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Cubba v. State

July 7, 2009

GORDON J. CUBBA, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Laramie County. The Honorable Peter G. Arnold, Judge.

The opinion of the court was delivered by: Burke, Justice.

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

[¶1] Gordon Cubba appeals the district court's denial of his motion to correct a clerical error in his Judgment and Sentence. He contends that the Judgment and Sentence erroneously states that his sentences were to be consecutive rather than concurrent. We affirm.

ISSUE

[¶2] Did Mr. Cubba establish that, at the sentencing hearing, the district court unambiguously imposed concurrent sentences?

FACTS

[¶3] In October 2004, Mr. Cubba, in two separate cases, was charged with felony destruction of property and possession of marijuana with intent to deliver. The cases were consolidated. In January 2005, pursuant to a plea agreement, Mr. Cubba entered a guilty plea in both cases. No written agreement appears in the record. Mr. Cubba's counsel, at the change of plea hearing, set forth the terms of the agreement as follows:

The Court: What is the agreement?

[Defense Counsel]: Pursuant to a plea agreement, he'll plead guilty to the charge of property destruction. The district attorney will be recommending a two-to-four-year sentence with a boot camp recommendation. There is restitution in that matter of $2,675.

He will additionally be pleading guilty to possession with intent to deliver. The district attorney will recommend a three-to-five-year sentence, suspended, consecutive to the two-to-four-year sentence with a boot camp recommendation, probationary period to be three years.

(Emphasis added.)

[¶4] Mr. Cubba was sentenced on April 4, 2005. The court permitted defense counsel to make the first statement:

[Defense Counsel]: We're here on a sentencing on Mr. Cubba. My client entered a guilty plea to two charges, one of property destruction and one a possession with intent to deliver. The sentence to be recommended by the district attorney's office was a two-to-four sentence with boot camp for the property destruction case and then a three-to five-year suspended sentence consecutive to that first sentence. There also is restitution in this matter which was joint and several with another co-defendant.

(Emphasis added.) Following defense counsel's presentation, the district court afforded Mr. Cubba the opportunity to make a statement. Mr. Cubba did not take exception to the stated terms of the plea agreement other than to request that he be placed on Intensive Supervised Probation or referred to Frontier Correctional Systems, rather than boot camp. After Mr. Cubba concluded, defense counsel stated, "I believe the State is sticking with their recommendation at this point," and the prosecutor responded, "We are, Your Honor." The district court then stated its intent to sentence Mr. Cubba in conformance with the plea ...


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