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Mitchell v. State

Supreme Court of Wyoming

September 24, 2018


          Appeal from the District Court of Sheridan County The Honorable William J. Edelman, Judge

          Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; James Michael Causey, Senior Assistant Appellate Counsel. Argument by Mr. Causey.

          Representing Appellee: Peter K. Michael, Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Alysia Goldman, Assistant Attorney General. Argument by Ms. Goldman.

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


         [¶1] Appellant, Steven Mitchell, was held in contempt of court for violating a custody order. The district court ordered confinement until Mr. Mitchell purged himself of contempt by relinquishing custody of the minor child. While confined for contempt, Mr. Mitchell pled no contest to one count of felony interference with custody, in violation of Wyo. Stat. Ann. § 6-2-204(a)(ii) and (d)(ii) (Lexis Nexis 2017). The district court imposed a sentence of three and one-half years to five years of imprisonment, with no credit for presentence incarceration. The district court also ordered the criminal sentence to commence on termination of Mr. Mitchell's confinement for contempt. Mr. Mitchell appeals his criminal sentence contending it is illegal. We affirm.


         [¶2] Mr. Mitchell states the issue on appeal as: "Did the district court illegally sentence Mr. Mitchell when it failed to credit him for presentence confinement and failed to permit him to begin serving his [criminal] sentence?"


         [¶3] Mr. Mitchell's criminal proceeding arose from his actions during a lengthy custody battle over his daughter, EP. The custody proceedings involved several jurisdictions and provide useful context here. The State of Montana established paternity and child support after EP's birth in 2010, but did not formally establish custody. The parties later moved to Wyoming where EP's mother, AP, commenced custody proceedings. Unsatisfied with the Wyoming custody proceedings, Mr. Mitchell, as an enrolled member of the Cheyenne River Sioux Tribe, filed proceedings in the Cheyenne River Sioux Tribal Court (tribal court). He also filed a custody proceeding in Weston County, Wyoming. The record is somewhat limited as to the civil filings in the various jurisdictions. We glean the following facts from the exhibits and transcripts provided in relation to Mr. Mitchell's appeal.

         [¶4] The parties initially agreed EP would reside with AP in Sheridan, Wyoming, subject to liberal visitation by Mr. Mitchell, who lived in Newcastle, Wyoming. On March 18, 2012, Mr. Mitchell picked up EP for his usual week-long visit. During the visit, he noticed EP was very ill. He took EP to three different doctors before one discovered a coin lodged in her throat. After the coin was surgically removed, Mr. Mitchell kept EP with AP's permission until her treatment concluded. Thereafter, he refused to return EP to her mother and denied all contact, claiming AP was abusing and neglecting their daughter.[1]

         [¶5] AP's repeated attempts to see her daughter failed. On July 1, 2013, AP petitioned the district court in Sheridan, Wyoming, to formally establish custody. Mr. Mitchell answered and, after retaining counsel, moved to dismiss the petition or, alternatively, change the venue. During the motion hearing, the parties advised the court of their agreement on temporary custody and visitation, wherein Mr. Mitchell would have primary custody subject to visitation by AP. Due to EP's young age and the length of time AP was denied contact with her mother, the parties agreed to a graduated visitation schedule, beginning with supervised visitation through a third party. The district court entered its written order on December 11, 2013, which denied Mr. Mitchell's motion and adopted the parties' proposed terms on temporary custody and visitation.

         [¶6] Mr. Mitchell refused to comply with the ordered visitation schedule, and AP filed a motion for an order to show cause. Prior to the show cause hearing, Mr. Mitchell moved to Custer, South Dakota, and retained new counsel. On February 21, 2014, Mr. Mitchell filed a motion to modify the temporary order contending the visitation schedule was not in EP's best interests because AP neglected EP when she was a baby and AP had not had any meaningful contact with EP since March 2012. Three days later, the district court held the show cause hearing and found Mr. Mitchell in contempt of court. The district court admonished Mr. Mitchell, ordered visitation to commence as soon as supervised visitation could be arranged through the third party, and ordered Mr. Mitchell to pay AP's attorney's fees and costs.

