Lawrence Floyd Silva , 338 P.3d 934 ( 2014 )

IN THE SUPREME COURT, STATE OF WYOMING
2014 WY 155
OCTOBER TERM, A.D. 2014
December 3, 2014
LAWRENCE FLOYD SILVA,
Appellant
(Defendant),
v. S-14-0037
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Sweetwater County
The Honorable Richard L. Lavery, Judge
Representing Appellant:
Pro se.
Representing Appellee:
Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General;
Jenny L. Craig, Senior Assistant Attorney General.
Before BURKE, C.J., and HILL, KITE, 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.
BURKE, Chief Justice.
[¶1] Appellant, Lawrence Silva, was convicted of aggravated burglary and attempted
kidnapping, and sentenced to serve two concurrent terms of twelve to fifteen years in
prison. He appealed, and we affirmed. Silva v. State, 2012 WY 37, ¶ 31, 271 P.3d 443,
453 (Wyo. 2012) (“Silva I”). Mr. Silva subsequently filed a motion to reduce his
sentence. The district court denied the motion. Mr. Silva has appealed that decision. We
will affirm.
ISSUES
[¶2] Although Mr. Silva’s pro se brief does not include a statement of the issues, we
discern them to be as follows:
1. Was he denied effective assistance of counsel, both at trial
and on appeal?
2. Did the prosecution possess exculpatory evidence that it
did not turn over to him, in violation of his constitutional
rights recognized in Brady v. Maryland, 373 U.S. 83, 83 S. Ct.
1194, 10 L. Ed. 2d 215 (1963)?
The State articulates a different issue, which we paraphrase:
1. Should the district court’s order be summarily affirmed
because Mr. Silva’s brief does not comply with many of the
requirements of W.R.A.P. 7.01?
FACTS
[¶3] The facts underlying Mr. Silva’s convictions are set forth in detail in Silva I, ¶¶ 3-
13, 271 P.3d at 445-47, and will only be summarized here. He was charged with
breaking into the apartment where his estranged fiancée was staying, and attempting to
remove her from the apartment and take her to his house. A jury found him guilty of
aggravated burglary in violation of Wyo. Stat. Ann. § 6-3-301(a) and (c)(ii) (LexisNexis
2011), and attempted kidnapping in violation of Wyo. Stat. Ann. §§ 6-1-301(a)(i) and 6-
2-201(a)(iii). The district court sentenced him to twelve to fifteen years imprisonment on
each conviction, the two sentences to run concurrently. His direct appeal concluded with
our affirming his convictions and sentences. Silva I, ¶ 31, 271 P.3d at 453.
[¶4] On April 15, 2013, Mr. Silva filed a “Motion for Sentence Reduction Pursuant to
Rule 35(b) of the Wyoming Rules of Criminal Procedure.” He asserted that his sentence
should be reduced because he had performed well at his job in the prison kitchen, he had
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taken and completed nearly all of the treatment and counseling courses available to him
in the corrections system, and he had accepted responsibility for his crimes and changed
his ways. The district court concluded that “the sentence was appropriate at the time it
was imposed and it remains appropriate,” and so denied the motion. Mr. Silva filed a
timely notice of appeal.
DISCUSSION
[¶5] The State contends that Mr. Silva’s brief does not comply with W.R.A.P. 7.01 to
such an extent that we should summarily affirm the district court’s order without
addressing the merits of his claims. It asserts that the brief does not include a proper title
page, a table of contents, a table of cases, a statement of the issues, a statement of the
case, a statement of the facts, a standard of review, or an appendix including the final
district court order from which the appeal is taken. It further asserts that the brief does
not contain cogent argument. The State urges summary affirmation of the district court’s
order denying Mr. Silva’s motion for sentence reduction.
[¶6] In many respects, Mr. Silva’s brief fails to meet the requirements of W.R.A.P.
