Steven David LUNDEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
No. S-12-0145
Supreme Court of Wyoming.
March 20, 2013
2013 WY 35
VOIGT, Justice.
[¶ 13] Even applying the more generous trigger date for the four-year statute of limitations, Mr. DeLoge filed outside the limitations period. The deadline for Mr. DeLoge to file his complaint was June 5, 2010, and he did not file until August 22, 2011, over a year late. The district court properly dismissed the complaint as time barred. Because we so conclude, we need not address the other grounds for dismissal, including timeliness of Mr. DeLoge‘s filings under the Wyoming Governmental Claims Act.
[¶ 14] We turn last to the district court‘s suggestion that Mr. DeLoge be precluded from filing further actions related to the property at issue in this appeal without first obtaining permission to do so. The seized property at issue in this appeal, on which Mr. DeLoge places a value of approximately $8,800.00, has been the subject of at least nine years of litigation. We find that the issues relating to this property are concluded, and in order to ensure that finality, we direct that Mr. DeLoge be prohibited from filing any further litigation relating to the subject matter of this case in any court of the State of Wyoming without first having obtained leave of this Court to do so. See Cosco v. Lampert, 2010 WY 52, ¶ 24, 229 P.3d 962, 974 (Wyo.2010).
CONCLUSION
[¶ 15] The district court properly dismissed Mr. DeLoge‘s Section 1983 complaint for damages as time barred, and the district court‘s decision is therefore affirmed, and we direct that Mr. DeLoge be prohibited from filing any further litigation relating to the subject matter of this case in any court of the State of Wyoming without first having obtained leave of this Court to do so.
[¶ 2] Did the district court err when it denied the appellant‘s motion to correct an illegal sentence?
FACTS
[¶ 3] On May 7, 2010, the appellant pled guilty to one count of unlawful use of a credit card (a misdemeanor) and one count of forgery (a felony). He was sentenced to a term of imprisonment of not less than thirty months nor more than seventy-two months for the forgery conviction and six months in jail for the misdemeanor conviction. The district court ordered the sentences to be served concurrently.
[¶ 4] On December 16, 2010, the appellant filed a motion to modify his sentence. The basis of his motion was premised on the fact that he was not given the opportunity to withdraw his guilty pleas after the district court sentenced him to a term of imprisonment and that the district court relied upon inaccurate information regarding his criminal history. The district court denied the motion. On January 5, 2011, the appellant filed a motion to correct an illegal sentence, again claiming that the sentence was based upon inaccurate information regarding his criminal history in the presentence investigation report. The district court also denied that motion. On January 25, 2011, the appellant filed a motion for a reduction of his sentence based upon his behavior during incarceration and familial circumstances. Again, the motion was denied.
[¶ 5] On March 1, 2011, the appellant filed a motion for post-conviction relief. He claimed he was denied a direct appeal, he received ineffective assistance of trial counsel, and that the prosecutor engaged in misconduct when he discussed what the appellant claims to be an incorrect criminal history. After review, the district court denied the petition. The appellant filed a petition for writ of certiorari with this Court, which was denied on June 28, 2011. Thereafter, on August 19, 2011, the appellant filed another motion for a reduction of his sentence, again citing his behavior while incarcerated. This time, the district court
Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.
Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Darrell D. Jackson, Faculty Director, Emily N. Thomas, Student Director, Alan J. Dees, Student Intern, Prosecution Assistance Program.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.
VOIGT, Justice.
[¶ 1] The appellant, Steven David Lunden, appeals the district court‘s denial of his motion to correct illegal sentence. On appeal, he claims that the judgment and sentence entered after he pled guilty to misuse of a credit card and forgery are illegal because he was not advised that his guilty pleas may result in the disqualification of his right to possess firearms pursuant to federal law. We affirm.
STANDARD OF REVIEW
[¶ 6] We review a district court‘s decision to deny a motion to correct an illegal sentence for an abuse of discretion. Cooper v. State, 2010 WY 22, ¶ 5, 225 P.3d 1070, 1071 (Wyo.2010). However, as discussed below, we will dispose of this appeal upon other grounds.
DISCUSSION
[¶ 7] The appellant argues that the district court abused its discretion when it denied his motion to correct an illegal sentence. He claims that, before he entered his guilty pleas, he was not advised, pursuant to
[¶ 8] As described in the facts above, see supra ¶¶ 4-5, the appellant has filed various motions and petitions since being sentenced, and none of those documents contain an allegation that he was not advised that he may forfeit his right to possess a firearm under federal law if he pled guilty. The order from which he specifically is appealing dealt with allegations of ineffective assistance of trial counsel, denial of the right to appeal his case, and that there was erroneous information in his presentence investigation report. Thus, this claim is being raised for the first time on appeal. As we have regularly stated:
We strongly adhere to the rule forbidding us to consider for the first time on appeal issues that were neither raised in, nor argued to, the trial court, except for those issues which are jurisdictional or are fundamental in nature. We follow this rule because it is unfair to reverse a ruling of a trial court for reasons that were not presented to it, whether it be legal theories or issues never formally raised in the pleadings nor argued to the trial court.
Washington v. State, 2011 WY 132, ¶ 15, 261 P.3d 717, 721 (Wyo.2011) (quoting Erwin v. State, DFS, 2010 WY 117, ¶ 15, 237 P.3d 409, 414 (Wyo.2010)) (internal citations and quotations omitted).
[¶ 9] The appellant has provided this Court with no analysis whatsoever as to how this alleged violation was either jurisdictional or fundamental in nature. Therefore, this Court declines to address the merits of this claim.
[¶ 10] Additionally, we find that even if this claim had been raised before the district court, it would have been barred by the doctrine of res judicata. “Under res judicata, ‘[i]t is a longstanding rule that issues which could have been raised in an earlier proceeding are foreclosed from subsequent consideration.‘” Moore v. State, 2009 WY 108, ¶ 20, 215 P.3d 271, 276 (Wyo.2009) (quoting Gould v. State, 2006 WY 157, ¶ 15, 151 P.3d 261, 266 (Wyo.2006)) (emphasis in original).1
[¶ 12] Further, the appellant filed a petition for post-conviction relief wherein he could have challenged the events leading to his conviction, so long as the claims were raised in a proper context. However, instead of raising this claim in his petition, he chose to raise claims regarding his sentence, which are not cognizable in post-conviction relief. Harlow v. State, 2005 WY 12, ¶ 18, 105 P.3d 1049, 1062 (Wyo.2005). The appellant had two opportunities to raise this claim before either the district court or this Court, yet did not do so. Thus, the claim is barred by res judicata.
CONCLUSION
[¶ 13] We decline to consider the merits of the appellant‘s claim because it is being raised for the first time on appeal. We also find that, had this claim been raised before the district court, it would have been barred by res judicata. We affirm.