Baker v. State

2011 WY 123, 260 P.3d 268, 2011 Wyo. LEXIS 127

Opinions

BURKE, Justice.

[T1] In these consolidated appeals, David Dale Baker challenges the district court's denial of his motion to correct an fllegal sentence. He also claims that the district court erred when it did not grant him access to e-mail correspondence between the Wyoming Department of Corrections and the Wyoming Public Defender's Office. Having considered his claims and contentions, we will affirm the district court's decisions.

ISSUES

[T2] In Docket No. S-10-0229, Mr. Baker states the issues as follows:

1. The rule of Apprendi is applicable where the consecutive sentence Appellant received is beyond the statutory maximum, and was not presented to the jury for the enhancement of the sentence.

2. It was a violation of the Constitution where Appellant was sentenced with, but did not receive any notice that he was being charged with, nor was he convicted by the jury of a cumulative crime.

3. The Court could not sentence Appellant to a consecutive sentence where there is no statutory authority to do so.

4. The Double Jeopardy Clause was violated as the sentences Appellant received were required to merge where conviction of the underlying felony was required in order to convict and impose a sentence for child endangerment.

In Docket No. S-10-0230, Mr. Baker lists three issues:

1. It was clear error for the Court to deny Appellant access to the Court by ruling the Court had no jurisdiction to order the Wyoming Honor Farm to produce documents in its possession relating to Appellant.

2. Pursuant to Wyoming law Appellant has a Constitutional right to any and all documents referencing and identifying him in the possession of the Wyoming Department of Corrections.

3. Appellant has a Constitutional right to the required service of all documents filed into the District Court.

FACTS

[T3] In August, 2007, Mr. Baker was convicted on six methamphetamine-related charges. He was sentenced to imprisonment for six to eight years on each of the first four charges, with the sentences to be served concurrently. He was sentenced to imprisonment for eighteen to twenty-four months on each of the last two charges, with the sentences to be served concurrently, but consecutive to the sentences on the first four counts. Mr. Baker appealed. We reversed his convictions on two of the charges, and affirmed the other four. Baker v. State, 2010 WY 6, ¶ 39, 223 P.3d 542, 557 (Wyo.2010) (Baker I). We remanded the case to the district court for resentencing in accordance with our opinion. Id., ¶ 44, 223 P.3d at 558. On remand, the district court imposed the same sentences as before on the remaining four charges. Accordingly, Mr. Baker was sentenced to six to eight years on each of the first two counts, to be served concurrently; and eighteen to twenty-four months on each of the last two counts, to be served concurrently with each other, but consecutive to the sentences on the first two counts.

[T4] On April 28, 2010, Mr. Baker, acting pro se, filed a motion for sentence reduction pursuant to W.R.Cr.P. 85(b). He asked the district court to suspend his sentences and place him on supervised probation or, in the alternative, to order that the sentences for all four counts be served concurrently. The district court scheduled a hearing on the motion on August 2, 2010. At that hearing, Mr. Baker indicated that one of the issues he had raised in his motion for sentence reduction pursuant to W.R.Cr.P. 35(b) should be considered as a motion to correct an illegal sentence pursuant to W.R.Cr.P. 35(a). The district court permitted Mr. Baker to present argument under either rule or both. After considering Mr. Baker's argument on the motion to reduce his sentence, the district court concluded as follows:

sentences imposed appear to be appropriate; they were appropriate at the time; not excessive, within the lower range of the sentences [provided by statute]. I acknowledge that Mr. Baker has done well at the Honor Farm; but it is presumed that people will do well. And the reward for that is the good time that is provided by the Department of Corrections. So I think the sentences imposed were appropriate, remain appropriate, and I will not grant any further reduction of sentence.

With regard to Mr. Baker's motion to correct an illegal sentence, the district court concluded that "the sentence is not illegal. And insofar as the matter is a request to correct an illegal sentence, that request is denied." On August 6, 2010, the district court entered its order confirming its denial of the motions. In Docket No. S-10-0229, Mr. Baker challenges the district court's denial of his motion to correct an illegal sentence. We note that he has not pursued an appeal of the denial of his motion for sentence reduction.

