               IN THE SUPREME COURT, STATE OF WYOMING

                                       2014 WY 137

                                                       OCTOBER TERM, A.D. 2014

                                                                  November 4, 2014

ROGER D. PFEIL,

Appellant
(Defendant),

v.                                                   S-14-0056

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                    Appeal from the District Court of Campbell County
                       The Honorable Thomas W. Rumpke, Judge

Representing Appellant:
      Roger D. Pfeil, pro se.

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, KITE, DAVIS, and FOX, 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 typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Justice.

[¶1] Over sixteen years after pleading guilty to second degree murder, Roger D. Pfeil
filed a pro se motion to withdraw his guilty plea, for a sentence reduction and/or to
correct an illegal sentence. The district court ruled the provision of Mr. Pfeil’s sentence
that required him to repay the costs of his presentence confinement in county jail was
illegal and vacated it, but denied the remainder of his claims.

[¶2]   We affirm.

                                          ISSUES

[¶3]   The issues we must resolve in this appeal are:

       1.     Should Mr. Pfeil’s appeal be dismissed because he failed to file a proper
notice of appeal after the district court formally ruled on his motion?

       2.     Did the district court properly rule it did not have jurisdiction to allow Mr.
Pfeil to withdraw his guilty plea even though it found an assessment included in his
original sentence was illegal?

      3.      Did the district court properly rule it did not have jurisdiction to consider,
in a motion to correct an illegal sentence, how Mr. Pfeil’s sentence is being administered
by the Wyoming Department of Corrections (DOC) and the Wyoming Board of Parole
(BOP)?

      4.     Did the district court properly rule it did not have jurisdiction to consider
Mr. Pfeil’s motion to reduce his sentence?

                                          FACTS

[¶4] In 1997, Mr. Pfeil pled guilty, pursuant to a plea agreement, to one count of
second degree murder. The plea agreement included a joint sentencing recommendation
of twenty-five to forty-five years in prison and “[a]ssessments to the crime Victim’s
Compensation Fund, fine, restitution and pre-trial costs of incarceration . . . as determined
by the Court.” Prior to taking his guilty plea, the district court advised Mr. Pfeil of the
penalties associated with the charge, including the possibility of being assessed with
presentence costs of incarceration. As the factual basis for his guilty plea, Mr. Pfeil
admitted to shooting and killing Russell Patterson for having an affair with his wife and
burying Mr. Patterson’s body in his car at a mine near Gillette. The district judge
adopted the recommended sentence and imposed fines and assessments, including $1,000
for the costs of his presentence confinement in county jail.


                                             1
[¶5] Mr. Pfeil did not appeal his original conviction or sentence, but, over the years, he
has challenged certain aspects of the rulings. In 1998, he filed a motion to withdraw his
guilty plea, which the district court denied. We dismissed Mr. Pfeil’s appeal of that
ruling on the grounds we did not have jurisdiction over the matter.

[¶6] In 2013, Mr. Pfeil filed a pro se “Motion for Withdrawal of Plea, and/or
Correction/Reduction of an Illegal Sentence.” The district court did not immediately rule
on his motion and, eventually, Mr. Pfeil filed a notice of appeal claiming that more than
ninety days had passed since he filed his motion and it was, therefore, deemed denied and
subject to appeal under W.R.C.P. 6. The district court subsequently entered an order
granting in part and denying in part Mr. Pfeil’s request to correct an illegal sentence and
stating that it did not have jurisdiction to consider his request to withdraw his guilty plea,
his complaints about how the DOC and BOP were administering his sentence, or his
request for a sentence reduction. Mr. Pfeil did not file another notice of appeal or amend
his original notice to identify the district court’s order as the one being challenged on
appeal.

                                       DISCUSSION

       1. Notice of Appeal

[¶7] The State claims Mr. Pfeil did not invoke the appellate jurisdiction of this Court
because he did not file a proper notice of appeal after the district court issued its decision.
The timely filing of a correct notice of appeal is jurisdictional, and the existence of
jurisdiction is a question of law reviewed de novo. W.R.A.P. 1.03; Hitz v. State, 2014
WY 58, ¶ 8, 323 P.3d 1104, 1106 (Wyo. 2014); Gomez v. State, 2004 WY 15, ¶ 15, 85
P.3d 417, 420 (Wyo. 2004).

