Petition for Writ of Certiorari — Rodger William Dillard, Petitioner v. Wyoming

IN THE SUPREME COURT, STATE OF WYOMING

2023 WY 73

APRIL TERM, A.D. 2023

July 25. 2023

RODGER WILLIAM DILLARD,

Appellant

(Defendant),

v.

S-23-0054, S-23-0055

THE STATE OF WYOMING,

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Appellee

(Plaintiff).

Appealfrom the District Court ofNatrona County

The Honorable Catherine E. Wilking, Judge

Representing Appellant:

Rodger William Dillard, pro se.

Representing Appellee:

Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General;

Kristen R. Jones, Senior Assistant Attorney General.

Before FGX, C.J., andKAUTZ, BOOMGAARDEN, GRAY, andFENNJJ.

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.

RECEIVED

AUG 2 1 2023

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OFFICE OF THE CLERK

SUPREME COURT. U.S.

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BOOMGAARDEN, Justice.

Hfl] Roger William Dillard appeals the district court’s denial of his motion for sentence

reduction and motion to correct an illegal sentence. We affirm.

ISSUES

[1P]

Mr. Dillard raises two issues, which we rephrase as:

1. Whether the district court abused its discretion when it denied

Mr. Dillard’s motion for sentence reduction.

2. Whether the district court abused its discretion when it denied

Mr. Dillard’s motion to correct an illegal sentence.

FACTS

[IP] In 2021, the State charged Mr. Dillard with one count of sexual abuse of a minor in

the first degree, two counts of sexual abuse of a minor in the second degree, and two counts

of sexual abuse of a minor in the third degree. Following a plea agreement, Mr. Dillard

entered an Alford plea to two counts of sexual abuse of a minor in the third degree.1 The

State moved to dismiss the remaining charges. In May 2022, Mr. Dillard moved to

withdraw his plea. The district court heard arguments on the motion the next month during

the sentencing hearing and denied the motion. The court sentenced Mr. Dillard to serve

two concurrent terms of three to five years in a penitentiary. Mr. Dillard did not take a

direct appeal.

[f4] Mr. Dillard filed his first motion for sentence reduction in November 2022. He

requested his sentence be reduced to probation or a term of eighteen to thirty-six months.

The district court denied the motion. Mr. Dillard did not appeal this denial.

[f5] In January 2023, Mr. Dillard filed his second motion for sentence reduction. He

requested that the court reduce his sentence to a term of two to four years. Mr. Dillard

asserted—as he did in his first motion—that a reduction was justified because the court

had incomplete information at the time of sentencing, he only entered a plea to avoid

putting the minor children through trial, he was 72 years old and not a threat to anyone, he

was an armed services veteran with no prior felony convictions, he had been out on bond

for over a year without any problems, and he wanted to move out of state with his adult

daughter and son-in-law. He also asserted he was a minimum custody inmate at the

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An Alford plea involves the court’s acceptance of the plea when the defendant simultaneously professes

his innocence[.]” Anderle v. State, 2022 WY 161, f 5 n.l, 522 P.3d 151, 152 n.l (Wyo. 2022) (citations

omitted); see also North Carolina v. Alford, 400 U.S. 25, 38, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

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Wyoming Honor Farm and was not required to take any programming and did not meet

the requirements for such programming. The district court, again denied the motion. Mr.

Dillard timely appealed from the court’s denial.' ^

j^|6] The next month, Mr. Dillard filed a motion toxorrect,an illegal sentence,.claiming

the districtxourt violated his right to due prdcess xyjfeh'it.did riot allow him to; withdraw

his Alford plea and he received ineffective assistance of counsel. The district court denied

Mr. Dillard’s motion, and Mr. Dillard timely appealed. We consolidated-£dr. Dillard’s

appeals-.

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; The district court did not abuse its discretion when it denied Mr. Dillard’s motion

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for sentence reduction.

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^7«} ^W.R GriP. 35 (b) govemf.motionsTor. sentence, reduction and states, .in part

- A motion to reduce a sentence, m^y'he .made,: or:the court may

reduce a sentence without motion', within one year after the

sentence is imposed or, probation is revoked „ .-..(. The (cpurt cj n:. ;.f '1

•••■ shall determine the mdfion within a r^as.qnahlg time,, Changing'.■ - a 'sentence frorn ’ a sentence . of. incarceration. to,.a .grant; of r:.....v . n -1 >

probation shrill consiiiufe'a penriissible..reduction of.sentence v-; .. .wi.-1 ■ 'i

• under this subdivision^'5.This, court may. determine the motion'- .,

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with Or without ri hearing. "•.....

