Drakeford v. State, S-17-0018.

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBURKE, Chief Justice.
Citation402 P.3d 980
Decision Date28 September 2017
Docket NumberS-17-0018.
Parties Curtis Reginald DRAKEFORD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

402 P.3d 980

Curtis Reginald DRAKEFORD, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).

S-17-0018.

Supreme Court of Wyoming.

September 28, 2017


Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.

Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Joshua C. Eames, Assistant Attorney General.

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

BURKE, Chief Justice.

¶1] Appellant, Curtis Drakeford, was convicted of one charge of domestic battery and one charge of strangulation of a household member after entering unconditional no contest pleas to both charges. On appeal, he contends that domestic battery is a lesser included offense of strangulation of a household member, and that his convictions and sentences for both crimes violated his constitutional protections against double jeopardy. We find that the two crimes arose from separate and distinct acts, and that Appellant has failed to establish a double jeopardy violation. Accordingly, we affirm.

ISSUE

[¶2] Did the district court commit plain error when it convicted and sentenced Appellant for the crimes of domestic battery and strangulation of a household member?

FACTS

[¶3] On January 25, 2016, the State filed a Felony Information charging Appellant with one count of strangulation of a household member and three counts of child endangerment. On February 1, 2016, the State filed a second Felony Information charging Appellant with domestic battery. The second Information asserted that Appellant had two prior convictions for domestic battery, subjecting him to enhanced penalties and elevating the charge to a felony. The district court later consolidated the two cases.

[¶4] Among the documents supporting the two charges were two nearly identical Affidavits of Probable Cause. The second affidavit differs from the first only in that it excludes a paragraph about the results of drug testing on the victim, it includes some minor wording changes, and it avers that Appellant had two previous domestic battery convictions. The affiant for both affidavits, a police officer,

[402 P.3d 982

stated that he and other officers were dispatched to Room 339 of a local hotel based upon reports of a "female screaming and a male telling her to be quiet." Arriving at the hotel, the officer saw a woman exit Room 339, followed closely by Appellant. The woman's "face was covered in blood," and Appellant had a "substantial amount of blood" on his hands. In response to questions from the officer, the woman reported that she refused Appellant's request to smoke methamphetamine with him, and he had hit her "in the face with both his left and right hand with a closed fist." Appellant then "placed his hands around her neck ... and started to apply pressure" so that she was "not able to breathe or make a sound." Appellant released her, and she moved from the bathroom to the main room, where he "took a beer bottle and began hitting her on top of the head."

¶5] According to the affidavit, another officer "touched the top of [the woman's] head and stated that there were lumps consistent with her statements of being hit on the head with a beer bottle." This officer also observed "finger marks on the right side of [the woman's] neck consistent with her statements of [Appellant] placing his hands around her neck." Appellant was "placed under arrest for domestic battery and strangulation of a household member."

[¶6] Appellant and the State reached a plea agreement by which he would plead no contest to the charge of strangulation of a household member and to the charge of domestic battery. The State agreed to dismiss the three counts of child endangerment and to recommend no more than four years imprisonment for each count with concurrent sentences. The district court accepted the no contest pleas and found Appellant guilty of strangulation of a household member and of domestic battery, third or subsequent offense. Appellant was sentenced to two to four years imprisonment on each count, the sentences to be served concurrently. This appeal followed.

STANDARD OF REVIEW

[¶7] Appellant did not raise his double jeopardy claim in the district court. Accordingly, we review for plain error. Montoya v. State , 2016 WY 127, ¶ 6, 386 P.3d 344, 346 (Wyo. 2016). " ‘Plain error exists when: 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right which materially prejudiced him.’ " Guy v. State , 2008 WY 56, ¶ 9, 184 P.3d 687, 692 (Wyo. 2008) (quoting Talley v. State , 2007 WY 37, ¶ 9, ...

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2 practice notes
  • Volpi v. State, S-16-0285
    • United States
    • United States State Supreme Court of Wyoming
    • June 14, 2018
    ...domestic battery is a lesser included offense of the crime of strangulation of a household member. Drakeford v. State , 2017 WY 115, ¶ 10, 402 P.3d 980, 983 (Wyo. 2017). We agreed that "punishing a defendant for both a greater offense and a lesser included offense violates the double jeopar......
  • Popkin v. State, S-18-0104
    • United States
    • United States State Supreme Court of Wyoming
    • October 26, 2018
    ...supporting affidavit[s] to establish the facts necessary to analyze Appellant’s ... claim." Drakeford v. State , 2017 WY 115, ¶ 12 n.2, 402 P.3d 980, 983 n.2 (Wyo. 2017).2 In 2018, the Wyoming Legislature amended this definition to add "health care provider" to the list of positions of auth......
2 cases
  • Volpi v. State, S-16-0285
    • United States
    • United States State Supreme Court of Wyoming
    • June 14, 2018
    ...domestic battery is a lesser included offense of the crime of strangulation of a household member. Drakeford v. State , 2017 WY 115, ¶ 10, 402 P.3d 980, 983 (Wyo. 2017). We agreed that "punishing a defendant for both a greater offense and a lesser included offense violates the double jeopar......
  • Popkin v. State, S-18-0104
    • United States
    • United States State Supreme Court of Wyoming
    • October 26, 2018
    ...supporting affidavit[s] to establish the facts necessary to analyze Appellant’s ... claim." Drakeford v. State , 2017 WY 115, ¶ 12 n.2, 402 P.3d 980, 983 n.2 (Wyo. 2017).2 In 2018, the Wyoming Legislature amended this definition to add "health care provider" to the list of positions of auth......

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