Appeal from the District Court of Park County. The Honorable Steven Cranfill, Judge.
The opinion of the court was delivered by: Golden, Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, BURKE, JJ.
[¶1] A jury found Appellant Richard Gordon Bloomer guilty of aggravated robbery and aggravated assault and battery, and also found him to be a habitual criminal. Because Bloomer had three prior felony convictions, the district court imposed two life sentences. Bloomer appeals his convictions, asserting claims of instructional error and ineffective assistance of counsel. He also challenges the legality of his life sentences. We affirm Bloomer's convictions, but reverse his sentences. We remand this case to the district court for resentencing.
[¶2] Bloomer submits these issues for our consideration:
I. Did the [district] court's failure to give any jury instruction on the presumption of innocence constitute plain error?
II. Did the State prove three prior felony convictions in support of the habitual criminal allegation?
III. Under the circumstances of this case, can subsequent non-violent felonies be charged and tried before known earlier violent felony allegations in order to create habitual criminal liability?
IV. Is it ineffective assistance of counsel to allow the [district] court to fail to instruct on the presumption of innocence and the right not to testify?
[¶3] A little after 12:00 a.m. on August 24, 2002, two Burger King employees were robbed by a masked gunman as they approached the Pinnacle Bank in Cody to deposit the previous day's receipts. During the robbery, the gunman brandished a black pistol and threatened the employees. After taking the money, the robber ordered the employees to the ground and told them he would blow their heads off if they moved. The employees stayed on the ground for a few minutes before fleeing the scene and reporting the robbery. The victims were unable to identify the robber, and no suspects were identified by law enforcement at the time.
[¶4] Approximately two years later, law enforcement received information implicating Bloomer in the robbery. On July 27, 2004, Eric Kin Choy, an inmate at the Adult Community Corrections Center in Casper, Wyoming, reported to Detective Juliet Wardwell of the Cody Police Department that Bloomer had committed the robbery along with Ian Parsons. Detective Wardwell subsequently interviewed Parsons who admitted to driving the getaway car in the robbery and confirmed Bloomer's identity as the masked gunman.
[¶5] At the time the robbery information was developed, Bloomer was facing two felony drug charges in Park County. He absconded to Montana, where he was arrested, convicted and ultimately sentenced in September 2005 to seven years in prison for felony forgery. While incarcerated in Montana, Bloomer petitioned to be returned to Wyoming to stand trial on the pending drug charges.
[¶6] Before his trial commenced on the drug charges, the State filed a Felony Information charging Bloomer with one count of aggravated robbery and one count of aggravated assault and battery for his part in the instant robbery. The State later amended the Information to include a habitual criminal sentence enhancement provision. The enhancement was based on ...