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