Dharminder Vir Sen v. State

2017 WY 30, 390 P.3d 769, 2017 WL 931732, 2017 Wyo. LEXIS 30
CourtWyoming Supreme Court
DecidedMarch 9, 2017
DocketS-15-0267
StatusPublished
Cited by13 cases

This text of 2017 WY 30 (Dharminder Vir Sen 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
Dharminder Vir Sen v. State, 2017 WY 30, 390 P.3d 769, 2017 WL 931732, 2017 Wyo. LEXIS 30 (Wyo. 2017).

Opinions

BURKE, Chief Justice.

[¶1] Appellant, Dharminder Sen, was convicted of first-degree felony murder, aggravated burglary, and conspiracy to commit aggravated burglary for his participation in the killing of Robert Ernst after breaking into Mr. Ernst’s home with Wyatt Bear Cloud and Dennis Poitra, Jr. Sen appealed and, following the United States Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) and our decision in Bear Cloud v. State, 2013 WY 18, 294 P.3d 36 (Wyo. 2013) (Bear Cloud II), we vacated his sentences and remanded for resentencing on all counts. [771]*771Sen v. State, 2013 WY 47, ¶¶ 48-52, 301 P.3d 106, 124-28 (Wyo. 2013).

[¶2] Sen was resentenced to life imprisonment according to law for the first-degree murder conviction, 20 to 25 years for the conspiracy conviction, and 10 to 25 years for the aggravated burglary conviction. The court ordered the sentences for first-degree murder and conspiracy to run concurrently, and the sentence for aggravated burglary to run consecutively to them. Sen contends his aggregate sentence, which will require him to serve at least 35 years before he becomes parole eligible, violates constitutional protections against cruel and unusual punishment. We affirm.

ISSUES

[¶3] Sen presents the following issues:

I. Is Sen’s aggregate sentence a de facto sentence of life without the possibility of parole, and therefore unconstitutional under the 8th Amendment of the United States Constitution and in violation of Article 1, Section 14 of the Wyoming Constitution?
II. Is Sen’s aggravated burglary sentence grossly disproportionate and unconstitutional?

FACTS

[¶4] In August 2009, when he was fifteen years old, Sen, along with Wyatt Bear Cloud and Dennis Poitra, Jr., burglarized the home of Robert and Linda Ernst. During the burglary, Sen shot and killed Mr. Ernst. A more complete recitation of the facts is set forth in Sen, ¶ 3, 301 P.3d at 111, and will not be repeated here.

[¶5] After a jury trial, Sen was found guilty of first-degree felony murder, in violation of Wyo. Stat. Aim. § 6-2-101(a) (Lexis-Nexis 2009), conspiracy to commit aggravated burglary, in violation of Wyo. Stat. Ann. §§ 6-l-303(a) and 6-3-301(a) and (e)(i), and aggravated burglary, in violation of Wyo. Stat. Ann. § 6-3-301(a) and (e)(i). Sen, ¶¶ 4, 8, 301 P.3d at 111-12. Initially, he was sentenced to life imprisonment without the possibility of parole for the first-degree felony murder conviction, 20 to 25 years imprisonment for the aggravated burglary conviction, to be served consecutively to the life sentence, and 20 to 25 years imprisonment for the conspiracy to commit aggravated burglary conviction, to be served consecutively to the other two sentences. Id,, ¶ 8, 301 P.3d at 112. Sen appealed his convictions and sentence. While the appeal was pending, the United States Supreme Court issued its decision in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and we issued our decision in Bear Cloud II, 294 P.3d 36. In Miller, the Supreme Court held that sentencing schemes imposing mandatory life without the possibility of parole for those under the age of eighteen at the time of their crimes violate the Eighth Amendment’s prohibition against cruel and unusual punishment.

[¶6] In Bear Cloud II, we held that, under Wyoming law, a sentence of “life according to law” is in effect a life sentence without the possibility of parole, and that such a sentence violates the Eighth Amendment when it is imposed on a juvenile without the benefit of an individualized sentencing hearing. Id., ¶¶ 34, 42, 294 P.3d at 45, 47. We also stated that “because the current statutory scheme provides no other method by which to determine parole eligibility, we hold that when a trial court imposes a sentence of life imprisonment according to law upon a juvenile homicide offender, the trial court must also pronounce a specific period of time which must pass before the juvenile becomes parole eligible.” Id., ¶ 47, 294 P.3d at 47-48. We vacated Sen’s sentences and remanded for resentencing on all counts. We instructed the district court to conduct a hearing consistent with the requirements of Miller and to consider the sentences for all counts together “because Sen’s sentence of life without the possibility of parole may have impacted the sentencing decisions with respect to his conspiracy and aggravated burglary convictions, which resulted in an additional 40 to 50 years imprisonment beyond his life term.” Sen, ¶ 51, 301 P.3d at 127.

