               IN THE SUPREME COURT, STATE OF WYOMING

                                        2016 WY 42

                                                         APRIL TERM, A.D. 2016

                                                                  April 6, 2016

BRITTANY LEANNE POIGNEE,

Appellant
(Defendant),

v.                                                   S-15-0172

THE STATE OF WYOMING,

Appellee
(Plaintiff).


                   Appeal from the District Court of Sweetwater County
                        The Honorable Richard L. Lavery, Judge

Representing Appellant:
      Office of the Public Defender: Diane M. Lozano, State Public Defender; Tina N.
      Olson, Chief Appellate Counsel.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Christyne Martens, Senior Assistant Attorney General; Joshua
      C. Eames, 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 typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KAUTZ, Justice.

[¶1] Brittany Leanne Poignee appeals the district court’s order revoking her probation.
She does not question the district court’s actions at the time of her revocation, but claims
she was denied the assistance of counsel when her probation was extended more than a
year earlier. We conclude Ms. Poignee’s challenge to the probation extension order is
barred because she did not appeal it. Consequently, we affirm.

                                                   ISSUES

[¶2]      Ms. Poignee presents the following issue on appeal:

                   Did the trial court err in revoking [Ms. Poignee’s]
                   probation[] when [she] had not had the benefit of counsel at
                   the time her probationary term was extended and her
                   subsequent violation of probation occurred during the
                   extended, not original, term of probation?

The State raises an additional issue, which we rephrase as:

       Is Ms. Poignee’s challenge to the extension of her probation barred because she
did not appeal the order extending her probation?

                                                   FACTS

[¶3] In 2008, the State charged Ms. Poignee with one count of delivery of
methamphetamine, in violation of Wyo. Stat. Ann. § 35-7-1031(a)(i) (LexisNexis 2015).
The charged crime was a felony and carried maximum penalties of twenty years in prison
and/or a fine of $25,000. Id. She entered a plea of no contest to the charge on February
24, 2009, but the proceedings were deferred pursuant to Wyo. Stat. Ann. § 7-13-301
(LexisNexis 2015),1 and she was placed on supervised probation for five years.

1
    Section 7-13-301 states in relevant part:

          (a)      If a person who has not previously been convicted of any felony is charged with
      or is found guilty of or pleads guilty or no contest to . . . any felony except [list of certain
      felonies] the court may, with the consent of the defendant and the state and without entering a
      judgment of guilt or conviction, defer further proceedings and place the person on probation
      for a term not to exceed five (5) years upon terms and conditions set by the court. [List of
      probation terms]. . . .

          (b)      (b) If the court finds the person has fulfilled the terms of probation and that his
      rehabilitation has been attained to the satisfaction of the court, the court may at the end of
      five (5) years, or at any time after the expiration of one (1) year from the date of the original
      probation, discharge the person and dismiss the proceedings against him.
                                                       1
[¶4] Ms. Poignee was not successful in fulfilling the requirements of her probation and,
on February 18, 2011, the district court revoked her probation and entered judgment on
her earlier no contest plea. The district court sentenced Ms. Poignee to three to five years
in prison, but suspended the sentence and placed her on three years of supervised
probation. Ms. Poignee’s probation was set to expire in February 2014, but on January
14, 2014, a probation agent filed a petition to extend her probationary term to August 18,
2015. Ms. Poignee signed a document agreeing to the extension. She was not
represented by counsel and no hearing was held on the petition to extend her probation.
The district court entered an order extending probation the same day the petition was
filed. Ms. Poignee did not appeal, and the State relied upon that order to require
supervision and provide services during the extended probationary period.

[¶5] In February 2015, the State filed a petition to revoke Ms. Poignee’s probation. The
district court appointed counsel to represent Ms. Poignee in the revocation proceeding
and counsel raised the issue of whether the probation extension had been handled
properly. He claimed that Ms. Poignee was entitled to assistance of counsel when her
probation was extended and also claimed she had been coerced into agreeing to the
extension. Defense counsel argued that, if the probation extension had not been entered,
her probation would have expired prior to the February 2015 revocation proceeding.

