Hawes v. State
| Decision Date | 04 March 2016 |
| Docket Number | S–15–0191,S–15–0192.,Nos. S–15–0185,s. S–15–0185 |
| Citation | 368 P.3d 879 |
| Parties | Gregory Michael HAWES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Pro se.
Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
, Chief Justice.
[¶ 1] Gregory Michael Hawes challenges the district court's denial of his two motions to correct an illegal sentence, and the denial of his motion to have counsel appointed to represent him in this appeal. We affirm.
[¶ 2] Mr. Hawes presents various arguments as separate issues, but there are two key questions to be answered in this appeal:
[¶ 3] Mr. Hawes was convicted of kidnapping in violation of Wyo. Stat. Ann. § 6–2–201(a)(ii)
, (a)(iii), and (d) (LexisNexis 2013) and felony stalking in violation of Wyo. Stat. Ann. § 6–2–506(b) and (e)(iii). He appealed, and we reversed the stalking conviction but affirmed the kidnapping conviction. Hawes v. State, 2014 WY 127, ¶ 20, 335 P.3d 1073, 1079 (Wyo.2014) ("Hawes I "). We remanded the case to the district court. Based upon our decision, the district court entered an amended judgment specifying that Mr. Hawes was "NOT GUILTY and is acquitted of ... Felony Stalking, " but reconfirming that Mr. Hawes was guilty of kidnapping.
[¶ 4] The district court also amended the sentencing order. In the original order, the district court sentenced Mr. Hawes to five to nine years in prison for the stalking charge. As part of the sentence for the stalking charge, the district court assessed $10.00 for the Judicial Systems Automation fee and $10.00 for the Indigent Civil Legal Services fee as required by Wyo. Stat. Ann. § 6–10–102
, a $150.00 surcharge for crime victims under Wyo. Stat. Ann. § 1–40–119, $75.00 for a substance abuse evaluation, and $1,000.00 to the Wyoming Public Defender under Wyo. Stat. Ann. § 7–6–106(c). In the amended sentence, the district court deleted the prison sentence and the $150.00 victim of crime surcharge for the stalking conviction, and incorporated the remaining fees into the sentence for the kidnapping conviction.
[¶ 5] Subsequently, Mr. Hawes filed a motion to correct an illegal sentence, claiming that the amended kidnapping sentence improperly increased his punishment for that crime. He further asserted that the public defender who had represented him at trial improperly approved the amended sentence. Mr. Hawes also filed a second motion to correct an illegal sentence based on a claim that the jury had been improperly instructed at trial. The district court denied the motions.
[¶ 6] Mr. Hawes separately appealed the denials of the two motions, giving rise to Docket No. S–15–0185 and Docket No. S–15–0191. He then moved the district court to appoint counsel to represent him in his appeals. The district court denied the motion and Mr. Hawes also appealed that decision, giving rise to Docket No. S–15–0192. We consolidated the three appeals for purposes of briefing and decision.
[¶ 7] Mr. Hawes asserts that his amended kidnapping sentence is illegal for several reasons. First, he contends it is illegal because the district court increased it by imposing fees previously connected to the stalking sentence. Second, he claims the sentence is illegal because the district court lacked authority to amend the kidnapping sentence. Third, he asserts the sentence is illegal because he was not present when it was imposed. Fourth, he claims it is illegal because it was entered with the approval of his original trial counsel, even though the attorney had not been reappointed to represent him after his appeal. Finally, Mr. Hawes attacks his kidnapping conviction and sentence on grounds that the district court had improperly instructed the jury at his trial. We will consider each argument in turn.
[¶ 8] While sentencing decisions are normally within the discretion of the sentencing court, it may not impose an illegal sentence. Bird v. State, 2015 WY 108, ¶ 9, 356 P.3d 264, 267 (Wyo.2015)
. "A sentence is illegal if it violates the constitution or other law." Id. (quoting Endris v. State, 2010 WY 73, ¶ 13, 233 P.3d 578, 581 (Wyo.2010) ). The legality of a sentence is a question of law that this Court reviews de novo. Bird, ¶ 9, 356 P.3d at 267.
