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Raymond E. Robison, Iii v. the State of Wyoming

January 19, 2011

RAYMOND E. ROBISON, III, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Campbell County The Honorable John R. Perry, Judge

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

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

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] On October 5, 2009, Appellant, Raymond E. Robison, III (Robison), was found guilty, after a jury trial, of driving while under the influence of alcohol in violation of Wyo. Stat. Ann. § 31-5-233(b)(ii)(A) (LexisNexis 2007). He committed that offense on November 2, 2008. Robison appeared before the district court on November 9, 2009, for a Sentencing Enhancement Hearing pursuant to Wyo. Stat. Ann. § 31-5-233(e) (fourth or subsequent offense). On January 21, 2010, the district court entered its Sentence and Probation Order. Robison contends that the district court imposed an illegal sentence by considering a prior conviction that occurred outside the five-year time limit set by the governing statute. He also contends that trial counsel's failure to file a motion to suppress evidence obtained in connection with an illegal traffic stop constituted ineffective assistance of counsel and denied him due process of law. We will affirm.

ISSUES

[¶2] Robison raises these issues:

I. Did the trial court impose an illegal sentence by considering a conviction outside of the five-year time limit delineated by W.S. § 31-5-233(e) as a fourth or subsequent conviction so as to sentence [Robison] to a felony?

II. Did the failure of [Robison's] trial counsel to file a motion to suppress evidence based upon an illegal traffic stop constitute ineffective assistance of counsel and deny [him] due process of law?

The State's statement of the issues conforms to that set forth by Robison.

Ineffective Assistance of Counsel

[¶3] Under the circumstances of this case, the second issue raised by Robison is a threshold issue. If this Court were to conclude that Robison's counsel's assistance was ineffective, then it would require this Court to reverse that conviction. Such a conclusion would then require us to vacate the sentence imposed as well.

[¶4] Robison's arrest was facilitated by a Report Every Drunk Driver Immediately (REDDI) alert that was called into the Gillette Police Department by an employee of the Lariat Cafe and Sundance Lounge on November 2, 2008. The report was to the effect that a very drunk patron had left that establishment after he was refused service. Police were provided a description of the vehicle Robison was driving. That report was forwarded via dispatch to Gillette Police Officer Mark Kelso. He was near the Sundance Lounge and arrived on the scene as Robison was driving away in the vehicle described in the REDDI report. Officer Kelso stopped Robison. He ascertained that Robison did not have a driver's license (it was suspended). He also ascertained that Robison was intoxicated and he was placed under arrest for that reason. Officer Kelso did not observe Robison driving in a manner that would have suggested he was an impaired driver. The stop and subsequent arrest was based solely on the REDDI report.

[¶5] Robison's contentions with respect to this issue are based on our decision in McChesney v. State, 988 P.2d 1071, 1076-77 (Wyo. 1999), wherein we held:

Here, we have the classic anonymous tip--an unidentified voice on the telephone. Because an anonymous tipster's basis of knowledge and veracity are typically unknown, anonymous tips are considered less reliable. Kaysville City v. Mulcahy, 943 P.2d 231, 235-36 (Utah App.1997). The tip of an anonymous informant is unlike that of an identified citizen-informant. The latter tips are higher on the reliability scale because an identified informant exposes himself to possible criminal and civil prosecution if the report is false. Id.; see Borgwardt v. State, 946 P.2d 805, 807 (Wyo.1997) (citizen informants are presumptively reliable sources of information). Because the anonymous tip ...


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