IN THE SUPREME COURT, STATE OF WYOMING

2014 WY 59

APRIL TERM, A.D. 2014

May 7, 2013

DONALD GILMER,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-13-0249

Appeal from the District Court of Laramie County

The Honorable Thomas T.C. Campbell, Judge

Representing Appellant:

Donald Gilmer, pro se.

Representing Appellee:

Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy 

Attorney General; Jenny L. Craig, Senior Assistant Attorney General; and Jennifer 

Zissou, Assistant Attorney General.

Before KITE, C.J., and HILL, BURKE, DAVIS, and FOX, 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.
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HILL, Justice.

[¶1] Donald Gilmer filed a motion to reduce his sentence based on his good behavior 

while incarcerated. The district court denied the motion, and Gilmer appeals. We find no 

abuse of discretion in the court’s denial of Gilmer’s motion, and we affirm.

ISSUE

[¶2] Gilmer filed his appeal pro se, and in his statement of the issue he contends that 

the district court’s decision to deny the motion to reduce his sentence was wrong and 

unjust. The State frames the issue on appeal as follows:

Gilmer pled guilty to strangulation of a household member 

and domestic battery. After imposition of his sentence, he 

filed a motion for sentence reduction due to his good behavior 

while incarcerated. Did the district court abuse its discretion 

when it denied this motion?

FACTS

[¶3] On March 30, 2012, Gilmer entered a plea agreement by which he agreed to plead 

guilty to charges of strangulation of a household member, domestic battery, and reckless 

endangerment, which charges stemmed from an altercation with his wife and her threeyear old son. Pursuant to the plea agreement, Gilmer was to receive a sentence of three 

to five years on the strangulation charge, suspended in favor of five years of supervised 

probation, a sentence of time served on the battery charge, and a dismissal of the reckless 

endangerment charge at sentencing. Gilmer was released on bond, pending entry of the 

judgment and sentence.

[¶4] On August 15, 2012, the State filed a petition to revoke Gilmer’s bond on the 

ground that he had contact with the victim in violation of the terms of his bond. The 

State and Gilmer thereafter agreed to modify the terms of the plea agreement to 

recommend a sentence of three to five years on the strangulation charge to be served 

concurrent with a one year sentence on the domestic battery charge. The district court 

entered a sentence to that effect on September 5, 2012.

[¶5] On July 18, 2013, Gilmer filed a pro se motion to reduce his sentence pursuant to 

Rule 35(b) of the Wyoming Rules of Criminal Procedure. Gilmer cited his good 

behavior during incarceration and asked that the court move him to a community 

corrections program or an intensive supervision program. On August 8, 2013, the court 

entered an order denying Gilmer’s motion. Gilmer timely filed a notice of appeal.
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STANDARD OF REVIEW

[¶6] We review a district court’s decision on a sentence reduction motion as follows:

Trial courts enjoy broad discretion to decide whether to 

reduce a criminal defendant’s sentence, and we will not 

disturb those decisions absent a clear abuse of discretion. 

Bonney v. State, 2011 WY 51, ¶ 8, 248 P.3d 637, 640 

(Wyo.2011). We therefore defer to the district court unless we 

conclude that there could have been no rational basis for its 

ruling. Boucher v. State, 2012 WY 145, ¶ 6, 288 P.3d 427, 

429 (Wyo.2012).

Conkle v. State, 2013 WY 1, ¶ 11, 291 P.3d 313, 315 (Wyo. 2013).

DISCUSSION

[¶7] Rule 35 of the Wyoming Rules of Criminal Procedure provides a defendant the 

opportunity to request a sentence reduction within one year of the imposition of a 

sentence. W.R.Cr.P. 35(b). The purpose of the rule “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 v. State, 2012 WY 145, ¶ 10, 288 P.3d 427, 

430 (Wyo. 2012) (quoting Patrick v. State, 2005 WY 32, ¶ 9, 108 P.3d 838, 841 (Wyo.

2005)).

[¶8] Gilmer contends that his good behavior while incarcerated as well as his 

completion of prison programs established good cause for a sentence reduction and that 

under such circumstances it was incumbent on the district court to show good cause for 

denying the motion. This argument runs afoul of this Court’s approach to reviewing 

decisions on sentence reduction motions based on a defendant’s behavior while 

incarcerated. This Court consistently has declined to substitute its judgment for that of 

the sentencing court.

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. 

Carrillo v. State, 895 P.2d 463, 464 (Wyo. 1995) (per 

curiam); Montez v. State, 592 P.2d 1153, 1154 (Wyo. 1979)

(per curiam); see also Boucher, ¶ 11, 288 P.3d at 430.
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Conkle, ¶ 14, 291 P.3d at 315; see also Sanchez v. State, 2013 WY 159, ¶ 13, 314 P.3d 

1177, 1180 (Wyo. 2013) (fact of good behavior while in prison does not alone require 

district court to grant sentence reduction motion or provide basis for Court to find an 

abuse of discretion).

[¶9] The sentence Gilmer requested through his Rule 35(b) motion was a reduction to 

probation. In response, the State points out that Gilmer’s plea agreement originally 

recommended probation and that recommendation was withdrawn after Gilmer violated 

the terms of his release by contacting the victim of his crimes. The State contends that to 

now allow probation would undermine the district court’s authority to impose a sentence 

it deemed reasonable under all of the circumstances. We agree. Given the circumstances 

of the Court’s decision to order incarceration and our longstanding precedent regarding 

sentence reduction motions based on a defendant’s behavior while incarcerated, we find 

no abuse of discretion in the district court’s denial of Gilmer’s motion to reduce his 

sentence.

CONCLUSION

[¶10] The district court did not abuse its discretion in denying Gilmer’s motion to reduce 

his sentence. Affirmed.