         [¶7] Although Mr. Mitchell completed the necessary paperwork for supervised visitation to commence, he cancelled ten of the eleven scheduled visits, permitting only one visit. AP filed another motion for order to show cause. In late September 2014, the district court again found Mr. Mitchell in contempt of court after he admitted he refused to allow supervised visitation and telephone contact. The court admonished Mr. Mitchell, ordered him to abide by the terms of the temporary custody order, and ordered him to pay AP's attorney's fees and costs incurred in bringing the second contempt motion.

         [¶8] In mid-October, at Mr. Mitchell's direction, his attorney requested a scheduling conference to set deadlines for the custody proceeding. The next day Mr. Mitchell demanded his attorney withdraw the scheduling conference because he wanted a new judge prior to the custody trial, and demanded his attorney withdraw as Mr. Mitchell's counsel. Mr. Mitchell's attorney attempted to vacate the conference, but the court denied the request.[2] The district court set trial for February 6, 2015. Mr. Mitchell's attorney provided the order to Mr. Mitchell by email and mail. The court permitted Mr. Mitchell's attorney to withdraw after receiving Mr. Mitchell's written consent.

         [¶9] Mr. Mitchell did not appear for the custody trial and the district court found him in default.[3] On February 23, 2015, the district court awarded primary custody to AP, and required the parties to keep each other informed of their addresses and telephone numbers, inter alia (February 2015 custody order). The district court emailed a copy of the custody order to Mr. Mitchell. Mr. Mitchell nevertheless refused to relinquish custody of EP and, on April 6, 2015, the district court issued a nunc pro tunc bench warrant for his arrest.[4]

         [¶10] AP also sought assistance from the Sheridan police department. After receiving the police report, the State prepared a criminal information on April 13, 2015, charging Mr. Mitchell with one count of felony interference with custody, in violation of Wyo. Stat. Ann. § 6-2-204(a)(ii), (d)-(e). The circuit court issued a criminal warrant for his arrest that same day.

         [¶11] After learning of the warrants for his arrest through social media, Mr. Mitchell contacted AP and stated he was willing to let AP see EP, but only if AP would agree to a new custody order. Eager to reconnect with her daughter, AP agreed to Mr. Mitchell's proposed custody and visitation terms, which were almost identical to those she agreed to, and the court ordered in 2013. AP and Mr. Mitchell discussed arrangements for AP to visit EP on the weekend of July 4, 2015. Although AP agreed to meet Mr. Mitchell on the reservation, outside of the reach of the arrest warrants, Mr. Mitchell became suspicious of AP, alleging she was playing games, using the meeting as a ruse, and trying to get him in trouble. The visitation never occurred and Mr. Mitchell refused to sign the parenting plan he proposed.

         [¶12] A year later, in July 2016, Mr. Mitchell, pro se, filed a motion requesting the district court relinquish jurisdiction to the tribal court. When he did not obtain the relief he desired, he turned himself in to the Weston County Sheriff in October 2016-a year and a half after the civil and criminal warrants issued. He did not relinquish custody of EP. Mr. Mitchell was transported to the Sheridan County Detention Center where he was detained on both warrants.

         [¶13] On October 17, 2016, Mr. Mitchell first appeared in district court on the civil bench warrant. The district court held Mr. Mitchell in civil contempt and ordered confinement until he complied with the February 2015 custody order by relinquishing custody of EP.

         [¶14] Later that day, Mr. Mitchell appeared in circuit court on the criminal warrant. The circuit court set cash-only bail at $100, 000 and noted it would readdress bond after receiving proof EP has been returned to Sheridan County and/or the custodial parent. The circuit court held a preliminary hearing and bound Mr. Mitchell over to district court where he was arraigned on November 1, 2016. Mr. Mitchell pled not guilty and requested a bond reduction, which the district court denied. The Honorable John G. Fenn, who oversaw the custody proceedings and Mr. Mitchell's arraignment, reassigned the case to the Honorable William J. Edelman for the remainder of the criminal proceedings. Mr. Mitchell requested another bond reduction, which Judge Edelman denied.

         [¶15] In November 2016, Mr. Mitchell retained new counsel and filed a motion to set aside the February 2015 custody order.[5] He also moved to quash the order of commitment and asked the district court to transfer jurisdiction to the tribal court. The district court denied both motions and found that Mr. Mitchell remained in civil contempt for his continued violation of the custody order. The district court ordered Mr. Mitchell to remain confined until he complied with the custody order, and again ordered him to pay AP's attorney's fees and costs.

