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Nicodemus v. State

Supreme Court of Wyoming

March 22, 2017

KENNETH DALE NICODEMUS, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal from the District Court of Sublette County The Honorable Marvin L. Tyler, Judge

          Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender Tina N. Olson, Chief Appellate Counsel; [*] and Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne Martens, Senior Assistant Attorney General; and Joshua C. Eames, Assistant Attorney General. Argument by Mr. Eames.

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          HILL, JUSTICE.

         [¶1] In 1992, Kenneth Nicodemus pled guilty to two counts of first degree murder and one count of larceny for crimes he committed when he was eighteen years old. He was sentenced to two consecutive sentences of life imprisonment on the murder counts and eight to ten years in prison on the larceny count, to run consecutive to the life sentences. In 2014, Mr. Nicodemus filed a Rule 35 motion to correct an illegal sentence, contending his life sentences violated the federal constitution's protection against cruel and unusual punishment and the Wyoming constitution's protection against cruel or unusual treatment. The district court denied the Rule 35 motion, and we affirm.


         [¶2] Mr. Nicodemus states the issue on appeal as:

I. Mr. Nicodemus committed two murders when he was eighteen years of age. At that time the age of majority in Wyoming was nineteen. Does the imposition of a sentence of life without parole in that circumstance violate the constitutional prohibition of cruel or unusual punishment?

         The State responds with two issues, which it frames as follows:

I. Res judicata bars consideration of issues that could have been, but were not, brought in a prior proceeding. Kenneth Nicodemus did not appeal his convictions and now argues that his life sentences violate the United States and Wyoming Constitutions. Does res judicata bar consideration of his arguments, twenty-four years after his sentences became final?
II. A court may not impose a sentence that violates the constitution or statute. In 1992, the district court sentenced Nicodemus to two life sentences for murdering two people when he was eighteen years old. Does a life sentence for an adult who commits multiple murders violate the United States or Wyoming Constitutions?


         [¶3] Mr. Nicodemus challenges his sentence for crimes that occurred at the Ponderosa Lodge near Pinedale, Wyoming. For some time in 1991, Mr. Nicodemus worked at the Ponderosa Lodge for its owners, Gary and Sue Weiss. On April 6, 1992, after that employment had concluded, Mr. Nicodemus returned to the lodge. He drove to a location about a mile and a half from the lodge, parked his vehicle, and walked the remaining distance. Once there, he waited for the Weisses to leave and then broke into the lodge to check the register for cash. Finding no cash in the register, Mr. Nicodemus then walked back to a travel trailer on the property and knocked one of its doors off the hinges, hoping to find valuables in the trailer. He found a coin collection, some cash, and a .44 magnum revolver, which he loaded and placed in the small of his back.

         [¶4] As Mr. Nicodemus continued to look through the trailer, he heard the Weisses pull into their property. The Weisses looked into the trailer, and when Mr. Weiss saw Mr. Nicodemus, he threatened him. Mr. Nicodemus then ran out the trailer's back door and down a road. Mr. Weiss fired a gun, and Mr. Nicodemus returned fire, hitting Mr. Weiss. Mr. Weiss then retreated to the other side of the trailer, and Mr. Nicodemus followed. When Mr. Nicodemus reached Mr. Weiss, he was with Mrs. Weiss, and neither had a weapon. Mr. Nicodemus shot them both, but each was able to get away from him. He caught up to Mr. Weiss first, and while Mr. Weiss was on his knees, wheezing, Mr. Nicodemus shot him in the back of the head. He then located Mrs. Weiss and shot her multiple times.

         [¶5] Mr. Nicodemus took the bodies of Mr. and Mrs. Weiss about three-quarters of a mile from the lodge and pushed them over an embankment to delay their discovery. When leaving the property, Mr. Nicodemus stole the Weiss truck, as well as a coin collection, four rifles, a shotgun, a radio, and a purse containing fifty dollars.

         [¶6] Mr. Nicodemus was located and arrested in Rock Springs, where he had made statements to witnesses concerning his killing of the Weisses, and was charged with two counts of first degree murder and one count of larceny. On May 27, 1992, Mr. Nicodemus pled guilty to the three charges and was sentenced to a term of life imprisonment for each murder, to be served consecutively, and a term of eight to ten years for the larceny count, to be served consecutive to the two life sentences.

         [¶7] On December 19, 1992, Mr. Nicodemus, acting pro se, filed a letter with the district court, which the court treated as a motion for sentence reduction. Through that motion, Mr. Nicodemus expressed dissatisfaction with the legal representation that led to his guilty plea and asked that the court order his sentences to run concurrently because of his youth and because he acted in self defense when he killed the Weisses. The district court denied the motion.

         [¶8] On November 21, 2014, Mr. Nicodemus filed a pro se Rule 35 motion to correct an illegal sentence. Through that motion, Mr. Nicodemus argued that his sentence was effectively a life sentence without the possibility of parole and that because he was a juvenile at the time he committed the crimes, such a sentence violates the Wyoming and federal constitutional protections against cruel and/or unusual punishment. On May 5, 2016, the district court entered an order denying Mr. Nicodemus' Rule 35 motion. Mr. Nicodemus thereafter timely filed a timely notice of appeal to this Court.


         [¶9] Whether a challenge is barred by res judicata is a question of law that we review de novo. Bird v. State, 2015 WY 108, ¶ 9, 356 P.3d 264, 267 (Wyo. 2015) (citing Ferguson v. State, 2013 WY 117, ¶ 8, 309 P.3d 831, 833 (Wyo. 2013)). Whether a sentence is illegal is likewise a question of law that we review de novo. Barela v. State, 2016 WY 68, ¶ 6, 375 P.3d 783, 786 (Wyo. 2016) (citing Endris v. State, 2010 WY 73, ¶ 13, 233 P.3d 578, 581 (Wyo. 2010)).


         A. Res Judicata

         [¶10] The State contends that because Mr. Nicodemus bases his present challenge to his life sentences solely on the Wyoming Constitution, and not on intervening federal or state precedent, he could have made the same challenge through a direct appeal or in his first motion for a sentence reduction. Because Mr. Nicodemus did not do so, the State argues his challenge is barred by the doctrine of res judicata.

         [¶11] Res judicata bars litigation of issues that were or could have been determined in a prior proceeding, and while a court may correct an illegal sentence under W.R.Cr.P. 35(a) at any time, the bases for correcting the sentence remain subject to res judicata. Bird, ¶ 10, 356 P.3d at 267 (citing Dax v. State, 2012 WY 40, ¶¶ 9-10, 2 ...

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