Sincock v. State

Citation76 P.3d 323,2003 WY 115
PartiesJustin SINCOCK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Decision Date12 September 2003
CourtUnited States State Supreme Court of Wyoming

Representing Appellant: Kenneth M. Koski, State Public Defender; and Donna D. Domonkos, Appellate Counsel.

Representing Appellee: Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Georgia L. Tibbetts, Senior Assistant Attorney General.


KITE, Justice.

[¶ 1] Justin Sincock appeals from convictions for first-degree premeditated murder, first-degree felony murder, aggravated robbery, forgery, and escape. He claims (1) his right not to be twice placed in jeopardy was violated when he was sentenced to life for first-degree murder and twenty-two to twenty-five years for aggravated robbery, (2) error in the admission of a cellmate's testimony concerning statements he made while in jail, (3) abuse of discretion in the denial of his motion for continuance, and (4) ineffective assistance of counsel. We find no error warranting reversal under the particular facts of this case and affirm.


[¶ 2] Mr. Sincock raises the following issues:


Whether Mr. Sincock's right to be free from double jeopardy was violated when the trial court sentenced Mr. Sincock to life for first degree murder and twenty-two to twenty-five years for aggravated robbery?

Whether the trial court abused its discretion when it allowed Mr. Burke to testify regarding statements made to him by Mr. Sincock after Mr. Burke was placed in Mr. Sincock's jail cell for the specific purpose of obtaining incriminating statements?
Whether the trial court abused its discretion when it failed to grant a continuance of the trial after the lead counsel had to withdraw because of a conflict?
Whether Mr. Sincock received ineffective assistance of counsel when his counsel was unprepared to go to trial and when counsel conceded guilt?

The state presents substantially the same issues.


[¶ 3] In the summer of 1998, Mr. Sincock was a transitional resident inmate at Community Alternatives of Casper (CAC). As a condition of his admission to CAC, Mr. Sincock was required to maintain employment and, in late June of 1998, was hired by Dan Horkan to work as a laborer for his floor covering business. On July 28, 1998, Mr. Horkan was scheduled to work out of town and told Mr. Sincock he would not be needed. Before heading out of town that morning, Mr. Horkan stopped by his house where he found Mr. Sincock. Mr. Horkan's wife, Becky, told her husband she had some painting Mr. Sincock could do at the house. Mr. Horkan left at approximately 10:00 a.m., leaving Mr. Sincock, Becky, and the Horkans' two children at the house.

[¶ 4] At approximately 11:00 that same morning, Becky dropped the children off at her mother's house while she went to deliver lunch to Mr. Sincock. She planned to return to her mother's house before noon. When Becky did not return as planned, her mother, Jennie Litke, called the Horkans' house but received no answer. When nothing was heard from Becky by mid-afternoon, Mrs. Litke called Carmen Horkan, Becky's mother-in-law, and asked her to go over and check the house. Mrs. Horkan went to the house about 3:00 p.m., stepped inside, called for Becky and, hearing no response, picked up the telephone to call Mrs. Litke. There was no dial tone, so she drove to Mrs. Litke's home to tell her she did not find Becky. Mrs. Horkan then returned to the Horkan residence with Mrs. Litke's daughter-in-law. By this time, Mr. Horkan had arrived home. They told him Becky was missing, and the three of them searched the house for some clue as to Becky's whereabouts. Mr. Horkan discovered the telephone had been dismantled. They found a bloodstained towel on the dining room floor. Mrs. Horkan went into the upstairs bathroom, pulled back the shower curtain, and found Becky's body lying face down in the bathtub. She had been shot in the head at close range.

[¶ 5] Several items were missing from the home, including Becky's purse containing keys, cash, checkbook, and credit cards, a 1995 Saturn station wagon, and a .22 caliber revolver. A note left on the front door stated, "Dan, went to Mountain View, Justin." On July 31, 1998, members of Mr. Sincock's family notified police in Columbia, Missouri, where they resided, that Mr. Sincock had checked into a hotel in town. Police arrested him and recovered the stolen car, along with the stolen credit cards and checks.

