Appeal from the District Court of Laramie County The Honorable Michael K. Davis, 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] Michael Patterson claims that the sentence he is serving for a conviction of accessory to second degree murder is illegal. We agree. We will reverse the district court's decision and remand for resentencing.
[¶2] Mr. Patterson presents a single issue: Did the district court err by reinstituting an illegal sentence? The State raises a different issue: Is Mr. Patterson's claim barred from review under the doctrine of res judicata?
[¶3] Mr. Patterson was convicted in 2006 as an accessory before the fact to second degree murder. Wyo. Stat. Ann. § 6-2-104 (LexisNexis 2005) imposes a minimum sentence of 20 years for this crime. During the sentencing hearing, the State asked for a sentence of 20-25 years, while the defense argued for probation. Citing the statutory minimum sentence, the district court said, "I feel my hands are somewhat tied," and imposed a sentence of 20-22 years. A written Judgment and Sentence was entered on August 24, 2006.
[¶4] Less than a month later, the State filed a "Motion for Correction of Sentence" in Mr. Patterson's case. The motion cited Wyo. Stat. Ann. § 7-13-201, which requires that the minimum sentence be no greater than 90% of the maximum. It asked to change the original sentence of 20-22 years to a sentence of 240-267 months, adding three months to the maximum sentence. The district court granted the motion the day after it was filed, and imposed a new sentence of 240-267 months.
[¶5] The State's motion did not include a certificate of service. Handwriting at the bottom of the district court's order suggests that a copy was sent to Mr. Patterson's trial counsel. However, the next document in the record is a copy of the order stapled to an envelope addressed to Mr. Patterson's trial counsel. The envelope is stamped "NOT DELIVERABLE AS ADDRESSED UNABLE TO FORWARD RETURN TO WRITER." Mr. Patterson's trial counsel had moved to withdraw as counsel by this time, and indicated that the appeal would be handled by the Public Defender's Office. There is, however, no indication that either the motion or the order was sent to the Public Defender.
[¶6] Approximately a year and a half after Mr. Patterson was sentenced, the Defender Aid Program of the University of Wyoming Law School filed a motion to reduce his sentence. The motion cited Mr. Patterson's lack of prior criminal history and his exemplary behavior in prison. The motion requested that the remainder of Mr. Patterson's 20-22 year sentence be suspended in favor of probation. On the basis that more than a year had passed since sentencing, the district court denied the motion as untimely under W.R.Cr.P. 35(b).
[¶7] Approximately one year later, the Defender Aid Program filed another motion to reduce Mr. Patterson's sentence. It presented essentially the same arguments as the first motion, and again asked to suspend the remainder of Mr. Patterson's 20-22 year sentence in favor of probation. By this time, the district court judge who originally sentenced Mr. Patterson had left the bench. The new district court judge found that this motion was timely because it was filed less than one year after the Supreme Court's decision in Mr. Patterson's appeal, Patterson v. State, 2008 WY 33, 179 P.3d 863 (Wyo. 2008). The district court nonetheless denied the motion to reduce Mr. Patterson's sentence.
[¶8] A year and a half later, Mr. Patterson filed a pro se Motion to Correct Illegal Sentence. He contended that a sentence of 20-22 years was illegal because it violated the requirement of Wyo. Stat. Ann. § 7-13-201 that the minimum be no more than 90% of the maximum. He asserted that his sentence could not be legally increased after he had begun serving it, and proposed a new sentence of 19-22 years.
[¶9] Four months later, Mr. Patterson filed an Amended Motion to Correct Illegal Sentence. All of the previous post-sentencing pleadings filed by or on behalf of Mr. Patterson had recited that his sentence was 20-22 years. This amended motion was the first to recognize that his sentence had been increased to 240-267 months. Mr. Patterson argued that the increase in his sentence violated his rights against double jeopardy, and further, violated his ...