Ferguson v. State

• Decision Date: 30 September 2013
• Docket Number: No. S–12–0278.,S–12–0278.
• Parties: Joel Randy FERGUSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

309 P.3d 831

Joel Randy FERGUSON, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–12–0278.

Supreme Court of Wyoming.

Sept. 30, 2013.

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Patricia L. Bennett, Assistant Public Defender. Argument by Ms. Bennett.

Representing Appellee: Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope, Assistant Attorney General; Jennifer E. Zissou, Assistant Attorney General. Argument by Ms. Zissou.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

BURKE, Justice.

[¶ 1] Appellant, Joel Randy Ferguson, challenges the district court's order granting, in part, and denying, in part, his motion to correct an illegal sentence. We conclude that Appellant's claims are barred by the doctrine of res judicata, and we affirm.

ISSUES

[¶ 2] Appellant presents the following issues:

1. Whether the district court imposed an illegal sentence in violation of Mr. Ferguson's rights to due process of law.

2. Whether the district court imposed an illegal sentence in violation of Mr. Ferguson's rights to be protected from double jeopardy.

The State raises an additional issue:

Does res judicata bar Mr. Ferguson's current appeal of the legality of his sentence?

FACTS

[¶ 3] In 2005, Appellant was convicted of eleven counts of burglary relating to break-ins at various businesses in Cheyenne. At his initial arraignment, Appellant peremptorily disqualified District Judge Nicholas G. Kalokathis under W.R.Cr.P. 21.1(a), and the case was assigned to District Judge Peter G. Arnold. After presiding over the trial, Judge Arnold recused himself from the sentencing proceedings in order to avoid the potential perception of bias resulting from his former attorney-client relationship with several of the victims. Judge Arnold assigned the case to Judge Kalokathis for sentencing. Judge Kalokathis proceeded to sentence Appellant to consecutive terms of 4 to 8 years for each of the convictions, for a total of 44 to 88 years. Perhaps as a result of the fact that the earlier motion to disqualify Judge Kalokathis was not reduced to writing, neither party realized, at the time, that the assignment to Judge Kalokathis was prohibited by the peremptory disqualification.

[¶ 4] Approximately one month after sentencing Appellant, Judge Kalokathis recognized that he had previously been disqualified. Judge Kalokathis vacated Appellant's sentence and assigned the case to District Judge Edward L. Grant for resentencing. Before the resentencing hearing, Appellant filed a motion for a new trial alleging that Judge Arnold's decision to recuse himself prior to sentencing indicated that Appellant had been deprived of a fair trial.

[¶ 5] After holding a separate sentencing hearing, Judge Grant sentenced Appellant to consecutive terms of 8 to 10 years for Count I, 7 to 10 years for Count II, 5 to 7 years for Count III, and 4 to 6 years for Counts IV–XI, for a total of 52 to 75 years. Judge Grant explained that the sentences for Counts I through III reflected the severity of the impact of the crimes on the respective victims. At that hearing, Judge Grant also denied Appellant's motion for a new trial, noting that it was untimely and that “even if it were not, it would be denied on its merits.”

[¶ 6] After Judge Grant entered the new judgment and sentence, Appellant challenged the convictions in a direct appeal, claiming that (1) the district court had erred in denying his motion for a judgment of acquittal, and (2) the court had erred in admitting evidence of uncharged misconduct. We affirmed Appellant's convictions in Ferguson v. State, 2007 WY 157, 168 P.3d 476 (Wyo.2007). As is evident from that opinion, Appellant did not raise any issue with respect to his resentencing.

[¶ 7] Following our decision affirming the convictions, Appellant asserted a number of collateral challenges to his sentence. In 2007, he filed a Motion for Sentence Reduction, which the district court denied. In 2010, Appellant filed a Petition for Post–Conviction Relief, asserting eight claims relating to ineffective assistance of appellate counsel. That motion was also denied. Finally, in August, 2012, Appellant filed the Motion to Correct Illegal Sentence at issue in this appeal. He asserted that Judge Grant improperly increased the original sentence in violation of his constitutional right to due process of law. He also contended that the order of restitution should be vacated because restitution was not included in the oral pronouncement of the sentence. The district court agreed that the order of restitution was illegal and vacated that order.¹ The court denied Appellant's due process claim. This timely appeal followed.

