Greene v. State

• Decision Date: 18 August 2009
• Docket Number: No. S-09-0014.,S-09-0014.
• Citation: 214 P.3d 222,2009 WY 99
• Parties: Christopher Duane GREENE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

214 P.3d 222

2009 WY 99

Christopher Duane GREENE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. S-09-0014.

Supreme Court of Wyoming.

August 18, 2009.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.

Representing Appellee: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny Lynn Craig, Assistant Attorney General.

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

BURKE, Justice.

[¶ 1] Christopher Greene entered guilty pleas to three felony charges of obtaining controlled substances by misrepresentation, and no contest to a charge of attempting to obtain property by false pretenses. He now appeals his convictions on two of the felony charges, and challenges the sentence imposed by the district court. We will affirm.

ISSUES

[¶ 2] Mr. Greene sets forth these two issues:

1. Should Mr. Greene's first two convictions have been misdemeanors?

2. Did the trial court err by not making a finding of Mr. Greene's status under the Addicted Offender Accountability Act?

FACTS

[¶ 3] On June 13, 2007, an Information was filed against Mr. Greene charging him with two felony counts of obtaining controlled substances by misrepresentation, in violation of Wyo. Stat. Ann. § 35-7-1033(a)(iii) and (b) (LexisNexis 2007).¹ The affidavit filed in support of the Information asserted, as to the first count, that in November 2006, Mr. Greene altered his prescription for a narcotic pain reliever from 30 tablets to 80 tablets, and obtained the larger amount from a pharmacy in Green River, Wyoming. As to the second count, the affidavit asserted that in April 2007, he altered and filled another prescription for the same drug, this time from 35 tablets to 85. He was arrested on these charges on December 5, 2007, and released on bond.

[¶ 4] On April 20, 2008, a second Information was filed, charging Mr. Greene with attempting to obtain property by false pretenses in violation of Wyo. Stat. Ann. §§ 6-3-407(a)(i) and 6-1-301(a)(i) (LexisNexis 2007).² The supporting affidavit asserted that on March 6, 2008, Mr. Greene attempted to cash two payroll checks he had stolen from a local welding company. He was arrested on this charge on April 27, 2008, and again released on bond.

[¶ 5] On May 16, 2008, a third Information was filed, charging Mr. Greene with two more felony counts of obtaining controlled substances by misrepresentation, also in violation of Wyo. Stat. Ann. § 35-7-1033(a)(iii) and (b) (LexisNexis 2007). The affidavit filed in connection with these charges asserted that, on four occasions ranging from June 11, 2007, to October 29, 2007, Mr. Greene obtained various narcotic pain medications and other controlled substances using forged or altered prescriptions. Mr. Greene was arrested on these charges on June 9, 2008.

[¶ 6] Mr. Greene initially pleaded not guilty to all of the charges. He later reached a plea agreement with the prosecution involving all three cases listed above. On October 8, 2008, he pleaded guilty to three counts of obtaining controlled substances by misrepresentation, and no contest to the charge of attempting to obtain property by false pretenses. In return, the prosecution dismissed one of the counts of obtaining controlled substances by misrepresentation, dismissed other charges pending in a fourth case, and agreed not to pursue certain other potential charges not specified in the record. On December 3, 2008, the district court sentenced Mr. Greene to terms of three to five years on each of the three counts of obtaining controlled substances by misrepresentation, and a term of four to eight years on the count of attempting to obtain property by false pretenses. All sentences were to be served concurrently. Mr. Greene appealed.

STANDARD OF REVIEW

[¶ 7] Both of Mr. Greene's issues require us to interpret and apply Wyoming statutes. "Statutory interpretation is a question of law, so our review is de novo." Qwest Corp. v. Public Service Comm'n, 2007 WY 97, ¶ 3, 161 P.3d 495, 497 (Wyo.2007). "We attempt to determine the legislature's intent based primarily on the plain and ordinary meaning of the words used in the statute." Krenning v. Heart Mt. Irrigation Dist., 2009 WY 11, ¶ 9, 200 P.3d 774, 778 (Wyo.2007). "If we determine that a statute is clear and unambiguous, we give effect to the plain language of the statute." RK v. State ex rel. Natrona County Child Support Enforcement Dep't, 2008 WY 1, ¶ 10, 174 P.3d 166, 169 (Wyo.2008).

DISCUSSION

Issue 1: Felonies or Misdemeanors?

