### IN THE SUPREME COURT, STATE OF WYOMING

2013 WY 80

APRIL TERM, A.D. 2013

July 2, 2013

MATTHEW C. KURTENBACH,

Appellant (Defendant),

v.

THE STATE OF WYOMING,

Appellee (Plaintiff). S

- 13

- 0022

Appe al from the District Court of Weston County
The Honorable Keith G. Kautz , Jud ge

Representing Appellant: Matthew C. Kurtenbach, pro se

.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney Genera l; Jeffrey S. Pope, Assistant Attorney General.

B e f ore KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

N O T I C E : T h i

s o p i n i o n is subject to formal revision before publication in Pacific Reporter Third.
R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e C l e r k o f t h e S u p r e m e C o u r t , S u p r e m e C o u r t B u i l d i n g , C h e y e n n e , W

y o m i n g 8 2 0 0 2
, o f a n y t y p o g r a p h i c a l o r o t h e r f

o r m a l e r r o r s s o t h a t c o r r e c t i o n m a y b e

m a d e b e f o r e f i n a l p u b l i c a t i o n i n t h e p e r m a n e n t v o l

u m e

.1

V O I G T
, J u s t i c e

.

[¶1] The appellant, Matthew C. Kurtenbach, appeals the district court’s denial of his
motion to correct an illegal sentence. Finding that the appellant’s claims are barred by
the doctrine of res judicata

, we affirm the district court’s order.

I S S U E

[¶2] Did the district court abuse its discretion when it denied the appellant’s motion to correct an illegal sentence?

F A C T S

[¶3] The facts underlying the appellant’s conviction and the issues regarding his subsequent difficulties in his incarceration have been discussed in detail in Kurtenbach v.
State , 2008 WY 109, 192 P.3d 973 (Wyo. 2008) ( Kurtenbach I

) and Kurtenbach v. State

, 2012 WY 162, 290 P.3d 1101 (Wyo. 2012) ( Kurtenbach II

), and will not be repeate d for
a third time here. Suffice it to say, the appellant’s current appeal revolves around the
facts from Kurtenbach II , wherein he claimed that he was not receiving proper credit against his Wyoming sentence while he was incarcerated in North and South Dakota. I n

a f u r t h e r a t t e m

p t t o r e m e d y t h i s g

r i e v a n c e , h e f

i l e d a m o t i o n t o c o r r e c t a n i l l e g a l

s e n t e n c e , w

h i c h w a s d e n i e d b y t h e d i s t r i c t c o u r t

.

S T A N D A R D O F R E V I E W

[¶4] “We review a district court’s decision to deny a motion to correct an illegal
sentence for an abuse of discretion.” Lunden v. State , 2013 WY 35, ¶ 6, 297 P.3d 121, 123 (Wyo. 2013). However, as discussed below, we will dispose of this appeal on other grounds.

D I S C U S S I O N

[¶5] The appellant argues that the district court abused its discretion when it denied his motion to correct an illegal sentence. He claims that, because he has not received credit against his Wyoming sentence while serving a series of different sentences in North and South Dakota, his sentence is illegal . He a rgues that his sentence v iolates several portions of the United States Constitution, including the prohibition against double jeopardy, the du e process clause, the supremacy clause, the full faith and credit clause, separation of powers, the equal protect ion clause, and the prohibition against cruel and unusual punishment. He also asserts that his sentence does not give him credit for time spent in “official detention,” that his Wyoming sentence is now consecutive to a sentence
that did not exist at the t ime of his Wyoming sentencing, and that he did not receive2

“ e q u i t a b l e c r e d i t ” f

o r t h e t i m e h e w a s i n c a r c e r a t e d i n o t h e r j u r i s d i c t i o n s

. T h e S t a t e

a r g u e s t h a t t h e s e c l a i m s a r e b a r r e d b y t h e d o c t r i n e o f r e s j u d i c a t a

. W e a g

r e e

.

