from the District Court of Sheridan County The Honorable John
G. Fenn, Judge
Representing Appellant: Thomas Fleener, Faculty Director, and
Hannah Toland, Student Intern, U.W. Defender Aid Program.
Argument by Ms. Toland.
Representing Appellee: Peter K. Michael, Attorney General;
David L. Delicath, Deputy Attorney General; Christyne M.
Martens, Senior Assistant Attorney General. Argument by Ms.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Appellant, Dharminder Sen, was convicted of first-degree
felony murder, aggravated burglary, and conspiracy to commit
aggravated burglary for his participation in the killing of
Robert Ernst after breaking into Mr. Ernst's home with
Wyatt Bear Cloud and Dennis Poitra, Jr. Sen appealed and,
following the United States Supreme Court's decision in
Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183
L.Ed.2d 407 (2012) and our decision in Bear Cloud v.
State, 2013 WY 18, 294 P.3d 36 (Wyo. 2013) (Bear
Cloud II), we vacated his sentences and remanded for
resentencing on all counts. Sen v. State, 2013 WY
47, ¶¶ 48-52, 301 P.3d 106, 124-28 (Wyo. 2013).
Sen was resentenced to life imprisonment according to law for
the first-degree murder conviction, 20 to 25 years for the
conspiracy conviction, and 10 to 25 years for the aggravated
burglary conviction. The court ordered the sentences for
first-degree murder and conspiracy to run concurrently, and
the sentence for aggravated burglary to run consecutively to
them. Sen contends his aggregate sentence, which will require
him to serve at least 35 years before he becomes parole
eligible, violates constitutional protections against cruel
and unusual punishment. We affirm.
Sen presents the following issues:
I. Is Sen's aggregate sentence a de facto
sentence of life without the possibility of parole, and
therefore unconstitutional under the 8th Amendment
of the United States Constitution and in violation of Article
1, Section 14 of the Wyoming Constitution?
II. Is Sen's aggravated burglary sentence grossly
disproportionate and unconstitutional?
In August 2009, when he was fifteen years old, Sen, along
with Wyatt Bear Cloud and Dennis Poitra, Jr., burglarized the
home of Robert and Linda Ernst. During the burglary, Sen shot
and killed Mr. Ernst. A more complete recitation of the facts
is set forth in Sen, ¶ 3, 301 P.3d at 111, and
will not be repeated here.
After a jury trial, Sen was found guilty of first-degree
felony murder, in violation of Wyo. Stat. Ann. §
6-2-101(a) (LexisNexis 2009), conspiracy to commit aggravated
burglary, in violation of Wyo. Stat. Ann. §§
6-1-303(a) and 6-3-301(a) and (c)(i), and aggravated
burglary, in violation of Wyo. Stat. Ann. § 6-3-301(a)
and (c)(i). Sen, ¶¶ 4, 8, 301 P.3d at
111-12. Initially, he was sentenced to life imprisonment
without the possibility of parole for the first-degree felony
murder conviction, 20 to 25 years imprisonment for the
aggravated burglary conviction, to be served consecutively to
the life sentence, and 20 to 25 years imprisonment for the
conspiracy to commit aggravated burglary conviction, to be
served consecutively to the other two sentences.
Id., ¶ 8, 301 P.3d at 112. Sen appealed his
convictions and sentence. While the appeal was pending, the
United States Supreme Court issued its decision in Miller
v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d
407 (2012), and we issued our decision in Bear Cloud
II, 294 P.3d 36. In Miller, the Supreme Court
held that sentencing schemes imposing mandatory life without
the possibility of parole for those under the age of eighteen
at the time of their crimes violate the Eighth
Amendment's prohibition against cruel and unusual
In Bear Cloud II, we held that, under Wyoming law, a
sentence of "life according to law" is in effect a
life sentence without the possibility of parole, and that
such a sentence violates the Eighth Amendment when it is
imposed on a juvenile without the benefit of an
individualized sentencing hearing. Id., ¶¶
34, 42, 294 P.3d at 45, 47. We also stated that "because
the current statutory scheme provides no other method by
which to determine parole eligibility, we hold that when a
trial court imposes a sentence of life imprisonment according
to law upon a juvenile homicide offender, the trial court
must also pronounce a specific period of time which must pass
before the juvenile becomes parole eligible."
