BLOOMER V. The State Of Wyo.
| Decision Date | 28 June 2010 |
| Docket Number | No. S-09-0112,S-09-0112 |
| Parties | RICHARD GORDON BLOOMER, Appellant(Defendant), v. THE STATE OF WYOMING, Appellee(Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel; Wyoming Public Defender Program.Argument by Mr. Alden.
Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.Argument by Mr. Smith.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
Appeal from the District Court of Park County
The Honorable Steven Cranfill, Judge
Before VOIGT, C.J., and GOLDEN, HILL, KITE, BURKE, JJ.
[ 1]A jury found Appellant Richard Gordon Bloomer guilty of aggravated robbery and aggravated assault and battery, and also found him to be a habitual criminal.Because Bloomer had three prior felony convictions, the district court imposed two life sentences.Bloomer appeals his convictions, asserting claims of instructional error and ineffective assistance of counsel.He also challenges the legality of his life sentences.We affirm Bloomer s convictions, but reverse his sentences.We remand this case to the district court for resentencing.
[ 2]Bloomer submits these issues for our consideration:
I.Did the [district] court s failure to give any jury instruction on the presumption of innocence constitute plain error?
II.Did the State prove three prior felony convictions in support of the habitual criminal allegation?
III.Under the circumstances of this case, can subsequent non-violent felonies be charged and tried before known earlier violent felony allegations in order to create habitual criminal liability?
IV.Is it ineffective assistance of counsel to allow the [district] court to fail to instruct on the presumption of innocence and the right not to testify?
[ 3]A little after 12:00 a.m. on August 24, 2002, two Burger King employees were robbed by a masked gunman as they approached the Pinnacle Bank in Cody to deposit the previous day s receipts.During the robbery, the gunman brandished a black pistol and threatened the employees.After taking the money, the robber ordered the employees to the ground and told them he would blow their heads off if they moved.The employees stayed on the ground for a few minutes before fleeing the scene and reporting the robbery.The victims were unable to identify the robber, and no suspects were identified by law enforcement at the time.
[ 4]Approximately two years later, law enforcement received information implicating Bloomer in the robbery.On July 27, 2004, Eric Kin Choy, an inmate at the Adult Community Corrections Center in Casper, Wyoming, reported to Detective Juliet Wardwell of the Cody Police Department that Bloomer had committed the robbery along with Ian Parsons.Detective Wardwell subsequently interviewed Parsons who admitted to driving the getaway car in the robbery and confirmed Bloomer s identity as the masked gunman.
[ 5]At the time the robbery information was developed, Bloomer was facing two felony drug charges in Park County.He absconded to Montana, where he was arrested, convicted and ultimately sentenced in September 2005 to seven years in prison for felony forgery.While incarcerated in Montana, Bloomer petitioned to be returned to Wyoming to stand trial on the pending drug charges.
[ 6]Before his trial commenced on the drug charges, the State filed a Felony Information charging Bloomer with one count of aggravated robbery and one count of aggravated assault and battery for his part in the instant robbery.The State later amended the Information to include a habitual criminal sentence enhancement provision.The enhancement was based on Bloomer s Montana forgery conviction and his convictions on the two Park County felony drug offenses.
[ 7]Bloomer s trial in this case commenced on January 13, 2009, and resulted in guilty verdicts on both charged offenses.During the habitual criminal phase of the trial, the State presented evidence concerning the Montana and Park County convictions.That evidence established that Bloomer had been convicted of felony forgery in Montana in May 2005 and of two felony counts of possession with intent to deliver a controlled substance in Park County, Wyoming, in January 2008.The jury adjudged Bloomer to be a habitual criminal with three prior felony convictions.Based on his habitual criminal status, the district court sentenced Bloomer to two consecutive life sentences.This appeal followed.
[ 8]Bloomer contends the district court committed reversible error when it failed to instruct the jury on the presumption of innocence.Bloomer never requested an instruction on the presumption of innocence, nor did he object to the district court s failure to give one.
