Appeal from the District Court of Natrona County. The Honorable Catherine E. Wilking, Judge.
Representing Appellant: W. Keith Goody, Cougar, Washington.
Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Hollis Ann Ploen, Student Intern.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
[¶1] After a jury found Christopher Ray Counts guilty of aggravated burglary and kidnapping and found him to be a habitual criminal, the district court sentenced him to two concurrent life sentences. Mr. Counts appealed and this Court affirmed the conviction. Counts v. State, 2012 WY 70, 277 P.3d 94 (Wyo. 2012) ( Counts I ). Mr. Counts later filed a motion to correct an illegal sentence on the ground that one of the convictions relied upon for the habitual criminal determination and the life sentences occurred when he was only sixteen years old. He asserted consideration of that offense to impose a life sentence is unconstitutional under Miller v. Alabama, 567 U.S.__, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). We affirm.
[¶2] Mr. Counts states the issue for our determination as:
Did the district court err when it denied [the] motion to correct illegal and unconstitutional sentence pursuant to Rule 35(a) W.R.Cr.P.?
We summarize the State's lengthy statement of the issues as follows:
I. Whether the Court should summarily affirm the district court's order because Mr. Counts' brief does not comply with the requirements of W.R.A.P. 7.01.
II. Whether the district court violated the Eighth Amendment of the United States Constitution when it considered Mr. Counts'
juvenile conviction as one of the three convictions necessary to enhance his sentence to life in prison under the habitual offender statute.
III. Whether this Court should apply the amended habitual criminal statute retroactively to Mr. Counts' sentence.
[¶3] A jury found Mr. Counts guilty of aggravated burglary and kidnapping in 2011. The jury also found him to be a habitual criminal pursuant to Wyo. Stat. Ann. § 6-10-201 (LexisNexis 2009) based upon evidence that he had three prior felony convictions. One of those convictions was for burglary committed when Mr. Counts was sixteen years old. At the time of Mr. Counts' trial, the habitual criminal statute provided:
§ 6-10-201. " Habitual criminal" defined; penalties.
(a) A person is an habitual criminal if:
(i) He is convicted of a violent ...