DeSpain v. State

• Decision Date: 10 December 1993
• Docket Number: No. 93-52,93-52
• Citation: 865 P.2d 584
• Parties: Robert William DeSPAIN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 584

865 P.2d 584

Robert William DeSPAIN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 93-52.

Supreme Court of Wyoming.

Dec. 10, 1993.

Robert William DeSpain, pro se.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Barbara L. Boyer, Sr. Asst. Atty. Gen., Turner Rouse, Asst. Atty. Gen., for appellee.

Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.

THOMAS, Justice.

The primary issue presented in this case is whether a Motion to Vacate or Correct Sentence, brought under WYO.R.CRIM.P. 35(a), is the proper remedy by which to assert a violation of double jeopardy protections. Robert William DeSpain (DeSpain) filed such a motion contending it was unlawful for the district court to impose consecutive sentences upon him for convictions of attempted escape and aggravated assault and battery. If the motion were perceived as a proper remedy, the question on the merits is whether the State lawfully may charge separate offenses of aggravated assault and battery in violation of WYO.STAT. § 6-2-502 (1988) and attempted escape from detention in violation of WYO.STAT. § 6-5-206 (1988), or is the State required to invoke WYO.STAT. § 6-5-207 (1988) and charge escape by violence or assault, or while armed. ¹ We hold that a motion presented under WYO.R.CRIM.P. 35(a) is not the proper remedy to assert a constitutional claim of double jeopardy. If DeSpain had pursued the proper remedy through a petition for post-conviction relief as provided in WYO.STAT. §§ 7-14-101 to -108 (1987 and Supp.1993), he still would not be entitled to relief. We hold his convictions were the product of separate and distinct statutory offenses, and the prosecutor had the requisite discretion to elect the charge or charges which should be brought based on the specific facts of the case. The order of the district court denying the Motion to Vacate or Correct Sentence is affirmed.

DeSpain in his Brief of Appellant states this issue:

Whether the imposition of dual and consecutive sentences for aggravated assault, 6-2-502, W.S.1977, 1983 revision, and escape, 6-5-206, W.S.1977, 1983 revision, for a single violent escape attempt, violated the Double Jeopardy provisions of Article 1 § 11 of the Wyoming Constitution and the Fifth and Fourteenth Amendments to the United States Constitution.

As appellee, the State of Wyoming articulates the issue in this way:

Whether the charging, conviction and consecutive sentencing of the Appellant pursuant to two general statutes for the same conduct as described by a special statute subjected him to double jeopardy in violation of the constitutional guarantees of either the Wyoming or United States Constitutions.

A deputy at the Fremont County Jail, during his shift on September 4, 1987, was typing fingerprint cards when he was interrupted at about 2:15 A.M. by a knocking on a cell door in the south hallway of the jail. The sergeant determined that the noise was coming from "A" cell, a cell that housed eight inmates, among whom was DeSpain. The sergeant approached the cell and opened the food trapdoor to determine who was knocking. Kevin Sharpe handed the sergeant a note indicating that Sharpe would be killed if he was not moved from "A" cell. The sergeant returned to the office of the jail, obtained the key for "A" cell from the jailer on duty in order to move Sharpe to a different cell. The jailer accompanied the sergeant back to "A" cell, and the sergeant lifted the door latch saying, "Come on, Kevin, let's go." Sharpe emerged from the cell carrying his mattress, but when the sergeant attempted to close the cell door behind him, DeSpain struck the sergeant on his shoulder commanding him to "get back." DeSpain then entered the hallway with an object in his hand that the sergeant testified "looked like a pencil or something like a rod." The sergeant grabbed both of DeSpain's hands and the two struggled while the sergeant attempted to work his way over to the panic button located six to eight feet from the jail door. Activating the panic button sends a beeping noise to the office of the jail and to the dispatcher. The sergeant eventually was able to press the panic button with his shoulder while still struggling with DeSpain.

The sergeant at that time observed the jailer struggling with Kevin Sharpe in the same hallway. During the course of the struggle, DeSpain pulled the sergeant away from the area of the panic button and back to "A" cell. DeSpain pushed the sergeant into the cell and closed the door, automatically locking the sergeant inside. In a few minutes, DeSpain unlocked the door with the keys from the hallway side and joined the sergeant in "A" cell.

