LISA L. MELLOTT, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).
from the District Court of Niobrara County The Honorable
Patrick W. Korell, Judge
Representing Appellant: Robert T. Moxley, Law Office of
Robert T. Moxley, P.C., Cheyenne, Wyoming. Argument by Mr.
Representing Appellee: Peter K. Michael, Attorney General;
Christyne M. Martens, Deputy Attorney General; Caitlin F.
Harper, Senior Assistant Attorney General; Travis J.
Kirchhefer, Senior Assistant Attorney General. Argument by
DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.
Appellant, Lisa L. Mellott, pled guilty to one felony count
of Medicaid fraud related to improper record-keeping, ten
felony counts of Medicaid fraud for making false or
misleading statements in Medicaid claims when the value of
the medical assistance is $500 or more, and two counts of
felony forgery. Ms. Mellott appeals her judgment and sentence
and the district court's denial of her W.R.A.P 21(a)
motion to withdraw her pleas due to ineffective assistance of
trial counsel. She argues the State unlawfully charged her
with ten felony counts of submitting false statements for
more than $500 of medical assistance based on the aggregated
values of multiple reimbursement claims of less than $500
each. Ms. Mellott claims her trial counsel provided
ineffective assistance because he did not challenge those
charges and, instead, advised Ms. Mellott to accept a plea
agreement under which she pled guilty to all charges. She
also claims her trial counsel provided ineffective assistance
by failing to fully investigate all of the charges against
her. We conclude there was no factual basis for Ms.
Mellott's guilty plea as to Counts 2 through 11 and her
trial counsel provided ineffective assistance by advising her
to accept the plea agreement. We therefore reverse and remand
to the district court.
Ms. Mellott presents the following issues:
1. Does the Wyoming Medicaid Fraud Statute-which denominates
every false claim violation as a "separate
offense"-allow for aggregation of multiple monthly
reimbursement claims of less than $500, in order to create a
felony charge for a false claim in excess of $500, extending
over years of time?
2. Was there a structural error in using an
"aggregated" theory of loss to achieve felony
charges, that lowers the burden to demonstrate ineffective
assistance of counsel?
3. Did appellant's appointed attorney, without conducting
an investigation, and with inadequate legal analysis, render
ineffective assistance of counsel by advising guilty pleas to
all the charges lodged below?
When the alleged crimes occurred, Ms. Mellott was a
registered nurse and a Medicaid provider through a home
healthcare business she owned and operated. Among other
services, she served as a case manager for Medicaid Waiver
clients and submitted claims for payment to the state
Medicaid office for the services she provided.
On December 18, 2015, the State charged Ms. Mellott with a
total of fifteen felony counts related to her actions as a
Medicaid provider. Through an amended information, the State
later altered its factual allegations, but did not
substantively change the number of counts or the applicable
statutes. Count 1 alleged Ms. Mellott violated Wyo. Stat.
Ann. § 42-4-111(e)(iii) (LexisNexis 2017) by knowingly
failing to maintain adequate records of Medicaid claims of a
value greater than $5, 000. Counts 2 through 11 accused her
of violating Wyo. Stat. Ann. § 42-4-111(a) and (b)(i) by
knowingly making a false statement or misrepresentation or
knowingly failing to disclose a material fact in providing
medical assistance to ten clients identified in the
information by their initials. The time periods stated in those
ten counts ranged between 25 and 66 months. The State alleged
Ms. Mellott submitted claims for payment for services that
she had not actually provided, specifically, required home
visits. Finally, Counts 12 through 15 alleged Ms. Mellott
forged two of her clients' signatures on client choice of
service and client responsibility forms, in violation of Wyo.
Stat. Ann. § 6-3-602(a)(ii) and (b) (LexisNexis 2017).
