Kevin James Simms v. State
2017 WY 68
| Wyo. | 2017Background
- In 2013–2014 Simms sold synthetic cannabinoid (XLR-11, "spice") and possessed an SKS rifle; state charges included conspiracy to deliver XLR-11, delivery of XLR-11, and misdemeanor marijuana possession.
- Because Simms was a felon, possession of the firearm prompted a separate federal prosecution for possession of a firearm by a felon; he received a 42‑month federal sentence and began serving it before state sentencing.
- In April 2015 Simms pleaded guilty to the Wyoming charges under a plea agreement capping recommended state exposure and leaving the relationship of state and federal sentences open.
- At Wyoming sentencing the court imposed concurrent state sentences (3.5–6 years on felonies) and ordered them to run consecutively to the federal sentence; Simms did not appeal the convictions.
- Ten months later Simms filed a W.R.Cr.P. 35(b) motion asking the court to modify the state judgment to run concurrently with his federal sentence to facilitate earlier access to federal treatment; the district court denied the motion without a hearing.
- On appeal Simms also argued (for the first time) that he should get federal credit for 112 days of presentencing state confinement and that the state sentence should have been ordered to run before the federal sentence. The court declined to consider these new arguments and affirmed denial of the Rule 35(b) motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court abused discretion by denying Rule 35(b) motion without a hearing | Simms: court should modify state sentences to run concurrently with his federal sentence to access treatment earlier | State: court acted within its discretion; Rule 35(b) permits decision with or without a hearing | Affirmed: no abuse of discretion; court lawfully decided motion without a hearing |
| Whether district court should have credited Simms' federal sentence for 112 days of presentencing state confinement | Simms: requests credit against federal sentence for 112 days in state custody | State: district court has no authority to grant credit on a federal sentence; issue was not raised below | Not considered on appeal: issue not raised below and no authority/cogent argument shown |
| Whether district court erred by not ordering state sentence to be served before federal sentence | Simms: state sentences should "leapfrog" the already‑imposed federal sentence | State: once federal sentence began, it cannot be interrupted by a later state sentence; sequencing claim not raised below | Not considered/subsumed: illegal to interrupt continuous service of an already‑serving sentence; claim raised too late |
Key Cases Cited
- Palmer v. State, 371 P.3d 156 (Wyo. 2016) (deference to district court on Rule 35(b) motions)
- Chapman v. State, 342 P.3d 388 (Wyo. 2015) (Rule 35(b) may be decided with or without a hearing; high burden to obtain reduction)
- Cothren v. State, 281 P.3d 352 (Wyo. 2012) (a later sentence may not interrupt continuous service of an already‑begun sentence)
- White v. Pearlman, 42 F.2d 788 (10th Cir. 1930) (same principle: cannot interrupt continuous service with a later sentence)
- Silva v. State, 338 P.3d 934 (Wyo. 2014) (appellate court will not consider issues raised for first time on appeal or unsupported by cogent argument)