[¶6] A probation agent testified at the revocation hearing that she and Ms. Poignee
discussed extending the probationary period in October 2013 after Ms. Poignee violated
the conditions of her probation by drinking alcohol. According to the agent, the purposes
of extending the probationary term were to give Ms. Poignee additional time to obtain
treatment for her addiction and to avoid revocation of her probation. Ms. Poignee
admitted at the 2015 revocation hearing that her violations of the probation conditions in
2013 led to the extension of her probationary term. She claimed, however, that she was
coerced into agreeing to the extension because the agent told her that she must either
agree or go to prison.



       (c) If the defendant violates a term or condition of probation at any time before final
   discharge, the court may:

          (i) Enter an adjudication of guilt and conviction and proceed to impose sentence
   upon the defendant if he previously pled guilty to or was found guilty of the original charge
   for which probation was granted under this section; . . .

       (d) Discharge and dismissal under this section shall be without adjudication of guilt and
   is not a conviction for any purpose.




                                                  2
[¶7] The district court addressed the issue of whether Ms. Poignee was entitled to be
represented by counsel in the probation extension proceeding and concluded that, under
Wyoming law, she did not have the right to counsel. The court then revoked Ms.
Poignee’s probation but reinstated it subject to her future compliance. Ms. Poignee
appealed the April 23, 2015 revocation order.2

                                          DISCUSSION

[¶8] The State argues that this Court does not have jurisdiction over Ms. Poignee’s
appeal because she is actually contesting the order extending probation and she did not
appeal that order within thirty days of entry as required by W.R.A.P. 2.01. Jurisdiction is
a question of law we review de novo. Dawes v. State, 2010 WY 113, ¶ 10, 236 P.3d 303,
306 (Wyo. 2010); Innis v. State, 2003 WY 66, ¶ 8, 69 P.3d 413, 417 (Wyo. 2003).

[¶9] W.R.A.P. 2.01(a) requires a notice of appeal to be filed within thirty days from
entry of an appealable order. The filing requirement “is both mandatory and
jurisdictional, meaning that ‘[t]he failure to timely file a notice of appeal deprives this
Court of jurisdiction to hear the appeal.’” Chapman v. State, 2013 WY 57, ¶ 53, 300
P.3d 864, 874 (Wyo. 2013) (quoting Yeager v. Forbes, 2003 WY 134, ¶ 14, 78 P.3d 241,
247 (Wyo. 2003)); see also W.R.A.P. 1.03. The time limits apply to all parties, including
those appearing pro se. Cosco v. Uphoff, 2003 WY 30, ¶¶ 3-5, 66 P.3d 702, 703 (Wyo.
2003); Compton v. State, 555 P.2d 232, 233-34 (Wyo. 1976).

[¶10] In Gomez v. State, 2004 WY 15, 85 P.3d 417 (Wyo. 2004), the district court
revoked Mr. Gomez’s probation and also sentenced him on new charges. Mr. Gomez
filed a pro se “Motion to Dismiss Probation and Probation Violation” arguing he had not
received a timely revocation hearing. The district court denied his motion, and Mr.
Gomez did not appeal that order. Less than two weeks later, he filed a motion to correct
an illegal sentence. In that motion, he again claimed the district court violated his right to
a timely revocation hearing. The district court denied the motion to correct an illegal
sentence, and Mr. Gomez appealed that order. Id., ¶¶ 10-12, 85 P.3d at 419-20. This
Court ruled that we did not have jurisdiction over Mr. Gomez’s challenge to the district
court’s refusal to dismiss the probation revocation proceedings because he did not appeal
the district court’s first order on that claim. Id., ¶ 15, 85 P.3d at 420.

[¶11] Ms. Poignee’s circumstances are similar to those addressed in Gomez. Although
an order extending probation is a final appealable order, see, e.g., Daniels v. State, 909
P.2d 972 (Wyo. 1996); King v. State, 720 P.2d 465 (Wyo. 1986), Ms. Poignee did not
appeal from the January 2014 order extending her probation. Under W.R.A.P. 2.01(a)

2
  The State subsequently filed additional petitions to revoke Ms. Poignee’s probation, and the district
court revoked her probation and imposed the prison sentence. Ms. Poignee did not appeal the final
revocation order.
                                                  3
and Gomez, we do not have jurisdiction to review the order extending probation because
Ms. Poignee did not timely appeal it.

