Barela v. State

375 P.3d 783

2016 WY 68

Steven R. Barela, Appellant (Defendant)

v.The State of Wyoming, Appellee (Plaintiff).

S–15–0280

Supreme Court of Wyoming.

June 30, 2016

Representing Appellant: Pro se.

Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

BURKE, Chief Justice.

[¶1] Appellant, Steven R. Barela, challenges the district court's denial of his motion to correct an illegal sentence under W.R.Cr.P. 35(a). We affirm.

ISSUE

[¶2] Appellant presents several issues, which we combine and restate as follows:

Did the district court err in denying Appellant's motion to correct an illegal sentence?

FACTS

[¶3] In 1995, Appellant pled guilty to second-degree murder for killing his wife. He did not pursue a direct appeal from his conviction. However, in April 1996, Appellant filed a petition for modification of his sentence based on a claim that the district court had not considered that he had experienced a serious head injury when he was an infant. The district court denied the petition. We affirmed that decision in Barela v. State , 936 P.2d 66 (Wyo.1997). In 1999, Appellant filed a petition for post-conviction relief, claiming that: (1) his guilty plea was not supported by a proper factual basis; (2) his in-custody confession and consent to a search were involuntary; (3) the district court exceeded its authority in imposing restitution; and (4) his trial counsel was ineffective. The district court dismissed the petition, and we dismissed Appellant's subsequent appeal. In 2000, five years after his conviction, Appellant filed a motion to withdraw his guilty plea based on ineffective assistance of counsel. The district court denied the motion. We dismissed the appeal after concluding that the district court did not have jurisdiction to consider Appellant's motion because the time for taking a direct appeal from the court's judgment and sentence had expired. Barela v. State , 2002 WY 143, 55 P.3d 11 (Wyo.2002).

[¶4] The present case was initiated in August 2015, when Appellant, acting pro se , filed a “Motion For: Writ of Habeas Corpus, Withdrawal of Plea, and/or Correction/Reduction of an Illegal Sentence.” The district court denied the motion. With respect to Appellant's motion for writ of habeas corpus , the court concluded that Appellant's claims of error were not cognizable in a habeas corpus proceeding because he did not challenge the trial court's jurisdiction to convict and sentence him. With respect to the motion to correct illegal sentence, the court concluded that Appellant “gives no specific grounds for his contention that this sentence is illegal.” The court noted that Appellant claimed that his sentence was illegal because the court failed to provide a firearms disqualification advisement at the time of sentencing, in 1995. However, because the advisement statute, Wyo. Stat. Ann. § 7–1–-507, was not enacted until 2009, the court noted that it was inapplicable to Appellant's case. Finally, the court concluded that Appellant's sentence of 28 years to life was permitted under Wyo. Stat. Ann. § 6–2–104. This appeal followed.

[¶5] In December 2015, Appellant filed a motion to proceed in forma pauperis in this appeal. We denied the motion due to the fact that Appellant was already proceeding in forma pauperis per the district court's order. Additionally, we clarified that the only matter properly before this Court was the denial of Appellant's motion to correct an illegal sentence:

To the extent Appellant seeks habeas corpus relief, this appeal is improper. “It is the settled rule in this jurisdiction that there is no appeal from the disallowance of a writ of habeas corpus by a district court. The proper remedy is an application for such a writ to this court.” Foster v. Warden of Wyoming State Penitentiary , 489 P.2d 1166, 1166 (Wyo.1971). To the extent Appellant seeks to challenge the denial of his post-sentence motion to withdraw guilty plea, this Court is without jurisdiction to consider this matter. This Court made that clear in an earlier appeal involving Appellant:

In the instant case, appellant filed his Motion to Withdraw Guilty Plea over five years after the entry of his plea and over five years after his sentence was imposed. Pursuant to Nixon [v. State , 2002 WY 118, 51 P.3d 851 (Wyo.2002) ], appellant's criminal case became final for purposes of the motion to withdraw his guilty plea at the expiration of the time for taking a direct appeal from the district court's judgment and sentence. Accordingly, the district court was without jurisdiction to consider the motion to withdraw appellant's guilty plea and, because this Court has no greater jurisdiction than that of the district court in these matters, we dismiss this appeal for lack of subject matter jurisdiction.

