                IN THE SUPREME COURT, STATE OF WYOMING

                                             2013 WY 117

                                                                    APRIL TERM, A.D. 2013


                                                                         September 30, 2013


JOEL RANDY FERGUSON,

Appellant
(Defendant),

v.                                                                  No. S-12-0278

THE STATE OF WYOMING,

Appellee
(Plaintiff).


                       Appeal from the District Court of Laramie County
                        The Honorable Thomas T.C. Campbell, Judge

Representing Appellant:
      Office of the State Public Defender: Diane M. Lozano, State Public Defender;
      Patricia L. Bennett, Assistant Public Defender. Argument by Ms. Bennett.

Representing Appellee:
      Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney
      General; Jeffrey S. Pope, Assistant Attorney General; Jennifer E. Zissou, Assistant
      Attorney General. Argument by Ms. Zissou.


Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, 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.
BURKE, Justice.

[¶1] Appellant, Joel Randy Ferguson, challenges the district court’s order granting, in
part, and denying, in part, his motion to correct an illegal sentence. We conclude that
Appellant’s claims are barred by the doctrine of res judicata, and we affirm.

                                         ISSUES

[¶2] Appellant presents the following issues:

              1. Whether the district court imposed an illegal sentence in
                 violation of Mr. Ferguson’s rights to due process of law.

              2. Whether the district court imposed an illegal sentence in
                 violation of Mr. Ferguson’s rights to be protected from
                 double jeopardy.

The State raises an additional issue:

                 Does res judicata bar Mr. Ferguson’s current appeal of the
                 legality of his sentence?

                                         FACTS

[¶3] In 2005, Appellant was convicted of eleven counts of burglary relating to break-
ins at various businesses in Cheyenne. At his initial arraignment, Appellant peremptorily
disqualified District Judge Nicholas G. Kalokathis under W.R.Cr.P. 21.1(a), and the case
was assigned to District Judge Peter G. Arnold. After presiding over the trial, Judge
Arnold recused himself from the sentencing proceedings in order to avoid the potential
perception of bias resulting from his former attorney-client relationship with several of
the victims. Judge Arnold assigned the case to Judge Kalokathis for sentencing. Judge
Kalokathis proceeded to sentence Appellant to consecutive terms of 4 to 8 years for each
of the convictions, for a total of 44 to 88 years. Perhaps as a result of the fact that the
earlier motion to disqualify Judge Kalokathis was not reduced to writing, neither party
realized, at the time, that the assignment to Judge Kalokathis was prohibited by the
peremptory disqualification.

[¶4] Approximately one month after sentencing Appellant, Judge Kalokathis
recognized that he had previously been disqualified. Judge Kalokathis vacated
Appellant’s sentence and assigned the case to District Judge Edward L. Grant for
resentencing. Before the resentencing hearing, Appellant filed a motion for a new trial
alleging that Judge Arnold’s decision to recuse himself prior to sentencing indicated that
Appellant had been deprived of a fair trial.


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[¶5] After holding a separate sentencing hearing, Judge Grant sentenced Appellant to
consecutive terms of 8 to 10 years for Count I, 7 to 10 years for Count II, 5 to 7 years for
Count III, and 4 to 6 years for Counts IV-XI, for a total of 52 to 75 years. Judge Grant
explained that the sentences for Counts I through III reflected the severity of the impact
of the crimes on the respective victims. At that hearing, Judge Grant also denied
Appellant’s motion for a new trial, noting that it was untimely and that “even if it were
not, it would be denied on its merits.”

[¶6] After Judge Grant entered the new judgment and sentence, Appellant challenged
the convictions in a direct appeal, claiming that (1) the district court had erred in denying
his motion for a judgment of acquittal, and (2) the court had erred in admitting evidence
of uncharged misconduct. We affirmed Appellant’s convictions in Ferguson v. State,
2007 WY 157, 168 P.3d 476 (Wyo. 2007). As is evident from that opinion, Appellant
did not raise any issue with respect to his resentencing.

[¶7] Following our decision affirming the convictions, Appellant asserted a number of
collateral challenges to his sentence. In 2007, he filed a Motion for Sentence Reduction,
which the district court denied. In 2010, Appellant filed a Petition for Post-Conviction
Relief, asserting eight claims relating to ineffective assistance of appellate counsel. That
motion was also denied. Finally, in August, 2012, Appellant filed the Motion to Correct
Illegal Sentence at issue in this appeal. He asserted that Judge Grant improperly
increased the original sentence in violation of his constitutional right to due process of
law. He also contended that the order of restitution should be vacated because restitution
was not included in the oral pronouncement of the sentence. The district court agreed
that the order of restitution was illegal and vacated that order.1 The court denied
Appellant’s due process claim. This timely appeal followed.