[¶ 8] "Crimes which may be punished by death or by imprisonment for more than one (1) year are felonies. All other crimes are misdemeanors." Wyo. Stat. Ann. § 6-10-101 (LexisNexis 2007). The crimes for which Mr. Greene was convicted were committed in 2006 and 2007, and he was charged in 2007 and early 2008. During all of that time, the Wyoming statutes specified that the crime of obtaining controlled substances by misrepresentation was a felony:

(a) It is unlawful for any person knowingly or intentionally: ...

(iii) To acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge. ...

(b) Any person who violates this section is guilty of a crime and upon conviction may be imprisoned for not more than five (5) years, or fined not more than ten thousand dollars ($10,000.00), or both.

Wyo. Stat. Ann. § 35-7-1033(a)(iii) and (b) (LexisNexis 2007).

[¶ 9] In 2008, the legislature amended this statute. Effective July 1, 2008, the first two convictions of this crime were changed to misdemeanors, while the third and subsequent offenses remained felonies:

(a) It is unlawful for any person knowingly or intentionally:

(iii) To acquire or obtain possession of, to procure or attempt to procure the administration of or to obtain a prescription for any controlled substance by misrepresentation, fraud, forgery, deception or subterfuge....

b) Except as otherwise provided:

(i) A person who is convicted upon a plea of guilty or no contest or found guilty of violating paragraph (a)(iii) of this section is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both....

(ii) A person convicted upon a plea of guilty or no contest or found guilty of a second offense of violating paragraph (a)(iii) of this section is guilty of a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both....

(iii) A person convicted upon a plea of guilty or no contest or found guilty of a third or subsequent offense of violating paragraph (a)(iii) of this section is guilty of a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both.

2008 Wyo. Sess. Laws ch. 83, § 1.³ Mr. Greene pleaded guilty and was convicted and sentenced after the effective date of this amendment. He now contends that he should have been convicted and sentenced under the amended statute in effect at the time, so that the first two of his three convictions for obtaining controlled substances by misrepresentation should have been misdemeanors rather than felonies.

[¶ 10] As a preliminary matter, we question whether Mr. Greene is entitled to raise this claim on appeal. He did not raise it before the district court. In addition, a guilty plea generally constitutes a waiver of all non-jurisdictional defenses. Walters v. State, 2008 WY 159, ¶ 26, 197 P.3d 1273, 1280 (Wyo.2008); Kunselman v. State, 2008 WY 85, ¶ 11, 188 P.3d 567, 569 (Wyo.2008). Before accepting Mr. Greene's guilty plea, the district court carefully informed him that he could be sentenced to a maximum of five years in prison on each of the three counts of obtaining controlled substances by misrepresentation. These were the felony penalties specified in the version of the statute in effect during 2006 and 2007, not the misdemeanor penalties specified in the 2008 amendment. Mr. Greene never objected to treating the charges as felonies, and never asserted that they should be treated as misdemeanors under the 2008 amendment. By pleading guilty to felony charges, he may have waived his current argument that the first two convictions should be considered misdemeanors.

[¶ 11] We will not decide this claim on the basis of waiver, however. The State has not asserted that Mr. Greene waived the issue, and neither party briefed or discussed the question of waiver. Moreover, Mr. Greene's claim is readily resolved on other grounds.

[¶ 12] In a provision sometimes referred to as a "savings"⁴ statute, the Wyoming legislature has specified how an amendment to a statute applies to pending cases:

If a statute is repealed or amended, the repeal or amendment does not affect pending actions, prosecutions or proceedings, civil or criminal. If the repeal or amendment relates to the remedy, it does not affect pending actions, prosecutions or proceedings, unless so expressed, nor shall any repeal or amendment affect causes of action, prosecutions or proceedings existing at the time of the amendment or repeal, unless otherwise expressly provided in the amending or repealing act.

Wyo. Stat. Ann. § 8-1-107 (LexisNexis 2007). We agree with the State's assertion that "There is nothing ambiguous about this statute and its meaning can be easily discerned from its face: a pending prosecution will not be affected in substance or remedy by an amendment to a statute unless that intent is expressly stated." In the 2008 statutory amendment relied upon by Mr. Greene, there is no legislative language expressing any intent to apply the 2008 amendment to pending prosecutions. 2008 Wyo. Sess. Laws ch. 83, § 1. Absent that express statement of ...