                IN THE SUPREME COURT, STATE OF WYOMING

                                             2016 WY 15


                                                                 OCTOBER TERM, A.D. 2015

                                                                            February 1, 2016


MARVIN KENNETH SHUE,

Appellant
(Defendant),

v.                                                                      S-15-0187

THE STATE OF WYOMING,

Appellee
(Plaintiff).


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

Representing Appellant:

        Pro se.

Representing Appellee:

        Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Jenny
        Lynn Craig, Senior Assistant Attorney General; Caitlin F. Young, Assistant Attorney
        General.

Before BURKE, C.J., and HILL and KAUTZ, JJ., and DEEGAN and FORGEY, DJJ.


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.
FORGEY, District Judge.

[¶1] Marvin Shue (hereinafter “Shue”) filed a motion in the district court that can be
read as both a motion to withdraw his guilty plea and a motion to reduce his sentence.
The district court denied Shue’s request to withdraw his guilty plea and concluded that it
lacked jurisdiction to contemplate a sentence reduction. Shue now appeals the district
court’s decision. We find that the district court did not have jurisdiction to rule on Shue’s
motion and that we, as a result, do not have jurisdiction to consider Shue’s appeal.

                                          ISSUE

[¶2] Shue did not include a statement of the issue on appeal in his appellate brief. The
State phrases the issue as follows:

              Under Rule 35(b) of the Wyoming Rules of Criminal
              Procedure, a defendant may file a motion to reduce his
              sentence within one year after the entry of any order
              upholding a conviction. A defendant may move to withdraw
              his guilty plea until the conclusion of an appeal. Shue’s
              motion for sentence reduction asking to withdraw his plea
              was filed after the deadlines to request such relief expired.
              Did the district court properly dismiss Shue’s motion?

                                          FACTS

[¶3] In 2010, Shue was charged with two counts of first-degree sexual abuse of a minor
and five counts of second-degree sexual abuse of a minor. The parties entered into a plea
agreement by which Shue would plead guilty to one count of first-degree sexual abuse of
a minor and the State would dismiss the remaining six charges. They further agreed to
jointly recommend that the district court impose a twelve to twenty-two year prison
sentence, and that this sentencing recommendation was not binding on the district court.
Shue pled guilty on March 10, 2011, to one count of first-degree sexual abuse of a minor
pursuant to the plea agreement. Shortly thereafter, Shue’s trial counsel contacted the
victim’s mother

              and offered a $15,000 inducement (couched as “future
              restitution”) in exchange for the mother’s agreement to
              recommend to the Court that [Shue] receive a suspended
              sentence and no prison time. The offer was conditioned on the
              mother successfully persuading the District Attorney to go
              along with the no-incarceration recommendation. One of the
              stipulated hearing exhibits … is a recorded conversation in
              which [trial counsel] tells the mother, “The agreement would


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                have to be that the DA goes along with this. So it would be
                you and the DA agreeing to recommend a suspended
                sentence. If the DA won’t do that, then it’s really worthless
                for [Shue] to even try to do this, okay?” … [Trial counsel]
                knew that he could not offer money to the victim’s family as
                that would be a clear ethical violation.1

On May 26, 2011, the district court sentenced Shue to serve twelve to twenty-two years
in prison, consistent with the plea agreement. A written “Judgment and Sentence” was
filed June 2, 2011.

[¶4] Shue appealed his conviction to this Court. Shue’s appellate counsel ultimately
filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d
493 (1967), stating that Shue “felt coerced in accepting the plea deal” and “believed he
received ineffective assistance of counsel because of the allegations that his trial counsel
… improperly proposed to give money to the victim’s family in exchange for their
cooperation in providing any victim statement and at the Sentencing Hearing.” After
evaluating the legal merits of these claims, Shue’s appellate counsel concluded that there
were “no appealable issues”—the record supported that Shue had knowingly and
voluntarily entered his guilty plea and his trial counsel’s conduct did not prejudice Shue
because the district court had sentenced him in accordance with the plea agreement. This
Court notified Shue that his conviction would be affirmed unless he filed “a brief that
persuaded this Court that the captioned appeal is not wholly frivolous” on or before May
11, 2012. Shue v. State, 2012 WY 73, ¶¶ 1-2, 277 P.3d 117, 117 (Wyo. 2012). Shue did
not file “a brief or other pleading within the time allotted,” so this Court affirmed his
conviction and sentence. Id. This Court’s mandate “affirming the judgment of the
district court” was filed in the district court June 13, 2012.2

