was mistaken in concluding that probable cause existed, he nevertheless was entitled to qualified immunity if his decision was reasonable.
Layland relied on Payton v. New York and Mickelson v. State asserting that he did not consent to the entry and that no exigent circumstances existed justifying his arrest without a warrant. The Court noted that the United States Supreme Court has not extended the rule in Payton to premises other than a private home. According to the record, Layland’s shop was neither a place of business nor his private residence. In addition, the evidence presented did not establish a lack of consent as it clearly did in Mickelson.

Holding: Under the facts presented the Court concluded as a matter of law that a reasonable officer could have concluded he had consent to enter the building to question Layland and probable cause to arrest him without a warrant.

Affirmed.

J. Kite delivered the opinion.

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

Summary 2007 WY 187

Summary of Decision issued November 30, 2007

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

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

Case Name: Wilkening v. State

Citation: 2007 WY 187

Docket Number: 06-109

Original Proceeding; Petition for Writ of Review; District court of Sweetwater County, the Honorable Nena R. James, Judge.

Representing Appellant (Petitioner): D. Terry Rogers, Interim Public Defender; Tina N. Kerin, Appellate Counsel. Argument by Ms. Kerin.

Representing Appellee (Respondent): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric Alan Johnson, Director, Prosecution Assistance Program; Geoffrey Gunnerson, Student Director, Prosecution Assistance Program; Kevin Kessner, Student Intern, Prosecution Assistance Program. Argument by Mr. Kessner.

Issue: Whether the trial court erred in denying the motion for new trial, in which it was alleged that the State had withheld potentially exculpatory evidence.

Facts/Discussion: The Court previously upheld Appellant’s conviction for felony interference with a peace officer. While that appeal was pending, he filed a motion for new trial in the district court claiming that the State had improperly withheld exculpatory evidence.
Standard of Review: When considering constitutional issues, the Court generally applies a de novo standard of review. The parties agreed that Appellant’s claim of failure to disclose evidence in violation of Brady should properly be reviewed de novo.
To establish a Brady violation, Appellant must prove that the prosecution suppressed evidence, that the evidence was favorable to the defense, and that the evidence was material because it was reasonably probable that had the evidence been disclosed to the defense the result of the proceeding would have been different. The burden was on Appellant to establish all three elements. The evidence directly at issue was the deputy’s alleged statement to the former prosecutor that he was going to Appellant’s property “to kick some ass.” The two deputies were at the hearing but according to the record they were not called as witnesses. The Court stated a Brady claim must fail when the disputed evidence in not included in the record.
The former prosecutor testified at the hearing and his statements were contrary to Appellant’s claim that the deputy made the statement as alleged. Appellate counsel testified about what the former prosecutor had said about the deputy’s statement. That testimony was not at issue here.

Holding: Appellant bore the burden of proving that the evidence existed but was suppressed. After reviewing the record the Court concluded that he did not carry that burden. Having failed to prove the first element, the challenge could not succeed.

Affirmed.

J. Burke delivered the opinion.

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

Summary 2007 WY 186

Summary of Decision issued November 20, 2007

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

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

Case Name: Thomas v. State

Citation: 2007 WY 186

Docket Number: 06-266

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

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

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Assistant Attorney General.

Issues: Whether the district court’s failure to advise Appellant pursuant to W.R.Cr.P. 11(b) was harmless. Whether the State materially and substantially breached the plea agreement.

Facts/Discussion: Pursuant to a plea agreement, Appellant pled no contest to one count of attempted second degree murder and two counts of aggravated assault and battery.
Standard of Review: The issue of whether the district court adequately advised Appellant of the consequences of his plea is a question of law the Court reviews de novo.
Appellant claimed his pleas were not knowing and voluntary because the district court did not advise him of the minimum and maximum penalties for his crimes, the possibility that restitution would be ordered or that his sentences could run consecutively. Rule 11 sets out the procedure for pleas. The Court reviewed the district court record on the advisements concerning the possible penalties attendant to his crimes. Thus while Appellant was informed that he could be subject to the maximum penalties authorized by law for his crimes, the district court did not advise him about the specific minimum or maximum penalties associated with any of his crimes. At the change of plea hearing the district court did not recite the penalties for the attempted second degree murder charge or the aggravated assault charges. The Court has consistently held that because strict compliance with Rule 11 is required, error in the plea acceptance procedure demands reversal unless the State can demonstrate it was harmless beyond a reasonable doubt. The Court has stated the district court must make requisite advisements on the record in accordance with Rule 11. The Court explained in Major v. State that the competency evaluation was not intended to answer the question of whether Appellant had sufficient understanding of the nature of the charges and penalties associated with the charges to effectively enter no contest pleas. Rule 11 specifically requires the court to personally question the defendant about his knowledge of the maximum penalty for his crime.
The Court noted that in determining whether error in the case was harmless, they were cognizant of the fact that the State’s recommended sentence on the attempted murder charge and the sentence actually imposed was the lowest possible sentence allowed under the law. However, the district court failed to inform Appellant of the penalties associated with his crimes which contributed to the error in the plea agreement. Had the district court recited the minimum and maximum at the change of plea hearing, the fact that the State could not recommend a maximum sentence of 20 years would have become obvious. Thus the district court’s acceptance of a plea agreement which included an illegal sentence recommendation further undermined the validity of Appellant’s no contest plea.

Holding: The Court concluded the district court failed to advise Appellant in accordance with Rule 11 and the record showed the error was not harmless beyond a reasonable doubt. Therefore they reversed and remanded the district court’s decision.
It was unnecessary for the Court to consider the remainder of Appellant’s arguments about the validity of his pleas or whether the State materially breached the plea agreement.

Reversed and remanded.

J. Kite delivered the opinion.

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