               IN THE SUPREME COURT, STATE OF WYOMING

                                        2016 WY 20

                                                          OCTOBER TERM, A.D. 2015

                                                                  February 17, 2016

DENNIS ANTHONY POITRA, JR.,

Appellant
(Defendant),

v.                                                   S-15-0115

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                   Appeal from the District Court of Sheridan County
                         The Honorable John G. Fenn, Judge

Representing Appellant:
      Office of the Public Defender: Diane Lozano, State Public Defender; Tina N.
      Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate
      Counsel

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jenny L. Craig, Senior Assistant Attorney General

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.




NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
DAVIS, Justice.

[¶1] Appellant Dennis Anthony Poitra, Jr., filed a motion to reduce his sentence of life
without the possibility of parole to life as a matter of law. In support of his motion, he
argued before the district court that because two juvenile codefendants may receive life
sentences with the possibility of parole due to a United States Supreme Court decision
and changes in the Wyoming Statutes, his sentence should be the same because he was
just over the age of majority and no more mature when the crimes were committed.

[¶2] On appeal, Poitra argues that his sentence violates the Eighth Amendment
prohibition against cruel and unusual punishment and denies him equal protection under
the Fourteenth Amendment.1 Because the constitutional issues were not raised below,
because the equal protection argument is not cogently presented on appeal, and because
the Eighth Amendment claim is not of a fundamental nature, we affirm.

                                             ISSUES

[¶3] We restate the issues as we have been able to distill them from the briefs as
follows:

        1.      Can Poitra raise an Eighth Amendment cruel and unusual punishment claim
for the first time on appeal?

        2.     Can Poitra raise a Fourteenth Amendment equal protection claim for the
first time on appeal?

      3.     If neither claim was preserved, did the district court abuse its discretion in
denying the motion for sentence reduction?

                                             FACTS

[¶4] Mr. Poitra was convicted of felony first-degree murder, aggravated burglary, and
conspiracy to commit aggravated burglary for the part he played in the murder of
Sheridan resident Robert Ernst in 2009. The acts that led to that conviction, and to the
convictions of his codefendants, Wyatt Bear Cloud and Dharminder Vir Sen, are
described in greater detail in Poitra v. State, 2012 WY 58, 275 P.3d 478 (Wyo. 2012)
(Poitra I), Bear Cloud v. State, 2012 WY 16, 275 P.3d 377 (Wyo. 2012) (Bear Cloud I),
cert. granted & judgment vacated by 133 S.Ct. 183, 184 L.Ed.2d 5 (2012), and Sen v.
State, 2013 WY 47, 301 P.3d 106 (Wyo. 2013).


1
   Arguments based upon constitutional violations are usually brought through a motion to correct an
illegal sentence pursuant to Wyoming Rule of Criminal Procedure 35(a).


                                                  1
[¶5] Poitra had just turned nineteen when the crimes were committed. Bear Cloud was
sixteen, and Sen was fifteen. It is not necessary to restate the facts leading to their
convictions in detail, but we will provide a brief summary for context. At some point,
Poitra joined in a plan the two juveniles had conceived to commit home invasion
robberies. Bear Cloud and Sen had broken into a pickup truck and stolen a 9 mm
handgun, and the group somehow also collected a knife and a landscaping timber to be
used as a club. They donned black bandanas and dark clothing to conceal their identities
during the planned nighttime robberies.

[¶6] Poitra, carrying the handgun and a knife, cut a screen covering an open window at
the Ernst home in the early hours of August 26, 2009. He entered the dwelling and let
Bear Cloud and Sen in through a door. The group found a little cash, and Sen evidently
decided to scare the Ernsts into opening a safe on the premises in the hopes of finding
more to steal. He took the gun from Poitra, and the two of them entered the Ernsts’
bedroom. Sen said something that woke Mr. Ernst, who told them to get out of his house.
Sen then shot him three times, killing him.

[¶7] Poitra was tried and sentenced to life without possibility of parole on the felony
first-degree murder conviction, and to twenty to twenty-five years for the crimes of
conspiracy to commit aggravated burglary and aggravated burglary. The sentences are to
run consecutively. We affirmed the convictions and sentences in Poitra I, supra.