[¶5] On December 30, 2014, Shue filed a “Motion for Sentence Modification or
Reduction Under Newly Discovered Evidence and a New Feder[al] Ruling” claiming that
his guilty plea was involuntary and that his trial counsel was ineffective due to the
aforementioned misconduct. The motion was based on what Shue describes as “newly
discovered evidence” in the form of this Court’s 2012 decision to discipline Shue’s trial
counsel, the documentation accompanying that decision, and an October 15, 2014 federal
ruling that “granted [Shue] ineffective assistance of counsel.” He asked the district court
to reinstate his right to a trial and to “modify his sentence from 1st degree sexual abuse of


1
 Shue’s trial counsel was disciplined in 2012 for this misconduct. Board of Professional Responsibility,
Wyoming State Bar v. Custis, 2012 WY 142, ¶¶ 1-8, 295 P.3d 334, 335 (Wyo. 2012).
2
 Shue proceeded to file numerous motions over the next few years, including multiple motions to reduce
his sentence and petitions for post-conviction relief.




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a minor to 3rd degree sexual abuse and [a] no less [than] 5 year and no more [than] 10
year sentence.” The district court viewed the motion as both a motion to withdraw
Shue’s guilty plea pursuant to W.R.Cr.P. 32(d), and to reduce Shue’s sentence pursuant
to W.R.Cr.P. 35(b). The district court denied the request to withdraw Shue’s guilty plea
because Shue had not established “newly discovered evidence resulting in manifest
injustice,” and found that it did not have jurisdiction to consider a sentence reduction
because Shue’s motion was “untimely.” Shue appealed the district court’s decision to
this Court.

                              STANDARD OF REVIEW

[¶6] Subject matter jurisdiction is the authority to hear and decide cases of the general
class to which the proceedings in question belong. This Court has stated:

                    It is fundamental, if not axiomatic, that, before a court
             can render any decision or order having any effect in any case
             or matter, it must have subject matter jurisdiction. Jurisdiction
             is essential to the exercise of judicial power. Unless the court
             has jurisdiction, it lacks any authority to proceed, and any
             decision, judgment, or other order is, as a matter of law,
             utterly void and of no effect for any purpose. Subject matter
             jurisdiction, like jurisdiction over the person, is not a subject
             of judicial discretion. … Subject matter jurisdiction either
             exists or it does not and, before proceeding to a disposition on
             the merits, a court should be satisfied that it does have the
             requisite jurisdiction.

Terex Corp. v. Hough, 2002 WY 112, ¶ 5, 50 P.3d 317, 320 (Wyo. 2002). “Whether a
court has subject matter jurisdiction is a question of law, reviewed de novo.” Eckdahl v.
State, 2011 WY 152, ¶ 16, 264 P.3d 22, 27 (Wyo. 2011).

                                     DISCUSSION

[¶7] The district court correctly recognized that Shue’s December 30, 2014 motion can
be read to request relief that implicates both W.R.Cr.P. 32(d) (motion to withdraw a
guilty plea) and W.R.Cr.P. 35(b) (motion to reduce a sentence). There are time limits for
filing these motions. W.R.Cr.P. 32(d) provides as follows:

             If a motion for withdrawal of a plea of guilty … 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.


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In Nixon v. State, 2002 WY 118, ¶ 9, 51 P.3d 851, 853 (Wyo. 2002), we found that

             [a]lthough 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.) Likewise, W.R.Cr.P. 35(b) states that a “motion to reduce a
sentence may be made … within one year after receipt by the court of a mandate issued
upon affirmance of the judgment or dismissal of the appeal.”

