Patterson v. State, S–13–0018.

314 P.3d 759

Michael Antonio PATTERSON, Appellant (Defendant),

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

No. S–13–0018.

Supreme Court of Wyoming.

Dec. 18, 2013.

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee: Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey Pope, Assistant Attorney General; Brenda Yamaji, Assistant Attorney General.

Before KITE, C.J., HILL, VOIGT, BURKE, JJ., and FENN, D.J.

FENN, District Judge.

[¶ 1] This is Michael Patterson's third appearance before this Court. On his first appeal his conviction was affirmed, but he did not challenge his sentence. On his second appeal this Court determined that Appellant's sentence was illegal, and remanded the case to the district court for resentencing. Appellant returns to this Court to challenge the Amended Judgment and Sentence issued by the District Court for the First Judicial District following remand. We affirm.

ISSUES

[¶ 2] Appellant phrases the issues as follows:

1. Have Michael Patterson's constitutional due process rights been violated by the failure of the trial court to afford Mr. Patterson a timely and speedy sentencing?

2. Is Michael Patterson being held under an illegal sentence?

3. Has the trial court erred by subjecting Michael Patterson to double jeopardy in violation of the principles of constitutional due process?

The State raises a fourth issue:

Are Mr. Patterson's speedy sentencing and double jeopardy claims barred by res judicata ?

FACTS

[¶ 3] On May 18, 2006, Appellant was convicted of being an accessory before the fact to second degree murder, an offense that carries a mandatory minimum sentence of twenty (20) years.¹ About four months later, Appellant was sentenced to a term of twenty to twenty-two years,² with credit for 301 days already served. That sentence violated Wyo. Stat. Ann. § 7–13–201 (LexisNexis 2011), because the minimum sentence exceeded 90% of the maximum sentence.³ On September 20, 2006, a little over one month after Appellant's sentence was imposed, the State filed a motion to correct this illegal sentence by increasing the maximum term by three months, giving him a sentence of 240–267 months. Although this motion was not properly served on the Appellant or his counsel, an order increasing Appellant's sentence was signed by Judge Kalokathis the following day without giving Appellant any notice or an opportunity to respond. Appellant timely appealed his conviction, but did not raise any sentencing issues. His conviction was affirmed. Patterson v. State, 2008 WY 33, 179 P.3d 863 (Wyo.2008)( Patterson I ).

[¶ 4] On February 19, 2008, about a year and a half after he was originally sentenced, the Appellant filed a motion to reduce his sentence. Judge Kalokathis denied this motion as untimely under W.R.Cr. P. 35(b). On March 16, 2009, Appellant filed another motion for a sentence reduction. This motion was reviewed by Judge Davis, and although he found it to be timely filed, he nonetheless denied the motion. Neither of these motions recognized that Appellant's sentence had been increased, nor did they raise any speedy sentencing issues.

[¶ 5] On November 24, 2010, almost four years after he was originally sentenced, Appellant filed a motion to correct illegal sentence. He contended that his sentence of twenty to twenty-two years violated Wyo. Stat. Ann. § 7–13–201, because the minimum sentence was more than 90% of the maximum sentence. He also asserted that this illegal sentence could not legally be corrected by increasing his sentence after he had begun serving it. Accordingly, he proposed a new sentence of nineteen to twenty-two years. On March 7, 2011, Appellant filed an amended motion to correct illegal sentence, recognizing for the first time that his sentence had already been increased to 240–267 months without notice or an opportunity to be heard. He argued that this increase violated his constitutional due process and double jeopardy rights, and as a remedy, the rest of his sentence should be suspended. Appellant also filed a supplemental brief arguing that the district court erred in the original sentence because it failed to state that it had considered probation as a possible sentence, which violated the rule announced in Trumbull v. State, 2009 WY 103, ¶ 16, 214 P.3d 978, 982 (Wyo.2009).

[¶ 6] After a hearing presided over by Judge Davis, the order increasing Appellant's sentence was set aside, and his original sentence was reinstated. Judge Davis reasoned that the original sentence could be reimposed, because it substantially complied with the sentencing statute. Appellant timely appealed the order reinstating his original sentence, but he did not raise any speedy sentencing issues.