Ms. Mellott was assigned a public defender (trial counsel),
and on June 22, 2016, she changed her pleas to guilty on her
trial counsel's advice and pursuant to an oral plea
agreement. Under the agreement, Ms. Mellott would plead
guilty to all charges, but could argue for any sentence she
saw fit. In exchange, the State would recommend a sentence of
3 to 6 years of imprisonment for the inadequate
record-keeping charge (Count 1) and concurrent sentences for
the false statement and forgery charges (Counts 2 through 11
and Counts 12 through 15, respectively) of 3 to 6 years of
imprisonment. The State would recommend suspending the
concurrent sentences for Counts 2 through 15 in favor of 6
years of probation, which would run consecutive to the
sentence for Count 1. The State also would request
restitution in the amount of $107, 632.18. Ms. Mellott pled
guilty to Counts 1 through 11 and Counts 14 and 15, but she
expressed concerns to her trial counsel that she could not
truthfully plead guilty to Counts 12 and 13. The State agreed
to dismiss those two counts and the district court accepted
Ms. Mellott's guilty pleas.
At the beginning of its September 27, 2016, sentencing
hearing, the district court revisited the plea colloquy to
ensure there was a factual basis to support Ms. Mellott's
guilty plea as to Counts 5 through 7. The court then
sentenced Ms. Mellott to 18 to 24 months of confinement for
Count 1 and concurrent suspended sentences of 3 to 6 years of
confinement for Counts 2 through 11, 14, and 15.
Ms. Mellott timely appealed the judgment and
sentence. Ms. Mellott also moved under W.R.A.P.
21(a) to withdraw her pleas based on the ineffective
assistance of her trial counsel. First, Ms. Mellott asserted
her trial counsel was ineffective because he did not
challenge the legality of the State's basis for Counts 2
through 11, the ten false statement charges under Wyo. Stat.
Ann. § 42-4-111(a) and (b)(i). She claimed the State
improperly aggregated the values of numerous Medicaid claims
by client to reach the value of $500 necessary to charge Ms.
Mellott with felony violations of Wyo. Stat. Ann. §
42-4-111(a). As a result, the district court arguably
accepted her guilty plea as to felony Counts 2 through 11
without a sufficient factual basis under W.R.Cr.P. 11(f).
Second, Ms. Mellott claimed her trial counsel was ineffective
because he failed to adequately investigate the case before
recommending that Ms. Mellott accept the plea agreement.
At the evidentiary hearing on the W.R.A.P. 21 motion, the
district court heard the parties' arguments and testimony
from Ms. Mellott, her trial counsel, and several other
witnesses. The district court also received exhibits,
including a spreadsheet from the State listing information
from a database on the Medicaid claims related to the charges
against Ms. Mellott.
In the district court's decision letter incorporated into
its order denying Ms. Mellott's W.R.A.P. 21 motion, the
court characterized the dispositive issue as: "Whether
assistance provided by Appellant's trial counsel was
ineffective so as to allow Appellant to withdraw her plea
pursuant to W.R.A.P. 21." The district court considered
and rejected Ms. Mellott's argument that Wyo. Stat. Ann.
§ 42-4-111 prohibited the aggregation of individual
claims to support Counts 2 through 11; accordingly, the court
determined trial counsel was not ineffective for failing to
raise that argument. The district court also found trial
counsel was not deficient in investigating the case. Having
concluded that trial counsel's performance was not
deficient, the district court did not evaluate whether Ms.
Mellott was prejudiced by trial counsel's performance.
Ms. Mellott timely appealed the district court's denial
of her W.R.A.P. 21 motion. See W.R.A.P. 21(e). That
appeal was consolidated with her appeal of the judgment and
sentence. See id.
Though Ms. Mellott asserts jurisdictional and structural
error arguments, she describes her consolidated appeal as
"primarily" an appeal from the denial of her motion
to withdraw her pleas due to ineffective assistance of
counsel. The district court's order denying Ms.