                                    STANDARD OF REVIEW

[¶8] We apply the following standard of review to a district court’s decision to deny a
motion to correct an illegal sentence:

                       This Court reviews a trial court’s denial of a motion to
                correct an illegal sentence by using an abuse of discretion
                standard. However, this discretion is limited to a
                determination by the trial court as to whether the sentence
                was legal or illegal. . . . An illegal sentence is one which


1
 The district court’s order vacating that part of Appellant’s sentence requiring payment of restitution is
not at issue in this appeal.




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              exceeds statutory limits, imposes multiple terms of
              imprisonment for the same offense, or otherwise violates
              constitutions or the law. Whether a sentence is illegal is
              determined by referencing the applicable statute or
              constitutional provisions, and is subject to statutory
              interpretation. The determination of whether the appropriate
              rule was applied to a set of facts is a question of law,
              requiring de novo review.

Baker v. State, 2011 WY 123, ¶ 10, 260 P.3d 268, 271 (Wyo. 2011) (quoting McDaniel v.
State, 2007 WY 125, ¶¶ 6-7, 163 P.3d 836, 838 (Wyo. 2007) (internal citations and
punctuation omitted)). Whether a claim is barred by res judicata is also a question of
law, reviewed de novo. Moore v. State, 2009 WY 108, ¶ 20, 215 P.3d 271, 276 (Wyo.
2009).

                                      DISCUSSION

[¶9] Appellant contends that the sentence violates his constitutional due process and
double jeopardy protections. In his due process claim, Appellant contends he did not
receive due process because his sentence was motivated by vindictiveness. He claims
that the increase in the minimum term of his sentence from the original sentence was not
warranted by any identifiable conduct on his part, and that the “only explanation for this
increase . . . is vindictive sentencing.” With respect to his double jeopardy claim,
Appellant contends that because he had an expectation of finality in his original sentence
“until he himself contested it,” the increased sentence violates double jeopardy
protections against multiple punishments for the same offense.

[¶10] The State responds that Appellant’s claims are barred by res judicata because they
could have been raised six years ago in his direct appeal. The State also claims that
because Appellant’s original sentence was entered without jurisdiction, making that
sentence “utterly void and of no effect,” his sentence could not have constituted an
“increase” with respect to the original sentence. The State further contends that
Appellant had no expectation of finality in his sentence, precluding his double jeopardy
claim, because Appellant initiated an appeal from his convictions.

[¶11] The doctrine of res judicata bars litigation of issues that were or could have been
determined in a prior proceeding. Dax v. State, 2012 WY 40, ¶ 9, 272 P.3d 319, 321
(Wyo. 2012). This Court has long held that motions to correct illegal sentences are
subject to the principles of res judicata. Kurtenbach v. State, 2013 WY 80, ¶ 6, 304 P.3d
939, 940 (Wyo. 2013). If a party fails to show good cause why an issue was not raised at
an earlier opportunity, the Court may decline to consider the issue. Hamill v. State, 948
P.2d 1356, 1358 (Wyo. 1997). We have routinely disposed of claims on res judicata
grounds without regard to whether the issue was raised before the district court. See, e.g.,


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Kurtenbach, 304 P.3d 939; Lunden v. State, 2013 WY 35, 297 P.3d 121 (Wyo. 2013);
Dax, 272 P.3d 319.

[¶12] In his reply brief to this Court, Appellant asserts, for the first time, that his due
process and double jeopardy claims were overlooked in his direct appeal due to
ineffective assistance of counsel. He contends that the alleged ineffectiveness constitutes
“good cause” which excuses the failure to raise the issue earlier. Appellant has provided
no authority to support the assertion that ineffective assistance of counsel may constitute
“good cause” for failure to raise an issue in an earlier proceeding. We note that we have
previously held that “Failing to recognize the factual or legal basis for a claim or failing
to raise a claim despite recognizing it does not constitute good cause for not bringing an
issue to the court’s attention.” Winstead v. State, 2011 WY 137, ¶ 12, 261 P.3d 743, 746
(Wyo. 2011) (overruled in part on unrelated grounds by Sweets v. State, 2013 WY 98, ¶
2 n.1, 307 P.3d 860, 863 n.1 (Wyo. 2013)). Nonetheless, even if we were to hold that
good cause for failure to raise an issue in an earlier proceeding could be established by a
showing of ineffective assistance of counsel, we would be unable to find that Appellant
has satisfied his burden.

