Brown v. State, 03-209.

• Decision Date: 22 October 2004
• Docket Number: No. 03-209.,03-209.
• Citation: 99 P.3d 489,2004 WY 119
• Parties: James Franklin BROWN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

99 P.3d 489

2004 WY 119

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

No. 03-209.

Supreme Court of Wyoming.

October 22, 2004.

Rehearing Denied November 16, 2004.

Representing Appellant: Pro se.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Paul S. Rehurek, Deputy Attorney General.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

HILL, Chief Justice.

[¶ 1] Appellant, James Franklin Brown (Brown), maintains that the district court erred in denying his motion to correct an illegal sentence. He argues that the sentences imposed upon him after his 1990 convictions violate recently articulated constitutional principles and, therefore, those sentences must be vacated. The district court denied Brown's motion. We will affirm.

ISSUES

[¶ 2] Brown raises this issue:

Did the district court error and abuse its discretion by denying [Brown's] motion to correct his unconstitutional and therefore illegal sentences?

The State articulates the issue thus:

Do [Brown's] life sentences for second degree sexual assault violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)?

In his reply brief, Brown refines his issue somewhat:

Whether pursuant to United States Supreme Court precedent, [Brown's] constitutional rights were violated when the aggravating facts and circumstances (predicate facts) used to increase his sentences were not properly found by the jury?

FACTS AND PROCEEDINGS

[¶ 3] In 1990 Brown was convicted of five counts of second degree sexual assault and two counts of taking immodest, immoral or indecent liberties with a minor. At his arraignment, he was informed of the potential that his sentences would be enhanced to as much as life in prison if he were to be sentenced on two or more counts of second degree sexual assault. Brown was sentenced to two terms of not less than nine nor more than ten years in prison on each of the two indecent liberties counts, and to five consecutive life sentences on each of the five second degree sexual assault convictions. On direct appeal, this Court reversed one of the five convictions for second degree sexual assault, but the judgment and sentence were otherwise affirmed. Brown v. State, 817 P.2d 429, 437, 440 (Wyo.1991).

[¶ 4] On June 22, 1994, Brown filed a motion to correct an illegal sentence in the district court. The district court denied the motion. Brown appealed that decision to this Court wherein we made the following holding:

Brown claims the life sentences he received are illegal and unconstitutional. Essentially, the gravamen of Brown's appeal is that the district court sentenced him to life terms without giving any minimum term along with the maximum life term. Brown also raises a host of side issues including ineffective assistance of counsel and violations of due process, the fifth, sixth and eighth amendments.

A district court's resolution of a motion to correct or reduce a sentence is entitled to considerable deference. Montez v. State, Wyo.1979, 592 P.2d 1153. On appeal we will not substitute our own views for those of the district court unless there is no rational basis for its conclusions. Key v. State, Wyo.1980, 616 P.2d 774.

Fortin v. State, 622 P.2d 418, 420 (Wyo. 1981). The district court denied Brown's motion, finding that he had raised similar claims in a Petition for Post-Conviction Relief and an earlier Motion to Correct an Illegal Sentence. It also concluded that the issues had already been decided by this court in Brown v. State, 817 P.2d 429, or were otherwise barred by W.S. 7-14-103 since they were not raised in his original petition.

After a review of the record, we agree with the district court that Brown raises the identical issues in this proceeding that he brought in previous motions for post-conviction relief and to correct an illegal sentence. A motion to correct an illegal sentence does not permit a defendant to relitigate an issue which has already been considered and decided. Montez v. State, 592 P.2d 1153, 1154 (Wyo.1979). These issues are governed by the law of the case and cannot be raised in subsequent motions under W.R.Cr.P. 35(a).

The record further discloses that any issues not previously decided are barred by W.S. 7-14-103 or are not properly matters for consideration under a W.R.Cr.P. 35(a) motion. Accordingly, the district court did not err in denying relief.

Brown v. State, 894 P.2d 597, 598 (Wyo.1995).

[¶ 5] On July 26, 1995, Brown filed another motion to correct an illegal sentence. The district court denied that motion also. On appeal we affirmed. Brown v. State, 929 P.2d 522 (Wyo.1996) (this appeal dealt with the district court's imposition of the crime victim's surcharge).