[¶8] W.R.A.P. 2.01 provides “[a]n appeal from a trial court to an appellate court shall
be taken by filing the notice of appeal with the clerk of the trial court within 30 days from
entry of the appealable order.” Mr. Pfeil filed a notice of appeal when the district court
did not rule on his motion to withdraw his guilty plea and/or correct or reduce his
sentence within ninety days of filing. He claimed his motion was deemed denied under
W.R.C.P. 6 and W.R.A.P. 2.02, and, consequently, his notice of appeal was appropriate.
We have, however, expressly refused to import the ninety day “deemed denied” rule from
the civil context to criminal proceedings. See DeLoge v. State, 2005 WY 152, ¶ 12, 123
P.3d 573, 578 (Wyo. 2005); Patrick v. State, 2005 WY 32, ¶ 8, 108 P.3d 838, 841 (Wyo.
2005). Thus, Mr. Pfeil was incorrect when he stated in his notice of appeal that his
motion had been deemed denied after ninety days. That does not, however, answer the
question of whether he properly invoked this Court’s appellate jurisdiction.

[¶9]   W.R.A.P. 2.07 dictates the contents of a notice of appeal:


                                              2
              (a) The notice of appeal shall:

                     (1) Specify the party or parties taking the appeal;

                    (2) Identify the judgment or appealable order, or
              designated portion appealed; . . .

                     (3) Name the court to which the appeal is taken.

                     (4) Be accompanied by the certificate or endorsement
              required by Rule 2.05.

               ****

              (c) In a criminal case, the notice of appeal shall have as an
              appendix the judgment and sentence or other dispositive
              order.

Mr. Pfeil’s pro se notice of appeal stated:

              TO THE CLERK OF THE 6th JUDICIAL DISTRICT
              COURT:

              NOTICE IS HEREBY GIVEN that Appellant, Roger D. Pfeil,
              appeals to the Supreme Court of the State of Wyoming the
              deemed denied decision of the 6th Judicial District Court
              pursuant to Rule 6(c)(2) Wyoming Rules of Civil Procedure
              for failure of the Court to determine Appellant’s Motion
              within 90 days after filing in the Court on or about July 17,
              2013, thus denying Appellant’s Motion for Correction of an
              Illegal Sentence on or about October 15, 2013. . . .
                      Appellant further certifies that all relevant portions of
              the transcript of evidence deemed necessary for this appeal
              have been ordered and proper arrangements for payment of
              the transcript have been made pursuant to Appellant[’]s
              Motion to Proceed in Forma Pauperis, herein included.

[¶10] The State claims Mr. Pfeil’s notice of appeal failed to comply with Rule 2.07(a)(2)
because he did not identify and attach the order appealed. At the time he filed his notice,
there was no order to appeal, so it was impossible to specifically identify or attach it. We
addressed a similar problem in McWilliams v. Wilhelm, 893 P.2d 1147, 1148 (Wyo.
1995), where the appellant filed a notice of appeal of the jury’s verdict before the district
court entered a judgment on the verdict. In that case, we held the notice of appeal was

                                                3
sufficient under Rule 2.07(a)(2) because it identified the jury’s verdict which was, in
effect, a designated portion of the judgment. Id..

[¶11] Obviously, it would have been preferable if Mr. Pfeil had amended his notice of
appeal to comply with the rule after the district court entered its order; however, that error
should not result in dismissal of his appeal. The McWilliams decision supports a
conclusion that the notice of appeal in this case complied with the rule requiring
identification of the portion of the order appealed. Mr. Pfeil’s notice of appeal identified
the motion upon which the eventual order was based and challenged the district court’s
denial of the motion. See also Serna v. State, 2013 WY 87, ¶ 7, 305 P.3d 1142, 1143
(Wyo. 2013) (pro se litigants are entitled to some leniency from the stringent standards
applied to formal pleadings drafted by counsel); Hayzlett v. Hayzlett, 2007 WY 147, ¶ 14,
167 P.3d 639, 643 (Wyo. 2007) (notice of appeal was sufficient even though the pro se
appellant failed to attach the required appendix).

[¶12] The Tenth Circuit Court of Appeals interpreted F.R.A.P. 3(c)(1)(B) which is
similar to W.R.A.P. 2.07(a)(2) and stated that “[e]ven if a notice fails to properly
designate the order from which the appeal is taken, this Court has jurisdiction if the
appellant’s intention was clear.” Fleming v. Evans, 481 F.3d 1249, 1253-54 (10th Cir.
2007), citing United States v. Morales, 108 F.3d 1213, 1222–23 (10th Cir. 1997). Mr.
Pfeil’s clear intention was to appeal the district court’s denial of his motion and the State
does not suggest otherwise. His notice, though technically defective, served the purpose
of providing notice to other parties and the court. Smith v. Barry, 502 U.S. 244, 248, 112
S. Ct. 678, 116 L. Ed. 2d 678 (1992). See also Varnadore v. Novak, 41 Wyo. 494, 499,
287 P. 438, 440 (1930) (discussing the notification purposes of a notice of appeal under
statutes predating the Wyoming Rules of Appellate Procedure). Mr. Pfeil’s notice of
appeal was sufficient to invoke this Court’s appellate jurisdiction.