[¶8] We have held that a failure to file a motion to withdraw a guilty plea and/or a
motion to reduce a sentence within these time limits deprives a district court of its
jurisdiction to consider such motions. In Pfeil v. State, 2014 WY 137, ¶¶ 1, 4-6, 336 P.3d
1206, 1208-09 (Wyo. 2014), Pfeil filed a motion to withdraw his guilty plea over sixteen
years after he pled guilty to second-degree murder. This Court decided that the district
court had properly determined that “Pfeil’s motion to withdraw his guilty plea was too
late because his conviction and sentence were final” and that the district court “did not
have jurisdiction to address Mr. Pfeil’s motion.” Id., ¶¶ 16, 22, 336 P.3d at 1212-13. In
Hitz v. State, 2014 WY 58, ¶¶ 10-11, 323 P.3d 1104, 1106 (Wyo. 2014), Hitz filed a
motion to reduce his sentence over seventeen months after the district court entered
orders sentencing Hitz for escape and a probation violation. We concluded that Hitz’s
motion “was filed outside the time limits prescribed by Rule 35(b)” and that the district
court in that case “was without jurisdiction to consider Hitz’s motion for sentence
reduction.” Id., ¶¶ 11, 13, 323 P.3d at 1106.

[¶9] Shue’s December 30, 2014 motion in the instant case was untimely for two
reasons. He asked to withdraw his guilty plea after his conviction became final in 2012,
and he requested a sentence reduction more than one year after this Court’s mandate
affirming the district court’s judgment was received by the district court. The district
court, accordingly, did not have jurisdiction to rule on Shue’s motion.

[¶10] On appeal, Shue seeks to avoid these time limits by claiming that his motion is
based on “newly discovered evidence” that “was not known or reasonably available to
[Shue] at the time of his court proceedings” and that “does show that [Shue] did receive
ineffective assistance of counsel throughout ever[y] stage of his court proceedings.” This
“newly discovered evidence,” according to Shue, is comprised of the 2012 disciplinary
decision documentation and the October 15, 2014 federal ruling that Shue referenced in


                                            4
his motion. Shue has failed to cite any pertinent legal authority indicating that the district
court would have had jurisdiction to rule on his motion based on “newly discovered
evidence.” The record also does not support Shue’s characterization of these documents
as “newly discovered evidence,” considering that

               1) Shue was aware of his trial counsel’s misconduct, any
               alleged ineffectiveness that resulted from it, and any alleged
               coercion relative to Shue’s guilty plea by the time the district
               court had imposed its sentence;

               2) Shue appealed his conviction to this Court and told his
               appellate counsel that he “felt coerced in accepting the plea
               deal” and that his trial counsel committed misconduct and
               was ineffective. Shue’s appellate counsel evaluated these
               claims and determined that there were “no appealable issues,”
               and Shue did not file an appellate brief contending otherwise;

               3) this Court published its disciplinary decision and
               accompanying documents in 2012 and it appears that Shue
               referenced these documents in a “Motion to Overturn and
               Dismiss” he filed in the district court May 23, 2013, which
               was within the time Shue could have properly filed a motion
               to reduce his sentence; and

               4) Shue did not provide the district court, or this Court, any
               meaningful details about the contents of the October 15, 2014
               federal ruling to which he has referred, nor has he cogently
               argued on appeal how it supports his contentions.3

[¶11] Because the district court did not have jurisdiction to rule on Shue’s December 30,
2014 motion, this Court does not have jurisdiction to consider Shue’s appeal, and the
appeal is therefore dismissed. See Nixon, ¶ 30, 51 P.3d at 859; Hitz, ¶¶ 17-18, 323 P.3d
at 1107.




3
  Shue also summarily asserts that the manner in which the district court decided Shue’s December 30,
2014 motion violated his due process rights and that the district court “violated rule 60” for some
unspecified reason. Shue does not present cogent argument or cite pertinent legal authority to support
these arguments, so we will not consider them. See Allen v. State, 2002 WY 48, ¶ 72, 43 P.3d 551, 574
(Wyo. 2002); Whitney v. State, 2004 WY 118, ¶ 36, 99 P.3d 457, 470 (Wyo. 2004).




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