Mark W. Hitz v. The State of Wyoming

IN THE SUPREME COURT, STATE OF WYOMING

2014 WY 58

APRIL TERM, A.D. 2014

May 7, 2014

MARK W. HITZ,

Appellant
(Defendant),

v. S-13-0190

THE STATE OF WYOMING,

Appellee
(Plaintiff).

Appeal from the District Court of Laramie County
The Honorable Steven K. Sharpe, Judge

Representing Appellant:
Mark W. Hitz, pro se.

Representing Appellee:
Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
Attorney General; and Caitlin Wallace, Assistant Attorney General.

Before KITE, C.J., and HILL, BURKE, and FOX, JJ., and WALDRIP, D.J.

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.
HILL, Justice.

[¶1] Mark Hitz was placed on probation for a felony larceny conviction, subject to
placement in an adult community correctional facility. A little over a month after that
placement, Hitz checked out of the facility and failed to return. Hitz pled guilty to felony
escape from official detention, his probation was revoked, and he was sentenced on both
the larceny and escape convictions.

[¶2] Approximately a year and a half after the district court reinstated Hitz’s felony
larceny sentence and imposed a sentence for the escape conviction, Hitz filed a combined
Rule 35 motion for sentence reduction and motion for injunction. Through the motion
for injunction, Hitz sought an order enjoining the Wyoming Board of Parole from
interpreting Wyoming law in a manner that would preclude him from parole eligibility.
The district court ordered that it lacked authority to rule on Hitz’s Rule 35 motion on the
ground that the motion was untimely, depriving the court of jurisdiction. The court also
ruled that it lacked jurisdiction to review the Board of Parole’s interpretation of
Wyoming law or to consider Hitz’s request for injunctive relief.

[¶3] We agree that the district court lacked jurisdiction to consider Hitz’s combined
motion. Because the district court lacked jurisdiction, this Court likewise is without
jurisdiction to consider this appeal. The appeal is thus dismissed.

ISSUE

[¶4] Hitz submitted a pro se appeal and did not include a statement of the issue. The
State framed the issue on appeal as follows:

After a criminal case concludes, district courts retain limited
jurisdiction over the defendant. They can only consider the
motions provided for in the Rules of Criminal Procedure and,
for even these motions, the courts are restricted by the
parameters the Rules establish. For example, a motion for
sentence reduction must be filed within one year of
sentencing. Did the district court properly deny Hitz’s
motion for sentence reduction as untimely and correctly deny
his motion for lack of jurisdiction?

FACTS

[¶5] On December 23, 2010, Hitz pled guilty to felony larceny and was sentenced to a
prison term of four to six years. Hitz’s prison sentence was suspended in favor of seven
years of supervised probation, subject to the condition that he enroll in an adult

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community correctional facility, the Cheyenne Transitional Center (CTC), that he obey
all CTC rules, and that he successfully complete the CTC program.

[¶6] On March 31, 2011, Hitz began serving his sentence. On May 11, 2011, Hitz
signed out of the CTC to attend a group session, failed to return to the facility, and was
thereafter charged with felony escape. Hitz pled guilty to the escape charge, and pursuant
to a plea agreement, the district court revoked Hitz’s probation and imposed the
previously suspended four to six-year prison sentence. On the escape conviction, the
court sentenced Hitz to a term of one to three years imprisonment, to run concurrent with
the larceny sentence.

[¶7] On April 25, 2013, Hitz filed a document entitled “Motion for Sentence Reduction
35(a) and Motion for Injunction.” Through his combined motion, Hitz asked the district
court to reduce his sentence on the escape charge and to enjoin the Wyoming Board of
Parole from interpreting Wyo. Stat. Ann. § 7-13-402(b)(ii), “[a] prisoner is not eligible
for parole on a sentence if, while serving that sentence he has . . . escaped . . . from any
institution,” in a manner that would bar Hitz from being granted parole. The district
court denied Hitz’s motion for a sentence reduction, holding that the court lacked
authority to consider the motion because Hitz filed it outside the one-year period allowed
for sentence reduction motions. The court also ruled that it lacked jurisdiction to review
the Board of Parole’s statutory interpretation or to consider Hitz’s motion for an
injunction.

STANDARD OF REVIEW

[¶8] Whether subject matter jurisdiction exists is a question of law that this Court
reviews de novo. Kurtenbach v. State, 2012 WY 162, ¶ 10, 290 P.3d 1101, 1104 (Wyo.
2012); Neidlinger v. State, 2010 WY 54, ¶ 8, 230 P.3d 306, 308 (Wyo. 2010).

