City of Casper v. Simonson, 072817 WYSC, S-16-0247

Court:Supreme Court of Wyoming
Attorney:Gary G. Way, Assistant City Attorney, Casper, Wyoming Representing Petitioner Dallas J. Laird, Attorney at Law, Casper, Wyoming Representing Respondent
Judge Panel:Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Opinion Judge:DAVIS, Justice.
Party Name:CITY OF CASPER, WYOMING, A WYOMING MUNICIPAL CORPORATION, Petitioner, v. SHAINA SIMONSON, Respondent.
Case Date:July 28, 2017
Docket Nº:S-16-0247
 
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2017 WY 86

CITY OF CASPER, WYOMING, A WYOMING MUNICIPAL CORPORATION, Petitioner,

v.

SHAINA SIMONSON, Respondent.

No. S-16-0247

Supreme Court of Wyoming

July 28, 2017

         Original Proceeding Petition for Writ of Review District Court of Natrona County Honorable Catherine E. Wilking, Judge

          Gary G. Way, Assistant City Attorney, Casper, Wyoming Representing Petitioner

          Dallas J. Laird, Attorney at Law, Casper, Wyoming Representing Respondent

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

          DAVIS, Justice.

         [¶1] Shaina Simonson claimed in a district court appeal that the probationary portion of a sentence imposed by the municipal court in Casper was illegal. The district court agreed, and the City of Casper challenged that ruling by filing a petition for a writ of review.1 We grant the writ of review, and we affirm the district court.

         ISSUES

         [¶2] The City poses a single question: Does a municipal court have the power to impose a term of probation on a defendant if the ordinance governing the offense committed provides for punishment only by a fine?

         We instructed the parties to also brief the issue of whether the City should be granted, in light of City of Sheridan v. Cadle, 24 Wyo. 293, 157 P. 892 (1916), and City of Laramie v. Mengel, 671 P.2d 340 (Wyo. 1983), a writ of review.

         FACTS

         [¶3] At approximately 1:00 a.m. on October 31, 2015, two Casper police officers responded to a complaint of loud music being played at what appeared to be a party at a residence on South Elk Street. After investigation, the officers arrested the twenty-year-old host of the festivities, whose mother was not home, and issued citations to ten other individuals between the ages of seventeen and twenty for violating Casper Municipal Code § 5.08.370(A) and (B).[2] Ms. Simonson, who was eighteen at the time, was one of those individuals.

         [¶4] Although her case was set for a bench trial, she eventually decided to enter a no contest plea3 to the charge.[4] At the combined change of plea and sentencing hearing, the municipal court twice described the maximum penalty faced by Simonson as a $750 fine. Shortly thereafter the city attorney recommended what he characterized as the standard penalty for a first-time offender of the minor in possession ordinance. That consisted of a $750 fine plus $10 court costs, the suspension of all but $160 of that amount, and six months of unsupervised probation.

         [¶5] Simonson's attorney responded that, except for the fine, such a sentence would be illegal because the City had authorized nothing but a fine for the misdemeanor offense of being a minor in possession of an alcoholic beverage. He directed the court to the provisions of Casper Municipal Code § 1.28.010, which established the penalties available for acts made unlawful by the Code, including the one for which Simonson was convicted.

         [¶6] Subsection B of that ordinance provides: Any misdemeanor committed in the city shall be punishable only by a fine of not more than seven hundred fifty dollars, to which may be added court costs as set by the municipal court, but not to exceed ten dollars for all violations, except as otherwise provided.

Casper Municipal Code 1.28.010(B) (emphasis added).5 Subsection C provides for incarceration, but only with respect to repeat offenders, and then only with respect to enumerated offenses. Being a minor in possession of alcohol is not one of those offenses.

         [¶7] Only subsection E of the penalty ordinance has any application to that offense, but it deals only with repeat offenders and provides: For a violation of city code Section 5.08.370 committed and formally charged by the filing of a complaint in the municipal court for the city, the formal charge being filed under a single prior conviction in the municipal court for the city, for the same offense charged, the court shall fine the violator not less than one hundred fifty dollars, nor more than seven hundred fifty dollars, to which may be added court costs as set by the municipal court, but not to exceed ten dollars. For a subsequent conviction of this section within twelve months, the person shall be punished by a fine of not less than three hundred fifty dollars nor more than seven hundred fifty dollars. For a third conviction within twenty-four months, the person shall be punished by a fine of not less than six hundred dollars nor more than seven hundred fifty dollars.

Casper Municipal Code § 1.28.010(E).

         [¶8] Citing Hicklin v. State, 535 P.2d 743 (Wyo. 1975), for the proposition that a term of probation for a given crime may not exceed the maximum term of imprisonment expressly set by the legislature for that offense, Simonson's attorney argued that she could not be placed on probation because the municipal court had no authority to sentence her to jail. The court, however, elected for the most part to adopt6 the city attorney's recommended sentence on the theory that it was authorized to impose probation by Wyo. Stat. Ann. § 7-13-302 (LexisNexis 2017), which provides: (a) After conviction or plea of guilty for any offense, except crimes punishable by death or life imprisonment, and following entry of the judgment of conviction, the court may:

(i) Suspend the imposition or execution of sentence and place the defendant on probation; or

(ii) Impose a fine applicable to the offense and place the defendant on probation.

         Defense counsel asked the court to stay its sentence, except the fine, pending an appeal, but the court declined to do so.

         [¶9] On May 2, 2016, Simonson appealed to the district court. On October...

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