[¶8] Because Poitra refers to the fate of his codefendants, we will briefly digress to
explain their appeals in limited fashion. Bear Cloud pled guilty to first-degree felony
murder, as well as conspiracy to commit aggravated burglary and aggravated burglary.
He was sentenced to life as a matter of law on the murder conviction, and we affirmed
each of his convictions and sentences in Bear Cloud I, ¶ 2, 275 P.3d at 383.

[¶9] Bear Cloud petitioned the United States Supreme Court for certiorari, which was
granted. That Court vacated the judgment against him and remanded to us for
reconsideration of his sentence in light of Miller v. Alabama, 567 U.S. ----, 132 S.Ct.
2455, 183 L.Ed.2d 407 (2012), which it decided after we had rendered our decision in
Bear Cloud I. In Miller, the Court held that the Eighth Amendment forbids a sentencing
scheme that mandates life in prison without a realistic possibility of parole for juvenile
offenders. 132 S.Ct. at 2469. The decision requires an individualized sentencing hearing
before a life sentence without possibility of parole could be imposed on a juvenile. We
held on remand that the possibility of executive clemency under Wyoming Statutes did
not provide the equivalent of a realistic possibility for parole, and that Wyoming’s
sentencing and parole scheme therefore violated the Eighth Amendment under Miller.
Bear Cloud v. State, 2013 WY 18, ¶ 34, 294 P.3d 36, 45 (Wyo. 2013) (Bear Cloud II).
We remanded to the district court with instructions to conduct the individualized




                                             2
sentencing hearing required by Miller, which could require it to set a date upon which
Bear Cloud would become eligible for parole on his murder conviction.2

[¶10] Dharminder Vir Sen was convicted of first degree murder, aggravated burglary,
and conspiracy to commit aggravated burglary for his participation in the crimes already
described. He was sentenced to life without the possibility of parole on the murder
conviction. He appealed his convictions and his sentences. We affirmed the convictions,
but we also vacated all sentences and remanded for resentencing consistent with Miller
and Bear Cloud II. Sen, ¶ 52, 301 P.3d at 127-28.3,4

[¶11] Poitra timely sought a sentence reduction under Wyoming Rule of Criminal
Procedure 35(b).5 He asked the district court to reduce his sentence for the murder
conviction to life as a matter of law from life without possibility of parole. Such a
reduction could allow the Governor of the State of Wyoming to commute his sentence to
a term of years, which might in turn allow him parole at some unknown time. 6 The State

2
  Bear Cloud returned to this Court once again after resentencing in Bear Cloud v. State, 2014 WY 113,
334 P.3d 132 (Wyo. 2014) (Bear Cloud III). In this third appeal he argued, among other things, that the
aggregate sentences imposed for felony murder, accessory to aggravated burglary, and aggravated
burglary created a de facto sentence of life without possibility of parole in violation of the Eighth
Amendment and Miller v. Alabama. We remanded for the district court to conduct an individualized
sentencing hearing and reconsider the aggregate effect of the sentences in light of Miller and Bear Cloud
II.
3
  In 2013, the Wyoming legislature weighed in, amending existing statutes to provide that persons under
the age of eighteen at the time they committed first degree murder “shall be punished by life
imprisonment,” but adding that they shall nonetheless be eligible for parole after serving twenty-five
years of incarceration. 2013 Wyo. Sess. Laws, ch. 18, § 1 (amending Wyo. Stat. Ann. §§ 6-2-101(b) and
6-10-301(c)). In his briefing, Poitra did not refer to this statute, which by its terms clearly does not apply
to him because he was over the age of eighteen years when the crime was committed.
4
  We remanded Mr. Sen’s case once again on the stipulation of the parties that the aggregate sentences he
received should be reviewed under Bear Cloud III. Order, Sen v. State, 2014 WY 148, 337 P.3d 1156
(Wyo. 2014).
5
                (b) Reduction. -- A motion to reduce a sentence may be made, or the
                court may reduce a sentence without motion, within one year after the
                sentence is imposed or probation is revoked, or within one year after
                receipt by the court of a mandate issued upon affirmance of the judgment
                or dismissal of the appeal, or within one year after entry of any order or
                judgment of the Wyoming Supreme Court denying review of, or having
                the effect of upholding, a judgment of conviction or probation
                revocation. The court shall determine the motion within a reasonable
                time. Changing a sentence from a sentence of incarceration to a grant of
                probation shall constitute a permissible reduction of sentence under this
                subdivision. The court may determine the motion with or without a
                hearing.