       2. Motion to Withdraw Guilty Plea

[¶13] Mr. Pfeil filed a motion to withdraw his guilty plea and/or correct his sentence on
the grounds he was improperly assessed $1,000 for the costs of his presentence
confinement in county jail. The district court concluded that Mr. Pfeil’s sentence was
illegal to the extent it required him to reimburse county jail expenses and vacated that
portion of his sentence. It concluded, however, that it did not have jurisdiction to allow
him to withdraw his guilty plea after his conviction and sentence had become final. Mr.
Pfeil claims the district court violated his constitutional right to due process when it
refused to allow him to withdraw his guilty plea after ruling that part of his sentence was
illegal. The constitutional and jurisdictional issues presented here involve questions of
law, which are subject to de novo review. Allaback v. State, 2014 WY 27, ¶ 10, 318 P.3d
827, 829-30 (Wyo. 2014) (defendant’s claim that his constitutional rights were violated is
reviewed de novo); Turner v. State, 2014 WY 75, ¶ 9, 327 P.3d 100, 103 (Wyo. 2014)
(jurisdiction is a question of law subject to de novo review).

                                              4
[¶14] W.R.Cr.P. 35 governs motions for correction or reduction of sentences:

             (a) Correction. – The court may correct an illegal sentence at
             any time. Additionally the court may correct, reduce, or
             modify a sentence within the time and in the manner provided
             herein for the reduction of sentence.

             (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.

[¶15] The sentencing court relied upon Wyo. Stat. Ann. § 7-13-109 (LexisNexis 2013)
when it included the county jail cost assessment in Mr. Pfeil’s original sentence. Section
7-13-109(a) allows the sentencing court to “require a person sentenced to confinement in
county jail, for any offense, to pay the jail facility the costs of room and board for each
day of incarceration, both before and after conviction.” However, as we stated in Lee v.
State, 2 P.3d 517, 527 (Wyo. 2000), § 7-13-109 applies only to persons sentenced to the
county jail. Mr. Pfeil was sentenced to the Wyoming State Penitentiary, not county jail.
The sentencing court did not, therefore, have authority to require him to reimburse the
county jail for the costs of his confinement while he awaited disposition of his case. The
district court properly corrected the error when it vacated that portion of his sentence on
his motion to correct an illegal sentence.

[¶16] Despite his success in persuading the district court to declare that aspect of his
sentence illegal, Mr. Pfeil argues the district court erred by refusing to allow him to
withdraw his guilty plea altogether. The district court concluded it did not have
jurisdiction to consider his motion to withdraw his guilty plea after his judgment and
sentence were final. In Nixon v. State, 2002 WY 118, ¶ 9, 51 P.3d 851, 853 (Wyo. 2002),
we stated:



                                            5
                   Rule 32(d) of the Wyoming Rules of Criminal
             Procedure addresses the withdrawal of guilty pleas:

                     (d) Plea withdrawal.—If a motion for withdrawal of a
                 plea of guilty or nolo contendere is made before sentence
                 is imposed, the court may permit withdrawal of the plea
                 upon a showing by the defendant of any fair and just
                 reason. At any later time, a plea may be set aside only to
                 correct manifest injustice.

                    Although this Rule does not, in and of itself, set a time
             limit for filing such a motion with the district court after
             sentencing, such a limit must exist as a logical corollary to the
             general rule that a case becomes final after judgment and
             sentence is entered and an appellate decision affirming the
             conviction has been made, or the time for taking an appeal
             expires without perfection of an appeal, or after the voluntary
             dismissal of such an appeal.

(emphasis in original). See also Neidlinger v. State, 2010 WY 54, ¶ 9, 230 P.3d 306, 308
(Wyo. 2010). Therefore, the district court’s ruling that Mr. Pfeil’s motion to withdraw
his guilty plea was too late because his conviction and sentence were final is consistent
with our precedent.