[¶6] This Court has long held that motions to correct illegal sentences are subject to the principles of res judicata

. C ooper v. State , 2010 WY 22, ¶ 6, 225 P.3d 1070, 1072 (Wyo. 2010); Amin v. State , 2006 WY 84, ¶ 5, 138 P.3d 1143, 1144 (Wyo. 2006); Dolence v.
State , 2005 WY 27, ¶ 6 , 107 P.3d 176, 178 (Wyo. 2005); Lacey v. State , 2003 WY 148, ¶ 11, 79 P.3d 493, 495 (Wyo. 2003); McCarty v. State , 929 P.2d 524, 525 (Wyo. 1996).
The doctrine of res judicata “is a longstanding rule that issues which could have been
raised in an earlier proceeding are foreclosed from subsequent consideration.” Moore v.
State , 2009 WY 108, ¶ 20, 215 P.3d 271, 276 (Wyo. 2009) (quoting Gould v. State , 2006 WY 157, ¶ 15, 151 P.3d 261, 266 (Wyo. 2006)) (emphasis in original). F urther, w hen determining whether res judicata applies, th is Court reviews four factors: “‘(1) identity in parties; (2) identity in subject matter; (3) the issues are the same and relate to the subject matter; and (4) the capacities of the persons are identical in r eference to both the subject
matter and the issues between them.’ [ Martinez v. State , 2007 WY 164,] ¶ 11, [169 P.3d 89,] 91 [(Wyo. 2007)] (quoting Lacey v. State , 2003 WY 148, ¶ 11, 79 P.3d 493, 495 (Wyo. 2003)).” Cooper , 2010 WY 22, ¶ 6, 225 P.3d at 107 2 n. 1.

[¶7] Here, since learning that he was not receiving credit against his Wyoming sentence while incarcerated in another jurisdiction, the appellant has filed a barrage of
motions with the district court. As evidenced in Kurtenbach II , the district c ourt did not have jurisdiction to consider some of those motions. However, a district court “may correct an illegal sentence at a ny time.” W.R.Cr .P. 35(a). Although the district court has jurisdiction to consider a motion to correct an illegal sentence, the appellant’s current motion is barred by the doctrine of res judicata because he previously filed a motion to correct an illegal sentence wherein he alleged that his sentence was illegal because he was not receiving credit against his Wyoming sentence while incarcerated in North and
South Dakota. Granted, the previous motion was much shorter and did not lay out the myriad of constitutional issues he now raises, but the essence of the first motion and the remedy sought is identical to the motion that is the basis of this appeal. Additionally, the facts and circumstances surrounding his constitutional claims were known to the appellant at the time he filed the first motion and, thus, he could have raised these additional bases for the alleged illegality of hi s sentence then. He did not do so. The appellant complains about his sentence and seeks the same remedy he sought in the first motion. That motion was considered and denied by the district court, and the appellant did not appeal that decision to th is Cou rt. That decision is now final and he is barred
from raising that issue or any other issue that could have been raised in the first motion

.

[¶8] Further, the appellant has failed to show good cause as to why these issues were
not raised in the firs t motion to correct an illegal sentence. The appellant argues that he
could not have raised these issues in the first motion because his sentence in South Dakota had not been completed at that time, so he was unable to show that his Wyoming3

s e n t e n c e w a s g

o i n g t o b e s e r v e d c o n s e c u t i v e l y

. F u r t h e r , h e a r g

u e s t h a t t h e f

e d e r a l

s e n t e n c e h e r e c e i v

e d

, w h i c h w a s a l s o o r d e r e d t o b e s e r v e d c o n c u r r e

n t l y w i t h h i s W y o m i n g s e n t e n c e , w a s n o t i m p o s e d u n t i l a f

t e r h e f i l e d t h e f i r s t m o t i o n

. H o w e v e r , d e s p i t e t h e f

a c t t h a t h e i s n o l o n g

e r s e r v i n g t h e S o u t h D a k o t a s e n t e n c e a n d h e h a s b e e

n

s e n t e n c e d i n f

e d e r a l c o u r t

, t h e a p p e l l a

n t i s s t i l l m a k i n g t h e s a m e a r g u m e n t s a n d s e e k i n g
t h e s a m e r e m e d y a s b e f

o r e

. T h i s i s n o t g

o o d c a u s e t o c i r c u m v

e n t t h e d o c t r i n e o f r e s j u d i c a t a

.

C O N C L U S I O N

[¶9] We find that res judicata bars review of the issues raised by the appellant because
these issues could have been raised in the first motion to correct an illegal sentence but

were not. A dditionally, even though he included more detailed constitutional issues in the second motion to correct illegal sentence, the appellant is making the same c omplaint
as in the first motion

― that he did not receive credit a gainst his Wyoming sentence whil e incarcerated in other jurisdictions. Further, the appellant has not demonstrated good cause as to why these issues were not raised in the first motion and why the district court
and this Court should now consider them. We affirm the district court’s de nial of the appellant’s motion to correct an illegal sentence.