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W.R.Cr.P. 35(b).

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This Court reviews the <&&)' oif a motion for sentence reduction un^ep .the following

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The district court' has broad discretion in determining, whether ! ; •.

to reduce a defendant’s sentence, and we will not disturb its

determination absent an abuse of discretion. The sentencing .* •.V. V* '•

judge is in the best position td decide if a sentence piodification . .

is appropriate[ ] and is free to accept or reject information

submitted in support of a sentence reduction, at its discretion. : • - ;

. Our objective on review is riot to weigh the propriety of the t.

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sentence if it Tails within the .seritenpjng range;., we,pimply

consult the iriformationrin;'front bf’the court and consider ,

.whether there was a ratiqnaljbasis/ro'm which the district court \ , .( r.

■could reasoriribly draw its'conclusion. Because.) of tfie broad •

t- discretion given to the district court in sentencing, and our

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ma^tim^tareH “T' “* C°W has demonstrated .

appS3;^ss« avewdifficultbar&r“

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sentencing'decision on

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an abuse of discretion argument.

ST 2023) (quotin®"1'm Mr. tiillard Contends th

the Wyoming Honor Farm, implyTngtfimht t*'^ ha^ °rdered a Pr°gress report from

security inmate justifies a reduced sentence

P°sition as a minimumcourt to order a progress report Even if

d.Clt6S n° auth°nty requiring the

Dillard, it was still fee

a faVOrab!e reP°* ^ Mr.

reducing Mr. Dillard’s sentence ? HndJ ‘ln ltS dlscretl°n, as. a basis for

Further, “We have ,ong“e vtvS ii wtld e

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function of the district courts by finding an ahn^ b f ,nW1Se to USUIP what is Pr°Perly a '

reduction motion simply because it las suonorted*9ma>Xi

commendable conduct while incarcerated ” u PP «r o ^ evidence of a defendant’s

V. State, 2016 WY 28, flO.’iBSS P.3d 87^879 (^.2oi|) ^ * 'P4 (<)uotin«^

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(PSI) recommended probation?"Kiri ‘Dillard^

report

probation, but rather stated Mr''Dillard

"• -VP —dld not recommend

community supervision.” Further even ifthePsE^ 9 - “ approPriate candidate for

court is not bound to accept such mZm^d ?

?fended probation, the district

12, 211 P.3d 509, 513 (Wyo 20091

T‘ $ee Thomas v. State, 2009 WY 92, |

sentence on the recommendations of i PSlf

^°UP 1S not rePuired to base its

position to decide if a sentence modifier •' B ause the distnct court “is in the best

information submto

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-[ ] **is free to

or reject

^2^ P-2da« *074 (Quoting Jlait'v^State^Ol^WY^^lli ^ll'lVld^Q’rt't harper\ 8,

and citing Anderle, | 27, 522 P 3d at 1561 th^ a- ♦ ■ *423 P'3d 329’ 333 (Wy°- 2018)

when it denied Mr. Dillard’s tridiion for

‘‘“t”0* abuSe 'its discreti on

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AdditionallytheX ^ Sentence * any time,

manner provided herein

time and in the

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[112] Mr. Dillard asserts his original convictions were illegal because Wyoming law does

not permit, t^d.stncteourt to accept his Alford pte. The State contends we should refose

argument impermfssibly

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appeal alter the-.court’s judgment and sentence was entered. He failed to do so.

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r on his. 41ford plea does not challenge the district court’s sentence but instead challenges

his underlying convictions. We have stated:

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A motion to correct an illegal sentence presupposes a valid ' '

conviction and maymotfee-used to. re-examine- errors occurring. r

at trial or other proceedings prior to the imposition of sentence

Therefore ‘ issue's cbnberhingthe variditybf a conviction will

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not be addressed in the context of a Rule 35 motion.

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his conyKhons-is not reviewable -under; W,R,Gr.p. 35(a). Id Thedistrict court did not,

abuse its discretion in denying Mr. Dillard’s motion to correct an illegal sentence. “ ^

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[TJ15] Affirmed.

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