IN THE MATTER OF J. CRAIG ABRAHAM, WSB # 6-2775, RESPONDENT.
No. S-15-0252
Supreme Court of Wyoming
June 7, 2016
ABA Standard 9.1 provides for consideration of aggravating and mitigating circumstances in deciding on an appropriate sanction. In Respondent‘s case, there are several aggravating factors, including: (1) prior disciplinary offenses; (2) a pattern of misconduct; (3) multiple offenses; and (4) substantial experience in the practice of law. However, there are significant mitigating factors, including: (1) absence of a dishonest or selfish motive; (2) full and free disclosure to Bar Counsel and a cooperative attitude toward proceedings; (3) imposition of other penalties and sanctions; and (4) remorse.
The Board finds that a six month suspension is an appropriate sanction for Respondent‘s misconduct. The Board further finds that that Respondent is unlikely to harm the public during the period of probation and can be adequately supervised; that Respondent is able to perform legal services and is able to practice law without causing the сourts or profession to fall into disrepute; and that Respondent has not committed acts warranting disbarment. The Board recommends that the probation be for six months, to run concurrently with the period of suspension.
If the Court accepts the Board‘s recommendation and issues an Order of Suspension with Probation in aсcordance herewith, Bar Counsel and Respondent have agreed to the following press release:
The Wyoming Supreme Court issued an order suspending Gillette attorney J. Craig Abraham from the practice of law for a period of six months. The Court further ordered that the suspension be stayed so long as Abraham complies with probationary terms intended to assure the efficient operation of his office and prompt compliance with court rules and deadlines. The order of suspension stemmed from Abraham having missed court deadlines and otherwise failing to comply with court rules in numerous matters over a several year рeriod. Abraham, who has a significant disciplinary history including public censures in 2006 and 2009, agreed to the suspension and probationary terms which included the implementation of formal office policies and procedures and monthly reports to the Office of Bar Counsel regarding Abraham‘s compliance with probatiоnary terms. Abraham was ordered to pay an administrative fee in the amount of $750.00 and costs of $50.00 to the Wyoming State Bar.
For the foregoing reasons, the Board of Professional Responsibility recommends that the Court issue an Order of Suspension with Probation in accordance with the terms of this Amended Report and Recommеndation.
DATED this 7th day of June, 2016.
/s/
Judith A.W. Studer Chair
Board of Professional Responsibility
Wyoming State Bar
Ryan Russell WEBSTER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
No. S-15-0252
Supreme Court of Wyoming.
August 2, 2016
2016 WY 76
Representing Appellee: Peter K. Michaеl, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Philip M. Donoho, Assistant Attorney General. Argument by Mr. Donoho.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
FOX, Justice.
[¶1] Ryan Webster stole a car in Thermopolis and drove it through Wyoming toward Colorado. Authorities in Cheyenne were alerted, and a vehicular chase eventually еnded across the Wyoming border in Colorado, where Mr. Webster was arrested and jailed. The State of Wyoming filed separate charges arising from the incident in Hot Springs County and Laramie County. The charges resulted in detainers being filed in Colorado against Mr. Webster. In accordance with the
[¶2] After returning Mr. Webster to Colorado, the State filed another charge against
ISSUE
[¶3] Mr. Webster raises two issues in his appeal. However, because his second issue is dispositive of the case, we will address only whether the State was precluded from prosecuting Mr. Webster by the previous dismissal with prejudice of the same charge.
FACTS
[¶4] In the early morning hours of January 25, 2012, Kevin Smith realized that his 2006 Cadillac Escalade had been stolen from in front of his Thermopolis home. He informed local authorities who advised him to contact On-Star to pinpoint the vehicle‘s location. On-Star located the vehicle traveling south on Interstate 25 in Platte County, Wyoming. The Wyoming Highway Patrol was notified, and officers began their pursuit of the vehicle near Cheyenne, Wyoming. The pursuit continued into Colorado where the vehicle eventually stopped, and officers apprehended the suspect, who was later identified as Ryan Webster.
