Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.
Representing Appellee: Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney Gerneral; Jeffrey Pope, Assistant Attorney General; Brenda Yamaji, Assistant Attorney General.
Before KITE, C.J., HILL, VOIGT, BURKE, JJ., and FENN, D.J.
FENN, District Judge.
[¶ 1] This is Michael Patterson's third appearance before this Court. On his first appeal his conviction was affirmed, but he did not challenge his sentence. On his second appeal this Court determined that Appellant's sentence was illegal, and remanded the case to the district court for resentencing. Appellant returns to this Court to challenge the Amended Judgment and Sentence issued by the District Court for the First Judicial District following remand. We affirm.
[¶ 2] Appellant phrases the issues as follows:
1. Have Michael Patterson's constitutional due process rights been violated by the failure of the trial court to afford Mr. Patterson a timely and speedy sentencing?
2. Is Michael Patterson being held under an illegal sentence?
3. Has the trial court erred by subjecting Michael Patterson to double jeopardy in violation of the principles of constitutional due process?
The State raises a fourth issue:
Are Mr. Patterson's speedy sentencing and double jeopardy claims barred by res judicata ?
[¶ 3] On May 18, 2006, Appellant was convicted of being an accessory before the fact to second degree murder, an offense that carries a mandatory minimum sentence of twenty (20) years. About four months later, Appellant was sentenced to a term of twenty to twenty-two years, with credit for 301 days already served. That sentence violated Wyo. Stat. Ann. § 7-13-201 (LexisNexis 2011), because the minimum sentence exceeded 90% of the maximum sentence. On September 20, 2006, a little over one month after Appellant's sentence was imposed, the State filed a motion to correct this illegal sentence by increasing the maximum term by three months, giving him a sentence of 240-267 months. Although this motion was not properly served on the Appellant or his counsel, an order increasing Appellant's sentence was signed by Judge Kalokathis the following day without giving Appellant any notice or an opportunity to respond. Appellant timely appealed his conviction, but did not raise any sentencing issues. His conviction was affirmed. Patterson v. State, 2008 WY 33, 179 P.3d 863 (Wyo.2008)( Patterson I ).
[¶ 4] On February 19, 2008, about a year and a half after he was originally sentenced, the Appellant filed a motion to reduce his sentence. Judge Kalokathis denied this motion as untimely under W.R.Cr. P. 35(b). On March 16, 2009, Appellant filed another motion for a sentence reduction. This motion was reviewed by Judge Davis, and although he found it to be timely filed, he nonetheless denied the motion. Neither of these motions recognized that Appellant's sentence had been increased, nor did they raise any speedy sentencing issues.
[¶ 5] On November 24, 2010, almost four years after he was originally sentenced, Appellant filed a motion to correct illegal sentence. He contended that his sentence of twenty to twenty-two years violated Wyo. Stat. Ann. § 7-13-201, because the minimum sentence was more than 90% of the maximum sentence. He also asserted that this illegal sentence could not legally be corrected by increasing his sentence after he had begun serving it. Accordingly, he proposed a new sentence of nineteen to twenty-two years. On March 7, 2011, Appellant filed an amended motion to correct illegal sentence, recognizing for the first time that his sentence had already been increased to ...