[T5] In addition to seeking reduction and correction of his sentence in the district court, Mr. Baker also petitioned the United States Supreme Court to review his case through a writ of certiorari. In connection with his petition, Mr. Baker requested that the Wyoming Public Defender's office provide him with complete copies of his trial and appellate record. Although many documents were provided to Mr. Baker, he continued to assert that other documents had been withheld. He filed a motion in the district court for an order to compel the Wyoming Public Defender's Office to provide him with "the Complete Record," specifically including "Suppression Hearing Photographs, ... any and all E-Mails, Confidential Documents, and Photographic Evidence pertaining to any proceedings." The district court considered this motion during the hearing held on August 2, 2010. Information provided during the hearing indicated that Mr. Baker had been given nearly all of the pertinent documents, with the exception of several photographs the prosecution had provided to the Wyoming Public Defender's Office prior to Mr. Baker's trial. For reasons left unclear, the Wyoming Public Defender's Office no longer had those photographs. At the request of the district court, the prosecutor provided two Compact Disks containing the photographs to the Wyoming Public Defender's Office. The CD's were then sent to Mr. Baker.

[T6] At this point, however, Mr. Baker was an inmate at the Wyoming Honor Farm, and was not allowed to possess or use CD's. As a result, Mr. Baker's case worker at the Wyoming Honor Farm returned the two CD's to the Wyoming Public Defender's Office. According to Mr. Baker, the Wyoming Public Defender's Office eventually provided him prints of the photographs. In the meantime, however, Mr. Baker filed a "Motion for the Court to Issue a Subpoena Duces Te-cum," asking the district court to direct the Wyoming Honor Farm to provide him with copies of all e-mail correspondence between his case worker and the Wyoming Public Defender's Office concerning the CD's.

[T7] The district court held a hearing on this motion on September 2, 2010. At the hearing, Mr. Baker made it clear that he no longer sought this information as part of his effort to obtain review of his case by the United States Supreme Court.¹ Instead, he sought the e-mail correspondence to support a complaint against the Wyoming Public Defender's Office that he intended to file with the Wyoming State Bar. Considering Mr. Baker's stated purpose, the district court found that the requested subpoena was "not appropriate" in the context of Mr. Baker's criminal matter, and denied the motion. In Docket No. S-10-0230, Mr. Baker challenges that ruling.

DISCUSSION

Denial of Motion to Correct Illegal Sentence

[T8] After two of Mr. Baker's convictions were reversed in Baker I, ¶ 39, 223 P.3d at 557, he remained convicted on four charges: Count I for possession of a controlled substance precursor with the intent to engage in a clandestine laboratory operation, in violation of Wyo. Stat. Ann. § 35-7-1059(a)(i) (LexisNexis 2007); Count II for conspiracy to engage in a clandestine laboratory operation, in violation of Wyo. Stat,. Ann. § 35-7-1059(a)(iv); and Counts V and VI, child endangerment, in violation of Wyo. Stat. Ann. § 6-4-405(a)(ii). On remand, he was sentenced to terms of six to eight years imprisonment on each of the first two counts, with the two sentences to run concurrently. He was sentenced to terms of eighteen to twenty-four months on each of the last two counts, with these two sentences to run concurrently, but consecutive to the sentences on the first two charges.

[T9] Mr. Baker's appeal issues revolve around the district court's order that his sentences on the last two charges would be served consecutively to the sentences on the first two charges. His brief includes this explanation of his claim:

The maximum sentence allowed for Counts V and VI pursuant to W.S. § 6-4-405(c) is five (5) years incarceration. By the court sentencing [Mr. Baker] to consecutive sentences on Counts V and VI to Counts I and II [Mr. Baker] is now serving a maximum sentence of ten (10) years, double of that allowed for the maximum by statute.

On that basis, he claims that his sentences are illegal, and the district court erred when it denied his motion to correct those sentences.

