IN THE SUPREME COURT, STATE OF WYOMING

2013 WY 117

 APRIL TERM, A.D. 2013

September 30, 2013

JOEL RANDY FERGUSON,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

No. S-12-0278

Appeal from the District Court of Laramie County

The Honorable Thomas T.C. Campbell, Judge

Representing Appellant:

Office of the State Public Defender: Diane M. Lozano, State Public Defender; 

Patricia L. Bennett, Assistant Public Defender. Argument by Ms. Bennett.

Representing Appellee:

Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney 

General; Jeffrey S. Pope, Assistant Attorney General; Jennifer E. Zissou, Assistant 

Attorney General. Argument by Ms. Zissou.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, 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.

1

BURKE, Justice.

[¶1] Appellant, Joel Randy Ferguson, challenges the district court’s order granting, in 

part, and denying, in part, his motion to correct an illegal sentence. We conclude that 

Appellant’s claims are barred by the doctrine of res judicata, and we affirm.

ISSUES

[¶2] Appellant presents the following issues:

1. Whether the district court imposed an illegal sentence in 

violation of Mr. Ferguson’s rights to due process of law.

2. Whether the district court imposed an illegal sentence in 

violation of Mr. Ferguson’s rights to be protected from 

double jeopardy.

The State raises an additional issue:

Does res judicata bar Mr. Ferguson’s current appeal of the 

legality of his sentence?

FACTS

[¶3] In 2005, Appellant was convicted of eleven counts of burglary relating to breakins at various businesses in Cheyenne. At his initial arraignment, Appellant peremptorily 

disqualified District Judge Nicholas G. Kalokathis under W.R.Cr.P. 21.1(a), and the case 

was assigned to District Judge Peter G. Arnold. After presiding over the trial, Judge 

Arnold recused himself from the sentencing proceedings in order to avoid the potential

perception of bias resulting from his former attorney-client relationship with several of 

the victims. Judge Arnold assigned the case to Judge Kalokathis for sentencing. Judge 

Kalokathis proceeded to sentence Appellant to consecutive terms of 4 to 8 years for each 

of the convictions, for a total of 44 to 88 years. Perhaps as a result of the fact that the 

earlier motion to disqualify Judge Kalokathis was not reduced to writing, neither party 

realized, at the time, that the assignment to Judge Kalokathis was prohibited by the

peremptory disqualification.

[¶4] Approximately one month after sentencing Appellant, Judge Kalokathis 

recognized that he had previously been disqualified. Judge Kalokathis vacated 

Appellant’s sentence and assigned the case to District Judge Edward L. Grant for 

resentencing. Before the resentencing hearing, Appellant filed a motion for a new trial

alleging that Judge Arnold’s decision to recuse himself prior to sentencing indicated that 

Appellant had been deprived of a fair trial.
2

[¶5] After holding a separate sentencing hearing, Judge Grant sentenced Appellant to

consecutive terms of 8 to 10 years for Count I, 7 to 10 years for Count II, 5 to 7 years for 

Count III, and 4 to 6 years for Counts IV-XI, for a total of 52 to 75 years. Judge Grant 

explained that the sentences for Counts I through III reflected the severity of the impact 

of the crimes on the respective victims. At that hearing, Judge Grant also denied 

Appellant’s motion for a new trial, noting that it was untimely and that “even if it were 

not, it would be denied on its merits.”

[¶6] After Judge Grant entered the new judgment and sentence, Appellant challenged

the convictions in a direct appeal, claiming that (1) the district court had erred in denying 

his motion for a judgment of acquittal, and (2) the court had erred in admitting evidence 

of uncharged misconduct. We affirmed Appellant’s convictions in Ferguson v. State, 

2007 WY 157, 168 P.3d 476 (Wyo. 2007). As is evident from that opinion, Appellant 

did not raise any issue with respect to his resentencing.

 

[¶7] Following our decision affirming the convictions, Appellant asserted a number of 

collateral challenges to his sentence. In 2007, he filed a Motion for Sentence Reduction, 

which the district court denied. In 2010, Appellant filed a Petition for Post-Conviction 

Relief, asserting eight claims relating to ineffective assistance of appellate counsel. That 

motion was also denied. Finally, in August, 2012, Appellant filed the Motion to Correct 

Illegal Sentence at issue in this appeal. He asserted that Judge Grant improperly 

increased the original sentence in violation of his constitutional right to due process of 

law. He also contended that the order of restitution should be vacated because restitution 

was not included in the oral pronouncement of the sentence. The district court agreed 

that the order of restitution was illegal and vacated that order.1 The court denied 

Appellant’s due process claim. This timely appeal followed.

