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Hicks v. State

Supreme Court of Wyoming

February 8, 2018

DAVID A. HICKS, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal from the District Court of Hot Springs County The Honorable Robert E. Skar, Judge

         Representing Appellant: Pro se

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Sam Williams, Assistant Attorney General.

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

          DAVIS, Justice.

         [¶1] 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.

         ISSUES

         [¶2] 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 35(a)?

         FACTS

         [¶3] 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.

         [¶4] 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 cause affidavit:

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 ...

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