Cooley v. State

Cooley v. State
1994 WY 137
885 P.2d 875
Case Number: 94-236
Decided: 12/07/1994
Supreme Court of Wyoming

Eldon Frederick COOLEY,

Appellant (Defendant),

 v.

 The STATE of Wyoming,

Appellee (Plaintiff).

Appeal from the District Court of Goshen County, Keith G. Kautz, Judge.

Public Defender Program: Leonard D. Munker, State Public Defender, Deborah Cornia, Appellate Counsel, Diane M. Lozano, Asst. Public Defender, Cheyenne, for appellant.

Joseph B. Meyer, Atty. Gen., D. Michael Pauling, Sr. Asst. Atty. Gen., Cheyenne, for appellee.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.

PER CURIAM.

[¶1.]     Appellant Eldon Cooley pled guilty to a charge of taking indecent liberties with a child. WYO. STAT. § 14-3-105 (1994). Cooley had been convicted of other felonies on two previous occasions. Upon the suggestion of the prosecution, without objection of defense counsel, and with the sanction of the district court, Cooley was sentenced as an habitual criminal under WYO. STAT. § 6-10-201 (1988). Section 6-10-201(a) is quite exact in specifying that the threshold circumstance for applying the habitual criminal sentence is conviction of a "violent felony." Indecent liberties is not a "violent felony" as that phrase is defined by Wyoming law. WYO. STAT. § 6-1-104(a)(xii) (1988 & Supp. 1994).

[¶2.]     Appellant contends the sentence imposed is illegal and results from ineffective assistance of counsel. Appellee State of Wyoming, by documents filed on November 17, 1994, concedes that the sentence imposed is illegal. We commend the Attorney General's directness.

[¶3.]     In view of these circumstances, we acknowledge that the sentence imposed was illegal and remand to the district court for imposition of a proper sentence and such other proceedings as may be required.