409 P.3d 1256
Wyo.2018Background
- In 2015 David Hicks pled guilty to third-degree sexual assault and abuse of a vulnerable adult after a video showed him sexually assaulting an elderly Alzheimer patient; a first-degree sexual assault charge was dismissed per plea agreement.
- The district court sentenced Hicks to consecutive terms (13.5–15 years and 8–10 years). He did not appeal the judgment and sentence.
- Hicks filed multiple Rule 35(b) motions for sentence reduction in 2016, all denied. He then filed a pro se Rule 35(a) motion in 2017 alleging: (1) double jeopardy from consecutive sentences; (2) actual innocence due to methamphetamine impairment (lack of intent); and (3) constructive denial of counsel for failure to raise those defenses.
- The district court denied the Rule 35(a) motion as an improper vehicle and time-barred; Hicks appealed.
- The Wyoming Supreme Court reviewed de novo and affirmed: it held the double jeopardy claim is barred by res judicata and the actual-innocence and ineffective-assistance/constructive-denial claims are not cognizable under Rule 35(a).
Issues
| Issue | Hicks' Argument | State's Argument | Held |
|---|---|---|---|
| Whether a double jeopardy challenge to consecutive sentences may be raised via W.R.Cr.P. 35(a) | Hicks argued consecutive sentences violated double jeopardy and could be corrected under Rule 35(a) | State argued the claim was barred by res judicata and improperly raised in Rule 35(a) | Court: Double jeopardy can be raised under Rule 35(a), but Hicks’ claim is barred by res judicata because it could have been raised earlier |
| Whether Hicks’ intoxication argument establishes actual innocence cognizable in Rule 35(a) | Hicks claimed methamphetamine intoxication prevented the requisite intent for third-degree sexual assault (actual innocence) | State argued actual-innocence and trial errors are not cognizable in Rule 35(a) | Court: Not cognizable under Rule 35(a); relates to conviction, not sentence |
| Whether failure to advise on double jeopardy/intent claims constitutes constructive denial of counsel in Rule 35(a) | Hicks claimed his counsel’s failure to raise those defenses amounted to constructive denial of counsel | State argued ineffective-assistance/constructive-denial claims concern trial representation and are not proper in Rule 35(a) | Court: Not cognizable under Rule 35(a); must be raised by appropriate post-conviction or direct appeal remedies |
| Whether Hicks demonstrated good cause to avoid res judicata on double jeopardy claim | Hicks asserted counsel refused to file an appeal | State pointed to Hicks’ own filings indicating he withdrew an appeal and that he could have raised the issue earlier | Court: Hicks did not show good cause; res judicata applies and bars the claim |
Key Cases Cited
- DeSpain v. State, 865 P.2d 584 (recognition of earlier rule that double jeopardy claims were not brought by Rule 35(a); later overruled)
- Birr v. State, 895 P.2d 43 (discussing limitations on Rule 35(a) remedies)
- Tucker v. State, 349 P.3d 987 (recognizing that double jeopardy claims may be raised under Rule 35(a))
- Nicodemus v. State, 392 P.3d 408 (res judicata bars issues that were or could have been raised earlier)
- Goetzel v. State, 406 P.3d 310 (double jeopardy claim barred by res judicata where it was not raised on appeal or earlier motions)
- Evans v. State, 892 P.2d 796 (Rule 35(a) cannot be used to re-examine trial errors or conviction validity)
- Mead v. State, 2 P.3d 564 (same: Rule 35(a) is not a vehicle to relitigate pre-sentencing errors)
- State v. Meier, 440 N.W.2d 700 (illustrating that issues concerning conviction validity are not addressed in Rule 35 motions)