[¶ 6] Mr. Sincock was charged with first-degree premeditated murder, first-degree felony murder, aggravated robbery, forgery, and escape. The latter two charges were based upon allegations that Mr. Sincock forged a check taken from Becky's purse on the day of the murder and violated the terms of his placement at CAC. After a jury trial, he was convicted on all counts. He was sentenced to a term of life imprisonment on the first-degree murder conviction and consecutive terms of twenty-two (22) to twenty-five (25) years imprisonment on the aggravated robbery conviction, nine (9) to ten (10) years on the forgery conviction, and nine (9) to ten (10) years on the escape conviction.

A. Double Jeopardy

[¶ 7] Mr. Sincock claims his right against double jeopardy was violated when he was sentenced to life imprisonment for first-degree murder and a term of years for aggravated robbery. Citing Bilderback v. State, 13 P.3d 249, 254 (Wyo.2000), he contends these two convictions should have merged for sentencing purposes because the facts necessary to prove aggravated robbery describe the only possible way in which he could have committed felony murder (for which aggravated robbery was the underlying felony) and so sentencing him for both violated his constitutional rights against double jeopardy. To support his claim, Mr. Sincock relies upon cases in which we held the imposition of multiple punishments for felony murder and the underlying felony violated the Double Jeopardy Clauses of the United States and Wyoming Constitutions. Mares v. State, 939 P.2d 724 (Wyo.1997); Roderick v. State, 858 P.2d 538 (Wyo.1993); Cook v. State, 841 P.2d 1345, 1352-53 (Wyo. 1992).

[¶ 8] In Cook, the jury convicted the defendant of felony murder and the underlying felony and the trial court imposed separate sentences for each conviction. We reversed, holding the sentences must merge because the Wyoming legislature did not intend to allow punishment for both the murder and the underlying felony and, applying Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), proof of aggravated robbery under the Wyoming statute required proof of no additional element which proof of felony murder did not require. Mr. Sincock's convictions differ from those in Cook or any other case this Court has considered because the first-degree murder count was based on the alternate theories of premeditated murder and felony murder. In light of the jury's finding of guilt on both of those theories, the question of whether the aggravated robbery conviction violated Mr. Sincock's right to be free from a second punishment for the same offense is a question of first impression in Wyoming.

[¶ 9] We have said the Double Jeopardy Clause protects an accused by prohibiting (1) a second prosecution for the same offense after an acquittal, (2) a second prosecution for the same offense after a conviction, and (3) multiple punishments for the same offense. DeLoge v. State, 2002 WY 155, ¶ 7, 55 P.3d 1233, ¶ 7 (Wyo.2002). In this case, we are concerned with the third protection— multiple punishments for the same offense— and whether the convictions for first-degree murder and aggravated robbery should have merged for sentencing purposes. When we analyze the protection against double jeopardy in terms of multiple punishments, we apply the statutory elements test set forth in Blockburger, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. Succinctly stated, that test is as follows: "[W]here 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." Pope v. State, 2002 WY 9, ¶ 15, 38 P.3d 1069, ¶ 15 (Wyo.2002); Lee v. State, 2001 WY 129, ¶ 20, 36 P.3d 1133, ¶ 20 (Wyo. 2001).

[¶ 10] Initially, application of the statutory elements test in order to resolve the issue of merger would appear to be a pure question of law calling for de novo review of the trial court's conclusions. Bilderback, 13 P.3d at 253-54. Such an analysis may indeed suffice when the question of merger concerns the entitlement of the state to charge a defendant with separate crimes and have each charge submitted to the jury. Id. The question of merger as a bar to multiple sentences after conviction of charges arising from the same act, however, summons a more complex appellate standard of review. Id.

[¶ 11] As a practical matter, in appeals alleging imposition of multiple sentences for a single act, the focus is on those facts proven at trial. Chapman v. State, 2001 WY 25, ¶ 25, 18 P.3d 1164, ¶ 25 (Wyo. 2001). The ultimate question is whether those facts reveal a single criminal act or multiple distinct offenses against the victim. Id. Where the acts required for the commission of one offense are a necessary and indispensable precursor to commission of a second offense, the offenses merge for purposes of sentencing. Id. Such merger is mandatory where the second offense cannot be committed absent commission of the first offense. Id. If the statutory elements test reveals disparate component parts to the two charged offenses, it may be presumed that the legislature intended separate or cumulative punishments upon convictions of both. Bilderback, 13...

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