Paul Harper v. The State of Wyoming , 2023 WY 49 ( 2023 )

THE SUPREME COURT, STATE OF WYOMING
2023 WY 49APRIL TERM, A.D. 2023
May 24, 2023
PAUL HARPER,
Appellant
(Defendant),
v. S-22-0300
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Albany County
The Honorable Tori R.A. Kricken, Judge
Representing Appellant:
Paul Harper, pro se.
Representing Appellee:
Bridget Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen
R. Jones, Senior Assistant Attorney General; and Donovan Burton, Assistant
Attorney General.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY and FENN, 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.
FENN, Justice.
[¶1] Paul Harper appeals from the district court’s denial of his motion for sentence
reduction. We affirm.
ISSUE
[¶2] Mr. Harper presents several issues on appeal, which are unrelated to the district
court’s decision to deny his motion for a sentence reduction. We restate the dispositive
issue as: Did the district court abuse its discretion when it denied Mr. Harper’s motion for
sentence reduction?
FACTS
[¶3] Paul Harper entered into a plea agreement and pled guilty to aggravated assault and
battery for striking the victim with an ornamental sword, breaking his arm, and causing
massive bleeding. The plea agreement provided the parties would jointly recommend a
prison sentence to be suspended in lieu of a nine-month split sentence followed by three
years supervised probation. The district court rejected the jointly recommended sentence
and sentenced Mr. Harper to a period of incarceration for not less than four years nor more
than eight years, with 161 days of credit for time served. Mr. Harper appealed the judgment
and sentence but later moved to voluntarily dismiss his appeal. Mr. Harper executed a
voluntary waiver of his right to appeal and filed it with this Court. 1 We entered an order
dismissing his appeal on January 27, 2022.2
[¶4] On June 8, 2022, Mr. Harper filed a motion for a sentence reduction pursuant to
Wyoming Rule of Criminal Procedure (W.R.Cr.P.) 35(b) (LexisNexis 2022). Mr. Harper
requested the district court reduce his sentence to not less than three years nor more than
six years. In support of his motion, Mr. Harper contended he is serving his sentence at the
Wyoming Honor Farm, a minimum-security facility, and has remained discipline-free
since the beginning of his incarceration. He stated he works in a trusted position at the
facility and has had no issues with his performance. Mr. Harper also asserted he voluntarily
took advantage of educational programs while incarcerated. He contended he accepted
responsibility for his actions and was not a “threat of reoffending.” The district court
denied Mr. Harper’s motion for sentence reduction. This timely appeal followed.
STANDARD OF REVIEW
[¶5] We review a district court’s ruling on a W.R.Cr.P. 35(b) motion for sentence
1
Harper v. State, S-21-0283 (Wyo. Jan. 25, 2022) (motion for voluntary dismissal of appeal and waiver of
appeal).
2
Harper v. State, S-21-0283 (Wyo. Jan. 27, 2022) (order dismissing appeal).
1
reduction as follows:
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
judge is in the best position to decide if a sentence modification
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 not to weigh the propriety of the
sentence if it falls within the sentencing range; we simply
consult the information in front of the court and consider
whether there was a rational basis from which the district court
could reasonably draw its conclusion. Because of the broad
discretion given to the district court in sentencing, and our
significant deference on appeal, this Court has demonstrated
many times in recent years that it is a very difficult bar for an
appellant to leap seeking to overturn a sentencing decision on
an abuse of discretion argument.
Mitchell v. State, 2020 WY 131, ¶ 7, 473 P.3d 1255, 1257 (Wyo. 2020) (quoting Barrowes
v. State, 2019 WY 8, ¶ 12, 432 P.3d 1261, 1266 (Wyo. 2019)).
DISCUSSION
[¶6] “A motion to reduce a sentence may be made, or the court may reduce a sentence
without motion, within one year after the sentence is imposed[.]” W.R.Cr.P. 35(b). The
purpose of a motion for sentence reduction “is to give a convicted defendant a second round
before the sentencing judge (a second bite at the apple as it were) and to give the judge the
opportunity to reconsider the original sentence in light of any further information about the
defendant.” Mitchell, 2020 WY 131, ¶ 11, 473 P.3d at 1258 (quoting Barrowes, 2019 WY
8, ¶ 16, 432 P.3d at 1267). “A motion for a sentence reduction cannot be used to attack the
validity of a conviction, nor may it be used as a substitute for a properly filed appeal.”
