Cloud v. State

Decision Date10 September 2014
Docket NumberNo. S–13–0216.,S–13–0216.
Citation334 P.3d 132,2014 WY 113
PartiesWyatt L. BEAR CLOUD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Representing Appellant: Deborah L. Roden, Woodhouse Roden Nethercott, LLC, Cheyenne, Wyoming.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Meri V. Geringer, Senior Assistant Attorney General. Argument by Ms. Geringer.

Before BURKE, C.J., and HILL, KITE,* DAVIS, and FOX, JJ.


FOX, Justice.

[¶ 1] Wyatt Bear Cloud was 16 years old when he participated in several crimes that culminated in the murder of Robert Ernst. Mr. Bear Cloud entered a guilty plea to charges of first-degree murder, aggravated burglary, and conspiracy to commit aggravated burglary. In his third appeal to the Wyoming Supreme Court, Mr. Bear Cloud raises a number of issues regarding the sentence imposed on him for crimes he committed as a juvenile. We reverse and remand to the district court with instructions to resentence on all counts.


[¶ 2] We address the following issues:

1. Is the aggregate consecutive sentence a de facto life without parole sentence imposed without compliance with the Eighth Amendment of the United States Constitution and Miller v. Alabama ?

2. Does Wyoming's mandatory identical sentencing structure for accessory and principal actors in felony murder—which imposes a mandatory life sentence—violate the Eighth Amendment of the United States Constitution when applied to juveniles?

3. Is the district court's sentence of 20–25 years for aggravated burglary unconstitutional as grossly disproportionate?


[¶ 3] When he was 16 years old, Mr. Bear Cloud stole a gun, and later broke into a home along with two other young men, Dennis Poitra and Dharminder Vir Sen. During the course of the burglary, while Mr. Bear Cloud was in another room, Mr. Sen shot and killed one of the home's residents with the stolen gun. The facts are more thoroughly set forth in Bear Cloud v. State, 2012 WY 16, 275 P.3d 377 (Wyo.2012) (Bear Cloud I ), and Bear Cloud v. State, 2013 WY 18, 294 P.3d 36 (Wyo.2013) (Bear Cloud II ), and will not be repeated here.

[¶ 4] Mr. Bear Cloud was convicted on his guilty plea of Murder in the First Degree (Felony–Murder), in violation of Wyo. Stat. Ann. § 6–2–101(a) (LexisNexis 2011); Conspiracy to Commit Aggravated Burglary, in violation of Wyo. Stat. Ann. §§ 6–1–303(a) and 6–3–301(a) and (c)(i) (LexisNexis 2011); and Aggravated Burglary, in violation of Wyo. Stat. Ann. § 6–3–301(a) and (c)(i) (LexisNexis 2011). Bear Cloud I, 2012 WY 16, ¶ 1, 275 P.3d at 382. The district court sentenced him to 20–25 years in prison for Aggravated Burglary; life in prison “according to law” for first-degree murder, to be served consecutively to the aggravated burglary sentence; and 20–25 years in prison for conspiracy to commit aggravated burglary, to be served concurrently with the first-degree murder sentence. Id. at ¶ 15, at 384.

[¶ 5] Mr. Bear Cloud appealed to this Court, which affirmed. Bear Cloud I, 2012 WY 16, ¶ 2, 275 P.3d at 383. He then filed his petition for writ of certiorari in the United States Supreme Court, which issued its decision in Miller v. Alabama, 567 U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), on June 25, 2012, holding that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” Id. at ––––, 132 S.Ct. at 2469. On October 1, 2012, the United States Supreme Court issued its opinion in Bear Cloud v. Wyoming, –––U.S. ––––, 133 S.Ct. 183, 183–84, 184 L.Ed.2d 5 (2012), stating: “Judgment vacated, and case remanded to the Supreme Court of Wyoming for further consideration in light of Miller v. Alabama, 567 U.S. ––––, [132 S.Ct. 2455, 183 L.Ed.2d 407] (2012).”

[¶ 6] On remand, even though the United States Supreme Court had vacated the judgment without restriction, this Court held that [o]nly the life sentence for first-degree murder is at issue in this appeal.” Bear Cloud II, 2013 WY 18, ¶ 9, 294 P.3d at 40. We held that, under Wyoming law, Mr. Bear Cloud's sentence of “life according to law” is in effect a life sentence without possibility of parole, and that such a sentence violates the Eighth Amendment when it is imposed on a juvenile without the benefit of an individualized sentencing hearing. Id. at ¶¶ 34, 42, 294 P.3d at 45, 47. The purpose of the individualized sentencing hearing for juveniles is to consider factors going to their ‘lessened culpability’ and greater ‘capacity for change.’ Id. at ¶ 41, at 46 (quoting Miller, 567 U.S. at ––––, 132 S.Ct. at 2460 ). We outlined those Miller factors and remanded the case to the district court for a new hearing on Mr. Bear Cloud's sentence for his first-degree murder conviction. Id. at ¶¶ 42, 49, at 47, 48.