[¶13] In order to demonstrate ineffective assistance of counsel, Appellant must show
that (1) counsel’s performance was deficient, and that (2) counsel’s deficient performance
prejudiced the defense. Gleason v. State, 2002 WY 161, ¶ 44, 57 P.3d 332, 346-47
(Wyo. 2002). The failure to make the required showing of either deficient performance
or prejudice will result in a finding that counsel was not ineffective. Osborne v. State,
2012 WY 123, ¶ 19, 285 P.3d 248, 252 (Wyo. 2012). As discussed below, because
neither of Appellant’s claims would prevail, we find no grounds to conclude that his
counsel’s decision not to raise those claims constitutes deficient performance.

[¶14] We examined due process and double jeopardy protections as they relate to
resentencing in Simonds v. State, 799 P.2d 1210, 1213 (Wyo. 1990). In that case, the
defendant had been sentenced to concurrent terms of imprisonment following his
convictions for aggravated burglary and interference with a peace officer. However, the
defendant successfully challenged his aggravated burglary conviction on appeal, and we
remanded to the district court solely for resentencing on the lesser-included offense of
simple burglary. Id., 799 P.2d at 1211. After remand, the trial court reduced the sentence
originally imposed for interference with a peace officer, but ordered that sentence to be
served consecutively with the sentence imposed for the defendant’s simple burglary
conviction. Id. In the appeal from that decision, the defendant contended the district
court violated his right against double jeopardy by ordering his sentence for interference
with a peace officer to run consecutive to his burglary sentence. Id., 799 P.2d at 1212.
We ultimately rejected the defendant’s double jeopardy claim, but held that absent “an
acceptable rationale for the change, and factual data supporting that reasoning,
affirmatively appear[ing] on the resentencing record,” the imposition of a heavier
sentence on remand violated the defendant’s right to due process. Id., 799 P.2d at 1216.


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In doing so, we relied on the United States Supreme Court’s decision in North Carolina
v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656 (1969), overruled in
part by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989):

                       The Court . . . indicated that the imposition of a
                heavier sentence upon reconviction, to the extent that it may
                have been motivated by vindictiveness for the defendant’s
                successful exercise of his right to appeal, does implicate due
                process concerns. The Court observed that the threat of being
                penalized for the exercise of constitutional rights would deter
                defendants from attacking their convictions and, thus,
                unconstitutionally impede their open and equal access to the
                courts. Accordingly, the Court held:

                        “In order to assure the absence of such a motivation,
                        we have concluded that whenever a judge imposes a
                        more severe sentence upon a defendant after a new
                        trial, the reasons for his doing so must affirmatively
                        appear. Those reasons must be based upon objective
                        information concerning identifiable conduct on the
                        part of the defendant occurring after the time of the
                        original sentencing proceeding. And the factual data
                        upon which the increased sentence is based must be
                        made part of the record, so that the constitutional
                        legitimacy of the increased sentence may be fully
                        reviewed on appeal.”

Simonds, 799 P.2d at 1212-13 (emphasis omitted).2

[¶15] Relying on Simonds, Appellant claims his due process rights were violated
because there is no information in the record relating to conduct occurring after the
original sentencing proceeding that would justify an increased sentence. The facts of the
present case, however, are distinguishable from Simonds. In this case, Appellant was


2
  In Alabama v. Smith, 490 U.S. at 803, 109 S.Ct. at 2207, the Supreme Court distinguished the situation
in which a defendant receives an increased sentence after trial relative to a sentence imposed after a prior
guilty plea, holding that “there is no basis for a presumption of vindictiveness where a second sentence
imposed after a trial is heavier than a first sentence imposed after a guilty plea.” The Court noted that
“While the Pearce opinion appeared on its face to announce a rule of sweeping dimension, our
subsequent cases have made clear that its presumption of vindictiveness ‘do[es] not apply in every case
where a convicted defendant receives a higher sentence on retrial.’” Id., 490 U.S. at 799, 109 S.Ct. at
2204 (quoting Texas v. McCullough, 475 U.S. 134, 138, 106 S.Ct. 976, 978, 89 L.Ed.2d 104 (1986)).




