Dharminder Vir Sen , 2014 Wyo. LEXIS 170 ( 2014 )

IN THE SUPREME COURT, STATE OF WYOMING
2014 WY 148October Term, A.D. 2014
November 19, 2014
DHARMINDER VIR SEN,
Appellant
(Defendant),
v. S-14-0113
THE STATE OF WYOMING,
Appellee
(Plaintiff).
ORDER REMANDING FOR RESENTENCING
[¶1] This matter came before the Court upon a “Stipulated Motion to Remand for
New Sentencing Hearing,” e-filed herein October 31, 2014. After a careful review of the
motion and the file, this Court finds as follows. This Court agrees with the parties that
this matter should be remanded for resentencing in light of this Court’s recent opinion in
Bear Cloud v. State, 2014 WY 113, 334 P.3d 132 (Wyo. 2014). There, this Court held
that “the teachings of the Roper/Graham/Miller trilogy require sentencing courts to
provide an individualized sentencing hearing to weigh the factors for determining a
juvenile’s ‘diminished culpability and greater prospects for reform’ when, as here, the
aggregate sentences result in the functional equivalent of life without parole.” Id., ¶ 33,
334 P.3d at 141-42. Based on the district court’s statements on the record, this Court
agrees with the parties that the district court did not consider the analysis from Miller v.
Alabama, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) “in light of the entire sentencing
package.” Bear Cloud, supra, at ¶ 48. This Court agrees that Appellant should be
resentenced based on the considerations noted in Bear Cloud.
[¶2] This Court also finds that it should clarify a matter with regard to parole
eligibility. When this Court initially reversed Appellant’s and Mr. Bear Cloud’s
sentences, this Court instructed that, if a sentence of life according to law was imposed,
the district court must specify a period of parole ineligibility. See Bear Cloud v. State,
2013 WY 18, ¶ 47, 294 P.3d 36, 47-48 (Wyo. 2013) (“because the current statutory
scheme provides no other method by which to determine parole eligibility, we hold that
when a trial court imposes a sentence of life imprisonment according to law upon a
juvenile homicide offender, the trial court must also pronounce a specific period of time
which must pass before the juvenile becomes parole eligible.”). The district court here
did as instructed. It imposed a sentence of life according to law, with the specification
that Appellant was eligible for parole on that sentence after 35 years. This Court
concludes that, at the resentencing required by this order, the district court is neither
required nor authorized to specify a period of parole ineligibility.
[¶3] Normally, this Court would not address this parole eligibility issue, inasmuch as
the parties did not include the issue in their stipulation (although Appellant raised the
issue in his brief). However, this Court will address the issue here, for two reasons. For
one, the State, in its brief, concedes Appellant’s life sentence is subject to parole
eligibility after 25 years. In its brief,
The State agrees that, at the time Sen was resentenced and currently,
Wyoming law provides that any person currently serving a sentence of life
according to law, who was sentenced as a juvenile, may be paroled after
serving twenty-five years of that life sentence if otherwise eligible. Sen
will benefit from the law [Wyo. Stat. Ann. § 6-10-301(c)], regardless of the
district court’s statement in the Judgment and Sentence.
Brief of Appellee, p. 32. Second, this Court recently clarified that “[a]ny juvenile
offender sentenced to life imprisonment under the former law is now, by operation of the
amended parole statutes, serving a sentence of life imprisonment with eligibility for
parole in twenty-five years, and a juvenile offender serving such a sentence is not
required to file a Rule 35 motion to implement that revised sentence.” State v. Mares,
2014 WY 126, ¶ 26, 335 P.3d 487, 498 (Wyo. 2014). Based on the foregoing, this Court
concludes the district court is neither authorized nor required to establish a period for
parole ineligibility on a sentence of life according to law. It is, therefore,
[¶4] ORDERED that this Court hereby vacates the sentences imposed in the district
court’s “Judgment and Sentence” entered on March 19, 2014 in Sheridan County District
Court Docket CR-2009-54. This matter is remanded to the district court for resentencing
on all counts, consistent with this order; and it is further
[¶5] ORDERED that the oral argument setting in this matter is hereby vacated. The
Court retains no jurisdiction over this matter.
[¶6] DATED this 19th day of November, 2014.
BY THE COURT:
/s/
E. JAMES BURKE
Chief Justice