W.R.Cr.P. 35(b).
6
  “A sentence of life or life imprisonment which is not specifically designated as a sentence of life
imprisonment without parole is subject to commutation by the governor. A person sentenced to life or


                                                      3
objected to any sentence reduction, and the district court held a hearing on the
application.

[¶12] The district court denied Poitra’s motion for sentence reduction, referring to his
extensive juvenile record and his turbulent history in the Sheridan County Detention
Center and then the Wyoming State Penitentiary. It found that he was an ongoing threat
to public safety. It also noted that Poitra’s case was different from his juvenile
codefendants because he was an adult at the time the murder was committed. His case
therefore did not fall within the requirements of Miller v. Alabama and Bear Cloud II,
which narrowly apply to juveniles who must be under the age of eighteen.

[¶13] Poitra timely perfected this appeal.

                                   STANDARD OF REVIEW

[¶14] Poitra now argues on appeal that his life sentence without the possibility of
parole violates the Eighth Amendment prohibition against cruel and unusual
punishment, as well as the Equal Protection Clause of the Fourteenth Amendment. If
these issues could be considered by this Court, such questions of law would be reviewed
de novo, rather than for an abuse of discretion as they would normally be for denial of a
motion for sentence reduction. Compare Bear Cloud III, ¶ 13, 334 P.3d at 137 with
Boucher v. State, 2012 WY 145, ¶ 6, 288 P.3d 427, 429 (Wyo. 2012). However, as
further explained infra, his constitutional issues are either not cogently presented or not
of such a fundamental nature that this Court will consider them for the first time on
appeal.

                                          DISCUSSION

[¶15] The State contends that Poitra did not raise either of the constitutional issues he
now asserts in the district court, and that they are therefore waived unless this Court
finds them to be jurisdictional or fundamental, citing Silva v. State, 2014 WY 155, ¶ 9,
338 P.3d 934, 936 (Wyo. 2014) (quoting Beldon v. Lampert, 2011 WY 83, ¶ 11, 251
P.3d 325, 328-29 (Wyo. 2011)), and Statezny v. State, 2001 WY 22, ¶ 11, 18 P.3d
641, 644 (Wyo. 2001). It points out that “[i]t 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,” citing Silva, ¶ 9, 338
P.3d at 936. It argues that this rule has been applied when the appellant raised
constitutional issues regarding sentencing for the first time on appeal, as it contends is
the case here, citing Bhutto v. State, 2005 WY 78, 114 P.3d 1252 (Wyo. 2005); Kenyon


life imprisonment is not eligible for parole unless the governor has commuted the person’s sentence to a
term of years.” Wyo. Stat. Ann. § 6-10-301(c) (LexisNexis 2009) (amended 2013, see n.3, supra) (cited
by Bear Cloud II, ¶ 32, 294 P.3d at 45).


                                                    4
v. State, 2004 WY 100, 96 P.3d 1016 (Wyo. 2004); and Apodaca v. State, 571 P.2d 603
(Wyo. 1977). We agree.

[¶16] Our review of his motion indicates that Poitra sought a sentence reduction due to
his claimed good behavior while incarcerated, and his pursuit of a G.E.D. and attending
anger management classes. In that motion, he also mentioned Miller v. Alabama and the
possibility that his codefendants, whose cases had been remanded, could be granted an
opportunity for parole while they are still young enough to live a meaningful life,
although without elaborating on the argument.

[¶17] At the hearing on the motion, Poitra’s attorney made it very clear that she was not
asking the district court to rule that he might be entitled to parole at all, but only that it
should reduce his sentence to life as a matter of law to allow him the remote chance of
commutation to a term of years from some future governor, after which he could be
considered for parole. Poitra’s counsel and the district court discussed the fact that his
co-conspirators had a chance at a better fate than that, and specifically mentioned
proportionality between their sentences and with the sentences of other juvenile
offenders.

[¶18] The record tells us that Poitra did not argue an Eighth Amendment
proportionality claim at the hearing. Instead, his contention was that because the
juvenile codefendants may receive lesser sentences due to the United States Supreme
Court’s pronouncement in Miller, he should have the same sentence of life according to
law because he was only nineteen at the time of the crime. This was an appeal to the
district court’s sentencing discretion and a call for what he claims was fairness under the
circumstances.