                                                     5
resentenced by a different judge after the original sentencing judge vacated Appellant’s
initial sentence. In Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d. 104
(1986), the Supreme Court held that Pearce’s presumption of vindictiveness does not
apply in situations where the defendant is resentenced by a different judge:

                    The presumption is also inapplicable because different
             sentencers assessed the varying sentences that McCullough
             received. In such circumstances, a sentence “increase”
             cannot truly be said to have taken place. In Colten v.
             Kentucky, [407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584
             (1972)] supra, which bears directly on this case, we
             recognized that when different sentencers are involved,

                    “[it] may often be that the [second sentencer] will
                    impose a punishment more severe than that received
                    from the [first]. But it no more follows that such a
                    sentence is a vindictive penalty for seeking a [new]
                    trial than that the [first sentencer] imposed a lenient
                    penalty.” Id., at 117.

             Here, the second sentencer provides an on-the-record, wholly
             logical, nonvindictive reason for the sentence. We read
             Pearce to require no more, particularly since trial judges must
             be accorded broad discretion in sentencing, see Wasman [v.
             United States, 468 U.S. 559, 563-64, 104 S.Ct. 3217, 3220-
             21, 82 L.Ed.2d 424 (1984)].

McCullough, 475 U.S. at 140, 106 S.Ct. at 979-80. Appellant’s due process analysis is
entirely devoid of any reference to the fact that he was resentenced by a different judge
prior to exercising his right to appeal, and he provides no authority supporting a due
process claim when the allegedly vindictive sentence is issued by a different judge.
Appellant has not demonstrated the existence of a viable claim that his sentence was
motivated by vindictiveness.

[¶16] We similarly find no merit in Appellant’s claim that his resentencing violated
constitutional protections against double jeopardy. In Simonds, we held, in accordance
with Supreme Court precedent, that resentencing presents a double jeopardy concern only
when a defendant has a reasonable expectation of finality in his original sentence:

                    In United States v. DiFrancesco, 449 U.S. 117, 101
             S.Ct. 426, 66 L.Ed.2d 328 (1980), the Court determined that
             the prospect of increased punishment upon resentencing
             raised a double jeopardy problem only to the extent of a


                                           6
             defendant’s reasonable expectations that his original sentence
             had become final. 449 U.S. at 134-39, 101 S.Ct. at 435-38.
             With respect to those instances where a defendant initiates an
             appeal, as was the case in Pearce, it is evident that such a
             defendant harbors no justifiable expectation in the finality of
             the original sentence. In fact, his aim is for the appellate court
             to remove that finality, to “wipe the slate clean.”

Simonds, 799 P.2d at 1213. Consistent with DiFrancesco, we concluded that “with
respect to matters which have not been remanded to the trial court, the appeal is
concluded, and judgment and sentence finalized, by the appellate court’s mandate.”
Simonds, 799 P.2d at 1214; see also Moronese v. State, 2012 WY 34, ¶ 8, 271 P.3d 1011,
1014 (Wyo. 2012). As in Simonds, Appellant’s actions in this case belie the claim that he
had a reasonable expectation in the finality of his sentence. At the original sentencing
hearing, Appellant informed the court of his intention to challenge his convictions in a
motion for a new trial. Additionally, at the resentencing hearing, Appellant stated that,
after receiving his original sentence, he discovered that Judge Kalokathis did not have
authority to sentence him. He then contacted his attorney to assist him in challenging that
sentence. Appellant’s efforts to challenge his original sentence are not consistent with
the assertion that he had a reasonable expectation of finality in that sentence.
Accordingly, we are unable to find any merit in Appellant’s claim that his resentencing
violated protections against double jeopardy.

[¶17] Appellant’s ad hoc assertion of ineffective assistance of counsel, raised in his
reply brief, does not constitute good cause for failing to raise his present claims in the
direct appeal from his convictions. Accordingly, we conclude that those claims are
appropriately barred by the doctrine of res judicata. Notwithstanding our reliance on the
principles of res judicata, however, we also find no merit in Appellant’s claim that his
sentence violated due process or double jeopardy protections.

[¶18] The district court’s order granting, in part, and denying, in part, Appellant’s
Motion to Correct Illegal Sentence is affirmed.




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