Appeal from the District Court of Laramie County The Honorable Michael K. Davis, Judge
The opinion of the court was delivered by: Voigt, 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] The appellant was convicted of attempted kidnapping and sentenced to life in prison. He appeals the denial of two pre-trial motions to dismiss, and raises two issues concerning sentencing. Finding no error, we affirm.
[¶2] 1. Was the appellant's prosecution for attempted kidnapping barred by the doctrine of double jeopardy due to his earlier guilty plea to battery?
2. Was the State barred by the doctrine of res judicata from refiling the attempted kidnapping charge and seeking a second preliminary hearing after that charge was dismissed following a preliminary hearing where the circuit court judge found a lack of probable cause?
3. Did the district court apply the proper penalty range in imposing sentence?
4. Did the district court's determination of the penalty range in imposing sentence violate the appellant's right to trial by jury?
[¶3] On August 3, 2009, the appellant accosted a woman near her car in the State of Wyoming employee parking garage, and struck her on the head. He was charged with attempted kidnapping, a felony, and battery, a misdemeanor. After a preliminary hearing in circuit court, the attempted kidnapping charge was dismissed without prejudice. Although the reason for the dismissal does not appear in the court order, questions and comments of the circuit court judge during the preliminary hearing indicated a concern that the State had failed to prove probable cause as to all the elements of the charged crime.
[¶4] After the felony was dismissed, the misdemeanor battery case proceeded in circuit court. The appellant pled guilty and was sentenced to 180 days in jail. Subsequently, the appellant was charged anew with attempted kidnapping, and a second preliminary hearing took place, before a different circuit court judge. This time, the appellant was bound over to district court for trial, where he was convicted and sentenced as noted above.
Was the appellant's prosecution for attempted kidnapping barred by the doctrine of double jeopardy due to his earlier guilty plea to battery?
[¶5] "This Court reviews de novo the question of whether a defendant's constitutional protection against double jeopardy has been violated." Daniel v. State, 2008 WY 87, ¶ 7, 189 P.3d 859, 862 (Wyo. 2008). In that review, we consider the protections provided by the Fifth Amendment to the United States Constitution and by article 1, section 11 of the Wyoming Constitution to be equivalent. Id. at ¶ 8, at 862. Of particular relevance to the present discussion is the precept that the "double jeopardy clause prohibits prosecution of a defendant for a greater offense when he has been previously convicted of the lesser included offense." Id.
[¶6] The constitutional principle, on its face, is simple: no person may be placed in jeopardy more than once for the same criminal offense. The word "jeopardy" refers to "the risk of conviction and punishment." Black's Law Dictionary 912 (9th ed. 2009). This simplicity, however, has been illusory; see, e.g., Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); and Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Federal double jeopardy law appears to have been settled in United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 2856, 125 L.Ed.2d 556 (1993), with the Supreme Court's holding that "[i]n both the multiple punishment and multiple prosecution contexts, this Court has concluded that where the two offenses for which the defendant is punished or tried cannot survive the 'same-elements' test, the double jeopardy bar applies." The inquiry under the same-elements test is "whether each offense contains an element not contained in the other; if not, they are the 'same offence' and double jeopardy bars additional punishment and successive prosecution." Id. Like the United States Supreme Court, this Court recognizes and follows the same-elements test. See, e.g., Granzer v. State, 2010 WY 130, ¶ 13, 239 P.3d 640, 645 (Wyo. 2010); Snow v. State, 2009 WY 117, ¶ 16, 216 P.3d 505, 510 (Wyo. 2009); and Najera v. State, 2009 WY 105, ¶ 11, 214 P.3d 990, 994 (Wyo. 2009).
[¶7] The two offenses at issue in the present case are misdemeanor battery, in violation of Wyo. Stat. Ann. § 6-2-501(b) (LexisNexis 2011) and attempted kidnapping, a felony, in violation of Wyo. Stat. Ann. §§ 6-1-301(a) and 6-2-201(a)(iii) and (d) (LexisNexis 2011). The statutory elements of battery, as charged in this case, are:
1. On or about August 3, 2009.
2. In Laramie County, Wyoming.
5. Caused bodily injury to the victim.
6. By use of physical force.
On the other hand, the statutory elements of attempted kidnapping, as ...