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Cooper v. State

March 3, 2010

CLEO COOPER, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Natrona County, The Honorable Scott W. Skavdahl, Judge.

The opinion of the court was delivered by: Voigt, Chief Justice

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

[¶1] Cleo Cooper (the appellant) appeals from the district court's denial of a motion to correct an illegal sentence, in which the district court clarified its intent that the appellant's sentence was to run consecutive to other sentences. Finding that review of the appellant's claim is barred by the doctrine of res judicata, we will affirm the district court's decision.

ISSUE

[¶2] Did the district court err when it denied the appellant's motion to correct an illegal sentence and instead clarified that the appellant's sentence was to be served consecutive to his other sentences?

FACTS

[¶3] The appellant was subject to several separate criminal prosecutions, including case Nos. 16970-C, 16678-C, 16774-B, 16849-B, and a federal prosecution. On July 20, 2006, in case No. 16970-C, the appellant pled guilty to one count of forgery and one count of identity theft. He was subsequently sentenced to 81/2 to 10 years for each of those offenses, to run concurrently with one another. At the sentencing hearing, the appellant requested that any sentence that the court imposed be ordered to run concurrently with his sentences in case Nos. 16678-C and 16774-B, which he was currently serving. In response, the judge stated in part:

You want to accept responsibility but avoid any consequences. And you have been trying to talk your way out of everything.

You ask for the mercy of this Court. But every time you've been given mercy, you have ignored your responsibility to the community and to society as a whole.

I decline to make that sentence consecutive to any other sentence you are currently serving. This isn't a situation where you can add up as many as you want and put them on the same bill.

(Emphasis added.) The subsequent written sentence indicated that the two sentences would "run concurrent with each other, but consecutive to Criminal Action Nos. 16678-C and 16774-B . . . ." (Emphasis added.) The appellant timely filed an appeal in that case, and the appeal was consolidated with an appeal from a separate conviction. This Court affirmed the convictions in both cases. See Cooper v. State, 2008 WY 5, 174 P.3d 726, 727 (Wyo. 2008).

[¶4] In January of 2009, the appellant filed a motion for sentence reduction in case No. 16970-C, which motion was granted, thereby reducing the appellant's minimum term to 71/2 years. In July of 2009, the appellant filed in the same case a motion to correct an illegal sentence, pursuant to W.R.Cr.P. 35(a). The appellant contended that, consistent with the district court's oral pronouncement at sentencing, his sentences should be served concurrently with the sentences from the other cases, and not consecutively as indicated in the written sentence. In response, the district court issued its Order Clarifying Sentence, denying the appellant's motion and stating:

[T]o the exten[t] this Court stated in its[] oral pronouncement that the sentence in Case No. 16970-C was to be "concurrent" with Case Nos. 16678-C and 16[774-B], the Court misspoke. The sentence in Case No. 16970-C is "consecutive" to Case Nos. 16678-C and ...


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