[¥10] We review such claims using the following standard of review:

This Court reviews a trial court's denial of a motion to correct an illegal sentence by using an abuse of discretion standard. However, this discretion is limited to a determination by the trial court as to whether the sentence was legal or illegal.... An illegal sentence is one which exceeds statutory limits, imposes multiple terms of imprisonment for the same offense, or otherwise violates constitutions or the law. Whether a sentence is illegal is determined by referencing the applicable statute or constitutional provisions, and is subject to statutory interpretation. The determination of whether the appropriate rule was applied to a set of facts is a question of law, requiring de novo review.

McDaniel v. State, 2007 WY 125, 141 6-7, 163 P.3d 836, 838 (Wyo0.2007) (internal citations and punctuation omitted).

{111] Mr. Baker contends that his consecutive sentences violate the holding in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), in which the United States Supreme Court explained that, pursuant to the Sixth Amendment to the United States Constitution, "[olther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Mr. Baker argues that the imposition of consecutive sentences increased the penalty for his crimes beyond the prescribed statutory maximum, and therefore, Apprendi mandates that the decision to impose consecutive sentences be made by a jury, not the district court.

[T12] We considered this same contention in Gould v. State, 2006 WY 157, ¶ 24, 151 P.3d 261, 268 (Wyo.2006):

The argument that judicial imposition of consecutive sentences violates the Sixth Amendment has been soundly rejected by other courts. The Hawaii Supreme Court stated: "[Oljther jurisdictions, including several federal circuits, have aphoristically dismissed the proposition that either Blakely [v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 408 (2004)] or Apprendi proscribes consecutive term sentencing, and this court does likewise." State v. Kohapea, 111 Hawai'i 267, [279,] 141 P.3d 440[, 452] (Haw.2006), and cases cited therein. We follow suit and conclude the district courts did not improperly enhance the appellants' sentences under the Sixth Amendment and the rationale of Ap-prendi or Blakely simply by imposing consecutive sentences for their separate crimes.

We adhere to that ruling, and reject Mr. Baker's contention.

[¶ 13] Mr. Baker's second issue is a variation on his first. Based again on Ap-prendi, he claims that he was improperly denied prior notice that he was charged with a crime for which the penalty could be enhanced by consecutive sentencing. However, consecutive sentences are not enhanced sentences subject to the rationale of Apprendi. Gould, ¶¶ 20-24, 151 P.3d at 267-68. Mr. Baker's second issue is, therefore, meritless.

[T1l4] Mr. Baker's third issue is a claim that the district court had no authority to impose consecutive sentences. However, "we have long said that the district court has discretion in determining whether the sentences will be served consecutively or concurrently." (Gould, ¶ 24, 151 P.3d at 267-68, citing Doles v. State, 2002 WY 146, ¶ 16, 55 P.3d 29, 33 (Wyo.2002), and Eaton v. State, 660 P.2d 803, 806 (Wyo.1983). Mr. Baker's third issue also lacks merit.

[T15] Finally, in Mr. Baker's fourth issue, he claims that his sentences violate his rights against being placed in double jeopardy because they represent multiple punishments for the same offense. He contends that he could not have been convicted on charges of child endangerment unless he was also convicted on charges relating to the manufacture of methamphetamine. - He therefore contends that the district court was required to merge his convictions for purposes of sentencing.

[T16] In a previous case, we explained:

Merger of sentences implicates a defendant's constitutional right to be free of multiple punishments for the same offense. Bilderback v. State, 13 P.3d 249, 253 (Wyo.2000). This right is one component of the constitutional prohibition against double jeopardy. Id. 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, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), and subsequently adopted by this Court. Bilderback, 13 P.3d at 253. Pursuant to the elements test, two offenses are different when each requires proof of an element that the other does not. Id.

Najera v. State, 2009 WY 105, ¶ 11, 214 P.3d 990, 993-94 (Wyo.2009). We therefore begin this analysis with a review of the pertinent statutes, in order to determine whether the offenses are different because each requires proof of an element that the other does not.

