Simonds v. State

799 P.2d 1210, 1990 Wyo. LEXIS 126, 1990 WL 165317
CourtWyoming Supreme Court
DecidedOctober 29, 1990
Docket89-101
StatusPublished
Cited by16 cases

This text of 799 P.2d 1210 (Simonds 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
Simonds v. State, 799 P.2d 1210, 1990 Wyo. LEXIS 126, 1990 WL 165317 (Wyo. 1990).

Opinions

CARDINE, Justice.

Appellant Brett Simonds was sentenced to concurrent terms of imprisonment following his convictions for aggravated burglary and interference with a peace officer. In Simonds v. State, 762 P.2d 1189 (Wyo.1988), he successfully challenged the aggravated burglary conviction and the life sentence imposed for that offense pursuant to Wyoming’s “habitual criminal” statute, W.S. 6-10-201. This court, however, upheld his convictions with respect to the lesser-included offense of simple burglary and with respect to the charge of interference with a peace officer and remanded solely for resentencing on the burglary charge. Appellant now challenges the order of the district court on remand sentencing him to six to eight years for burglary, reducing his nine to ten year sentence for interference with a peace officer to six to eight years, and ordering those terms to be served consecutively.

Simonds was arrested while in the course of burglarizing a bar. Shortly afterwards, as the arresting officer attempted to use the establishment’s telephone, Simonds struck him in the jaw. He was charged with interference with a peace officer and, due to the bodily injury inflicted on the officer, aggravated burglary. We held that the commission of the burglary had been terminated by the arrest and that Simonds’ assault on the officer, therefore, took place after the burglary. Because,, under the relevant statute, simple burglary is elevated to aggravated burglary only by the occurrence of aggravating circumstances “in the course of committing the crime of burglary,” we also held that Si-monds could not properly be convicted of aggravated burglary. Since his sentence as a habitual criminal was dependent upon [1212]*1212such a conviction, that sentence was improper. However, we found sufficient evidence to sustain his conviction for the crime of simple burglary and remanded for sentencing on that charge.

Appellant raises the following questions to be determined by this appeal:

“I. Did the district court have the authority to alter appellant’s sentence for interference with a peace officer when the conviction was affirmed by the supreme court and the court did not specifically remand the conviction for resen-tencing.
“II. Did the district court judge violate appellant’s constitutional right against double jeopardy when he increased appellant’s sentence for interference with a peace officer by improperly changing the sentence from running concurrent to running consecutive with appellant’s burglary sentence.”

Appellee, State of Wyoming, would have us answer those questions in this manner:

“I. There was no increase in the sentence for interference with a peace officer and the district court acted in substantial compliance with this court’s mandate in Simonds v. State, 762 P.2d 1189 (Wyo.1988).
“II. There was no increase in the sentence for interference with a peace officer and the district court did not violate double jeopardy principles when it sentenced appellant.”

We reverse.

The double jeopardy provisions of the Fifth Amendment to the Constitution of the United States and Art. 1, § 11 of the Wyoming Constitution have the same meaning and are coextensive in application. Lauthern v. State, 769 P.2d 350, 353 (Wyo.1989); Vigil v. State, 563 P.2d 1344, 1350 (Wyo.1977). Each provision affords three distinct protections to the accused. Each protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. Lauthern, 769 P.2d at 353; Howard v. State, 762 P.2d 28, 31 (Wyo.1988); Jones v. Thomas, — U.S. -, 109 S.Ct. 2522, 2525, 105 L.Ed.2d 322 (1989); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). It is the third of these protections which appellant claims was denied him. He asserts that his sentence for interfering with a peace officer, originally to be served concurrently with a sentence on another charge, was unconstitutionally increased following his appeal by the subsequent order making those sentences consecutive.

In Pearce, the United States Supreme Court noted:

“Long-established constitutional doctrine makes clear that, beyond the requirement already discussed, the guarantee against double jeopardy imposes no restrictions upon the length of a sentence imposed upon reconviction. * * *
“Although the rationale for this ‘well-established part of our constitutional jurisprudence’ has been variously verbalized, it rests ultimately upon the premise that the original conviction has, at the defendant’s behest, been wholly nullified and the slate wiped clean. As to whatever punishment has actually been suffered under the first conviction, that premise is, of course, an unmitigated fiction, as we have recognized in Part I of this opinion. But, so far as the conviction itself goes, and that part of the sentence that has not yet been served, it is no more than a simple statement of fact to say that the slate has been wiped clean. The conviction has been set aside and the unexpired portion of the original sentence will never be served. A new trial may result in an acquittal. But if it does result in a conviction, we cannot say that the constitutional guarantee against double jeopardy of its own weight restricts the imposition of an otherwise lawful single punishment for the offense in question.” 395 U.S. at 719-21, 89 S.Ct. at 2077-78 (emphasis in original).

The Court, however, also indicated that the imposition of a heavier sentence upon re-conviction, to the extent that it may have been motivated by vindictiveness for the defendant’s successful exercise of his right to appeal, does implicate due process con[1213]*1213cerns. The Court observed that the threat of being penalized for the exercise of constitutional rights would deter defendants from attacking their convictions and, thus, unconstitutionally impede their open and equal access to the courts. Accordingly, the Court held:

“In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” 395 U.S. at 726, 89 S.Ct. at 2081 (emphasis added).

Had appellant’s initial appeal been resolved by a remand for resentencing on all charges, Pearce would clearly control the resolution of the present appeal. Just as a remand for retrial would “wipe the slate clean” of a challenged conviction and sentence, so too would the finality of the initial sentencing be nullified by a remand for resentencing on all counts. See United States v. Jefferson, 714 F.2d 689

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Simonds v. State
799 P.2d 1210 (Wyoming Supreme Court, 1990)

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Bluebook (online)
799 P.2d 1210, 1990 Wyo. LEXIS 126, 1990 WL 165317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simonds-v-state-wyo-1990.