IN THE SUPREME COURT, STATE OF WYOMING

2013 WY 134

OCTOBER TERM, A.D. 2013

October 24, 2013

GUILLERMO EDUARDO GOMEZ,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-13-0101

Appeal from the District Court of Natrona County

The Honorable David B. Park, Judge

Representing Appellant:

Guillermo Eduardo Gomez, Pro se.

Representing Appellee:

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

Attorney General; Jeffrey S. Pope, Assistant Attorney General; Brian J. Fuller, 

Student Intern.

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

VOIGT, Justice.

[¶1] The appellant pled guilty to one count of conspiracy to deliver methamphetamine 

and the district court imposed a sentence of fifteen to twenty years imprisonment. The 

district court also found the appellant to be a “qualified offender” under the Addicted 

Offender Accountability Act (AOAA), recommending the appellant complete intensive 

treatment for substance abuse. This Court affirmed the judgment and sentence. See 

Gomez v. State, 2010 WY 140, 241 P.3d 502 (Wyo. 2010). Soon thereafter, the appellant 

timely filed his first motion for a sentence reduction, which was denied by the district 

court and no appeal was taken. Two years after affirmance of his conviction, the 

appellant filed a second motion, pro se, seeking to modify his sentence. The district court 

denied the motion, finding it untimely, and the appellant now seeks relief from this Court. 

We dismiss the appeal for lack of jurisdiction because the motion seeking to modify and

reduce the appellant’s sentence was not filed within the required one-year time period 

prescribed in W.R.Cr.P. 35(b).

ISSUE

[¶2] The threshold issue is one that concerns jurisdiction; accordingly, we restate the 

controlling issue as follows:

Did the district court have jurisdiction over appellant’s motion seeking to modify and 

reduce his sentence?1

FACTS

[¶3] In December 2009, the appellant pled guilty to one count of conspiracy to deliver 

methamphetamine. The district court entered its judgment and sentence on March 17, 

2010, imposing a sentence of fifteen to twenty years imprisonment, to be served 

consecutively with a sentence in a separate case. The district court also found the 

appellant to be a “qualified offender” under the AOAA and recommended the appellant 

complete intensive treatment for substance abuse. The appellant took a direct appeal. 

However, appointed appellate counsel was permitted to withdraw pursuant to the Anders

procedure.2 We affirmed the judgment and sentence on October 27, 2010. See Gomez, 

2010 WY 140, 241 P.3d at 502. In October 2011, the appellant timely filed a motion for 

sentence reduction, which was denied by the district court and no appeal was taken.

 

1 Because we answer this question in the negative, we do not have jurisdiction and must dismiss. Thus, 

we will not address the issues proposed by the parties on whether the district court abused its discretion, 

or otherwise erred, in denying the motion.

2

See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967).
2

[¶4] Two years after affirmance of his conviction, the appellant filed a second motion 

seeking modification or partial suspension of his sentence. The appellant contends that,

since he was found to be a qualified offender and has completed intensive treatment, the

AOAA allows the district court to now modify and partially suspend his sentence. The 

district court denied the motion, finding it untimely under W.R.Cr.P. 35(b). This appeal 

followed.

STANDARD OF REVIEW

[¶5] Jurisdictional matters are reviewed de novo. Tomlin v. State, 2001 WY 121, ¶ 5,

35 P.3d 1255, 1256 (Wyo. 2001). Our review is also de novo when interpreting a statute, 

which is a question of law. Greene v. State, 2009 WY 99, ¶ 7, 214 P.3d 222, 224 (Wyo. 

2009).

DISCUSSION

[¶6] The appellant argues that the district court should have modified or partially 

suspended his sentence because his motion was filed pursuant to the AOAA, rather than 

under W.R.Cr.P. 35(b). He contends that, under the AOAA, there is no time limit as to 

when a sentence may be suspended; thus, because he is a qualified offender and

completed intensive treatment his sentence should be modified. We disagree.

[¶7] The AOAA does not create a separate right to subsequently seek modification and 

reduction of a sentence. See Wyo. Stat. Ann. §§ 7-13-1301 to -1304 (LexisNexis 2013). 

As we have explained before, the

purpose of Wyoming’s Addicted Offender Accountability Act 

was to provide alternatives for sentencing “addicted qualified 

offenders.” 2002 Wyo. Sess. Laws ch. 81, Preamble. This 

Act requires that a person convicted of any felony or a 

specified misdemeanor must receive a substance abuse 

assessment as part of his presentence investigation report. 

Wyo. Stat. Ann. § 7-13-1302 (LexisNexis 2007). Based on 

that assessment, the district court may determine that the 

person is a “[q]ualified offender” with “a need for alcohol or 

other drug treatment.” Id., § 7-13-1301(a)(iv). A qualified 

offender, in lieu of being incarcerated, may receive probation 

or a suspended sentence, under which he must complete “a 

treatment program based upon the substance abuse 

assessment and any other terms and conditions as the court 

may deem appropriate under the circumstances.” Id., § 7-13-

1303(a). The Act also specifies, however, that a qualified 
3

offender may still be incarcerated under specified 

circumstances. Id., § 7-13-1303(c).

Greene, 2009 WY 99, ¶ 18, 214 P.3d at 227. Our study of the AOAA confirms it does 

not provide the appellant with a separate procedural avenue to seek modification and 

reduction of his sentence after imposition by the district court.

[¶8] The controlling procedure to modify and reduce a sentence is pursuant to

W.R.Cr.P. 35(b). See Reese v. State, 910 P.2d 1347, 1348 (Wyo. 1996). “That rule, 

however, provides that any such motion must be brought within one year after sentence is 

imposed or probation revoked.” Id.; see also Tomlin, 2001 WY 121, ¶ 6, 35 P.3d at

1256. Specifically, the rule states:

(b) Reduction.—A motion to reduce a sentence may 

be made, or the court may reduce a sentence without motion, 

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(b). In the instant case, the appellant’s conviction was affirmed in October 

2010. His second motion seeking a sentence modification and reduction was filed in 

January 2013, well beyond the one year time frame of W.R.Cr.P. 35(b). Consequently, 

the appellant’s motion cannot be considered by the district court because timely filing is a 

jurisdictional requirement. Eckdahl v. State, 2011 WY 152, ¶ 17, 264 P.3d 22, 27 (Wyo. 

2011).

CONCLUSION

[¶9] The district court lacked jurisdiction to consider the appellant’s motion, and we,

too, are without jurisdiction to consider the appeal. 

[¶10] The appeal is dismissed.