[¶ 7] The 2013 Wyoming legislature amended the laws governing juvenile parole eligibility, specifically stating persons convicted of first-degree murder who were under 18 at the time of the offense “shall be punished by life imprisonment,” and that they shall be eligible for parole after having served 25 years of incarceration. 2013 Wyo. Sess. Laws, ch. 18, § 1 (amending Wyo. Stat. Ann. §§ 6–2–101(b) and 6–10–301(c) ).1

[¶ 8] Meanwhile, Mr. Bear Cloud's co-defendant, Mr. Sen, who was 15 years of age at the time of the offenses, appealed his life without parole sentence as unconstitutional under Miller v. Alabama. This Court agreed, holding:

[W]e vacate Sen's sentence of life without the possibility of parole. Further, because Sen's sentence of life without the possibility of parole may have impacted the sentencing decisions with respect to his conspiracy and aggravated burglary convictions, we vacate those sentences and remand for sentencing on all counts.

Sen v. State, 2013 WY 47, ¶ 1, 301 P.3d 106, 110 (Wyo.2013).

[¶ 9] On August 28, 2013, the district court held a day-long sentencing hearing, at which it heard testimony and took evidence relating to adolescent brain development in general, and Mr. Bear Cloud's environment, conduct, and mental development in particular. The district court carefully applied the Miller factors to the facts presented at the sentencing hearing. The district court noted that, “there are two or three sides to every coin when we apply the facts to those factors,” and added “while it is easy for the appellate courts to list these factors and make a cookie cutter approach to this, it's never as easy to apply them to the actual facts of this case.” It nevertheless proceeded to do so, and it set forth its analysis of the Miller factors in its Corrected Judgment and Sentence.

[¶ 10] The district court also stated that Bear Cloud II “made clear that the sentences in Counts II [Conspiracy to Commit Aggravated Burglary] and III [Aggravated Burglary] were not before the Court but to the extent some may believe the Court was authorized to reconsider those sentences, the Court would have re-affirmed those sentences in any event.”

[¶ 11] The district court sentenced Mr. Bear Cloud to life in prison with the possibility of parole after serving for 25 years on the felony murder charge,2 to run consecutive to the previously imposed sentence for Count III of 20 to 25 years, and concurrent to the sentence for Count II. The parties stated at oral argument that the effect of this sentencing structure is that the earliest possible meaningful opportunity for Mr. Bear Cloud's release would be in just over 45 years, or when he is 61.3

[¶ 12] Mr. Bear Cloud timely filed his appeal.

I. Is the aggregate consecutive sentence a de facto life without parole sentence imposed without compliance with the Eighth Amendment of the United States Constitution and Miller v. Alabama?

[¶ 13] “Issues of constitutionality present questions of law. We review questions of law under a de novo standard of review and afford no deference to the district court's determinations on the issues.” Bear Cloud II, 2013 WY 18, ¶ 13, 294 P.3d at 40 (citing Anderson v. Bommer, 926 P.2d 959, 961 (Wyo.1996) ).

[¶ 14] We analyze this issue under the United States Constitution and not the Wyoming Constitution because Mr. Bear Cloud makes no more than a passing reference to the protections that might be afforded by our state constitution.4 We agree that our state constitution need not necessarily be analyzed by “blindly follow[ing] the United States Supreme Court's interpretation[.] Saldana v. State, 846 P.2d 604, 621 (Wyo.1993) (Macy, J., specially concurring). However, “it is not the function of this court to frame appellant's argument or draw his issues for him.” Id. at 622 (Golden, J., concurring) (quoting Hance v. Straatsma, 721 P.2d 575, 577 (Wyo.1986) ). We adopt Justice Golden's advice in his Saldana concurrence:

Litigants would do well to remember:
Recourse to our state constitution as an independent source for recognizing and protecting the individual rights of our citizens must spring not from pure intuition, but from a process that is at once articulable, reasonable and reasoned.

Saldana, 846 P.2d at 622 (Golden, J., concurring) (quoting State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808, 813 (1986) ). Without such an articulable, reasonable and reasoned argument, we will not consider a state constitutional analysis. See also Nava v. State, 2010 WY 46, ¶ 8, 228 P.3d 1311, 1313–14 (Wyo.2010) ; Mogard v. City of Laramie, 2001 WY 88, ¶ 6, 32 P.3d 313, 315 (Wyo.2001) ; Vasquez v. State, 990 P.2d 476, 484 (Wyo.1999) ( [A] litigant must provide a precise, analytically sound approach when advancing an argument to independently interpret the state constitution.”). We therefore rely for our analysis on the United States Constitution.

[¶ 15] In a series of cases culminating in Miller v. Alabama, the United States Supreme Court has established “that children are constitutionally different from adults for purposes of sentencing [b]ecause juveniles have diminished culpability and...

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