[¶5] Mr. Webster was arrested by a Colorado State Patrol officer and taken to Fort Collins for booking. The State of Wyoming charged Mr. Webster in Laramie County with receiving stolen property in violation of
[¶6] Mr. Webster was first transported to Cheyenne to face the charges brought by the State in Laramie County. The State failed to bring Mr. Webster to trial within 180 days as required by the
[¶7] The State then filed a separate charge against Mr. Webster in Hot Springs County, alleging that he bought or received stolen property in violation of
DISCUSSION
Was the State precluded from prosecuting Mr. Webster by the previous dismissal with prejudice of the same charge?
[¶8] Mr. Webster argues that the constitutional protection which prohibits twice placing a defendant in jeopardy for the same offense barred the State from bringing the second Hot Springs County charge. Alternatively, Mr. Webster alleges that the dismissal with prejudice of the initial Laramie County and Hot Springs County charges precluded the State from charging the same offense a second time. These questions are issues of law, which the Court reviews de novo. Chapman v. State, 2015 WY 15, ¶ 8, 342 P.3d 388, 391 (Wyo. 2015).
[¶9] Mr. Webster argues that his double jeopardy protections were implicated by the second prosecution in Hot Springs County, asserting that he was twice put in jeopardy for the same offense. The State, however, contends that jeopardy never attached to the initial charges brought in either Laramie or Hot Springs counties, thus, double jeopardy does not apply. We agree with the State that Mr. Webster‘s constitutional rights were not implicated whеn the State brought the second Hot Springs County charge. “In the case of a jury trial, jeopardy attaches when a jury is empaneled[.]” Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975). No jury was empaneled in either the initial Hot Springs County case or the Laramie County case. Instead, those cases were dismissed with prejudice due to violations of the
[¶10] However, the absence of double jeopardy does not dispose of the dismissal with рrejudice. While similar, a dismissal with prejudice is a procedural rule rather than a constitutional protection. A dismissal with prejudice “bars the reprosecution of the defendant on the same charge,” United States v. Bilsky, 664 F.2d 613, 617 (6th Cir. 1981), and has a res judicata effect on subsequent prosecutions, which requires analysis of whether the requirements of res judicata have been met. See People v. Creek, 94 Ill. 2d 526, 69 Ill. Dec. 113, 447 N.E.2d 330, 333 (1983) (holding that a dismissal with prejudice operated as res judicata on a later indictment for the same charge).
[¶11] Much like
It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt. It cannot be that a judgment of acquittal on the ground of the statute of limitations is less a рrotection against a second trial than a judgment upon the ground of innocence, or that such a judgment is any more effective when entered after a verdict than if entered by the government‘s consent before a jury is empaneled. . . .
. . . [A] judgment for the defendant upon the ground that the prosecution is barred goes tо his liability as matter of substantive law, and one judgment that he is free as matter of substantive law is as good as another.
Id. at 87-88, 37 S.Ct. at 69; see also United States v. Dionisio, 503 F.3d 78, 85 (2d Cir. 2007) (“And the existence of res judicata or collateral estoppel does not by itself mean there was jeopardy.“).
[¶12] We turn then to the question whether either of the dismissals in the initial Laramie County and the Hot Springs County charges have a res judicata effect on the charge currently being appealed. “The criteria involved in res judicata are: (1) identity in parties; (2) identity in subject matter; (3) the issues are the same and relate to the subject matter; and (4) the capacities of the persons are identical in reference to both the subject matter and the issues between them.” CLS v. CLJ, 693 P.2d 774, 775-76 (Wyo. 1985). It is clear that the initial Hot Springs County charge is not res judicata on the second Hot Springs County charge because Mr. Webster was charged with violations of different statutory provisions, which would result in different issues in each proceeding. Id. However, an analysis of thе initial Laramie County charge reveals a different result.
[¶13] The parties in both cases are the same. The prosecuting entity is the State of Wyoming and the defendant is Ryan Webster. While there were two different counties involved, the prosecution was carried out in the name and under the authority of the State as is required by stаte rule, statute, and constitution.
CONCLUSION
[¶14] The State charged Mr. Webster with violation of
Alexandra MEINERS, as Personal Representative of the Estate of Theodore Meiners, Appellant (Plaintiff), v. Colleen M. MEINERS, Appellee (Defendant).
No. S-16-0033
Supreme Court of Wyoming.
August 2, 2016
2016 WY 74
Representing Appellant: Matthew E. Turner of Mullikin, Larson & Swift LLC, Jackson, WY.