James v. State

• Decision Date: 09 March 2012
• Docket Number: No. S–11–0158.,S–11–0158.
• Citation: 2012 WY 35,271 P.3d 1016
• Parties: Gary Allen JAMES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

2012 WY 35

271 P.3d 1016

Gary Allen JAMES, Appellant (Defendant),

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

No. S–11–0158.

Supreme Court of Wyoming.

March 9, 2012.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; and Kirk A. Morgan, Assistant Appellate Counsel.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Terry Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Robin Sessions Cooley, Deputy Attorney General.

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

HILL, Justice.

[¶ 1] Gary Allen James was convicted of two counts of aggravated assault and battery and two counts of DUI with serious bodily injury. The district court imposed four consecutive sentences, but James contends on appeal that the convictions should have merged to two convictions for sentencing purposes. We affirm.

ISSUE

[¶ 2] James presents one issue for our consideration:

The district court erred when it imposed consecutive sentences in violation of [James'] constitutional right against multiple punishments for the same offense.

FACTS

[¶ 3] In the very early morning of April 15, 2010, James and three passengers headed from Centennial to Laramie on Wyoming Highway 130. The four friends had spent the night partying in Centennial and also had shared a fifth of whiskey.

[¶ 4] Because James was drunk and driving recklessly, he was unable to negotiate a curve near milepost 8 on Wyoming Highway 130. The vehicle rolled twice and landed upright. The road was dry and the weather was clear.

[¶ 5] Two passengers were seriously injured when they were thrown from the vehicle, and both were life flighted to Colorado. One suffered a crushed skull and a brain injury, and now must walk with the assistance of a cane. The other's hip and leg bones were crushed, and his colon was bruised. He is in a wheelchair and must wear a colostomy bag. The third passenger was seat belted and walked away from the crash. James also managed to walk away unscathed.

[¶ 6] One of the officers that responded smelled alcohol and noticed James' bloodshot, watery eyes and slurred speech. James told the officer that he and his friends were drunk. After he was treated at the hospital, James was placed under arrest, as his blood alcohol content registered .195% the night before—almost 2 1/2 times the legal limit of .08%.

[¶ 7] The State charged James with two counts of DUI causing serious bodily injury in violation of Wyo. Stat. Ann. § 31–5–233(b)(i)(h)(i) (LexisNexis 2011), and two counts of aggravated assault and battery in violation of Wyo. Stat. Ann. § 6–2–502(a)(i) or (ii) (LexisNexis 2011). Habitual offender status was added in an amended information. Initially, James pled not guilty to all four counts. However, the parties reached a plea agreement, which provided as follows:

1) [James] will plead guilty to Count One, Count Two and Count Four as charged herein and no contest to Count Three as charged herein;

2) In exchange for the above plea of guilty, the State of Wyoming will remove the habitual offender allegation contained in the felony information filed herein;

3) There is no agreement as to sentencing in this matter.

[¶ 8] James pled as outlined above, and the court entered a Change of Plea. After receiving the presentence investigation report, the court held its sentencing. The district court sentenced James to four consecutive terms of eight to ten years of incarceration. James timely appealed.

STANDARD OF REVIEW

[¶ 9] This Court reviews de novo the question of whether a defendant's constitutional protection against double jeopardy has been violated. Daniel v. State, 2008 WY 87, ¶ 7, 189 P.3d 859, 862 (Wyo.2008). We consider protections provided by the fifth amendment to the United States Constitution and by art. 1, § 11 of the Wyoming Constitution to be equivalent. Id., ¶ 8, 189 P.3d at 862.

DISCUSSION

[¶ 10] James contends on appeal that the district court violated his constitutional guarantees against double jeopardy by failing to merge, for sentencing purposes, the DUI and aggravated assault and battery counts relating to each victim. He argues that the merger doctrine required the district court to sentence him for only two crimes, not four, because there were only two victims.

[¶ 11] The State responds that while the evidence it would have used at trial to convict James of DUI and aggravated assault and battery charges would have overlapped somewhat, those two crimes are separate and distinct offenses with different elements. Thus, the district court properly ordered James to serve consecutive sentences on each count for which he was convicted. We agree with the State.