[¶17] Mr. Pfeil faults the district court for relying on Rule 32(d) to decide his motion
rather than addressing the authority he cited in support of his motion–W.R.Cr.P. 11 and a
repealed statute, Wyo. Stat. Ann. § 5-4-118 (LexisNexis 2003). The district court
obviously did not err by relying on W.R.Cr.P. 32 given it specifically pertains to
withdrawal of guilty pleas. Furthermore, neither Rule 11 nor § 5-4-118 provides
authority for allowing the withdrawal of a guilty plea after the judgment has become
final.

[¶18] The portion of Rule 11 relied upon by Mr. Pfeil pertains to the advisements given
by the district court when taking a guilty plea:

             (b) Advice to Defendant. – Except for forfeitures on citations
             (Rule 3.1) and pleas entered under Rule 43(c)(2), before
             accepting a plea of guilty or nolo contendere to a felony or to
             a misdemeanor when the defendant is not represented by
             counsel, the court must address the defendant personally in
             open court and, unless the defendant has been previously
             advised by the court on the record and in the presence of


                                            6
              counsel, inform the defendant of, and determine that the
              defendant understands, the following:

                     (1) The nature of the charge to which the plea is
              offered, the mandatory minimum penalty provided by law, if
              any, and the maximum possible penalty provided by law and
              other sanctions which could attend a conviction including,
              when applicable, the general nature of any mandatory
              assessments (such as the surcharge for the Crime Victim
              Compensation Account), discretionary assessments (costs,
              attorney fees, restitution, etc.) and, in controlled substance
              offenses, the potential loss of entitlement to federal benefits.
              However,

                          (A) Disclosure of specific dollar amounts is not
              required;

                        (B) Failure to advise of assessments or possible
              entitlement forfeitures shall not invalidate a guilty plea,
              but assessments, the general nature of which were not
              disclosed to the defendant, may not be imposed upon the
              defendant unless the defendant is afforded an opportunity
              to withdraw the guilty plea; and

                       (C) If assessments or forfeitures are imposed
              without proper disclosure a request for relief shall be
              addressed to the trial court under Rule 35 before an appeal
              may be taken on that issue.

(emphasis added).

[¶19] Mr. Pfeil claims that he should have been able to withdraw his plea in accordance
with Rule 11(b)(1)(B). However, as the plain language of the rule makes clear, it pertains
to the requisite advisements on the nature of assessments, not the eventual imposition of
an unauthorized assessment when the proper advisements have been given. Furthermore,
subsection (C) plainly envisions the opportunity for the district court to correct its error
pursuant to a motion to correct an illegal sentence.

[¶20] In this case, the district court advised Mr. Pfeil at his change of plea hearing that
an assessment for the costs of his county jail stay could be included in his sentence.
Although it turned out the district court did not have the statutory authority to require Mr.
Pfeil to pay those costs because he was sentenced to the penitentiary rather than county


                                             7
jail, the provision of Rule 11 allowing a defendant to withdraw his guilty plea if he does
not receive the proper advisements simply does not apply under these circumstances.

[¶21] Mr. Pfeil also relies upon Wyo. Stat. Ann. § 5-4-118 (LexisNexis 2003) in arguing
he should be allowed to withdraw his guilty plea. That statute stated: “A justice of the
peace may correct an illegal sentence imposed in a criminal case or reduce a sentence at
any time.” It was, however, repealed in 2004 after the circuit court system generally
replaced the justice of the peace system in Wyoming. Mr. Pfeil argues § 5-4-118 should,
nevertheless, apply in his case because it was in effect at the time of his sentence. There
are multiple reasons why he is incorrect. First, the plain language of the statutory
provision did not provide authority for Mr. Pfeil to withdraw his guilty plea after his
conviction and sentence were final. It simply authorized the justice of the peace courts to
correct or reduce sentences at any time. In addition, given Mr. Pfeil was convicted in
district court, not the justice of the peace court, the statutes applicable to the justice of the
peace courts were not applicable to Mr. Pfeil’s case.

[¶22] The district court properly granted Mr. Pfeil relief under W.R.Cr.P. 35 for the
imposition of an improper assessment when it vacated that aspect of his judgment.
Nevertheless, the court also correctly ruled it did not have jurisdiction to address Mr.
Pfeil’s motion to withdraw his guilty plea because the judgment and sentence had
become final.

       3. Execution of Sentence by the BOP and DOC

[¶23] Mr. Pfeil claims his sentence is illegal under Rule 35(a) because of the way the
DOC and BOP are administering it. In particular, he faults the BOP for denying his
requests for good time credit, parole and a recommendation to the governor that he be
given a commutation. He also faults the DOC for garnishing his prison account to pay
his fines and costs and for implementing policies requiring inmates to pay for various
personal items he says the prison should provide free of charge.