[ 9]Rule 30(a) of the Wyoming Rules of Criminal Procedure states in relevant part:
No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury is instructed, stating distinctly the matter to which the party objects and the grounds of the objection.
The purpose of this rule is to prevent unnecessary new trials caused by instructional errors that the trial court could easily have corrected if they had been brought to its attention at the proper time.Ortega v. State, 966 P.2d 961, 966 (Wyo. 1998).In essence, the rule forecloses appellate review of the alleged instructional error in this case unless it rises to the level of plain error.Id.; see alsoCausey v. State, 2009 WY 111, 18, 215 P.3d 287, 293 (Wyo. 2009);Scheikofsky v. State, 636 P.2d 1107, 1109 (Wyo. 1981); W.R.Cr.P. 52(b); W.R.A.P. 9.05 ([p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court).Under the plain error rule, Bloomer must demonstrate, by reference to the record, the existence of a clear and unequivocal rule of law which was transgressed in a clear and obvious, not merely arguable, way and resulting prejudice to a substantial right.Duke v. State, 2004 WY 120, 91, 99 P.3d 928, 954 (Wyo. 2004); Hampton v. State, 558 P.2d 504, 507 (Wyo. 1977).
[ 10]In this case, no question exists that the district court failed to instruct the jury on the presumption of innocence.However, Bloomer has not demonstrated that the district court s failure constituted an obvious transgression of a clear and unequivocal rule of law.The cases cited by Bloomer do not establish a clear-cut rule of law, constitutional or otherwise, mandating that the jury be instructed on the presumption of innocence in every criminal trial.SeeKentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979) (per curiam); Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), and Slaughter v. State, 630 P.2d 517(Wyo. 1981).To the contrary, the United States Supreme Court determined in Whortonthat a criminal defendant is not automatically entitled to an instruction on the presumption of innocence, and that the failure to give one does not in and of itself violate the constitution.Whorton, 441 U.S. at 789, 99 S.Ct. at 2090.While we believe the better practice is to give the instruction as a matter of course, the issue before us is whether plain error occurred as a result of the district court s failure to do so.We cannot conclude from Bloomer s cited authorities that the district court s failure violated a clear rule of law and, consequently, we cannot conclude that plain error occurred in this instance.
[ 11]As previously noted, the jury determined Bloomer was a habitual criminal and, because he had been previously convicted of three felonies, the district court sentenced him to serve two consecutive life sentences.Wyo. Stat. Ann. 6-10-201 (LexisNexis 2009) requires enhancement of a sentence if the defendant is a habitual criminal:
(a)A person is an habitual criminal if:
(i)He is convicted of a violent felony; and
(ii)He has been convicted of a felony on two (2) or more previous charges separately brought and tried which arose out of separate occurrences in this state or elsewhere.
(b)An habitual criminal shall be punished by imprisonment for:
(i)Not less than ten (10) years nor more than fifty (50) years, if he has two (2) previous convictions;
(ii)Life, if he has three (3) or more previous convictions.
[ 12]In this appeal, Bloomer presents two arguments challenging the legality of his life sentences.Bloomer first contends the use of his Park County drug convictions was improper because those convictions were not separately brought and tried as required by 6-10-201(a)(ii).He further claims that, because the criminal acts underlying the Park County convictions were committed after the commission of the instant aggravated robbery and aggravated assault and battery offenses, the drug convictions cannot be used as a basis for the habitual criminal sentencing enhancement.Whether Bloomer s sentences amount to an illegal sentence is a question of law, which we review de novo.See Beyer v. State, 2008 WY 137, 7, 196 P.3d 777, 780 (Wyo. 2008); Manes v. State, 2007 WY 6, 7, 150 P.3d 179, 181 (Wyo. 2007).
[ 13]We need spend little time on Bloomer s first contention of error because the State concedes Bloomer s life sentences are illegal and must be corrected.The State correctly points out that the charges leading to the Park County drug convictions were not separately brought and tried as mandated by 6-10-201(a)(ii).Accordingly, those...
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Court Summaries
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