DeLoge v. State

2012 WY 128, 289 P.3d 776, 2012 WL 4457696, 2012 Wyo. LEXIS 134
CourtWyoming Supreme Court
DecidedSeptember 27, 2012
DocketNo. S-12-0044
StatusPublished
Cited by13 cases

This text of 2012 WY 128 (DeLoge v. State) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeLoge v. State, 2012 WY 128, 289 P.3d 776, 2012 WL 4457696, 2012 Wyo. LEXIS 134 (Wyo. 2012).

Opinion

BURKE, Justice.

[T1] Appellant, Steven A. DeLoge, pled guilty to six counts of second-degree sexual assault in 2000 and was sentenced to six consecutive life terms. In this appeal, Appellant, acting pro sg, challenges the district court's denial of his motion to correct an illegal sentence under W.R.Cr.P. 35(a). We affirm.

ISSUES

Appellant presents the following issues:

1. Whether the district court correctly concluded that the claims of illegal sentence were barred by the doctrine of res judicata ?
2. Whether the district court correctly denied correction of factual inaccura-cles in the pre-sentence investigation report?
3. Whether the applied sentencing enhancement provision of W.S. 6-2-306(b)(i) creates an illegal sentence by violating the Wyoming and United States Constitutions?

FACTS

[¶ 3] Appellant was originally charged with eleven counts of second-degree sexual assault. He pled guilty to six of those counts and was sentenced to six consecutive life terms. Appellant took a direct appeal from his convictions, arguing, among other things, that the sexual assault sentencing statute, Wyo. Stat. Ann. § 6-2-806, violated the double jeopardy clauses of the Wyoming and United States Constitutions because it imposed multiple punishments for the same crime. This Court affirmed his convictions in DeLoge v. State, 2002 WY 155, 55 P.3d 1233 (Wyo.2002) (DeLoge I ).

[14] In 2002, while his appeal was pending, Appellant filed a motion to withdraw his guilty pleas, He also filed a post-conviction motion seeking the return of seized property. We affirmed the district court's denial of Appellant's motion to withdraw his guilty pleas, finding no "manifest injustice," but remanded to the district court for a ruling on the merits of Appellant's motion for return of the seized property. DelLoge v. State, 2005 WY 152, 123 P.3d 578 (Wyo.2005) (DeLoge II).

[T5] In December, 2003, prior to our decision in DelLoge II, Appellant also filed a petition for post-conviction relief in district court. The court dismissed the petition. Subsequently, Appellant filed a petition for writ of review in this Court,. We denied that petition. Appellant then filed a second petition for writ of review in this Court challenging the district court's dismissal of his petition for post-conviction relief. That petition was also denied. Id., 15, 128 P.3d at 574-75.

[16] In 2006, following remand, the district court denied Appellant's motion for return of the seized property. Appellant appealed that decision. We affirmed in part and reversed in part, finding that Appellant had no right to counsel in the proceeding, but that the district court could not deny Appellant's motion without evidence from the State to support the need for continued retention of the property. DeLoge v. State, 2007 WY 71, 156 P.3d 1004 (Wyo.2007) (DeLoge III).

[T7] Finally, in Appellant's fourth appeal, we affirmed the district court's dismissal of Appellant's motion because "the State did not have possession of [the property], sovereign immunity prevented the court from awarding him damages for the loss of his property, and he did not present a recognizable right to post-conviction preservation of exculpatory evidence." DeLoge v. State, 2010 WY 60, ¶ 2, 231 P.3d 862, 868 (Wyo.2010) (Deloge IV ).

[778]*778[18] In May, 2011, Appellant filed a motion to correct an illegal sentence under W.R.Cr.P. 35(a). Appellant asserted that his sentence was illegal because it was based on factual inaccuracies in his presentence investigation (PSI) report, and because the sentence was imposed in violation of his constitutional rights to due process, fundamental fairness, compulsory process, and protection against double jeopardy. The district court denied the motion after concluding that Appellant's constitutional claims were barred by the doctrine of res judicata, and that the sentencing judge had not relied on the alleged inaccuracies in the PSI report in determining Appellant's sentence. - Appellant timely appealed the district court's order.

STANDARD OF REVIEW

[19] We apply the following standard of review to claims that a criminal sentence is illegal:

Sentencing decisions are normally within the discretion of the trial court. Bitz v. State, 2008 WY 140, ¶ 7, 78 P.3d 257, 259 (Wyo.2008). "Such discretion is limited, however, inasmuch as a court may not enter an illegal sentence. A sentence is illegal if it violates the constitution or other law." In re CT, 2006 WY 101, ¶ 8, 140 P.3d 643, 646 (Wyo.2006) (internal case citation omitted). Whether a sentence is illegal is a question of law, which we review de novo. Manes v. State, 2007 WY 6, ¶ 7, 150 P.3d 179, 181 (Wyo.2007).

Endris v. State, 2010 WY 73, ¶ 13, 233 P.3d 578, 581 (Wyo.2010) (quoting Jackson v. State, 2009 WY 82, ¶ 6, 209 P.3d 897, 898-99 (Wyo.2009)). Whether a claim is barred by res judicata is also a question of law, reviewed de novo. Winstead v. State, 2011 WY 137, ¶ 8, 261 P.3d 743, 745 (Wyo.2011).

DISCUSSION

[110] The doctrine of res judicata bars litigation of issues that were or could have been determined in a prior proceeding. Dax v. State, 2012 WY 40, ¶ 9, 272 P.3d 319, 321 (Wyo.2012). Four factors are examined to determine whether res judicata applies: (1) identity in parties; (2) identity in subject matter; (8) the issues are the same and relate to the subject matter; and (4) the capacities of the persons are identical in reference to both the subject matter and the issues between them. Id. Courts can correct illegal sentences under W.R.Cr.P. 35(a) at any time, but the bases for correcting the sentence remain subject to res judicata. Dax, ¶¶ 9-10, 272 P.3d at 321. If a party fails to show good cause why an issue was not raised at an earlier opportunity, the Court may decline to consider the issue. Hamill v. State, 948 P.2d 1356, 1358 (Wyo.1997).

[111] Appellant acknowledges that he "raised on direct appeal and post conviction motion the issue of the constitutionality of the enhancement provision of sentencing statute 6-2-306(b)(i)." He contends, however, that the third factor in the test for res judicata is not satisfied because "the subject matter of the claims [is] not identical to those previously raised." Appellant makes this assertion based solely on the fact that the statute which prescribed his sentence in 2000 was amended in 2007.1 He claims that the [779]*779legislature's 2007 amendment "presents a completely different cireumstance of statutory construction and legislative intent." Essentially, Appellant contends that the amendment to Wyo. Stat. Ann. § 6-2-3806 indicates that the previous version of the statute was unconstitutional.2 We disagree.

[112] We note initially that a double jeopardy claim is not cognizable and cannot be entertained on a motion to correct an illegal sentence because "a double jeopardy claim brought in this procedural context [is] a challenge to the convictions and not to the sentence." Birr v. State, 878 P.2d 515, 516 (Wyo.1994). Additionally, Appellant's claim that former Wyo. Stat. Ann. § 6-2-3806 violates the double jeopardy clauses of the Wyoming and United States Constitutions is identical to the issue raised in his direct appeal.

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Bluebook (online)
2012 WY 128, 289 P.3d 776, 2012 WL 4457696, 2012 Wyo. LEXIS 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deloge-v-state-wyo-2012.