Poignee v. State

• Decision Date: 06 April 2016
• Docket Number: No. S–15–0172.,S–15–0172.
• Citation: 369 P.3d 516
• Parties: Brittany Leanne POIGNEE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

369 P.3d 516

Brittany Leanne POIGNEE, Appellant (Defendant),

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

No. S–15–0172.

Supreme Court of Wyoming.

April 6, 2016.

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

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

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

KAUTZ

, Justice.

[¶ 1] Brittany Leanne Poignee appeals the district court's order revoking her probation. She does not question the district court's actions at the time of her revocation, but claims she was denied the assistance of counsel when her probation was extended more than a year earlier. We conclude Ms. Poignee's challenge to the probation extension order is barred because she did not appeal it. Consequently, we affirm.

ISSUES

[¶ 2] Ms. Poignee presents the following issue on appeal:

Did the trial court err in revoking [Ms. Poignee's] probation[ ] when [she] had not had the benefit of counsel at the time her probationary term was extended and her subsequent violation of probation occurred during the extended, not original, term of probation?

The State raises an additional issue, which we rephrase as:

Is Ms. Poignee's challenge to the extension of her probation barred because she did not appeal the order extending her probation?

FACTS

[¶ 3] In 2008, the State charged Ms. Poignee with one count of delivery of methamphetamine, in violation of Wyo. Stat. Ann. § 35–7–1031(a)(i)

(LexisNexis 2015). The charged crime was a felony and carried maximum penalties of twenty years in prison and/or a fine of $25,000. Id. She entered a plea of no contest to the charge on February 24, 2009, but the proceedings were deferred pursuant to Wyo. Stat. Ann. § 7–13–301 (LexisNexis 2015),¹ and she was placed on supervised probation for five years.

[¶ 4] Ms. Poignee was not successful in fulfilling the requirements of her probation and, on February 18, 2011, the district court revoked her probation and entered judgment on her earlier no contest plea. The district court sentenced Ms. Poignee to three to five years in prison, but suspended the sentence and placed her on three years of supervised probation. Ms. Poignee's probation was set to expire in February 2014, but on January 14, 2014, a probation agent filed a petition to extend her probationary term to August 18, 2015. Ms. Poignee signed a document agreeing to the extension. She was not represented by counsel and no hearing was held on the petition to extend her probation. The district court entered an order extending probation the same day the petition was filed. Ms. Poignee did not appeal, and the State relied upon that order to require supervision and provide services during the extended probationary period.

[¶ 5] In February 2015, the State filed a petition to revoke Ms. Poignee's probation. The district court appointed counsel to represent Ms. Poignee in the revocation proceeding and counsel raised the issue of whether the probation extension had been handled properly. He claimed that Ms. Poignee was entitled to assistance of counsel when her probation was extended and also claimed she had been coerced into agreeing to the extension. Defense counsel argued that, if the probation extension had not been entered, her probation would have expired prior to the February 2015 revocation proceeding.

[¶ 6] A probation agent testified at the revocation hearing that she and Ms. Poignee discussed extending the probationary period in October 2013 after Ms. Poignee violated the conditions of her probation by drinking alcohol. According to the agent, the purposes of extending the probationary term were to give Ms. Poignee additional time to obtain treatment for her addiction and to avoid revocation of her probation. Ms. Poignee admitted at the 2015 revocation hearing that her violations of the probation conditions in 2013 led to the extension of her probationary term. She claimed, however, that she was coerced into agreeing to the extension because the agent told her that she must either agree or go to prison.

[¶ 7] The district court addressed the issue of whether Ms. Poignee was entitled to be represented by counsel in the probation extension proceeding and concluded that, under Wyoming law, she did not have the right to counsel. The court then revoked Ms. Poignee's probation but reinstated it subject to her future compliance. Ms. Poignee appealed the April 23, 2015 revocation order.²

DISCUSSION

[¶ 8] The State argues that this Court does not have jurisdiction over Ms. Poignee's appeal because she is actually contesting the order extending probation and she did not appeal that order within thirty days of entry as required by W.R.A.P. 2.01

. Jurisdiction is a question of law we review de novo. Dawes v. State, 2010 WY 113, ¶ 10, 236 P.3d 303, 306 (Wyo.2010) ; Innis v. State, 2003 WY 66, ¶ 8, 69 P.3d 413, 417 (Wyo.2003).

