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Palomo v. State

Supreme Court of Wyoming

April 17, 2018

AVENTURA H. PALOMO, JR., Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Laramie County The Honorable Catherine R. Rogers, Judge.

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

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

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

          BURKE, CHIEF JUSTICE.

         [¶1] Appellant, Aventura H. Palomo, Jr., challenges the district court's decision denying motions to continue his trial. We conclude that the district court did not abuse its discretion when it denied the motions. Appellant also claims that his written sentence is illegal. While we conclude that the sentence is not illegal, the written sentence is inconsistent with the oral sentence, and we remand for correction of the sentence.

         ISSUES

         [¶2] Appellant presents two issues:

1. Did the district court abuse its discretion when it denied Appellant's motions to continue the trial to allow his newly-retained counsel additional time to prepare?
2. Is Appellant's sentence illegal because the written judgment and sentence is contrary to an unambiguous oral pronouncement at the sentencing hearing?

         FACTS

         [¶3] In the early morning hours of September 29, 2015, Officer Lisa Koeppel of the Cheyenne Police Department responded to a call from dispatch concerning a fight between Appellant and his brother. When she arrived, the two men ran. She ordered them to stop, then gave chase. Appellant attempted to enter his residence, but she stopped him from doing so. He then turned toward her, grabbed her ballistic vest, and shook her. She used a "remote door popper" to release her canine partner from the police vehicle. The canine approached the porch, barked, then bit and held Appellant's brother. Officer Koeppel pushed herself away from Appellant and attempted to get the canine to release the brother. As she did so, Appellant began kicking the dog in the ribs and abdomen.

         [¶4] Officer Koeppel ordered Appellant to stop kicking the canine. When he continued to kick, she rushed Appellant and knocked him back onto the porch. The two tumbled off the porch and onto the ground, where she landed on her back and Appellant landed on top of her. He began punching her in the head and face. She called for help. The dog released the brother and helped separate Officer Koeppel from Appellant. She was then able to restrain Appellant just as two other police officers arrived. After Appellant was arrested, Officer Koeppel went to the hospital for treatment.

         [¶5] Appellant was charged with one felony count of interference with a peace officer for inflicting bodily injury on Officer Koeppel, one misdemeanor count of interference with a peace officer for resisting arrest, and one misdemeanor count of cruelty to animals. He was arraigned on November 5, 2015, and entered not guilty pleas to all of the charges. Trial was originally scheduled for February 16, 2016. On January 21, 2016, Appellant filed a motion to continue the trial. The sole stated basis for the motion was that the "State and the Defendant need more time to address issues within the case." The district court granted the motion and set a new trial date of March 14, 2016. On February 18, 2016, Appellant filed a second motion to continue the trial, citing the same reason as before. The district court granted the motion and set a new trial date of April 18, 2016. ...


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