Donald Michael Bulisco v. The State of Wyoming

IN THE SUPREME COURT, STATE OF WYOMING
2023 WY 38APRIL TERM, A.D. 2023
April 26, 2023
DONALD MICHAEL BULISCO,
Appellant
(Defendant),
v. S-22-0253
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Carbon County
The Honorable Dawnessa A. Snyder, Judge
Representing Appellant:
Office of the State Public Defender: Diane Lozano, State Public Defender; Kirk A.
Morgan, Chief Appellate Counsel.
Representing Appellee:
Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney
General; Kristen R. Jones, Senior 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 typographical or other formal errors so correction may be made before final
publication in the permanent volume.
KAUTZ, Justice.
[¶1] Donald Michael Bulisco appeals from the district court’s denial of his motion for
sentence reduction. He argues the court abused its discretion by relying upon the State’s
misrepresentation of his criminal history when denying his motion. We affirm.
ISSUE
[¶2] Mr. Bulisco raises one issue:
Did the district court abuse its discretion by relying upon the State’s incorrect
assertion that he had a prior felony domestic assault conviction when it
denied his motion for sentence reduction?
FACTS
[¶3] In November 2021, Mr. Bulisco pled guilty pursuant to a plea agreement to felony
domestic battery, third offense in ten years, in violation of Wyo. Stat. Ann. § 6-2-511(a),
(b)(iii) (LexisNexis 2021), for punching his wife in the head and grabbing and pulling her
right breast. In exchange for Mr. Bulisco’s guilty plea, the State agreed to recommend a
sentence of not less than four years nor more than seven years imprisonment. At
sentencing, the State claimed a sentence of four to seven years in prison was appropriate
given the nature of the offense and Mr. Bulisco’s “extensive criminal history” which
included “multiple domestic assaults [and] a felony domestic assault.” Mr. Bulisco argued
for a term of probation. Among other things, he maintained his criminal history consisted
mostly of misdemeanors and demonstrated he “suffers from drug and alcohol issues.” The
district court decided probation was not an appropriate sentence, noting, inter alia, that Mr.
Bulisco’s criminal history included a prior felony domestic violence conviction. The court
sentenced him to three to six years imprisonment. Mr. Bulisco appealed but voluntarily
dismissed the appeal several months later.
[¶4] Mr. Bulisco filed a pro se motion for sentence reduction pursuant to Wyoming Rule
of Criminal Procedure (W.R.Cr.P.) 35(b). He requested the district court reduce his
sentence to two to six years imprisonment based on “family hardships,” his active
participation in domestic violence programming, his positive prison record, his ability to
have a stable income if released earlier, the need to help his family, and his remorse for his
actions. The State opposed the motion. It argued a defendant’s prior criminal activity was
highly relevant to the sentencing decision and claimed Mr. Bulisco had the following
domestic violence convictions: (1) a 2002 misdemeanor domestic assault conviction
against his former girlfriend; (2) a 2004 felony fourth-degree domestic assault conviction
against his former girlfriend; (3) a 2017 misdemeanor domestic battery conviction and a
2017 misdemeanor interference with an emergency call conviction, both involving his
wife; (4) a 2020 misdemeanor domestic battery, second offense in five years, conviction
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against his wife; and (5) a 2021 felony domestic battery, third offense in ten years,
conviction against his wife (current offense). The State maintained that due to Mr.
Bulisco’s “propensity to commit domestic violence against multiple long-term partners”
and the “very serious” nature of his current offense, “a reduction in sentence would be
contrary to the interest of justice.” The district court denied Mr. Bulisco’s motion for
sentence reduction without a hearing.
[¶5] Mr. Bulisco filed a reply to the State’s response to his motion for sentence reduction
four days after the district court denied his motion. Relevant here, he claimed he had “no
prior felony record even [though] the [State’s] response says he does” and maintained his
only felony conviction was for the current offense. Several days later, he filed this appeal
challenging the district court’s denial of his motion for sentence reduction. While this
appeal was pending, the State responded in the district court to Mr. Bulisco’s reply, stating
it had “re-review[ed]” Mr. Bulisco’s Presentence Investigation Report (PSIR) and “it does
appear that though the top of [the] offense table shows [he] was convicted of Domestic
Assault – 4th Degree (F) in Clackamas County Circuit Court [in Oregon] Docket Number
CR0501257 with an offense date of 12/29/04, further review of the table actually shows
[he] was convicted of a [m]isdemeanor and the remaining counts (including the felony)
were dismissed pursuant to plea agreement.” It concluded: “The State believes it is
appropriate to bring this information to the Court’s attention to correct any errors in the
record due to the State’s initial response; however, the State does believe [Mr. Bulisco]’s
sentence is appropriate. [Mr. Bulisco] has shown a consistent propensity to commit acts
of domestic violence against his significant others and a reduction in sentence would not
be appropriate.” The district court took no action regarding Mr. Bulisco’s reply or the
State’s response to that reply.