         [¶16] During a December 2016 status conference in the custody proceedings, Mr. Mitchell's counsel informed the court:

He knows that he holds the key to unlocking his contempt, and by turning the child over, that would unlock the contempt. . . Mr. Mitchell does not plan on doing so. . . . He will not turn the child over. . . . He believes it will be better for him to you [sic] sit in jail until the child's 18 and live with [Mr. Mitchell's mom], than to just be turned over to a mother she doesn't know.

Later that month, Mr. Mitchell's counsel filed a petition to modify the February 2015 custody order and then moved to withdraw.[6]

         [¶17] In February 2017, the State amended its information to reflect two counts of interference with custody for differing time periods. In July, Mr. Mitchell and the State entered a plea agreement, which required the State to dismiss Count I and amend Count II of the information to expressly permit a five-year maximum sentence, in exchange for a plea of no contest to Count II as amended. The district court accepted the plea and ordered a presentence investigation on August 14, 2017.[7]

         [¶18] During the sentencing hearing in October 2017, the State argued that probation was inappropriate because Mr. Mitchell's interference with custody was an ongoing offense. The State presented evidence demonstrating that even after Mr. Mitchell changed his plea, he remained undeterred from thwarting the February 2015 custody order, which he considered null and void. Specifically, the State presented recorded telephone calls where Mr. Mitchell and his mother discussed plans to continue to pursue protective orders in the tribal court to preclude AP from seeing EP, disqualify or utilize political pressure on tribal judges to obtain favorable rulings, and continue to hide EP if a protective order was not issued.

         [¶19] The district court agreed Mr. Mitchell's conduct constituted an ongoing offense and determined probation was inappropriate, noting that as early as a week before the sentencing hearing, Mr. Mitchell continued his efforts to undermine the existing civil action in Sheridan County. The court sentenced Mr. Mitchell to three and one-half years to five years of imprisonment for violation of Wyo. Stat. Ann. § 6-2-204(a)(ii), (d)(ii), [8]with no credit for presentence confinement. The court further ordered the criminal sentence to commence after Mr. Mitchell's civil contempt confinement ends.

         [¶20] Mr. Mitchell filed a motion to reconsider his sentence, claiming it was illegal. The district court denied the motion. Mr. Mitchell timely filed his notice of appeal on November 3, 2017.


         [¶21] "Sentencing decisions are within the broad discretion of the sentencing court." Jones v. State, 2003 WY 154, ¶ 11, 79 P.3d 1021, 1025 (Wyo. 2003) (citing Smith v. State, 941 P.2d 749, 750 (Wyo. 1997)). In our review for an abuse of discretion, we must "determine whether the trial court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious." Herrera v. State, 2003 WY 25, ¶ 10, 64 P.3d 724, 727 (Wyo. 2003) (citations omitted). The sentencing court's discretion is also limited "inasmuch as a court may not enter an illegal sentence." Bird v. State, 2015 WY 108, ¶ 9, 356 P.3d 264, 267 (Wyo. 2015) (citations omitted). "A sentence is illegal when it exceeds statutory limits, imposes multiple terms of imprisonment for the same offense, or otherwise violates constitutions or the law." Palmer v. State, 2016 WY 46, ¶ 9, 371 P.3d 156, 158 (Wyo. 2016) (citations and internal quotation marks omitted). "[W]hether a sentence is illegal is a question of law, which we review de novo." Manes v. State, 2007 WY 6, ¶ 7, 150 P.3d 179, 181 (Wyo. 2007) (citations omitted).


         [¶22] Mr. Mitchell contends the district court imposed an illegal sentence. He first argues his criminal sentence violates the double jeopardy clause of the federal and state constitutions because he was punished twice for the same act - the failure to comply with the February 2015 custody order. Mr. Mitchell also alleges the court unlawfully increased the statutory minimum and maximum sentence for interference with custody by denying credit for presentence confinement and delaying the commencement of his criminal sentence. He further asserts the court wrongfully denied credit for presentence confinement because he could not post bail due to the conditions imposed by the court. The State counters that the criminal sentence is not illegal because the court imposed a single sentence for interference with custody that was within the statutory limits, the bail conditions imposed did not violate any constitutional rights or other law, and the district court properly exercised its discretion when it ordered the criminal sentence to commence after Mr. Mitchell purged himself of contempt in the custody proceeding. We address Mr. Mitchell's double jeopardy claim first.

         I.Double ...

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