332 P.3d 534
Wyo.2014Background
- In 2001 DeMillard pled guilty/nolo contendere to burglary, attempted assault on a peace officer, and four counts of interference with custody; the district court suspended prison terms in favor of supervised probation: a consecutive 10-year term followed by a 2-year term.
- As a condition of probation he was prohibited from contacting his children.
- The State filed multiple revocation petitions; the last petition was filed April 6, 2011.
- The district court found probation violated, revoked probation, imposed the underlying consecutive sentences, and credited DeMillard with 2,280 days for time served.
- DeMillard appealed that revocation (raising willfulness and involuntary medication issues) and lost in DeMillard II (2013).
- In December 2013 he filed a pro se W.R.Cr.P. 35 motion arguing the 10-year term had already expired before revocation, so imposing that underlying sentence was illegal; the district court denied relief and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DeMillard's timing challenge to the probation revocation is barred by res judicata | DeMillard contends the 10-year probation had expired before revocation so the longer underlying sentence was illegal | State argues the claim could have been raised earlier and is barred by res judicata | Court: res judicata bars the claim because it could have been raised in DeMillard II and no good cause shown |
| Whether the court had authority to revoke probation and impose both underlying sentences when the first term had expired | DeMillard argues revocation of the first (10-year) term occurred after it ended so that sentence could not be imposed | State argues revocation proceedings filed within statutory 30-day window after probation period were timely under Wyo. Stat. § 7-13-305(c) | Court: revocation petition filed 25 days after first term ended was within statutory 30-day period; revocation and imposition of underlying sentences were lawful |
Key Cases Cited
- DeMillard v. State, 190 P.3d 128 (Wyo. 2008) (affirming denial of requested probation modification hearing)
- DeMillard v. State, 308 P.3d 825 (Wyo. 2013) (affirming probation revocation on merits)
- Cooper v. State, 225 P.3d 1070 (Wyo. 2010) (W.R.Cr.P. 35 claims are subject to res judicata)
- Dax v. State, 272 P.3d 319 (Wyo. 2012) (outlining good-cause exception and factors for res judicata)
- Moore v. State, 215 P.3d 271 (Wyo. 2009) (de novo review of authority to revoke probation)