STANDARD OF REVIEW
[¶6] The denial of a motion for sentence reduction is reviewed for abuse of
discretion. Eckdahl v. State, 2011 WY 152, ¶ 16, 264 P.3d 22, 27 (Wyo.
2011). The district court’s decision is given considerable deference unless
no rational basis exists for its conclusion. Mack v. State, 7 P.3d 899, 900
(Wyo. 2000).
Boucher v. State, 2012 WY 145, ¶ 6, 288 P.3d 427, 429 (Wyo. 2012).
DISCUSSION
[¶7] Mr. Bulisco claims the district court abused its discretion by relying upon inaccurate
information provided by the State, i.e., that he had a prior felony conviction for fourth-
degree domestic assault, when denying his motion for sentence reduction. He requests we
remand the matter to the district court to allow it to consider his motion anew, based on
accurate information. The State concedes on appeal (as it did in the district court) that it
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misstated Mr. Bulisco’s criminal history to the district court and admits due process
requires a court to consider only accurate information when determining whether to reduce
a sentence. However, it maintains Mr. Bulisco has not met his burden of showing the
district court actually relied upon the inaccurate information.
[¶8] We are not convinced that Mr. Bulisco did not have a prior felony conviction for
fourth-degree domestic assault. The PSIR (which appears to be the only document relied
upon by the State) contains a table for each of Mr. Bulisco’s prior convictions. Relevant
here, the table for Mr. Bulisco’s December 29, 2004, offense against his former girlfriend
noted the “Convicted Offense & Type (M/F)” was “Domestic Assault-4th Degree (F).”
With respect to the “Disposition and Date” of this conviction, the table provided in relevant
part:
7/11/2005, Arrested on warrant.
10/20/2005, Guilty. Sentenced to six months jail and 36
months probation, fines/fees of $1137.00. Conditions include
completion of a substance abuse evaluation, anger
management and domestic batterer’s intensive program. Per
plea agreement, other charges of Possession of a Controlled
Substance (M), Harassment (M) and Domestic Assault-4th
Degree (F) were dismissed . . . .
(Emphasis added). It appears that with respect to his December 29, 2004, actions, Mr.
Bulisco was charged with two counts of felony fourth-degree domestic assault, one count
of misdemeanor possession of a controlled substance, and one count of misdemeanor
harassment. While one count of felony fourth-degree domestic assault was dismissed, he
was convicted of the other.1
[¶9] In the PSIR table, the probation officer stated “[v]erification [was] [r]equired”
concerning the December 29, 2004, offense and she had “requested a copy of the report”
but had “not received the information as of the submission of this [PSIR].” However, in
the “Summary and Sentencing Recommendation” section of the PSIR, the probation officer
stated: “[Mr. Bulisco]’s criminal history consists of Theft, Theft – 2nd Degree X 2, Theft
– 3rd Degree, misdemeanor Domestic Assault x 3, Forgery and felony Domestic Assault.
[Mr. Bulisco] reports that he was unaware of being convicted of the prior felony of
Domestic Assault; however, records received from the sentencing Court verify this
information.” (Emphasis added). At sentencing, Mr. Bulisco did not object to the PSIR
for misstating his criminal history and argued only that “most of” his criminal history
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Oregon law apparently classifies this fourth-degree domestic assault as a felony because Mr. Bulisco had
a previous domestic assault conviction against the same victim (his former girlfriend). See Or. Rev. Stat. §
163.160(1), (3), (4) (stating fourth-degree assault constituting domestic violence is a Class C felony if the
defendant has a previous conviction for first, second, third, or fourth degree assault “and the victim in the
previous conviction is the same person who is the victim of the current crime”).