Id., ¶ 47, 294 P.3d at 47-48. We vacated
Sen's sentences and remanded for resentencing on all
counts. We instructed the district court to conduct a hearing
consistent with the requirements of Miller and to
consider the sentences for all counts together "because
Sen's sentence of life without the possibility of parole
may have impacted the sentencing decisions with respect to
his conspiracy and aggravated burglary convictions, which
resulted in an additional 40 to 50 years imprisonment beyond
his life term." Sen, ¶ 51, 301 P.3d at
In accord with our decision, the district court held another
sentencing hearing. During that hearing, the court heard
testimony from Sen's mother, grandmother, aunt, and
several expert witnesses who evaluated Sen. At the conclusion
of the hearing, the district court, applying Miller,
announced: "[T]he Court finds that life without the
possibility of parole, . . . is not an appropriate sentence
in this matter and the Court must sentence him in the manner
in which he has a possibility of parole." The court
sentenced Sen to life imprisonment according to law for the
first-degree murder conviction and ordered that Sen would
become parole eligible under that sentence after 35 years.
Sen was also sentenced to 20 to 25 years for conspiracy to
commit aggravated burglary, to run concurrently with the life
sentence, and to 20 to 25 years for aggravated burglary, to
run consecutively to the first two sentences. The aggregate
sentence required Sen to serve at least 55 years in prison
before becoming parole eligible.
Sen appealed a second time. Before the appeal could be
decided, however, we issued our decisions in Bear Cloud
v. State, 2014 WY 113, 334 P.3d 132 (Wyo. 2014)
(Bear Cloud III) and State v. Mares, 2014
WY 126, ¶ 25, 335 P.3d 487, 497-98 (Wyo. 2014). In
Bear Cloud III, we held that an aggregate sentencing
scheme imposing a 45-year period of parole ineligibility
constituted a de facto life sentence with no
meaningful opportunity for release. In State v.
Mares, we addressed the applicability of statutory
amendments pertaining to parole eligibility for juveniles
convicted of murder to crimes that were committed prior to
the statutory change. The amended statutes were enacted in
2013 and provide that persons convicted of first-degree
murder who were under 18 at the time of the offense
"shall be punished by life imprisonment" and that
they shall be eligible for parole after having served 25
years of their sentence. 2013 Wyo. Sess. Laws, ch. 18, §
1 (amending Wyo. Stat. Ann. §§ 6-2-101(b) and
6-10-301(c)). We held that the amended statutes govern
parole eligibility for juveniles already serving life
sentences when the amendments became effective. We concluded
Any juvenile offender sentenced to life imprisonment under
the former law is now, by operation of the amended parole
statutes, serving a sentence of life imprisonment with
eligibility for parole in twenty-five years, and a juvenile
offender serving such a sentence is not required to file a
Rule 35 motion to implement that revised sentence.
Mares, ¶ 26, 335 P.3d at 498. Accordingly, the
amended statutes apply to Sen's sentence.
In light of those decisions, the parties filed a stipulated
motion seeking a second remand for resentencing. Sen v.
State, 2014 WY 148, 337 P.3d 1156 (Wyo. 2014). In
support of the motion, the State conceded that Sen's life
sentence was subject to the 25-year parole ineligibility
requirement in the amended statutes. Id., ¶ 3,
337 P.3d at 1156-57. We granted the motion and remanded for
resentencing on all counts for a second time. Id.,
¶ 4, 337 P.3d at 1157. In doing so, we noted that in
light of the amendments to Wyo. Stat. Ann. §§
6-2-101(b) and 6-10-301(c), "at the resentencing
required by this order, the district court is neither
required nor authorized to specify a period of parole
ineligibility." Id., ¶ 2, 337 P.3d at
Following another hearing, Sen was resentenced to life
imprisonment according to law for first-degree murder; 20 to
25 years for conspiracy to commit aggravated burglary; and 10
to 25 years for aggravated burglary. The court ordered the
sentences for first-degree murder and conspiracy to run
concurrently to each other, and the sentence for aggravated
burglary to run consecutively to them. The aggregate sentence
will require Sen to serve ...