The sergeant then heard keys turning in the lock, again from the hallway side, and he decided that the situation was over. He turned away from DeSpain to leave the cell, and DeSpain said, "I got him now; don't come in." The sergeant then saw DeSpain was holding a makeshift knife made from a toothbrush and a razor blade. He had to block DeSpain's arm from coming around him by throwing his own arm up, and he was cut on his hand by DeSpain at that time. The sergeant then spun around and escaped from DeSpain at the same time that two police officers from the city of Lander, who had been trying to unlock the door, succeeded and entered the cell. The two police officers, the jailer, and the sergeant eventually subdued DeSpain with mace. The struggle took them to the floor of the cell, where physical restraint and handcuffs were sufficient to control DeSpain.

A complaint was filed on September 28, 1987, charging DeSpain with attempted escape from official detention in violation of WYO.STAT. §§ 6-1-301(a)(i) and 6-5-206(a)(i), aggravated assault and battery in violation of WYO.STAT. § 6-2-502(a)(iii), and manufacture of a deadly weapon with unlawful intent in violation of WYO.STAT. § 6-8-103. Following the filing of an information in the district court on December 14, 1987, DeSpain was tried on these charges. The result of the trial was that DeSpain was convicted of attempted escape and aggravated assault and battery, but he was acquitted of manufacturing a deadly weapon with unlawful intent. He then was sentenced to not less than eight, nor more than ten, years on each count for which he had been convicted with the sentences to run consecutively. In other cases, DeSpain had been convicted three times prior to the imposition of these consecutive sentences by the district court.

DeSpain appealed his convictions raising issues of the denial of a speedy trial and the denial of speedy sentencing, but his convictions were affirmed. DeSpain v. State, 774 P.2d 77 (Wyo.1989). Subsequently, he filed two petitions for habeas corpus review in the United States District Court for the District of Wyoming and the United States Court of Appeals for the Tenth Circuit, respectively. Both of those petitions were dismissed.

Following those efforts, DeSpain filed in this case a Motion to Vacate or Correct Sentence, pursuant to WYO.R.CRIM.P. 35(a), alleging his dual convictions for aggravated assault and battery and attempted escape, which resulted in consecutive sentences, violated the protection against double jeopardy afforded to him by both the federal and state constitutions. The district court denied his motion on January 18, 1993, and DeSpain has appealed that decision to this court.

Initially, we correct any misapprehension that may be attached to the title of DeSpain's pleading which was "Motion to Vacate or Correct Sentence." WYO.R.CRIM.P. 35 is entitled "Correction or reduction of sentence" and reads as follows:

(a) Correction.--The court may correct an illegal sentence at any time. Additionally the court may correct, reduce, or modify a sentence within the time and in the manner provided herein for the reduction of sentence.

(b) Reduction.--A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within one year after the sentence is imposed or probation is revoked, or within one year after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within one year after entry of any order or judgment of the Wyoming Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. The court shall determine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision. The court may determine the motion with or without a hearing.

There is nothing in the rule that would justify the vacation of any sentence. We treat DeSpain's motion as one for correction of an illegal sentence in accordance with the language of the rule and assume his pleading was intended to invoke that relief.

It is clear neither of these two sentences, one for attempted escape and one for aggravated assault and battery, is illegal within the language of WYO.STAT. § 7-13-201 (1987). The district court imposed a term of not less than eight, nor more than ten, years on both convictions, and the sentences were to run consecutively. Each of these crimes is a felony punishable by imprisonment for not more than ten years. Both of the sentences imposed fit within the provisions of Wyoming's indeterminate sentencing statute which provides, in pertinent part The maximum term shall not be greater than the maximum provided by law for the statute violated, and the minimum term shall not be less than the minimum provided by law for the statute violated, nor greater than ninety percent (90%) of the maximum term imposed.

WYO.STAT. § 7-13-201 (1987).

The determination as to whether sentences that are imposed are to run concurrently or consecutively is within the discretion of the trial court. Munden v. State, 698 P.2d 621 (Wyo.1985). We are unable to discern any basis in this record for...