Mellott's W.R.A.P. 21 motion involves mixed questions of
law and fact. Griggs v. State, 2016 WY 16, ¶
37, 367 P.3d 1108, 1124 (Wyo. 2016) (citing Osborne v.
State, 2012 WY 123, ¶ 17, 285 P.3d 248, 252 (Wyo.
2012)). "The district court's 'conclusions of
law, which include the question of whether counsel's
conduct was deficient and the question of whether the
appellant was prejudiced by that deficient conduct,' are
reviewed de novo." Id. (citing
Strandlien v. State, 2007 WY 66, ¶ 20, 156 P.3d
986, 992 (Wyo. 2007)). However, "[w]e defer to the
district court's findings of fact unless they are clearly
erroneous." Griggs, ¶ 37, 367 P.3d at 1124
(quoting Cooper v. State, 2014 WY 36, ¶ 20, 319
P.3d 914, 920 (Wyo. 2014)). We review the district
court's interpretation of statutes de novo. Berger v.
State, 2017 WY 90, ¶ 7, 399 P.3d 621, 623 (Wyo.
2017) (citing Rambo v. Rambo, 2017 WY 32, ¶ 6,
391 P.3d 1108, 1110 (Wyo. 2017)).
Ms. Mellott moved to withdraw her guilty pleas under W.R.A.P.
21(a),  which provides in relevant part:
Following the docketing of a direct criminal appeal, the
appellant may file, in the trial court, a motion claiming
ineffective assistance of trial counsel. The motion may be
used . . . to seek plea withdrawal. . . . The motion shall
contain nonspeculative allegations of facts which, if true,
could support a determination that counsel's
representation was deficient and prejudiced the appellant. .
We glean the following from Ms. Mellott's brief on
appeal: First, Ms. Mellott argues the ten felony charges of
making false statements or misrepresentations when providing
medical assistance under the Medicaid program (Counts 2
through 11) violated Wyo. Stat. Ann. § 42-4-111(d). She
alleges the State did not comply with that statutory
provision because the State aggregated the values of numerous
Medicaid claims by client to reach the threshold value of
$500 necessary to charge Ms. Mellott with ten felony
violations of Wyo. Stat. Ann. § 42-4-111(a). She next
argues the State's statutory violation constituted
jurisdictional and structural error in the proceedings and
that her guilty plea as to Counts 2 through 11 was invalid
because, without aggregating multiple Medicaid claims, the
evidence in the record did not support her felony convictions
under Counts 2 through 11. She further argues her trial
counsel provided ineffective assistance by recommending that
she plead guilty to all charges instead of challenging the
legality of, or factual basis for, Counts 2 through
Because Ms. Mellott's claims all arise from her
interpretation of Wyo. Stat. Ann. § 42-4-111(a), (b),
and (d), we begin by construing those statutory provisions.
Statutory Construction - Legislative Intent to Criminalize
Individual Claims for Payment
In Counts 2 through 11, the State charged Ms. Mellott with
violating Wyo. Stat. Ann. § 42-4-111(a), which provides:
"No person shall knowingly make a false statement or
misrepresentation or knowingly fail to disclose a material
fact in providing medical assistance under this
chapter." The State alleged Ms. Mellott committed a
total of ten violations, each one reaching the threshold for
felony punishment under Wyo. Stat. Ann. § 42-4-111(b),
A person violating subsection (a) of this section is guilty
(i) A felony punishable by imprisonment for not more than ten
(10) years, a fine of not more than ten thousand dollars
($10, 000.00), or both, if the value of medical assistance is
five hundred dollars ($500.00) or more; or
(ii) A misdemeanor punishable by imprisonment for not more
than six (6) months, a fine of not more than seven hundred
fifty dollars ($750.00), or both, if the value of medical
assistance is less than five hundred dollars ($500.00).