STANDARD OF REVIEW

[¶8] We apply the following standard of review to a district court’s decision to deny a 

motion to correct an illegal sentence:

This Court reviews a trial court’s denial of a motion to 

correct an illegal sentence by using an abuse of discretion 

standard. However, this discretion is limited to a 

determination by the trial court as to whether the sentence 

was legal or illegal. . . . An illegal sentence is one which 

 

1 The district court’s order vacating that part of Appellant’s sentence requiring payment of restitution is 

not at issue in this appeal.
3

exceeds statutory limits, imposes multiple terms of 

imprisonment for the same offense, or otherwise violates 

constitutions or the law. Whether a sentence is illegal is 

determined by referencing the applicable statute or 

constitutional provisions, and is subject to statutory 

interpretation. The determination of whether the appropriate 

rule was applied to a set of facts is a question of law, 

requiring de novo review.

Baker v. State, 2011 WY 123, ¶ 10, 260 P.3d 268, 271 (Wyo. 2011) (quoting McDaniel v. 

State, 2007 WY 125, ¶¶ 6-7, 163 P.3d 836, 838 (Wyo. 2007) (internal citations and 

punctuation omitted)). Whether a claim is barred by res judicata is also a question of 

law, reviewed de novo. Moore v. State, 2009 WY 108, ¶ 20, 215 P.3d 271, 276 (Wyo. 

2009). 

DISCUSSION

[¶9] Appellant contends that the sentence violates his constitutional due process and

double jeopardy protections. In his due process claim, Appellant contends he did not

receive due process because his sentence was motivated by vindictiveness. He claims 

that the increase in the minimum term of his sentence from the original sentence was not 

warranted by any identifiable conduct on his part, and that the “only explanation for this 

increase . . . is vindictive sentencing.” With respect to his double jeopardy claim, 

Appellant contends that because he had an expectation of finality in his original sentence 

“until he himself contested it,” the increased sentence violates double jeopardy 

protections against multiple punishments for the same offense. 

[¶10] The State responds that Appellant’s claims are barred by res judicata because they 

could have been raised six years ago in his direct appeal. The State also claims that 

because Appellant’s original sentence was entered without jurisdiction, making that 

sentence “utterly void and of no effect,” his sentence could not have constituted an 

“increase” with respect to the original sentence. The State further contends that 

Appellant had no expectation of finality in his sentence, precluding his double jeopardy 

claim, because Appellant initiated an appeal from his convictions.

[¶11] The doctrine of res judicata bars litigation of issues that were or could have been 

determined in a prior proceeding. Dax v. State, 2012 WY 40, ¶ 9, 272 P.3d 319, 321 

(Wyo. 2012). This Court has long held that motions to correct illegal sentences are 

subject to the principles of res judicata. Kurtenbach v. State, 2013 WY 80, ¶ 6, 304 P.3d 

939, 940 (Wyo. 2013). If a party fails to show good cause why an issue was not raised at 

an earlier opportunity, the Court may decline to consider the issue. Hamill v. State, 948 

P.2d 1356, 1358 (Wyo. 1997). We have routinely disposed of claims on res judicata

grounds without regard to whether the issue was raised before the district court. See, e.g., 
4

Kurtenbach, 304 P.3d 939; Lunden v. State, 2013 WY 35, 297 P.3d 121 (Wyo. 2013); 

Dax, 272 P.3d 319.

[¶12] In his reply brief to this Court, Appellant asserts, for the first time, that his due 

process and double jeopardy claims were overlooked in his direct appeal due to 

ineffective assistance of counsel. He contends that the alleged ineffectiveness constitutes 

“good cause” which excuses the failure to raise the issue earlier. Appellant has provided

no authority to support the assertion that ineffective assistance of counsel may constitute 

“good cause” for failure to raise an issue in an earlier proceeding. We note that we have 

previously held that “Failing to recognize the factual or legal basis for a claim or failing 

to raise a claim despite recognizing it does not constitute good cause for not bringing an 

issue to the court’s attention.” Winstead v. State, 2011 WY 137, ¶ 12, 261 P.3d 743, 746

(Wyo. 2011) (overruled in part on unrelated grounds by Sweets v. State, 2013 WY 98, ¶ 

2 n.1, 307 P.3d 860, 863 n.1 (Wyo. 2013)). Nonetheless, even if we were to hold that 

good cause for failure to raise an issue in an earlier proceeding could be established by a 

showing of ineffective assistance of counsel, we would be unable to find that Appellant 

has satisfied his burden.