[¶19] The record is devoid of anything that would tell the district court that Poitra was
claiming that his sentence was unconstitutional under the Eighth Amendment – the
limited references to that provision and Miller were simply not sufficient to do so. We
must therefore find that Poitra did not sufficiently raise the Miller/Eighth Amendment
issues presented in this appeal.

[¶20] Regarding equal protection, there is no reference in the motion for sentence
reduction or in the hearing to the Equal Protection Clause of the Fourteenth
Amendment, nor to the current claim that the sentences imposed were somehow an
improper classification of individuals similarly situated. Accordingly, we can only
conclude that Poitra did not sufficiently raise a Fourteenth Amendment equal protection
issue before the district court.

[¶21] The next question then becomes whether the constitutional claims Poitra raises
for the first time on appeal are cogent enough to evaluate, and if so, whether they are of



                                               5
such a fundamental nature that we must consider them.7 See Crofts v. State ex rel. Dep’t
of Game & Fish, 2016 WY 4, ¶ 20, --- P.3d ---, --- (Wyo. 2016). Considering first
Poitra’s attempt to make a Fourteenth Amendment equal protection claim on appeal, we
do not find it cogent or supported by any authority. To successfully present an equal
protection claim, Poitra must prove that the law in question is unconstitutional. See
Krenning v. Heart Mtn. Irr. Dist., 2009 WY 11, ¶ 33, 200 P.3d 774, 784 (Wyo. 2009).
His burden is a heavy one “in that the appellant must ‘clearly and exactly show the
unconstitutionality beyond any reasonable doubt.’” Id. (quoting Cathcart v. Meyer,
2004 WY 49, ¶ 7, 88 P.3d 1050, 1056 (Wyo. 2004)). We presume constitutionality, and
any uncertainty must be resolved in favor of the law’s constitutionality. Krenning, ¶ 33,
200 P.3d at 784. “We apply a three-element test requiring: (1) identification of the
legislative classification at issue; (2) identification of the legislative objectives; and (3)
determination of whether the legislative classification is rationally related to the
achievement of an appropriate legislative purpose.” Id.

[¶22] Poitra did not attempt to satisfy the aforementioned test. We can make of his
argument that he is requesting a sentence reduction to life as a matter of law because
that would be fair for him. We note that Wyoming statutes in place before Miller
allowed juveniles to be sentenced to life without parole, and that his juvenile
codefendant Sen was so sentenced. We remanded for review of that sentence because of
the United States Supreme Court’s ruling in Miller. The proposition that Miller,
applicable Wyoming Statutes, the exercise of discretion by the sentencing judge, or a
combination of all three, violated Poitra’s right to equal protection is unsupported by
pertinent authority. We therefore decline to consider it. Manzanares v. State, 2015 WY
63, ¶ 18, 349 P.3d 969, 972 (Wyo. 2015) (explaining that this Court will not consider
issues which are not clearly defined or supported by proper citation or cogent argument).

[¶23] On the other hand, the Eighth Amendment issue raised in this Court is
comprehensible, but it is not of such a fundamental nature to warrant our consideration
when it was not presented to the district court. See Crofts, ¶ 24, --- P.3d at --- (“An
appellant’s assertion of a ‘fundamental right’ does not necessarily persuade this Court to
consider the issue for the first time on appeal.”). Poitra makes an argument that is
difficult to relate to Miller v. Alabama, as he asks only that we somehow find that
ripples emanating from that case or the Eighth Amendment required the district court to
reduce a sentence of life without the possibility of parole to one of life as a matter of
law. Miller, on the other hand, directly requires consideration of a meaningful
opportunity to parole for those whose crimes were committed when they were under the
age of eighteen. 132 S.Ct. at 2469, 2482 (the latter Justice Thomas’ summary of the
holding); see also Roper v. Simmons, 543 U.S. 551, 568, 125 S.Ct. 1183, 1194, 161
7
  We have also held that we may consider jurisdictional issues raised for the first time on appeal. Silva, ¶
9, 338 P.3d at 936-37 (quoting Belden, ¶ 11, 251 P.3d at 328-29, which quotes Erwin v. State, Dep’t of
Fam. Servs., 2010 WY 117, ¶ 15, 237 P.3d 409, 414 (Wyo. 2010)). We perceive no possible argument
that the district court lacked jurisdiction and therefore do not address that ground for review.


