Brown v. State, 95-288

• Decision Date: 16 December 1996
• Docket Number: No. 95-288,95-288
• Parties: James Franklin BROWN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 522

929 P.2d 522

James Franklin BROWN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 95-288.

Supreme Court of Wyoming.

Dec. 16, 1996.

Rehearing Dismissed Jan. 3, 1997.

James F. Brown, Pro Se.

William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Mark T. Moran, Assistant Attorney General, for appellee (plaintiff).

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN ^* and LEHMAN, JJ.

TAYLOR, Chief Justice.

Serving time for sexual abuse of children, appellant claims error in denial of his most recent petition for correction of an allegedly illegal sentence. Agreeing with the district court that appellant's petition is procedurally barred and substantively moribund, we affirm.

I. FACTS

Convictions stemming from multiple sexual assaults of his minor step-children netted appellant lengthy prison terms. Brown v. State, 817 P.2d 429 (Wyo.1991). While incarcerated, appellant has turned his attention to the courts with sundry petitions for various forms of relief. See, e.g., Brown v. State, 894 P.2d 597 (Wyo.1995). The instant case concerns the district court's refusal to vacate that portion of his original sentence assessing a payment of $350.00 to the Wyoming Crime Victim's Compensation Fund.

Appellant was sentenced on June 26, 1990. The transcript of those proceedings indicates that the hearing was initially adjourned after imposition of sentences on seven counts, but without assessment of the surcharge mandated by Wyo.Stat. § 1-40-119 (1988). On the heels of that adjournment, the following parenthetical note appears in the transcript of the proceedings:

(Following a short delay, the Court, in the presence of counsel for the State and the defendant, ordered that the defendant is to pay $50 per count to the Wyoming Victim's Compensation Fund.)

(Emphasis added.) The judgment and sentence reflecting those proceedings was also made and entered June 26, 1990. The record is devoid of any indication that appellant ever endeavored to pay his $350.00 debt to the Wyoming Crime Victim's Compensation Fund.

On June 26, 1995, following one failed motion for sentence reduction, one failed petition for post conviction relief, one failed petition to this court for writ of mandamus, and two failed petitions to the district court for correction of illegal sentence, appellant filed his third motion to correct illegal sentence complaining that he was not present when the crime victim's surcharge was assessed, did not learn of the assessment until some time in 1995 and, in any event, the assessment is now without the statutory time limit for collection.

II. DISCUSSION

It is clear from the sentencing transcript that appellant was present when the crime victim's surcharge was assessed and equally clear that he enjoyed substantially contemporaneous notice of that assessment through his judgment and sentence. Neither appellant's initial appeal to this court nor his unsuccessful appeal from denial of a prior motion for correction of an illegal sentence questioned the manner in which the surcharge was assessed or its lawfulness. Because he could have raised these issues in those prior appeals, appellant is now foreclosed by the doctrine of res judicata. Murray v. State, 776 P.2d 206, 208 (Wyo.1989); Mower v. State, 770 P.2d 233, 233 (Wyo.1989).

Assuming, arguendo, that appellant had presented the assessment issue to us when ripe, his position would remain without merit. This is because, as the district court aptly noted, an "illegal sentence" is one that exceeds the relevant statutory maximum, fails to grant credit for presentence confinement, or...