[¶13] In order to demonstrate ineffective assistance of counsel, Appellant must show 

that (1) counsel’s performance was deficient, and that (2) counsel’s deficient performance 

prejudiced the defense. Gleason v. State, 2002 WY 161, ¶ 44, 57 P.3d 332, 346-47 

(Wyo. 2002). The failure to make the required showing of either deficient performance 

or prejudice will result in a finding that counsel was not ineffective. Osborne v. State, 

2012 WY 123, ¶ 19, 285 P.3d 248, 252 (Wyo. 2012). As discussed below, because 

neither of Appellant’s claims would prevail, we find no grounds to conclude that his 

counsel’s decision not to raise those claims constitutes deficient performance.

[¶14] We examined due process and double jeopardy protections as they relate to 

resentencing in Simonds v. State, 799 P.2d 1210, 1213 (Wyo. 1990). In that case, the 

defendant had been sentenced to concurrent terms of imprisonment following his 

convictions for aggravated burglary and interference with a peace officer. However, the 

defendant successfully challenged his aggravated burglary conviction on appeal, and we

remanded to the district court solely for resentencing on the lesser-included offense of 

simple burglary. Id., 799 P.2d at 1211. After remand, the trial court reduced the sentence 

originally imposed for interference with a peace officer, but ordered that sentence to be 

served consecutively with the sentence imposed for the defendant’s simple burglary 

conviction. Id. In the appeal from that decision, the defendant contended the district 

court violated his right against double jeopardy by ordering his sentence for interference 

with a peace officer to run consecutive to his burglary sentence. Id., 799 P.2d at 1212. 

We ultimately rejected the defendant’s double jeopardy claim, but held that absent “an 

acceptable rationale for the change, and factual data supporting that reasoning, 

affirmatively appear[ing] on the resentencing record,” the imposition of a heavier 

sentence on remand violated the defendant’s right to due process. Id., 799 P.2d at 1216. 
5

In doing so, we relied on the United States Supreme Court’s decision in North Carolina 

v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656 (1969), overruled in 

part by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989):

The Court . . . indicated that the imposition of a 

heavier sentence upon reconviction, to the extent that it may 

have been motivated by vindictiveness for the defendant’s 

successful exercise of his right to appeal, does implicate due 

process concerns. The Court observed that the threat of being 

penalized for the exercise of constitutional rights would deter 

defendants from attacking their convictions and, thus, 

unconstitutionally impede their open and equal access to the 

courts. Accordingly, the Court held:

“In order to assure the absence of such a motivation, 

we have concluded that whenever a judge imposes a 

more severe sentence upon a defendant after a new 

trial, the reasons for his doing so must affirmatively 

appear. Those reasons must be based upon objective 

information concerning identifiable conduct on the 

part of the defendant occurring after the time of the 

original sentencing proceeding. And the factual data 

upon which the increased sentence is based must be 

made part of the record, so that the constitutional 

legitimacy of the increased sentence may be fully 

reviewed on appeal.”

Simonds, 799 P.2d at 1212-13 (emphasis omitted).

2

 

[¶15] Relying on Simonds, Appellant claims his due process rights were violated 

because there is no information in the record relating to conduct occurring after the 

original sentencing proceeding that would justify an increased sentence. The facts of the 

present case, however, are distinguishable from Simonds. In this case, Appellant was 

 

2

In Alabama v. Smith, 490 U.S. at 803, 109 S.Ct. at 2207, the Supreme Court distinguished the situation 

in which a defendant receives an increased sentence after trial relative to a sentence imposed after a prior 

guilty plea, holding that “there is no basis for a presumption of vindictiveness where a second sentence 

imposed after a trial is heavier than a first sentence imposed after a guilty plea.” The Court noted that 

“While the Pearce opinion appeared on its face to announce a rule of sweeping dimension, our 

subsequent cases have made clear that its presumption of vindictiveness ‘do[es] not apply in every case 

where a convicted defendant receives a higher sentence on retrial.’” Id., 490 U.S. at 799, 109 S.Ct. at 

2204 (quoting Texas v. McCullough, 475 U.S. 134, 138, 106 S.Ct. 976, 978, 89 L.Ed.2d 104 (1986)).
6

resentenced by a different judge after the original sentencing judge vacated Appellant’s 

initial sentence. In Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d. 104 

(1986), the Supreme Court held that Pearce’s presumption of vindictiveness does not 

apply in situations where the defendant is resentenced by a different judge:

The presumption is also inapplicable because different 

sentencers assessed the varying sentences that McCullough 

received. In such circumstances, a sentence “increase”

cannot truly be said to have taken place. In Colten v. 