Barela v. State , 2002 WY 143, ¶ 9, 55 P.3d 11, 13 (Wyo.2002). Finally, Appellant's motion for sentence reduction is clearly untimely under W.R.Cr.P. 35(b). The only matter properly before the Court is the denial of Appellant's motion to correct illegal sentence under W.R.Cr.P. 35(a).

STANDARD OF REVIEW

[¶6] 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 , 2003 WY 140, ¶ 7, 78 P.3d 257, 259 (Wyo.2003). “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) ).

DISCUSSION

[¶7] As indicated above, the only issue before us in this appeal is the denial of Appellant's motion to correct illegal sentence. Appellant presents several claims in support of his contention that his sentence is illegal. First, he asserts that he is serving an illegal sentence because the Department of Corrections requires inmates to pay for personal items such as clothing and medication. Second, he claims his sentence is illegal because he was assessed a $50.00 surcharge for the Crime Victim's Compensation Fund under Wyo. Stat. Ann. § 1–40–119. Third, Appellant claims his sentence is illegal due to repeal of the Wyoming Work Release Act, Wyo. Stat. Ann. § 7–16–301, in 2014. He contends the repeal violates the prohibition against enactment of ex post facto laws. Fourth, he claims his sentence is illegal because the Attorney General and the Department of Corrections determined that he was serving a “life” sentence and, consequently, concluded that he was ineligible for placement in an adult community corrections facility pursuant to Wyo. Stat. Ann. § 7–18–102(a)(iii)(C). Appellant contends that the Board of Parole has no intention of ever paroling him. Fifth, Appellant claims his sentence is illegal because he was not advised of his right to appeal at the time of sentencing.¹ Finally, Appellant contends he was improperly denied counsel in the proceedings before the district court.

[¶8] An illegal sentence is defined as “ ‘one which exceeds statutory limits, imposes multiple terms of imprisonment for the same offense, or otherwise violates constitutions or the law.’ ” Hagen v. State , 2014 WY 141, ¶ 10, 336 P.3d 1219, 1222 (Wyo.2014) (quoting Gee v. State , 2014 WY 9, ¶ 7, 317 P.3d 581, 583 (Wyo.2014) ). None of the claims made by Appellant is properly pursued in a motion to correct an illegal sentence. We recently addressed claims similar to Appellant's in Pfeil v. State , 2014 WY 137, 336 P.3d 1206 (Wyo.2014). In that case, the appellant contended his sentence was illegal under Rule 35(a) because of the manner it was being administered by the Department of Corrections and the Board of Parole. In particular, the appellant faulted the BOP for denying his requests for good time credit, parole, and a recommendation to the governor that he be given a commutation. He also attempted to challenge the DOC's garnishment of his prison account to pay fines and costs and for implementing policies requiring inmates to pay for various personal items. We concluded the appellant's claims were not properly brought in a motion to correct illegal sentence:

None of Mr. Pfeil's complaints pertain to the validity of the underlying sentence. Instead, he bootstraps his complaints over how his sentence is being administered into an argument that the BOP and DOC have effectively altered his sentence to the extent it is now illegal. Rule 35 addresses only sentences which are illegal in fact, not sentences which inmates claim are being executed illegally by the State. See, e.g. , Gould v. State , 2006 WY 157, ¶ 25, 151 P.3d 261, 268 (Wyo.2006). It does not, therefore, provide an avenue to Mr. Pfeil for relief from the BOP's and DOC's actions.

... As we pointed out in Gould , ¶ 26, 151 P.3d at 268, there are other legal means for challenging a State's actions in administering a sentence. The DOC has a grievance procedure for inmates to contest decisions made by prison personnel, and the record demonstrates that Mr. Pfeil is aware of the process and has availed himself of it. In addition, if he believes the DOC or BOP rules or regulations are improper or are not being followed, there are other ways to challenge those actions. In some cases, a civil rights action under 42 U.S.C. § 1983 or a petition for writ of habeas corpus may be available. See id., citing Olim v. Wakinekona , 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983) (§ 1983 action); Shields v. Beto , 370 F.2d 1003 (5th Cir.1967) and Thompson v. Bannan , 298 F.2d 611 (6th Cir.1962) (habeas corpus

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