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consisted of misdemeanors. Nor did he object when the district court noted at sentencing
that he had “a prior felony domestic violence conviction.” Thus, the record does not
definitively demonstrate the district court had inaccurate information when it denied Mr.
Bulisco’s motion for sentence reduction. In any event, even if the information was
inaccurate and Mr. Bulisco did not have a prior felony fourth-degree domestic assault
conviction, the district court did not abuse its discretion by denying his motion for sentence
reduction because Mr. Bulisco has not shown that the court, in fact, relied upon the
inaccurate information.
[¶10] Rule 35 allows a defendant to seek a reduction in his sentence within one year of
the original sentence becoming final. Rule 35(a), (b). “The purpose of Rule 35 ‘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.’” Boucher, ¶ 10, 288 P.3d at 430
(quoting Patrick v. State, 2005 WY 32, ¶ 9, 108 P.3d 838, 841 (Wyo. 2005), and Nelson v.
State, 733 P.2d 1034, 1035 (Wyo. 1987)). “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.” Id. (citing
Capellen v. State, 2007 WY 107, ¶ 29, 161 P.3d 1076, 1084 (Wyo. 2007), and Hodgins v.
State, 1 P.3d 1259, 1262 (Wyo. 2000)). Due process, however, “requires that the court
consider only accurate information in imposing sentence.” Sandoval v. State, 2009 WY
121, ¶ 8, 217 P.3d 393, 395 (Wyo. 2009) (citing Manes v. State, 2004 WY 70, ¶ 9, 92 P.3d
289, 292 (Wyo. 2004)). See also, Hubbard v. State, 2008 WY 12, ¶ 24, 175 P.3d 625, 630
(Wyo. 2008) (“[A] sentencing decision cannot be based upon unreliable information,
undocumented information, or inaccurate information[.]”) (citation omitted). We have
applied this same principle to a district court’s consideration of a motion for sentence
reduction. Sanchez v. State, 2013 WY 159, ¶¶ 16-17, 314 P.3d 1177, 1180-81 (Wyo. 2013).
“Nevertheless, a showing that inaccurate information was presented to the court will not
necessarily justify a reversal; ‘the defendant must demonstrate that the trial court relied
upon the statements . . . to prevail.’” Sandoval, ¶ 8, 217 P.3d at 395-96 (quotingManes, ¶
9, 92 P.3d at 292, and citing Hubbard, ¶ 19, 175 P.3d at 629).
[¶11] Mr. Bulisco admits it is “difficult . . . in the present case” for him to meet his burden
of showing the district court relied upon the State’s misrepresentation of his criminal
history given the court did not articulate specific grounds for denying his motion for
sentence reduction. However, because the district court stated it had reviewed the State’s
response when denying his motion and the State’s response contained the
misrepresentation, he claims the misrepresentation “must have conceivably gone into its
decision.” He also points out that the district court was obviously not aware that the current
offense was his first felony domestic violence conviction because it stated at sentencing
that he had a prior felony domestic violence conviction.
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[¶12] The record reveals the district court reviewed Mr. Bulisco’s motion for sentence
reduction and the State’s response and was “otherwise well-advised in the premises” prior
to denying the motion for sentence reduction. It does not indicate, however, what
information the court relied upon when denying the motion, let alone that the court relied
upon the State’s misrepresentation that Mr. Bulisco had a prior felony fourth-degree
domestic assault conviction when denying the motion. Moreover, while the district court
reviewed the State’s response to Mr. Bulisco’s motion and the State’s response contained
the misrepresentation, the court also had Mr. Bulisco’s PSIR which, according to the
parties, accurately stated his criminal record. See Sanchez, ¶ 12, 314 P.3d at 1180 (finding
district court did not abuse its discretion by denying Mr. Sanchez’s motion for sentence
reduction; “nothing in the record indicates the district court relied on [the State’s inartful
statement that the gaps in Mr. Sanchez’s criminal history stem from his incarcerations] in
reaching its decision” and “[i]n fact, the district court not only had the parties’ briefs to
consider, but additional material such as the appellant’s [PSIR]”). Because Mr. Bulisco
has failed to show the district court actually relied upon the State’s misrepresentation of
his criminal history when denying his motion for sentence reduction, we cannot say the
court abused its discretion by denying the motion.
CONCLUSION
[¶13] We affirm the district court’s denial of Mr. Bulisco’s motion for sentence reduction.
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