[¶ 7] In Patterson v. State, 2012 WY 90, ¶ 16, 279 P.3d 535, 538 (Wyo.2012)( Patterson II ), this Court agreed that the increased sentence of 240–267 months should have been set aside, because it was illegal and had been imposed without notice and an opportunity for hearing. This Court also found that the original sentence of twenty to twenty-two years was also illegal and could not be reimposed, because it violated the clear language of the sentencing statute. Id. at ¶ 17, 279 P.3d at 539. The Court declined to address Appellant's double jeopardy claim, noting that the issue had already been decided in another case. Id. at n. 1 (citing Moronese v. State, 2012 WY 34, 271 P.3d 1011 (Wyo.2012)). Appellant's sentence was vacated, and the case was remanded to the district court for resentencing. Id. at ¶ 24, 279 P.3d at 540. The district court was also advised that it needed to comply with Trumbull by indicating that it had considered probation as a possible sentence. Id. at ¶ 20, 279 P.3d at 539.

[¶ 8] On remand, the case was assigned to Judge Campbell. A resentencing hearing was held on August 10, 2012, approximately one month after the case was remanded. At that hearing, Appellant raised the speedy sentencing issue for the first time. On August 15, 2012, Judge Campbell issued an Order Denying Relief, with respect to the speedy sentencing issue. Finally, on August 24, 2012, another resentencing hearing was held at which time the district court imposed a new sentence of 240–267 months with credit for time served. This appeal followed.

DISCUSSION

A. Res judicata

[¶ 9] We will first address the State's argument that Appellant's claims are barred by res judicata. The State contends that Appellant could have raised the speedy sentencing issue in either of his motions to correct an illegal sentence or his second appeal. The State argues that the Court should not consider the speedy sentencing claim because it was not raised at any of these times, and the Appellant has offered no excuse for not raising the issue.

[¶ 10] Res judicata bars the relitigation of issues that were determined in a prior proceeding. Martinez v. State, 2007 WY 164, ¶ 15, 169 P.3d 89, 92 (Wyo.2007). Four factors are used to determine whether the doctrine applies: “(1) identity of the parties; (2) identity in subject matter; (3) the issues are the same and relate to the subject matter; and (4) the capacities of the persons are identical in reference to both subject matter and the issues between them.” Dax v. State, 2012 WY 40, ¶ 9, 272 P.3d 319, 321 (Wyo.2012).

[¶ 11] The litigation of issues that could have been raised in an earlier proceeding may also be barred by res judicata if a party fails to show good cause for not raising the issue. Gould v. State, 2006 WY 157, ¶ 16, 151 P.3d 261, 266 (Wyo.2006); Hamill v. State, 948 P.2d 1356, 1359 (Wyo.1997). However, our rulings make clear that the application of the doctrine is discretionary. Hamill, 948 P.2d at 1359 (holding the court may decline to consider the issue). We consider this an appropriate case to exercise our discretion to consider the speedy sentencing issue, even though it could have been raised earlier.

[¶ 12] The State argues that Appellant's double jeopardy argument is also precluded by res judicata because Appellant raised this issue in his second appeal, and this Court declined to consider it. The State asserts that res judicata prevents Appellant from raising his double jeopardy argument again in this appeal.

[¶ 13] Appellant did raise a double jeopardy argument in his second appeal, and this Court declined to consider it. However, Appellant is challenging a different sentence in this appeal. We have held that an appellant “must be entitled to a review of the sentence actually imposed even though some of the issues potentially could have been presented in his initial appeal.” Yates v. State, 792 P.2d 187, 189 (Wyo.1990). Therefore, we will not apply res judicata to preclude his argument.

B. Speedy Sentencing

[¶ 14] Appellant contends that the delay between his conviction and resentencing violates his constitutional right to a speedy sentencing. Appellant cites Yates, 792 P.2d at 191, for the proposition that a delay in sentencing in excess of one calendar year from the date guilt is established is presumptively unreasonable. Appellant was resentenced nearly six years after he was convicted, and he argues that under Yates this delay is presumptively unreasonable. He also argues that in order to overcome this presumption, the State must provide argument or evidence to excuse the delay in sentencing which it failed to do in this case.

[¶ 15] The State contends that there has been no speedy sentencing violation in this case. Appellant was originally sentenced within four months of his conviction, well within the one year period set out in Yates. The State further contends that the right to a speedy sentencing does not apply to resentencing. The State argues that to hold otherwise would place Yates and W.R.Cr.P. 32 at odds with W.R.Cr.P. 35(a), which provides that an illegal...