[¶7] In accord with our decision, the district court held another sentencing hearing. During that healing, the court heard testimony from Sen’s mother, grandmother, aunt, [772]*772and several expert witnesses who evaluated Sen. At the conclusion of the hearing, the district court, applying Miller, announced: “[T]he Court finds that life without the possibility of parole, ... is not an appropriate sentence in this matter and the Court must sentence him in the manner in which he has a possibility of parole.” The court sentenced Sen to life imprisonment according to law for the first-degree murder conviction and ordered that Sen would become parole eligible under that sentence after 35 years. Sen was also sentenced to 20 to 25 years for conspiracy to commit aggravated burglary, to ran concurrently with the life sentence, and to 20 to 25 years for aggravated burglary, to run consecutively to the first two sentences. The aggregate sentence required Sen to serve at least 55 years in prison before becoming parole eligible.

[¶8] Sen appealed a second time. Before the appeal could be decided, .however, we issued our decisions in Bear Cloud v. State, 2014 WY 113, 334 P.3d 132 (Wyo. 2014) (Bear Cloud III) and State v. Mares, 2014 WY 126, 11 25, 335 P.3d 487, 497-98 (Wyo. 2014). In Bear Cloud III, we held that an aggregate sentencing scheme imposing a 45-year period of parole ineligibility constituted a de facto life sentence with no meaningful opportunity for release. In State v. Mares, we addressed the applicability of statutory amendments pertaining to parole eligibility for juveniles convicted of murder to crimes that were committed prior to the statutory change. The amended statutes were enacted in 2013 and provide that persons convicted of first-degree murder who were under 18 at the time of the offense “shall be punished by life imprisonment” and that they shall be eligible for parole after having served 25 years of their sentence. 2013 Wyo. Sess. Laws, eh. 18, § 1 (amending Wyo. Stat. Ann. §§ 6-2-101(b) and G-lO-SOlCc)).1 We held that the amended statutes govern parole eligibility for juveniles already serving life sentences when the amendments became effective. We concluded that

Any juvenile offender sentenced to life imprisonment under the former law is now, by operation of the amended parole statutes, serving a sentence of life imprisonment with eligibility for parole in twenty-five years, and a juvenile offender serving such a sentence is not required to file a Rule 35 motion to implement that revised sentence.

Mares, ¶ 26, 335 P.3d at 498. Accordingly, the amended statutes apply to Sen’s sentence.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Eavan Castaner v. The State of Wyoming
2026 WY 25 (Wyoming Supreme Court, 2026)
Christopher Robert Hicks v. The State of Wyoming
2025 WY 113 (Wyoming Supreme Court, 2025)
Joseph Newton Best v. The State of Wyoming
2022 WY 25 (Wyoming Supreme Court, 2022)
John Michael Sides, Jr. v. The State of Wyoming
2021 WY 42 (Wyoming Supreme Court, 2021)
Donald Clyde Davis v. The State of Wyoming
2020 WY 122 (Wyoming Supreme Court, 2020)
Kitchen v. Whitmer
E.D. Michigan, 2020
James Michael Wiley v. The State of Wyoming
2020 WY 49 (Wyoming Supreme Court, 2020)
Phillip Sam v. The State of Wyoming
2019 WY 104 (Wyoming Supreme Court, 2019)
State v. Shanahan
Idaho Supreme Court, 2019
Davis v. State
415 P.3d 666 (Wyoming Supreme Court, 2018)
Sam v. State
2017 WY 98 (Wyoming Supreme Court, 2017)
Dharminder Vir Sen v. State
2017 WY 30 (Wyoming Supreme Court, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
2017 WY 30, 390 P.3d 769, 2017 WL 931732, 2017 Wyo. LEXIS 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dharminder-vir-sen-v-state-wyo-2017.