[¶ 9] W.R.A.P. 2.01(a)

requires a notice of appeal to be filed within thirty days from entry of an appealable order. The filing requirement "is both mandatory and jurisdictional, meaning that ‘[t]he failure to timely file a notice of appeal deprives this Court of jurisdiction to hear the appeal.’ " Chapman v. State, 2013 WY 57, ¶ 53, 300 P.3d 864, 874 (Wyo.2013) (quoting Yeager v. Forbes, 2003 WY 134, ¶ 14, 78 P.3d 241, 247 (Wyo.2003) ); see also W.R.A.P. 1.03. The time limits apply to all parties, including those appearing pro se. Cosco v. Uphoff, 2003 WY 30, ¶¶ 3–5, 66 P.3d 702, 703 (Wyo.2003) ; Compton v. State, 555 P.2d 232, 233–34 (Wyo.1976).

[¶ 10] In Gomez v. State, 2004 WY 15, 85 P.3d 417 (Wyo.2004)

, the district court revoked Mr. Gomez's probation and also sentenced him on new charges. Mr. Gomez filed a pro se "Motion to Dismiss Probation and Probation Violation" arguing he had not received a timely revocation hearing. The district court denied his motion, and Mr. Gomez did not appeal that order. Less than two weeks later, he filed a motion to correct an illegal sentence. In that motion, he again claimed the district court violated his right to a timely revocation hearing. The district court denied the motion to correct an illegal sentence, and Mr. Gomez appealed that order. Id., ¶¶ 10–12, 85 P.3d at 419–20. This Court ruled that we did not have jurisdiction over Mr. Gomez's challenge to the district court's refusal to dismiss the probation revocation proceedings because he did not appeal the district court's first order on that claim. Id., ¶ 15, 85 P.3d at 420.

[¶ 11] Ms. Poignee's circumstances are similar to those addressed in Gomez. Although an order extending probation is a final appealable order, see, e.g., Daniels v. State, 909 P.2d 972 (Wyo.1996)

; King v. State, 720 P.2d 465 (Wyo.1986), Ms. Poignee did not appeal from the January 2014 order extending her probation. Under W.R.A.P. 2.01(a) and Gomez, we do not have jurisdiction to review the order extending probation because Ms. Poignee did not timely appeal it.

[¶ 12] Ms. Poignee did, however, file a timely notice of appeal of the April 2015 order revoking her probation. The question, then, is whether the doctrine of res judicata bars her challenge, within the current appeal, to the procedure used to extend her probation. The "doctrine of res judicata is a rule of universal law pervading every well-regulated system of jurisprudence. The doctrine arises through public policy and necessity, it being in the interest of the state that there should be an end to litigation." Rubeling v. Rubeling, 406 P.2d 283, 284 (Wyo.1965)

, citing 50 C.J.S. Judgments § 592 (2015). In determining whether res judicata applies, four factors must be considered:

(1) identity in parties; (2) identity in subject matter; (3) the issues are the same and relate to the subject matter; and (4) the capacities of the persons are identical in reference to both the subject matter and the issues between them.

Kurtenbach v. State, 2013 WY 80, ¶ 6, 304 P.3d 939, 940–41 (Wyo.2013)

(quoting Martinez v. State, 2007 WY 164, ¶ 11, 169 P.3d 89, 91 (Wyo.2007) (other citation omitted)). See also Gee v. State, 2014 WY 9, ¶ 9, 317 P.3d 581, 583–84 (Wyo.2014). " ‘The application of the doctrine of res judicata is a question of law that we review de novo.’ " Rathbun v. State, 2011 WY 116, ¶ 9, 257 P.3d 29, 33 (Wyo.2011) (quoting Eklund v. PRI Envtl., Inc.,

2001 WY 55, ¶ 15, 25 P.3d 511, 517 (Wyo.2001) ).

[¶ 13] In Mead v. State, 2 P.3d 564 (Wyo.2000)

, we ruled the appellant's claim that his probation should not have been revoked was barred by res judicata. The district court revoked Mr. Mead's probation and sentenced him to prison. He appealed but did not file a brief, so his judgment and sentence was affirmed. Mr. Mead then filed a motion to correct an illegal sentence which was denied by the district court. He again appealed, this time arguing the revocation of his probation was erroneous. We concluded that, because Mr. Mead could have raised the issue regarding his probation revocation on direct appeal, but did not, he was barred by res judicata from raising the issue in his appeal of the denial of his motion to correct an illegal sentence. Id. at 565–66. See also Bird v. State, 2015 WY 108, 356 P.3d 264 (Wyo.2015) (claim in motion to correct illegal sentence of insufficient presentence confinement credit was barred by res judicata because it was not raised on direct appeal); Ferguson v. State, 2013 WY 117, 309 P.3d 831 (Wyo.2013) (claims that the sentence violated due process and double jeopardy could have been raised on direct appeal and were, therefore, barred in a subsequent motion to correct an illegal sentence); Brown v. State, 929 P.2d 522 (Wyo.1996) (challenge to legality of a crime victim's compensation assessment barred by res judicata because it could have been raised in prior appeal).

[¶ 14] Like in Mea...