DAVID A. HICKS, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).
from the District Court of Hot Springs County The Honorable
Robert E. Skar, Judge
Appellant: Pro se
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; Christyne M. Martens, Senior Assistant Attorney
General; Sam Williams, Assistant Attorney General.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
In 2015, David Hicks pled guilty to one count of third degree
sexual assault and one count of abuse of a vulnerable adult,
and he was sentenced to consecutive prison terms. In 2017,
Mr. Hicks filed a pro se motion to correct an
illegal sentence pursuant to W.R.Cr.P. 35(a), in which he
claimed: 1) that his sentences violated his double jeopardy
protections; 2) actual innocence based on lack of intent; and
3) constructive denial of counsel based on his counsel's
failure to assert the double jeopardy and lack-of-intent
defenses. The district court denied Mr. Hicks' motion,
and we affirm.
Mr. Hicks did not include a statement of issues in his
briefing. We have identified the dispositive issues as:
I. Does res judicata bar Mr. Hicks' Rule 35(a)
double jeopardy claim?
II. Did the district court properly deny Mr. Hicks'
actual innocence and constructive denial of counsel claims on
the basis that such claims are not cognizable under Rule
In June 2014, David Hicks worked as a certified nursing
assistant at the Thermopolis Rehabilitation and Care Center.
One of the patients Mr. Hicks was assigned to care for was
JP, a 75-year-old physically disabled Alzheimer patient.
JP's husband, RP, noticed during recent visits that JP
had what appeared to be burns and bruising on her hand and
hip, as well as a cut on her hand. Out of concern for
JP's wellbeing, RP placed a "Nanny Cam"
surveillance video device in her room. When he removed the
memory card and watched the video, he saw that the device had
recorded a man sexually assaulting his wife.
RP reported the assault to the Thermopolis Police Department,
and provided the Department a copy of the recording. Officers
Melanie Kress and Julie Matthews viewed the video recording,
and Officer Matthews reported its contents in a probable
I and Officer Kress reviewed the video and observed the
following: The video is date stamped June 10th,
2014 and the time-stamp starts at 18:19. On the recording I
heard an African American male, later identified as DAVID A.
HICKS, YOB: , hereinafter referred to as HICKS, call out
"Jean", "Let's get you in bed." I
then see HICKS' side as he is bending over. Further, I
can hear sounds that are consistent with HICKS moving foot
pedals and/or arm rests on a wheelchair. A mumbled voice is