[¶ 12] The double jeopardy provisions of both the United States and Wyoming constitutions afford to individuals three distinct protections:

1) [P]rotection against a second prosecution for the same offense following an acquittal; 2) protection against a second prosecution for the same offense after a conviction; and 3) protection against multiple punishments for the same offense.

Meyers v. State, 2005 WY 163, ¶ 9, 124 P.3d 710, 714 (Wyo.2005). Here, we are focused on the third protection, about which we recently stated:

Federal double jeopardy law appears to have been settled in United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 2856, 125 L.Ed.2d 556 (1993), with the Supreme Court's holding that “[i]n both the multiple punishment and multiple prosecution contexts, this Court has concluded that where the two offenses for which the defendant is punished or tried cannot survive the ‘same-elements' test, the double jeopardy bar applies.” The inquiry under the same-elements test is “whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars additional punishment and successive prosecution.” Id. Like the United States Supreme Court, this Court recognizes and follows the same-elements test. See, e.g., Granzer v. State, 2010 WY 130, ¶ 13, 239 P.3d 640, 645 (Wyo.2010); Snow v. State, 2009 WY 117, ¶ 16, 216 P.3d 505, 510 (Wyo.2009); and Najera v. State, 2009 WY 105, ¶ 11, 214 P.3d 990, 994 (Wyo.2009).

Rathbun v. State, 2011 WY 116, ¶ 6, 257 P.3d 29, 32 (Wyo.2011).

[¶ 13] The same-elements test, also known as the statutory elements test, mentioned in Rathbun, is derived from Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932):

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. State v. Keffer, 860 P.2d 1118, 1130 (Wyo.1993). In addition to the same-elements test, this Court has also considered a merger doctrine that allows for the consideration of other factors:

The question of merger as a bar to multiple sentences for the same act, however, summons a more complex appellate standard of review. As a practical matter, in appeals alleging imposition of multiple sentences for a single act, the focus necessarily expands to embrace those facts proven at trial. The ultimate question becomes whether those facts reveal a single criminal act or multiple and distinct offenses against the victim or victims and hence the State.

Bilderback v. State, 13 P.3d 249, 254 (Wyo.2000). Recently, the Bilderback style merger doctrine—considering the facts of the case—has faced some challenges. See Najera v. State, 2009 WY 105, ¶ 17, 214 P.3d 990, 995 (Wyo.2009) (Voigt, J., specially concurring). However, with or without a Bilderback fact analysis, the result in this case is the same: James committed two separate offenses against each victim.

[¶ 14] Even prior to Bilderback, another Wyoming case, Nowack v. State, 774 P.2d 561 (Wyo.1989), determined that multiple convictions and punishments may be had for aggravated assault and battery and DUI resulting in serious injury. We discussed this issue at length in Nowack:

“Where independent but overlapping statutes are directed to separate evils, cumulative punishments are intended. Birr [ v. State], 744 P.2d [1117] at 1121 [ (Wyo.1987) ]; Albernaz [ v. U.S.], 450 U.S. [333] at 343 [101 S.Ct. 1137, 1144, 67 L.Ed.2d 275 (1981) ].” Lauthern v. State, 769 P.2d at 355. Both statutes are directed toward the prevention of bodily injury, however one statute protects against drunken drivers while the other protects against outrageous conduct, regardless of the actor's state of sobriety. Those are sufficiently separate purposes to trigger the inference of legislative intent to authorize cumulative punishments.

....

We are satisfied that the legislature contemplated two separate types of conduct in the statutes and intended cumulative punishments. In fact, we are persuaded that any other interpretation could not offer a sense of symmetry to the punishment scheme which most would regard as fair. To accept Nowack's argument that he could only be punished for the misdemeanor would render the absurd result the trial judge sought to avoid—that of punishing outrageous drunken driving less severely than the same outrageous driving by a sober person. Another alternative might be to leave the felony conviction to stand, but not both the felony and the misdemeanor. That approach treats the sober driver and the drunken driver the same, but it also frustrates the legislature's efforts in dealing with the problem of drunk drivers and ignores the legislature's purpose of reducing the carnage on our highways. [Footnote omitted.]

Being satisfied that the legislature intended cumulative punishments we could end our inquiry if we were considering multiple punishments imposed after a single trial. But legislative intent alone is insufficient to pass muster under the double jeopardy restriction upon successive trials for the same...