City of Casper v. Simonson

• Decision Date: 26 July 2017
• Docket Number: S-16-0247
• Citation: 400 P.3d 352
• Parties: CITY OF CASPER, Wyoming, a Wyoming Municipal Corporation, Petitioner, v. Shaina SIMONSON, Respondent.
• Court: Wyoming Supreme Court

400 P.3d 352

CITY OF CASPER, Wyoming, a Wyoming Municipal Corporation, Petitioner,

v.Shaina SIMONSON, Respondent.

S-16-0247

Supreme Court of Wyoming.

July 26, 2017

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

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

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 7, 2016, the district court issued an order reversing the municipal court's sentence and remanding the case.

[¶10] In concluding that the sentence was illegal, the district court found that the Casper ordinances governing the penalty for the possession of alcohol by a minor were clear and unambiguous, and that they expressly limited that penalty to a fine of between $150 and $750. They did not provide for a potential penalty of incarceration. The court noted that although the legislature had statutorily given the City the power to enforce its ordinances by imposition of a term of incarceration, Casper had elected not to exercise that option with respect to this offense. In contrast, the City did expressly adopt a penalty of incarceration for other offenses.

[¶11] The district court further concluded that Wyo. Stat. Ann. § 7-13-302 should not be read to permit a probationary sentence even if the penalties specified for a particular crime did not include incarceration. To do so would require ignoring Hicklin's holding that probation is a substitute for incarceration, and that, by virtue of the potential restrictions it may place on a defendant's freedom, it is constructive incarceration. Moreover, because the City's governing body seems to have made purposeful choices in imposing or withholding incarceration as a possible penalty with respect to various offenses, reading § 7-13-302 as the municipal court did would render those choices meaningless.

[¶12] The City filed its Petition for Writ of Review roughly two weeks later.

DISCUSSION

Propriety of the Writ of Review

[¶13] Pursuant to Wyo. Stat. Ann. § 5-2-119, municipal court cases "may be appealed to the district courts and thereafter to the Wyoming supreme court only if the supreme court grants a writ of certiorari agreeing to hear the appeal." The statute also requires this Court to adopt procedures and standards for seeking and granting such review. That requirement was largely accomplished through the adoption of W.R.A.P. 13, which governs petitions for a writ of review. W.R.A.P. 13.01(a). The rule, however, does not set out the circumstances under which review in the nature of certiorari may properly be granted. That topic has been left to decisional law regarding the common law writ of certiorari, much of which predated and presumably informed the passage of § 5-2-119. Chief among those decisions are City of Sheridan v. Cadle , 24 Wyo. 293, 157 P. 892 (1916), and City of Laramie v. Mengel , 671 P.2d 340 (Wyo. 1983).

[¶14] In Cadle , the defendant succeeded in having his municipal court conviction overturned on appeal to the district court, and the City of Sheridan filed a petition for a writ of certiorari in this Court to challenge the district court's jurisdiction. We allowed the case to proceed, holding that the writ was historically available when the petition claimed the lower court acted in excess of its jurisdiction. We also noted that the writ was historically denied where the petitioner had some other adequate remedy available. There was no alternative because relief by way of a bill of exceptions (presently set out in Wyo. Stat. Ann. §§ 7-12-102 through 104) was available only in prosecutions brought under the state criminal code. Cadle , 157 P. at 895.

[¶15] Mengel concerned a municipal court decision to suppress the refusal of two defendants to submit to a blood-alcohol test. The City of Laramie, which had no right to appeal that decision to the district court, instead petitioned this Court for a bill of exceptions. Noting the limitation placed on that remedy by Cadle , we treated the petition as one for a writ of certiorari. Mengel , 671 P.2d at 343.

[¶16] Although we refrained from an attempt to define the full scope of the writ, we cited to Call v. Town of Afton , 73 Wyo. 271, 278 P.2d 270 (1954), for the proposition that it had long and widely been held to serve functions other than challenging an inferior court's jurisdiction when review is deemed essential to prevent a failure of justice. That includes cases where the petitioner has no appellate or other plain, speedy, and adequate remedy, particularly those posing issues of potentially state-wide concern or issues having constitutional implications. Moreover, it may be granted cases that are technically moot. Mengel , 671 P.2d at 344-45.⁷

[¶17] As was the case in Cadle and Mengel , certiorari appears to be the City's only available path for resolving its dispute with Simonson. Furthermore, this case raises an issue of state-wide concern. We therefore grant the writ of review and...