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James Phillip Graham v. the State of Wyoming

September 16, 2011

JAMES PHILLIP GRAHAM, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Sweetwater County The Honorable Jere A. Ryckman, Judge

The opinion of the court was delivered by: Burke, 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] In 1999, James Phillip Graham was convicted on four counts of obtaining property by false pretenses. His appeal challenged the amount of restitution ordered as part of his sentence. We affirmed in part and reversed in part. Graham v. State, 2001 WY 5, 16 P.3d 712 (Wyo. 2001).

[¶2] In 2010, Mr. Graham filed a "Motion to Correct an Illegal Sentence." The district court denied the motion, a decision that Mr. Graham now seeks to appeal. Because his appeal is barred under the doctrine of res judicata, we will affirm.

ISSUES

[¶3] Mr. Graham's pro se brief lists these five issues:

1. The court imposed an illegal sentence where there is no authority under the law to include a consecutive sentence of probation, after the court had sentenced appellant to prison.

2. The court imposed an illegal sentence where the sentence of probation, in violation of law, began three years after appellant was sentenced to incarceration.

3. The court imposed an illegal sentence where the sentence of probation was three years beyond the maximum sentence that could have been imposed by the court.

4. The court imposed an illegal sentence by sentencing appellant to restitution for crimes for which he was never tried and convicted.

5. The court, having imposed an illegal sentence, was without jurisdiction to revoke appellant's probation where jurisdiction under the law lies solely in the board of parole after incarceration in prison.

The State responds that these claims are barred by res judicata, but further asserts that if we consider Mr. Graham's claims, the district court did not abuse its discretion when it ...


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