[¶24] Rule 35 authorizes challenges to illegal sentences only. An illegal sentence is
defined as “‘one which exceeds statutory limits, imposes multiple terms of imprisonment
for the same offense, or otherwise violates constitutions or the law.’” Martinez v. State,
2002 WY 10, ¶ 9, 39 P.3d 394, 396 (Wyo. 2002), quoting Duran v. State, 949 P.2d 885,
887 (Wyo. 1997). None of Mr. Pfeil’s complaints pertain to the validity of the
underlying sentence. Instead, he bootstraps his complaints over how his sentence is
being administered into an argument that the BOP and DOC have effectively altered his
sentence to the extent it is now illegal. Rule 35 addresses only sentences which are
illegal in fact, not sentences which inmates claim are being executed illegally by the
State. See, e.g., Gould v. State, 2006 WY 157, ¶ 25, 151 P.3d 261, 268 (Wyo. 2006). It
does not, therefore, provide an avenue to Mr. Pfeil for relief from the BOP’s and DOC’s
actions.

                                               8
[¶25] Mr. Pfeil also argues that, by refusing to consider his Rule 35 claims, the district
court denied his constitutional right to access to the courts under Wyo. Const. art. 1, § 81
and the principle of separation of powers. By staying true to the limits of Rule 35, the
district court did not unconstitutionally deprive Mr. Pfeil of access to the courts. As we
pointed out in Gould, ¶ 26, 151 P.3d at 268, there are other legal means for challenging a
State’s actions in administering a sentence. The DOC has a grievance procedure for
inmates to contest decisions made by prison personnel, and the record demonstrates that
Mr. Pfeil is aware of the process and has availed himself of it. In addition, if he believes
the DOC or BOP rules or regulations are improper or are not being followed, there are
other ways to challenge those actions. In some cases, a civil rights action under 42
U.S.C. § 1983 or a petition for writ of habeas corpus may be available. See id., citing
Olim v. Wakinekona, 461 U.S. 238, 103 S. Ct. 1741, 75 L. Ed. 2d 813 (1983) (§ 1983
action); Shields v. Beto, 370 F.2d 1003 (5th Cir. 1967) and Thompson v. Bannan, 298
F.2d 611 (6th Cir. 1962) (habeas corpus petitions). A declaratory judgment action may
also be available to challenge the DOC and/or BOP policies and procedures. See, e.g.,
Merchant v. State of Wyo., Dep’t of Corrections, 2007 WY 159, 168 P.3d 856 (Wyo.
2007) (independent civil action against the DOC and BOP for failure to award special
good time credit); Cosco v. Lampert, 2010 WY 52, 229 P.3d 962 (Wyo. 2010)
(independent civil action against DOC for wrongful deprivation of personal property
under the prison’s regulations).

[¶26] In his separation of powers argument, Mr. Pfeil contends that Wyoming courts
have essentially repealed the post-conviction relief statutes by failing to grant any such
requests for a several year period. Again, Mr. Pfeil’s complaint is not cognizable in a
motion to correct an illegal sentence because he is not challenging the validity of his
underlying sentence, but how his sentence is being executed. As we pointed out above,
there are other means of securing post conviction relief for the injuries he claims to have
suffered, but Mr. Pfeil has not pursued them. His theoretical argument that the courts
have effectively repealed those remedies because they are granted only rarely does not
support his bald assertion that the remedies do not exist.

        4. Motion for Sentence Reduction

[¶27] Mr. Pfeil requested that his sentence be reduced to the time he has already served.
The district court rejected the request as untimely. The plain language of Rule 35(a)
limits the time for filing a motion for sentence reduction to one year after the original
sentence is final. “If a motion to reduce a sentence is filed outside of the prescribed time

1
  Article I, § 8 states: “All courts shall be open and every person for an injury done to person, reputation
or property shall have justice administered without sale, denial or delay. Suits may be brought against the
state in such manner and in such courts as the legislature may by law direct.”

                                                     9
limits, the district court is deprived of jurisdiction to hear the motion.” Tomlin v. State,
2001 WY 121, ¶ 6, 35 P.3d 1255, 1256 (Wyo. 2001), citing Reese v. State, 910 P.2d
1347, 1348 (Wyo. 1996). See also Hitz, ¶ 11, 323 P.3d at 1106. The district court’s
order properly dismissed Mr. Pfeil’s request for sentence reduction for lack of
jurisdiction.

[¶28] Affirmed.




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