[¶12] Ms. Poignee did, however, file a timely notice of appeal of the April 2015 order
revoking her probation. The question, then, is whether the doctrine of res judicata bars
her challenge, within the current appeal, to the procedure used to extend her probation.
The “doctrine of res judicata is a rule of universal law pervading every well-regulated
system of jurisprudence. The doctrine arises through public policy and necessity, it being
in the interest of the state that there should be an end to litigation.” Rubeling v. Rubeling,
406 P.2d 283, 284 (Wyo. 1965), citing 50 C.J.S. Judgments § 592 (2015). In determining
whether res judicata applies, four factors must be considered:

              (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.

Kurtenbach v. State, 2013 WY 80, ¶ 6, 304 P.3d 939, 940–41 (Wyo. 2013) (quoting
Martinez v. State, 2007 WY 164, ¶ 11, 169 P.3d 89, 91 (Wyo. 2007) (other citation
omitted)). See also Gee v. State, 2014 WY 9, ¶ 9, 317 P.3d 581, 583-84 (Wyo. 2014).
“‘The application of the doctrine of res judicata is a question of law that we review de
novo.’” Rathbun v. State, 2011 WY 116, ¶ 9, 257 P.3d 29, 33 (Wyo. 2011) (quoting
Eklund v. PRI Envtl., Inc., 2001 WY 55, ¶ 15, 25 P.3d 511, 517 (Wyo. 2001)).

[¶13] In Mead v. State, 2 P.3d 564 (Wyo. 2000), we ruled the appellant’s claim that his
probation should not have been revoked was barred by res judicata. The district court
revoked Mr. Mead’s probation and sentenced him to prison. He appealed but did not file
a brief, so his judgment and sentence was affirmed. Mr. Mead then filed a motion to
correct an illegal sentence which was denied by the district court. He again appealed, this
time arguing the revocation of his probation was erroneous. We concluded that, because
Mr. Mead could have raised the issue regarding his probation revocation on direct appeal,
but did not, he was barred by res judicata from raising the issue in his appeal of the denial
of his motion to correct an illegal sentence. Id. at 565-66. See also Bird v. State, 2015
WY 108, 356 P.3d 264 (Wyo. 2015) (claim in motion to correct illegal sentence of
insufficient presentence confinement credit was barred by res judicata because it was not
raised on direct appeal); Ferguson v. State, 2013 WY 117, 309 P.3d 831 (Wyo. 2013)
(claims that the sentence violated due process and double jeopardy could have been
raised on direct appeal and were, therefore, barred in a subsequent motion to correct an
illegal sentence); Brown v. State, 929 P.2d 522 (Wyo. 1996) (challenge to legality of a
crime victim’s compensation assessment barred by res judicata because it could have
been raised in prior appeal).



                                              4
[¶14] Like in Mead and the other cases cited above, the elements of res judicata are
satisfied in the present case. The parties, their capacities, and the subject matter were the
same in the probation extension proceeding as they are in this appeal. Ms. Poignee could
have argued that she was entitled to the assistance of counsel in the probation extension
proceeding, but she did not. We routinely apply res judicata to bar claims that could have
been, but were not, raised in earlier proceedings. See, e.g., Dax v. State, 2012 WY 40, ¶
10, 272 P.3d 319, 321 (Wyo. 2012); Cooper v. State, 2010 WY 22, ¶ 6, 225 P.3d 1070,
1072 (Wyo. 2010); McDaniel v. State, 2007 WY 125, ¶ 9, 163 P.3d 836, 838 (Wyo.
2007). Therefore, once the time for Ms. Poignee to appeal the probation extension order
expired, it was final.

[¶15] We recognize an exception to the application of res judicata when the appellant
shows good cause for failing to raise the issue earlier. Dax, ¶ 11, 272 P.3d at 321; Hamill
v. State, 948 P.2d 1356, 1358 (Wyo. 1997). Ms. Poignee does not expressly argue that
there was good cause for her failure to raise the issue of counsel earlier. However, she
does suggest that she was unaware of the proper procedure because she did not have
counsel during the probation extension proceedings.