[T17] On Count I, Mr. Baker was con-viected of possession of a controlled substance precursor with the intent to engage in a clandestine laboratory operation, in violation of Wyo. Stat. Ann. § 35-7-1059(a)(i), which provides that it is unlawful for any person to knowingly or intentionally "Possess a List I or II controlled substance precursor with the intent to engage in a clandestine laboratory operation." - Based on this statute, the jury was instructed that, to find Mr. Baker guilty of this charge, it must find the following elements:

1. From on or about the 1st day of February, 2006 through on or about the 20th day of December, 2006;

2. In Natrona County, Wyoming;

3. - The Defendant, David Dale Baker;

4. Knowingly or intentionally possessed a List II controlled substance precursor, to wit: Acetone and/or Todine;

5. With the intent to engage in a clandestine laboratory operation.²

[T18] On Count II, Mr. Baker was convicted of conspiracy to engage in a clandestine laboratory operation, in violation of Wyo. Stat. Ann. § 35-7-1059(a)(iv), which provides that it is unlawful for any person to knowingly or intentionally "Conspire with or aid another to engage in a clandestine laboratory operation." Based on this statute, the jury was instructed that, to find Mr. Baker guilty of this charge, it must find the following elements:

1. From on or about the 1st day of February, 2006 through on or about the 20th day of December, 2006;

In Natrona County, Wyoming;

The Defendant, David Dale Baker;

Knowingly or intentionally agreed with one or more other persons;

That they, or one of them, would engage in a clandestine laboratory operation.

[T19] On Counts V and VI, Mr. Baker was convicted of child endangerment, in violation of Wyo. Stat. Ann. § 6-4-405(a), which provides that "[Nlo person shall knowingly and willfully cause or permit any child to: ... (1) Remain in a room, dwelling or vehicle where the person knows methamphetamine is being manufactured or sold." The jury was instructed that, to find Mr. Baker guilty of child endangerment, it must find the following elements:

1. From on or about the 1st day of February, 2006 through on or about the 20th day of December, 2006;

In Natrona County, Wyoming;

The Defendant, David Dale Baker;

Did knowingly and willfully cause or permit a child, to wit: [A.L.], born [in] 1998; ³

To remain in a room or dwelling where the Defendant knew that methamphetamine was being manufactured.

[¥20] It is readily apparent that the crime of child endangerment includes at least one element not found in the other two criminal statutes: the presence of a child. It is equally plain that the crimes of possession of a controlled substance precursor and conspiracy to engage in a clandestine laboratory operation include at least one element not found in the child endangerment statute: engaging, or intending to engage, in a clandestine laboratory operation. Mr. Baker is incorrect in asserting that he could not have been convicted of child endangerment without first being guilty of engaging in methamphetamine manufacturing. A person may be convicted of child endangerment even if he is not actively involved in the manufacturing of the drug. Under the test set forth in Block-burger and adopted by this Court in Bilder-back, the offenses are different because each requires proof of an element that the other does not. The district court was not required to merge the different crimes for sentencing.

Denial of Motion for Subpoena Duces Te-cum

[¶ 21] Mr. Baker's argument in Docket No. S-10-0280 does not merit detailed discussion. He sought the e-mail correspondence only to support a complaint that he intended to file with the Wyoming State Bar against the Wyoming Public Defender's Office. Given these circumstances, the district court was correct in observing that "[tlhere may be other venues" in which Mr. Baker would be entitled to obtain the information he sought, but his motion was "not appropriate" in the context of his ongoing criminal case.

[T22] We affirm the district court's decisions in both Docket No. S-10-0229 and Docket No. S-10-0280.

BURKE, J., delivers the opinion of the Court; VOIGT, J., files a specially concurring opinion; HILL, J., files a dissenting opinion.

Footnotes

1

. - Mr. Baker's petition for a writ of certiorari was denied by the United States Supreme Court on October 4, 2010. Baker v. Wyoming, - U.S. -, 131 S.Ct. 118, 178 L.Ed.2d 73 (2010).

2

. We note for the sake of completeness that the jury instructions also contained several clarifications and explanations of these elements, including, for example, definitions of "possession," "clandestine laboratory operation," and "List II controlled substance precursors."

3

. The instructions on Counts V and VI were identical except for the naming of two different children.