DISCUSSION

A. Motion for Sentence Reduction

[¶9] Motions to correct or reduce a sentence are governed by Rule 35 of the Wyoming
Rules of Criminal Procedure, which provides:

(a) Correction. -- The court may correct an illegal
sentence at any time. Additionally the court may correct,
reduce, or modify a sentence within the time and in the
manner provided herein for the reduction of sentence.
(b) Reduction. -- A motion to reduce a sentence may
be made, or the court may reduce a sentence without motion,

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within one year after the sentence is imposed or probation is
revoked, or within one year after receipt by the court of a
mandate issued upon affirmance of the judgment or dismissal
of the appeal, or within one year after entry of any order or
judgment of the Wyoming Supreme Court denying review of,
or having the effect of upholding, a judgment of conviction or
probation revocation. The court shall determine the motion
within a reasonable time. Changing a sentence from a
sentence of incarceration to a grant of probation shall
constitute a permissible reduction of sentence under this
subdivision. The court may determine the motion with or
without a hearing.

W.R.Cr.P. 35.

[¶10] On November 17, 2011, the district court entered orders sentencing Hitz in
accordance with the plea agreement by which Hitz pled guilty to felony escape and
agreed to the revocation of his probation on his felony larceny conviction. Hitz did not
appeal the sentencing orders.

[¶11] On April 25, 2013, Hitz filed his motion for sentence reduction. Hitz’s motion
was filed well after the one year time period allowed for a motion to reduce a sentence.
This Court has held that “[i]f a motion to reduce a sentence is filed outside of the
prescribed time limits, the district court is deprived of jurisdiction to hear the motion.”
Tomlin v. State, 2001 WY 121, ¶ 6, 35 P.3d 1255, 1256 (Wyo. 2001) (citing Reese v.
State, 910 P.2d 1347, 1348 (Wyo.1996)). We thus agree with the district court that it was
without jurisdiction to consider Hitz’s motion for sentence reduction.

[¶12] In an effort to avoid the time restrictions on a motion for sentence reduction, Hitz
contends on appeal that his motion was intended to be a motion to correct an illegal
sentence. The record does not support this argument. Hitz’s motion did not assert that
the district court imposed an illegal sentence and was instead focused on the actions of
the Wyoming Board of Parole. Moreover, through his motion, Hitz specifically
requested a sentence reduction and cited “mitigating facts” to support the requested
reduction, including his behavioral record while incarcerated, his institutional
employment, his efforts at restitution, his enrollment in educational programs, and his
completion of case plan requirements. The motion was presented as a motion for
sentence reduction and not as a motion to correct an illegal sentence.

[¶13] The district court correctly concluded that it was without jurisdiction to rule on
Hitz’s motion for sentence reduction on the basis that the motion was filed outside the
time limits prescribed by Rule 35(b).

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B. Motion for Injunction

[¶14] In his second request for relief under his combined motion, Hitz asked the district
court to enjoin the Board of Parole from interpreting its statutory authority in a manner
that would preclude Hitz from parole eligibility. We again agree with the district court
that it was without jurisdiction to rule on Hitz’s request for injunctive relief.

[¶15] We have held:

Once a defendant’s conviction is final because he has
exercised his right to appeal, or the time for appeal has
expired, the district court no longer has authority over the
case. The district court only has jurisdiction to act if the case
has been remanded or if a specific, express exception
conferring jurisdiction is created by a rule or statute.

Kurtenbach, ¶ 11, 290 P.3d at 1104 (quoting Neidlinger, ¶ 9, 230 P.3d at 308); see also
Lee v. State, 2007 WY 81, ¶ 6, 157 P.3d 947, 949 (Wyo. 2007); Nixon v. State, 2002 WY
118, ¶ 13, 51 P.3d 851, 854 (Wyo. 2002).

[¶16] Hitz’s motion for injunctive relief was not directed at correcting an illegality in the
sentence entered by the district court, and was thus not a motion provided for by Rule
35(a). Nor is the motion one that is otherwise expressly provided for by rule or statute.
The district court therefore properly ruled that it was without jurisdiction to consider the
motion. See Kurtenbach, ¶ 13, 290 P.3d at 1104 (holding district court lacked
jurisdiction to consider “Motion to Execute Sentence” because motion was not one to
correct an illegal sentence or a motion otherwise expressly provided for by rule or
statute); Lee, ¶ 6, 157 P.3d at 949 (holding district court lacked jurisdiction because “the
document before the district court in this instance is not a vehicle for any recognized
legal remedy under [the] rules”).

[¶17] Because the district court lacked jurisdiction to rule on any part of Hitz’s motion,
this Court is likewise without jurisdiction to consider Hitz’s appeal.

Because the district court lacked subject matter jurisdiction to
consider Kurtenbach’s “Motion to Execute Sentence,” this
Court is without jurisdiction to consider this appeal. See
Neidlinger, ¶ 10, 230 P.3d at 309 (“This Court enjoys no
greater jurisdiction than the district court in such matters.”).

Kurtenbach, ¶ 13, 290 P.3d at 1104.

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CONCLUSION

[¶18] We conclude that the district court was without subject matter jurisdiction to
consider Hitz’s combined motion for sentence reduction and injunctive relief and that,
consequently, this Court is without jurisdiction to consider this appeal. The appeal is
dismissed.