[¶16] Ms. Poignee’s suggestion that her lack of familiarity with the process is good
cause for her failure to raise the issue earlier is belied by the record. She had a significant
criminal record, including a great deal of experience with probationary proceedings, and
had been appointed counsel on several occasions prior to the extension of her probation.
Thus, she was very familiar with the criminal procedural process, including the
procedures for requesting counsel.3

[¶17] Furthermore, the probation agent offered Ms. Poignee the option of extending her
probation in lieu of revocation in October 2013 but the petition and her consent were not
filed with the district court until January 2014. She, therefore, had several months to
consider her options and request or consult counsel on the probation extension. Instead
of consulting counsel or challenging the probation extension, Ms. Poignee expressly
agreed to it to avoid revocation and to enable her to get addiction treatment. Even after
the probation extension order was entered, Ms. Poignee had an additional month to
contemplate the matter before her notice of appeal was due to be filed. Under these
circumstances, Ms. Poignee has not shown good cause for failing to raise the issue of
lack of counsel in the probation extension proceeding. Compare Patterson v. State, 2012
WY 90, ¶ 23, 279 P.3d 535, 540 (Wyo. 2012) (finding good cause for the appellant’s
failure to challenge his sentence on direct appeal when he did not have notice of the
amended sentence).



3
  We are not suggesting that she had the right to appointed counsel for the probation extension
proceeding. Determination of that issue will be made when the issue is properly presented to us.
                                               5
[¶18] Ms. Poignee maintains that our decision in Brisson v. State, 955 P.2d 888 (Wyo.
1998) demonstrates that a defendant may, in a subsequent proceeding, challenge a prior
order on the basis that he or she was not provided counsel. Mr. Brisson was charged with
battery upon a family member and, because it would have been his third such conviction
within ten years, it was a felony under the applicable statute. He filed a motion to
dismiss, claiming his first misdemeanor battery conviction could not be used to enhance
the pending charge to a felony because it was obtained without giving Mr. Brisson “the
benefit of counsel even though he was indigent and had requested an attorney.” Id. at
890. Mr. Brisson apparently did not appeal his first conviction or raise the issue of
counsel until he was charged with the third offense.

[¶19] The Brisson case did not come before this Court on direct appeal; rather, the
district court certified two questions pertaining to whether Mr. Brisson was entitled to
counsel in the first proceeding and whether an uncounseled conviction could be used to
enhance a later charge. Brisson, 955 P.2d at 889. Our decision focused only on the two
questions of law. We ruled that Mr. Brisson was entitled to counsel and the uncounseled
misdemeanor could not be used to enhance the penalty for his later offense. Id. at 892.
Given the unusual procedural posture of the case, we did not consider whether Mr.
Brisson’s challenge to his first conviction was timely.

[¶20] In addition, Brisson addressed the validity of an uncounseled misdemeanor used to
convert a pending charge into a felony. No such enhancement took place here. Ms.
Poignee’s probation was simply extended, with her consent, in order to give her the
opportunity to comply with the district court’s order rather than to be revoked and
possibly sent to prison. Brisson does not, therefore, guide our analysis in this case.

                                   CONCLUSION

[¶21] The circumstances of this case clearly illustrate why there must be finality in
judicial orders, including those pertaining to probation. A probationer is often given
many opportunities to comply with the conditions of probation before being ordered to
serve the underlying sentence. For example, a district court may provide additional
opportunities for compliance by reinstating probation after revocation or, like here,
extending the probationary period instead of revoking probation. If a probationer were
allowed to challenge any of the preceding orders when his or her probation was finally
revoked and the underlying sentence imposed, the finality of judicial decisions would be
seriously eroded. A probation order or extension could be challenged many years after it
was entered, and after great effort had been expended to make the probation successful.
Allowing such challenges would discourage the State, probation agents and the district
courts from giving probationers multiple opportunities to comply. In the interests of
finality as expressed in our rules of appellate procedure and precedent, Ms. Poignee’s
challenge to the probation extension entered more than a year before her probation was
revoked is time barred.

                                           6
[¶22] Affirmed.




                  7