Ms. Mellott argues the State improperly reached the $500
felony threshold in each count by "aggregating" the
payment values she requested in numerous, separately-filed
Medicaid claims submitted for each client over a course of
years. Each count specified a different client regarding whom
Ms. Mellott allegedly filed unlawful claims and the
applicable period-ranging from 25 to 66 months-during which
Ms. Mellott allegedly submitted the unlawful claims. She
argues the State could not base each charge-or her conviction
for each charge-on the sum value of all alleged unlawful
claims for a client because the State must charge each such
claim separately to comply with Wyo. Stat. Ann. §
42-4-111(d), which plainly states: "Each violation of
subsection (a) of this section is a separate offense."
Under Ms. Mellott's interpretation, each Medicaid claim
allegedly breaching Wyo. Stat. Ann. § 42-4-111(a) is a
separate "violation" of that provision, and Wyo.
Stat. Ann. § 42-4-111(d) explicitly requires the State
to charge "each violation" as "a separate
offense." She argues the claims at issue were
"essentially monthly" in nature and were for less
than $500 of medical assistance. Based on this position, Ms.
Mellott concludes the State could only charge her with
misdemeanors under Wyo. Stat. Ann. § 42-4-111(b)(ii) and
she could not be convicted of felonies under Wyo. Stat. Ann.
The State contends it properly charged Ms. Mellott because
the State has discretion to charge violations of Wyo. Stat.
Ann. § 42-4-111(a) as either single offenses or a
continuous offense. In denying the W.R.A.P. 21 motion, the
district court agreed with the State's interpretation and
concluded the legislature intended to criminalize fraudulent
claims for medical assistance as they relate to individual
clients and not to monthly claims.
Essentially, the parties dispute the "unit of
prosecution" in Wyo. Stat. Ann. § 42-4-111(a), (b),
and (d). See Tucker v. State, 2010 WY 162, ¶
42, 245 P.3d 301, 312 (Wyo. 2010) (citing United States
v. Weathers, 186 F.3d 948, 952 (D.C. Cir. 1999),
cert. denied, 529 U.S. 1005, 120 S.Ct. 1272, 146
L.Ed.2d 221 (2000)) (in analyzing a double jeopardy claim,
"[w]here two violations of the same statute rather than
two violations of different statutes are charged, courts
determine whether a single offense is involved . . . by
asking what act the legislature intended as the 'unit of
prosecution' under the statute."). Ms. Mellott
argues the legislature intended that the State must charge
each allegedly unlawful Medicaid claim independently from
other claims. The State, in contrast, argues the legislature
allowed the State discretion to bring charges based on the
client associated with a series of alleged violations.
Our primary consideration in interpreting statutes is
determining legislative intent, and we first look to the
plain and ordinary meaning of the words to determine if the
statute is ambiguous. Riddle v. State, 2017 WY 153,
¶ 10, 407 P.3d 392, 394 (Wyo. 2017) (citations omitted).
"We construe the statute as a whole, giving effect to
every word, clause, and sentence, and we construe all parts
of the statute in pari materia." Anderson
v. State, 2018 WY 6, ¶ 12, 408 P.3d 1148, 1151
(Wyo. 2018) (citation omitted). "When a statute is
sufficiently clear and unambiguous, we give effect to the
plain and ordinary meaning of the words and do not resort to
the rules of statutory construction." Id.
Reading the relevant provisions of Wyo. Stat. Ann. §
42-4-111 in pari materia, we conclude the statute
unambiguously establishes the unit of prosecution for false
statement charges. Under Wyo. Stat. Ann. § 42-4-111(d),
"Each violation of subsection (a) of
this section is a separate offense." (Emphasis added.)
Therefore, the Wyoming Legislature expressly intended a
"violation" to be the unit of prosecution under
Wyo. Stat. Ann. § 42-4-111(a). A person violates Wyo.
Stat. Ann. § 42-4-111(a) by "knowingly mak[ing] a
false statement or misrepresentation or knowingly fail[ing]
to disclose a material fact in ...