STANDARD OF REVIEW

[¶ 8] We apply the following standard of review to a district court's decision to deny a motion to correct an illegal sentence:

This Court reviews a trial court's denial of a motion to correct an illegal sentence by using an abuse of discretion standard. However, this discretion is limited to a determination by the trial court as to whether the sentence was legal or illegal.... An illegal sentence is one which exceeds statutory limits, imposes multiple terms of imprisonment for the same offense, or otherwise violates constitutions or the law. Whether a sentence is illegal is determined by referencing the applicable statute or constitutional provisions, and is subject to statutory interpretation. The determination of whether the appropriate rule was applied to a set of facts is a question of law, requiring de novo review.

Baker v. State, 2011 WY 123, ¶ 10, 260 P.3d 268, 271 (Wyo.2011) (quoting McDaniel v. State, 2007 WY 125, ¶¶ 6–7, 163 P.3d 836, 838 (Wyo.2007) (internal citations and punctuation omitted)). Whether a claim is barred by res judicata is also a question of law, reviewed de novo.Moore v. State, 2009 WY 108, ¶ 20, 215 P.3d 271, 276 (Wyo.2009).

DISCUSSION

[¶ 9] Appellant contends that the sentence violates his constitutional due processand double jeopardy protections. In his due process claim, Appellant contends he did not receive due process because his sentence was motivated by vindictiveness. He claims that the increase in the minimum term of his sentence from the original sentence was not warranted by any identifiable conduct on his part, and that the “only explanation for this increase ... is vindictive sentencing.” With respect to his double jeopardy claim, Appellant contends that because he had an expectation of finality in his original sentence “until he himself contested it,” the increased sentence violates double jeopardy protections against multiple punishments for the same offense.

[¶ 10] The State responds that Appellant's claims are barred by res judicata because they could have been raised six years ago in his direct appeal. The State also claims that because Appellant's original sentence was entered without jurisdiction, making that sentence “utterly void and of no effect,” his sentence could not have constituted an “increase” with respect to the original sentence. The State further contends that Appellant had no expectation of finality in his sentence, precluding his double jeopardy claim, because Appellant initiated an appeal from his convictions.

[¶ 11] The doctrine of res judicata bars litigation of issues that were or could have been determined in a prior proceeding. Dax v. State, 2012 WY 40, ¶ 9, 272 P.3d 319, 321 (Wyo.2012). This Court has long held that motions to correct illegal sentences are subject to the principles of res judicata. Kurtenbach v. State, 2013 WY 80, ¶ 6, 304 P.3d 939, 940 (Wyo.2013). If a party fails to show good cause why an issue was not raised at an earlier opportunity, the Court may decline to consider the issue. Hamill v. State, 948 P.2d 1356, 1358 (Wyo.1997). We have routinely disposed of claims on res judicata grounds without regard to whether the issue was raised before the district court. See, e.g., Kurtenbach, 304 P.3d 939;Lunden v. State, 2013 WY 35, 297 P.3d 121 (Wyo.2013); Dax, 272 P.3d 319.

[¶ 12] In his reply brief to this Court, Appellant asserts, for the first time, that his due process and double jeopardy claims were overlooked in his direct appeal due to ineffective assistance of counsel. He contends that the alleged ineffectiveness constitutes “good cause” which excuses the failure to raise the issue earlier. Appellant has provided no authority to support the assertion that ineffective assistance of counsel may constitute “good cause” for failure to raise an issue in an earlier proceeding. We note that we have previously held that “Failing to recognize the factual or legal basis for a claim or failing to raise a claim despite recognizing it does not constitute good cause for not bringing an issue to the court's attention.” Winstead v. State, 2011 WY 137, ¶ 12, 261 P.3d 743, 746 (Wyo.2011) ( overruled in part on unrelated grounds by Sweets v. State, 2013 WY 98, ¶ 2 n. 1, 307 P.3d 860, 863 n. 1 (Wyo.2013)). Nonetheless, even if we were to hold that good cause for failure to raise an issue in an earlier proceeding could be established by a showing of ineffective assistance of counsel, we would be unable to find that Appellant has satisfied his burden.

[¶ 13] In order to demonstrate ineffective assistance of counsel, Appellant must show that (1) counsel's performance was deficient, and that (2) counsel's deficient performance prejudiced the defense. Gleason v. State, 2002 WY 161, ¶ 44, 57 P.3d 332, 346–47 (Wyo.2002). The failure to make the required showing of either deficient performance or prejudice will result in a finding that counsel was not ineffective. Osborne v. State, 2012 WY 123, ¶ 19, 285 P.3d 248, 252 (Wyo.2012). As discussed below, because neither of Appellant's claims would prevail, we find no grounds to conclude that his counsel's decision not to raise those claims constitutes deficient performance.

[¶ 14] ...