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Petersen v. State

Supreme Court of Wyoming

December 30, 2019

ELMER R. PETERSEN, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Campbell County The Honorable Michael N. Deegan, Judge

          Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel.

          Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General; Russell Farr, Senior Assistant Attorney General.

          Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.


         [¶1] Elmer Petersen pled guilty to domestic battery and failure to register as a sex offender. On appeal, he claims he did not receive adequate credit for his presentence confinement. We affirm.


         [¶2] Mr. Petersen presents a single issue that we restate as two issues:

1. Did the district court abuse its discretion in denying Mr. Petersen's request for additional credit for time served?
2. Did the district court violate Mr. Petersen's due process rights by inducing him to plead guilty?


         [¶3] In 2009, Mr. Petersen was convicted of second-degree sexual assault and interference with child custody. The conviction arose from an incident in which he sexually assaulted his estranged wife and absconded with their young child. He was sentenced to a prison term of four to sixteen years for the sexual assault and one to two years for the interference, to be served concurrently. He completed his sentence on the interference count in June 2010, and on February 20, 2013, he was granted parole on the sexual assault count.

         [¶4] On March 29, 2018, Mr. Petersen's girlfriend reported two recent incidents during which Mr. Petersen became angry and injured her. She reported that the first occurred on March 21, and that Mr. Petersen placed his hand around her throat and kept her from breathing for about a minute. She reported that the second occurred the next evening, and that he grabbed her by the arm and then pushed her, causing her to fall to the ground. The law enforcement officer who took the report observed bruising on the girlfriend's neck and arm that was consistent with her report.

         [¶5] On March 30, 2018, a warrant issued for Mr. Petersen's arrest on one count of strangulation of a household member and one count of domestic battery. On April 4, 2018, law enforcement officers went to Mr. Petersen's last known address to serve the arrest warrant and were told that he no longer lived at that address.

         [¶6] On May 9, 2018, Mr. Petersen was arrested in Pennsylvania for violation of his Wyoming parole.[1] He waived extradition and was returned to Wyoming, where he was immediately placed in the State's medium security correctional facility, pending parole revocation. On July 10, 2018, his parole was revoked, and he resumed serving his sentence on the 2009 sexual assault conviction.

         [¶7] On May 21, 2018, while Mr. Petersen's parole revocation was still pending, a warrant issued for his arrest on a charge of failure to register as a sex offender. On August 30, 2018, the State served Mr. Petersen with that arrest warrant and with the March 2018 warrant for the domestic battery and strangulation charges. On August 31, 2018, the circuit court issued two appearance bonds, one for the failure to register charge and one for the strangulation and domestic battery charges. The bonds conditioned release on Mr. Petersen's personal surety of $50, 000, and each also included a note that Mr. Petersen was in the custody of the Department of Corrections and not subject to release.

         [¶8] On September 17, 2018, Mr. Petersen was arraigned and pled not guilty to the charges. He later reached a plea agreement with the State, and on January 16, 2019, the district court held a change of plea hearing. The parties outlined the plea agreement as follows:

[THE COURT]: . . . So as I understand, [Defense Counsel], there's some kind of a plea agreement here today, is that it?
[DEFENSE COUNSEL]: There is, Your Honor. He's going to plead to failure to register, two to three imposed; DV battery six months imposed; strangulation dismissed. All to run concurrent with what he's doing now in the system.
[THE COURT]: And what is that?
THE DEFENDANT: Four to 16.
[THE COURT]: For what kind of an offense?
THE DEFENDANT: Second degree sexual ...

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