                                                      6
L.Ed.2d 1 (2005) (holding that imposing the death penalty on a juvenile, a person under
the age of eighteen years, violated the Eighth Amendment).8 The district court
questioned the practical difference between life without parole and life as a matter of
law as it might relate to Miller, and neither the court nor counsel could think of a case in
which a Wyoming governor had commuted a first degree murder conviction of life as a
matter of law to a term of years so as to give the Board of Parole jurisdiction to consider
release.9 In other words, Poitra is not really arguing for the kind of relief Miller and
Bear Cloud II might provide.

[¶24] As the State points out, Poitra has not provided any direct authority to show that
sentencing him to life without possibility of parole violated Miller or the Eighth
Amendment. He was an adult at the time the murder was committed, and he received
the maximum punishment allowable by law, then and now. It is true that he did not
shoot Mr. Ernst, and that he did not procure the shooting. It is also true, as he argues,
that he had a horrible upbringing. He argues that his brain, like those of his
codefendants, was not fully developed at the time of the crimes. However, he provides
us with no scientific evidence of that proposition, although we can see that his criminal
behavior began at age eleven and continued virtually unabated into adulthood.

[¶25] Nonetheless, the law has drawn a bright line at the age of eighteen, and Poitra
simply falls on the side of the line allowing a life sentence without the possibility of
parole when it might have required a meaningful chance at parole if he was only a little
more than a year younger. We hold the argument does not adequately support a cruel
and unusual punishment claim that is of such a fundamental nature that it must be
considered for the first time on appeal.

[¶26] Poitra’s arguments seem in substance to be less a constitutional claim and more a
veiled contention that the district court abused its discretion when it refused to reduce
his sentence to life as a matter of law in light of his many challenges in life and his
success in obtaining a G.E.D. high school equivalency certificate in prison. We have
already held that the district court did not abuse its discretion in the sentence it
originally handed down. Poitra I, ¶¶ 25-30, 275 P.3d at 484-85.

[¶27] While we commend Poitra for earning his G.E.D. and seeking help to manage his
anger, his prison disciplinary record indicates that little has changed. The State

8
  We have reviewed the United States Supreme Court’s most recent pronouncement in this area,
Montgomery v. Louisiana, 577 U.S. ---, 136 S.Ct. 718 (2016). In that case, the Court held that Miller
required a hearing to determine whether a sixty-year-old inmate who killed a sheriff’s deputy in 1963 at
age seventeen was entitled to consideration for parole after over forty years in prison. Nothing in that
case suggests that Montgomery would have been entitled to any relief if he had been eighteen when he
murdered the deputy, consistent with existing case law.
9
  Beyond that, Mr. Poitra would still face consecutive prison terms of twenty to twenty-five years for
conspiracy to commit aggravated burglary and aggravated burglary.


                                                    7
presented evidence that he had twenty-three substantiated prison rules violations, some
of them serious, within the relatively short time between arriving at the Wyoming State
Penitentiary and the date of the hearing. 10

[¶28] We have observed that “it would be unwise to usurp what is properly a function
of the district courts by finding an abuse of discretion in denying a sentence reduction
motion simply because it was supported by evidence of a defendant’s commendable
conduct while incarcerated.” Chapman v. State, 2015 WY 15, ¶ 18, 342 P.3d 388, 394
(Wyo. 2015) (quoting Conkle v. State, 2013 WY 1, ¶ 14, 291 P.3d 313, 315 (Wyo.
2013)). It would be at least equally unwise to do so when arguments for an abuse of
discretion are cloaked in ill-fitting constitutional garb, and in the face of precious little
commendable conduct in prison at that. The district court did not abuse its discretion in
denying the motion for sentence reduction.

[¶29] Affirmed.




10
   The more serious violations include calling a prison guard vile names and threatening to have him
killed, as well as an assault on another inmate. Poitra has been placed in solitary confinement, and he had
to be restrained when he failed to comply with guards’ orders during a fight, a very serious situation in a
prison. He was also found to have damaged prison property to pass contraband to other cells and to have
been in possession of contraband. This list is not exhaustive.


                                                     8
