Appeal from the District Court of Fremont County The Honorable Norman E. Young, Judge
Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.
Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Joshua Eames, Student Intern. Argument by Mr. Eames.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.
[¶1] Pursuant to a plea agreement, Daniel Ray Bowlsby pled guilty to one count of sexual abuse of a minor in the first degree and one count of incest. Both charges were based on the same incident involving his stepdaughter. In accordance with the plea agreement, the State dismissed seven additional charges pending against Mr. Bowlsby. On appeal, Mr. Bowlsby contends that incest is a lesser included offense of sexual abuse of a minor in the first degree, and, under principles of double jeopardy, claims that it was improper to convict him of both crimes. He asserts that his conviction and sentence for the crime of incest should be vacated. We conclude that the crime of incest is a lesser included offense of the crime of first degree sexual abuse of a minor as charged in this case. Accordingly, we will reverse Mr. Bowlsby's conviction and sentence for the crime of incest and remand for further proceedings.
[¶2] The dispositive issue presented by Mr. Bowlsby is whether his constitutional right not to be placed in double jeopardy was violated when, based on the same act with the same victim, he was convicted of both incest and sexual abuse of a minor in the first degree.
[¶3] Mr. Bowlsby was charged with nine crimes relating to alleged sexual contacts with his two stepdaughters. Prior to trial, Mr. Bowlsby and the State entered into a plea agreement. Mr. Bowlsby agreed to plead guilty to one count of sexual abuse of a minor in the first degree in violation of Wyo. Stat. Ann. § 6-2-314(a)(ii) (LexisNexis 2007), and one count of incest in violation of Wyo. Stat. Ann. § 6-4-402(a)(iii). The prosecution agreed to dismiss the remaining charges. The State also agreed that it would recommend that the sentences on the two counts be concurrent, and that the sentence would not exceed forty years. When he entered his guilty pleas, Mr. Bowlsby admitted that he had engaged in sexual intercourse with his seventeen-year-old stepdaughter. The prosecution made it clear that both charges stemmed from this single event, and were "based on the same factual basis."
[¶4] The district court accepted the guilty pleas and dismissed the other counts. Mr. Bowlsby was sentenced to a term of thirty-five to forty years imprisonment on the count of sexual abuse of a minor in the first degree, and to a term of thirteen to fifteen years on the count of incest, with the two terms to be served concurrently. Mr. Bowlsby subsequently filed a timely appeal.
[¶5] As a preliminary matter, we note that Mr. Bowlsby entered unconditional guilty pleas to both charges. A guilty plea waives all non-jurisdictional defenses. Sword v. State, 746 P.2d 423, 425 (Wyo. 1987). Jurisdictional defenses are not waived, however, and we have previously recognized that double jeopardy is a jurisdictional defense. Davila v. State, 831 P.2d 204, 205-06 (Wyo. 1992). Mr. Bowlsby's guilty plea did not waive his double jeopardy claim, and does not preclude our review. See Haynes v. State, 2012 WY 151, ¶ 12, 288 P.3d 1225, 1228 (Wyo. 2012); Thomas v. Kerby, 44 F.3d 884, 888 (10th Cir. 1995).
[¶6] We also note that Mr. Bowlsby failed to present his double jeopardy claim to the district court. We will ...