[¶ 6] On July 7, 2003, Brown filed yet another motion to correct illegal sentences, this one styled along the same lines as the instant appeal. The district court denied this motion as well, and that denial is the subject of this appeal.

STANDARD OF REVIEW

[¶ 7] An illegal sentence is one that exceeds statutory limits, imposes multiple terms of imprisonment for the same offense, or otherwise violates constitutions or the law. The determination of whether a sentence is illegal is made by reference to the authorizing statute or applicable constitutional provisions and is, therefore, a matter of statutory interpretation. Interpretation of statutes is a question of law, which we review de novo. Bush v. State, 2003 WY 156, ¶ 8, 79 P.3d 1178, ¶ 8 (Wyo.2003) (citing Ryan v. State, 988 P.2d 46, 62-63 (Wyo.1999)).

[¶ 8] With respect to sentences very similar to those imposed on Brown, we said this in DeLoge v. State, 2002 WY 155, ¶¶ 10-12, 55 P.3d 1233, ¶¶ 10-12 (Wyo.2002):

... DeLoge contends that the statute will permit only one enhancement; that is, that the proper sentence would have been, at most, one life sentence for all six counts. In making this argument, DeLoge relies on authority construing a statute that permits enhancement of a sentence based on a previous conviction or convictions. An example of such a statute is Wyoming's "habitual criminal" statute:

6-10-201. "Habitual criminal" defined; penalties.

(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.

Wyo. Stat. Ann. § 6-10-201 (LexisNexis 2001). DeLoge's argument falls short, however, because the plain language of § 6-2-306(b)(i) only speaks in terms of "being sentenced for two (2) or more separate acts of sexual assault in the ... second degree." There is no requirement that the convictions be "previous," as is the case with the habitual criminal statute. Our rules of statutory construction require that we construe statutes in pari materia, giving effect to each word, clause, and sentence so that no part will be inoperative or superfluous, and we must not construe a statute in a manner that renders any portion meaningless or produces an absurd result. Abeyta [v. State, 2002 WY 44], ¶ 9 [42 P.3d 1009 (2002)]. When we apply the applicable rules of statutory construction to this statute, we are compelled to conclude that the legislative intent is clear that a defendant who is being sentenced for two or more separate acts of sexual assault in the second degree may be sentenced to a life sentence for each separate act. Stambaugh v. State, 613 P.2d 1237, 1241-43 (Wyo.1980).

Next, DeLoge contends that the statute must be construed to mean that a sentence not subject to the enhancement provision must be imposed for the first count and the enhancement provision only applies to offenses subsequent to the first sentence. Again, applying the same rules of statutory construction set out above, we are compelled to conclude that the rules of statutory construction do not permit us to add such language to that which the legislature provided in its unambiguous enactment. Fullmer v. Employment Security Commission, 858 P.2d 1122, 1124 (Wyo.1993).

DeLoge also maintains that the statute operates in a manner which violates double jeopardy because for at least one count he is punished twice, i.e., one count is used both as the underlying offense and as an offense giving rise to the enhancement provision. Again, we view this as mixing the concept of "previous" offenses used in the habitual criminal statute, with the language used in § 6-2-306(b)(i), "being sentenced for two (2) or more separate acts of sexual assault in the ... second degree." Our precedents are clear that multiple sexual assaults are separate offenses even though they might be separated by only very short time periods. Frenzel v. State, 938 P.2d 867, 868-9 (Wyo.1997); Hamill v. State, 602 P.2d 1212, 1216-17 (Wyo.1979).

Also see Blakeman v. State, 2002 WY 177, ¶¶ 9-10, 59 P.3d 140,

¶¶ 9-10 (Wyo.2002).

DISCUSSION

Application of Jones, Apprendi, and Ring

[¶ 9] This issue arises in the context of a sentencing provision found in Wyoming's sexual assault statutes at the time the crimes were committed. That statute has undergone some revision since that time, but because the substance of it is identical for purposes of the issue at hand, we will recite here the current version of that statute. Wyo. Stat. Ann. § 6-2-306 (LexisNexis 2003) (contemporaneous version at Wyo. Stat. Ann. § 6-2-306 (Michie 1988)):

(a) An actor convicted of sexual assault who does not qualify under the criteria of subsection (b) or (d) of this section shall be punished as follows:

(i) Sexual assault in the first degree is a felony punishable by imprisonment for not less

...