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Heinemann v. State

Supreme Court of Wyoming

March 20, 2018

ANTHONY LEE HEINEMANN, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal from the District Court of Laramie County The Honorable Thomas T.C. Campbell, Judge

          Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, [*] Chief Appellate Counsel; Kirk Morgan, Senior Assistant Appellate Counsel.

          Representing Appellee: Peter K. Michael, Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Benjamin E. Fischer, Assistant Attorney General.

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

          BURKE, Chief Justice.

         [¶1] Appellant, Anthony Lee Heinemann, challenges the district court's entry of an order nunc pro tunc correcting two judgments entered against him in 1998. We affirm.

         ISSUES

         [¶2] Appellant presents five issues:

1. Did the Department of Corrections have standing to seek an order nunc pro tunc?
2. Did the order nunc pro tunc violate Appellant's right to due process of law?
3. Is Wyo. Stat. Ann. § 7-6-108 a statute of repose, and the only mechanism other than Wyo. Stat. Ann. § 7-6-106 for reimbursement of public defender fees?
4. Did the State of Wyoming invite the error it now complains of?
5. Is the State barred by res judicata from pursuing this issue under the guise of an order nunc pro tunc?

         FACTS

         [¶3] In 1998, Appellant received convictions following jury trials in two related cases. In the first case, Appellant was convicted of taking indecent liberties with a child, in violation of Wyo. Stat. Ann. § 14-3-105(a) (LexisNexis 1999), and furnishing alcohol to a minor, in violation of Wyo. Stat. Ann. § 12-6-101(a). In the second case, Appellant was convicted of sexual assault in the third degree, in violation of Wyo. Stat. Ann. § 6-2- 304(a)(iii). Because Appellant had previously received a conviction in Colorado for attempted first-degree sexual assault, the district court imposed an enhanced sentence of life imprisonment without parole in the latter case pursuant to Wyo. Stat. Ann. § 6-2- 306(d).

         [¶4] At the joint sentencing hearing, counsel for Appellant asked the court to find that Appellant was unable to pay his attorney's fees. The district court declined to do so. Instead, it stated that it "[would] include in the order a requirement that [attorney's fees] be paid, although whether there's any ability to pay at any [time] in the ...


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