[¶ 9] After Mr. Hawes was convicted of kidnapping and stalking, the district court filed an order providing as follows:
IT IS THE SENTENCE OF THE COURT that Gregory M. Hawes, on Count I [stalking], be incarcerated in an institution designated by the Wyoming State Department of Corrections for a period of not less than five (5) years nor more than nine (9) years. In addition, a ten and no/100 ($10.00) dollar Judicial Systems Automation fee is assessed pursuant to Wyoming Statute § 6–10–102
; [a] ten dollar and no/100 ($10.00) ... Indigent Civil Legal Services Fee is assessed pursuant to Wyoming Statute § 6–10–102 ; a one hundred fifty ($150.00) dollar surcharge for victims of crime is assessed pursuant to Wyoming Statute § 1–40–119 ; a fee of seventy-five and no/100 ($75.00) dollars is assessed for the ASI/ASAM, payable to the Department of Corrections, 700 West 21st Street, Cheyenne, Wyoming 82002, and the reasonable value of the expenses and services provided by appointed counsel pursuant to Wyoming Statute § 7–6–106(c) is two thousand one hundred ($2,100.00) dollars of which all but one thousand ($1,000.00) is suspended. Against the sentence of incarceration the Defendant shall be given credit for two hundred seventy seven (277) days of pre-sentence confinement served in this case.
IT IS THE SENTENCE OF THE COURT that Gregory M. Hawes, on Count II [kidnapping], be incarcerated in an institution designated by the Wyoming State Department of Corrections for a period of not less than thirty (30) years nor more than Life. In addition, a one hundred fifty ($150.00) dollar surcharge for victims of crime is assessed pursuant to Wyoming Statute § 1–40–119. Against the sentence of incarceration the Defendant shall be given credit for two hundred seventy seven (277) days pre-sentence confinement served in this case. This sentence shall run consecutive to Count I.
[¶ 10] On appeal, we affirmed the kidnapping conviction but reversed the stalking conviction. Hawes, ¶ 20, 335 P.3d at 1079
. When the case was remanded, the district court entered an amended judgment stating that Appellant was guilty of kidnapping but acquitted on the stalking charge. It entered an amended sentence stating:
IT IS THE SENTENCE OF THE COURT that Gregory M. Hawes, on Count II [kidnapping], be incarcerated in an institution designated by the Wyoming State Department of Corrections for a period of not less than thirty (30) years nor more than Life. In addition, a ten and no/100 ($10.00) dollar Judicial Systems Automation fee is assessed pursuant to Wyoming Statute § 6–10–102
; [a] ten dollar and no/100 ($10.00) ... Indigent Civil Legal Services Fee is assessed pursuant to Wyoming Statute § 6–10–102 ; a one hundred fifty ($150.00) dollar surcharge for victims of crime is assessed pursuant to Wyoming Statute § 1–40–119 ; a fee of seventy-five and no/100 ($75.00) dollars is assessed for the ASI/ASAM, payable to the Department of Corrections, 700 West 21st Street, Cheyenne, Wyoming 82002, and the reasonable value of the expenses and services provided by appointed counsel pursuant to Wyoming Statute § 7–6–106(c) is two thousand one hundred ($2,100.00) dollars of which all but one thousand ($1,000.00) is suspended. Against the sentence of incarceration the Defendant shall be given credit for 277 (two hundred seventy seven) days pre-sentence confinement served in this case.
[¶ 11] As shown by the quoted text, in the original sentence, the district court imposed fees for court automation, indigent civil legal services, substance abuse assessment, and the value and expenses of appointed counsel as part of the sentence for the stalking conviction. In the amended sentence, these fees were imposed as part of the sentence for the kidnapping conviction. Mr. Hawes asserts that this increased his sentence for kidnapping in violation of his constitutional protections against double jeopardy.1
[¶ 12] This argument was not presented to the district court, and we generally do not consider arguments presented for the first time on appeal. However, an exception applies if the issue is fundamental in nature. Silva v. State, 2014 WY 155, ¶ 9, 338 P.3d 934, 936 (Wyo.2014)
. "A claim of double jeopardy is fundamental." Duffy v. State, 789 P.2d 821, 840 n. 11 (Wyo.1990). "The fundamental nature of the guarantee against double jeopardy can hardly be doubted." Eatherton v. State, 810 P.2d 93, 111 (Wyo.1991) (quoting Benton v. Maryland, 395 U.S. 784, 795, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707 (1969) ). Because the double jeopardy issue presented by Mr. Hawes is fundamental in nature, we will consider the claim even though it was not raised below.
[¶ 13] In Haynes v. State, 2012 WY 151, ¶ 8, 288 P.3d 1225, 1227 (Wyo.2012)
, we explained:
The Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." Similarly, Article 1, Section 11 of the Wyoming Constitution
provides that no person shall "be twice put in jeopardy for the same offense." We have recognized that these two provisions "have the same meaning and are co-extensive in application." DeLoge v. State, 2002 WY 155, ¶ 7, 55 P.3d 1233, 1237 (Wyo.2002). Both provide protection against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after...
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