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Shue v. State

Supreme Court of Wyoming

February 1, 2016

MARVIN KENNETH SHUE, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff)

Appeal from the District Court of Laramie County. The Honorable Thomas T.C. Campbell, Judge.

Representing Appellant: Pro se.

Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Jenny Lynn Craig, Senior Assistant Attorney General; Caitlin F. Young, Assistant Attorney General.

Before BURKE, C.J., and HILL and KAUTZ, JJ., and DEEGAN and FORGEY, DJJ.

OPINION

FORGEY, District Judge.

[¶1] Marvin Shue (hereinafter " Shue" ) filed a motion in the district court that can be read as both a motion to withdraw his guilty plea and a motion to reduce his sentence. The district court denied Shue's request to withdraw his guilty plea and concluded that it lacked jurisdiction to contemplate a sentence reduction. Shue now appeals the district court's decision. We find that the district

Page 646

court did not have jurisdiction to rule on Shue's motion and that we, as a result, do not have jurisdiction to consider Shue's appeal.

ISSUE

[¶2] Shue did not include a statement of the issue on appeal in his appellate brief. The State phrases the issue as follows:

Under Rule 35(b) of the Wyoming Rules of Criminal Procedure, a defendant may file a motion to reduce his sentence within one year after the entry of any order upholding a conviction. A defendant may move to withdraw his guilty plea until the conclusion of an appeal. Shue's motion for sentence reduction asking to withdraw his plea was filed after the deadlines to request such relief expired. Did the district court properly dismiss Shue's motion?

FACTS

[¶3] In 2010, Shue was charged with two counts of first-degree sexual abuse of a minor and five counts of second-degree sexual abuse of a minor. The parties entered into a plea agreement by which Shue would plead guilty to one count of first-degree sexual abuse of a minor and the State would dismiss the remaining six charges. They further agreed to jointly recommend that the district court impose a twelve to twenty-two year prison sentence, and that this sentencing recommendation was not binding on the district court. Shue pled guilty on March 10, 2011, to one count of first-degree sexual abuse of a minor pursuant to the plea agreement. Shortly thereafter, Shue's trial counsel contacted the victim's mother

and offered a $15,000 inducement (couched as " future restitution" ) in exchange for the mother's agreement to recommend to the Court that [Shue] receive a suspended sentence and no prison time. The offer was conditioned on the mother successfully persuading the District Attorney to go along with the no-incarceration recommendation. One of the stipulated hearing exhibits ... is a recorded conversation in which [trial counsel] tells the mother, " The agreement would have to be that the DA goes along with this. So it would be you and the DA agreeing to recommend a suspended sentence. If the DA won't do that, then it's really worthless for [Shue] to even ...

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