Mack v. State, 7 P.3d 899, 900 (Wyo. 2000) (citing Smith v. State, 969 P.2d 1136, 1138
(Wyo. 1998)); see also Leners v. State, 2022 WY 127, ¶ 28, 518 P.3d 686, 696 (Wyo. 2022)
(quoting Silva v. State, 2014 WY 155, ¶ 10, 338 P.3d 934, 937 (Wyo. 2014)). The narrow
function of Rule 35(b) is “not to re-examine errors occurring at the trial or other
proceedings prior to the imposition of the sentence.” Smith, 969 P.2d at 1137–38 (quoting
Ellett v. State, 883 P.2d 940, 942 (Wyo. 1994)); Leners, ¶¶ 28–30, 518 P.3d at 695–96)
(finding a claim of factual innocence and an Eighth Amendment claim against the
Wyoming Department of Corrections are not cognizable claims under a motion for
sentence reduction).
2
[¶7] In his motion for sentence reduction, Mr. Harper requested the district court reduce
his sentence because he has remained discipline-free, works in a trusted position at the
Wyoming Honor Farm, and has completed programs that will benefit him upon his release
from incarceration. On appeal, Mr. Harper raises arguments that were not presented to the
district court below and undoubtedly have no bearing on a discretionary decision to reduce
a sentence under Rule 35(b). He contends on appeal the statements in the affidavit of
probable cause and evidence presented during his preliminary hearing are perjured
testimony the county attorney was required to correct. Mr. Harper’s appellate brief
contains no explanation of how his current arguments relate to his motion for sentence
reduction, and we are unable to perceive any connection. In short, Mr. Harper failed to
provide cogent argument, and his claims are not proper under a Rule 35(b) motion. We
decline to address Mr. Harper’s claims because they are not properly before this Court.
Pier v. State, 2019 WY 3, ¶ 26, 432 P.3d 890, 898 (Wyo. 2019) (“We do not address
arguments not supported by cogent argument or citation to pertinent authority.”); Silva,
2014 WY 155, ¶ 10, 338 P.3d at 937 (declining to address new arguments raised for the
first time on an appeal from a district court’s decision on a motion for sentence reduction);
Mack, 7 P.3d at 900 (declining to address claims attacking the validity of a conviction on
an appeal from a district court’s decision on a motion for sentence reduction).
[¶8] Considering the arguments Mr. Harper presented to the district court below, we find
the district court did not abuse its discretion when it denied Mr. Harper’s motion for
sentence reduction. We commend Mr. Harper for remaining discipline-free, pursuing work
and educational opportunities, and accepting responsibility for his actions. While we
encourage Mr. Harper’s productive behavior, that alone does not provide a basis to reverse
the district court’s decision. “We have long held the view that it would be unwise to usurp
what is properly a function of the district courts by finding an abuse of discretion in denying
a sentence reduction motion simply because it was supported by evidence of a defendant’s
commendable conduct while incarcerated.” Hart v. State, 2016 WY 28, ¶ 10, 368 P.3d 877,
879 (Wyo. 2016) (quoting Conkle v. State, 2013 WY 1, ¶ 14, 291 P.3d 313, 315 (Wyo.
2013)). We do not substitute our judgment for that of the district court because the district
court “is in the best position to decide if a sentence modification is appropriate[] and is free
to accept or reject information submitted in support of a sentence reduction at its
discretion.” Hall v. State, 2018 WY 91, ¶ 18, 423 P.3d 329, 333 (Wyo. 2018) (quoting
Hart, ¶ 7, 368 P.3d at 878); Anderle v. State, 2022 WY 161, ¶ 27, 522 P.3d 151, 156 (Wyo.
2022). We affirm the district court’s order denying Mr. Harper’s motion for sentence
reduction.
[¶9] Affirmed.
3