Kentucky, [407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 

(1972)] supra, which bears directly on this case, we 

recognized that when different sentencers are involved,

“[it] may often be that the [second sentencer] will 

impose a punishment more severe than that received 

from the [first]. But it no more follows that such a 

sentence is a vindictive penalty for seeking a [new] 

trial than that the [first sentencer] imposed a lenient 

penalty.” Id., at 117.

Here, the second sentencer provides an on-the-record, wholly 

logical, nonvindictive reason for the sentence. We read 

Pearce to require no more, particularly since trial judges must 

be accorded broad discretion in sentencing, see Wasman [v. 

United States, 468 U.S. 559, 563-64, 104 S.Ct. 3217, 3220-

21, 82 L.Ed.2d 424 (1984)].

McCullough, 475 U.S. at 140, 106 S.Ct. at 979-80. Appellant’s due process analysis is 

entirely devoid of any reference to the fact that he was resentenced by a different judge

prior to exercising his right to appeal, and he provides no authority supporting a due 

process claim when the allegedly vindictive sentence is issued by a different judge. 

Appellant has not demonstrated the existence of a viable claim that his sentence was 

motivated by vindictiveness. 

[¶16] We similarly find no merit in Appellant’s claim that his resentencing violated 

constitutional protections against double jeopardy. In Simonds, we held, in accordance 

with Supreme Court precedent, that resentencing presents a double jeopardy concern only 

when a defendant has a reasonable expectation of finality in his original sentence:

In United States v. DiFrancesco, 449 U.S. 117, 101 

S.Ct. 426, 66 L.Ed.2d 328 (1980), the Court determined that 

the prospect of increased punishment upon resentencing 

raised a double jeopardy problem only to the extent of a 
7

defendant’s reasonable expectations that his original sentence 

had become final. 449 U.S. at 134-39, 101 S.Ct. at 435-38.

With respect to those instances where a defendant initiates an 

appeal, as was the case in Pearce, it is evident that such a 

defendant harbors no justifiable expectation in the finality of 

the original sentence. In fact, his aim is for the appellate court 

to remove that finality, to “wipe the slate clean.”

Simonds, 799 P.2d at 1213. Consistent with DiFrancesco, we concluded that “with 

respect to matters which have not been remanded to the trial court, the appeal is 

concluded, and judgment and sentence finalized, by the appellate court’s mandate.” 

Simonds, 799 P.2d at 1214; see also Moronese v. State, 2012 WY 34, ¶ 8, 271 P.3d 1011, 

1014 (Wyo. 2012). As in Simonds, Appellant’s actions in this case belie the claim that he

had a reasonable expectation in the finality of his sentence. At the original sentencing 

hearing, Appellant informed the court of his intention to challenge his convictions in a 

motion for a new trial. Additionally, at the resentencing hearing, Appellant stated that, 

after receiving his original sentence, he discovered that Judge Kalokathis did not have 

authority to sentence him. He then contacted his attorney to assist him in challenging that 

sentence. Appellant’s efforts to challenge his original sentence are not consistent with 

the assertion that he had a reasonable expectation of finality in that sentence.

Accordingly, we are unable to find any merit in Appellant’s claim that his resentencing 

violated protections against double jeopardy.

 

[¶17] Appellant’s ad hoc assertion of ineffective assistance of counsel, raised in his 

reply brief, does not constitute good cause for failing to raise his present claims in the 

direct appeal from his convictions. Accordingly, we conclude that those claims are

appropriately barred by the doctrine of res judicata. Notwithstanding our reliance on the 

principles of res judicata, however, we also find no merit in Appellant’s claim that his 

sentence violated due process or double jeopardy protections.

[¶18] The district court’s order granting, in part, and denying, in part, Appellant’s 

Motion to Correct Illegal Sentence is affirmed.