7.01. Under W.R.A.P. 1.03, we have discretion to sanction such noncompliance by
taking “such action as the appellate court deems appropriate, including but not limited to:
refusal to consider the offending party’s contentions; assessment of costs; dismissal; and
affirmance.” As we observed just recently:
This Court has on occasion summarily affirmed a district
court order when an appellant has failed to comply with the
appellate rule. See, for example, Kelley v. Watson, 2003 WY
127, ¶ 4, 77 P.3d 691, 692 (Wyo. 2003); MTM v. State, 2001
WY 61, ¶ 9, 26 P.3d 1035, 1037 (Wyo. 2001). In other cases,
we have addressed the issues raised despite the lack of
compliance. Burns v. State, 2011 WY 5, ¶ 7, 246 P.3d 283,
285 (Wyo. 2011); LS v. State, 2006 WY 130, ¶ 10 n.2, 143
P.3d 918, 922 n.2 (Wyo. 2006).
Counts v. State, 2014 WY 151, ¶ 9, ___ P.3d ___, ___ (Wyo. 2014).
[¶7] Mr. Silva is acting pro se in this appeal. Even though a “pro se litigant is entitled
to some leniency from the stringent standards applied to formal pleadings drafted by
attorneys,” we still require “reasonable adherence to the procedural rules and
requirements of the court.” Young v. State, 2002 WY 68, ¶ 9, 46 P.3d 295, 297 (Wyo.
2002). Accordingly, while we might have overlooked some of the minor ways in which
Mr. Silva’s brief does not comply with the rules, we cannot ignore its lack of cogent
argument. “We have consistently refused to address claims not supported by cogent
argument or citation to pertinent authority whether a pro se litigant or counsel files the
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brief.” Kinstler v. RTB South Greeley, LTD., LLC, 2007 WY 98, ¶ 10, 160 P.3d 1125,
1128 (Wyo. 2007) (quoting Odegard v. Odegard, 2003 WY 67, ¶ 29, 69 P.3d 917, 925
(Wyo. 2003)).
[¶8] As noted above, Mr. Silva argued in the district court that his sentence should be
reduced based on his achievements and behavior. While those arguments did not
persuade the district court to grant his motion, they were plausible arguments to make in
support of a motion for sentence reduction. However, he abandoned those arguments on
appeal. He now complains that he received ineffective assistance of counsel, and that the
prosecution withheld exculpatory evidence he was constitutionally entitled to receive.
[¶9] Mr. Silva did not raise these issues before the district court in connection with his
motion for sentence reduction.1 We could decline to consider Mr. Silva’s claims on that
basis alone.
We strongly adhere to the rule forbidding us to
“consider for the first time on appeal issues that were
neither raised in, nor argued to, the trial court,” except
for those issues which are jurisdictional or are
fundamental in nature. [Oatts] v. Jorgenson, 821 P.2d
108, 111 (Wyo. 1991). We follow this rule because “it
is unfair to reverse a ruling of a trial court for reasons
that were not presented to it, whether it be legal
theories or issues never formally raised in the
pleadings nor argued to the trial court.”
Belden v. Lampert, 2011 WY 83, ¶ 11, 251 P.3d 325, 328-29 (Wyo. 2011) (quoting
Erwin v. State, 2010 WY 117, ¶ 15, 237 P.3d 409, 414 (Wyo. 2010)).
[¶10] Furthermore, Mr. Silva’s brief does not mention his motion for sentence reduction.
It does not mention the district court’s order denying that motion. It does not mention
W.R.Cr.P. 35. It contains no explanation of how his current arguments relate to the
motion for sentence reduction, and we cannot perceive any connection. “A motion for a
sentence reduction cannot be used to attack the validity of a conviction.” Mack v. State, 7
P.3d 899, 900 (Wyo. 2000); see also Smith v. State, 969 P.2d 1136, 1138 (Wyo. 1998)
(The function of Rule 35 is “not to re-examine errors occurring at the trial or other
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About five months after Mr. Silva filed the motion for sentence reduction that is the subject of this
appeal, he filed a petition for post-conviction relief with the district court. In that petition, he raised
similar assertions of ineffective assistance of counsel and withholding of evidence. However, the petition
for post-conviction relief is not before us for review. In this appeal, we are reviewing only the denial of
Mr. Silva’s motion for sentence reduction.
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proceedings prior to the imposition of the sentence.”). In short, Mr. Silva has failed to
provide cogent argument. We will exercise our discretion under W.R.A.P. 1.03 and
refuse to consider his contentions.
[¶11] The district court’s order denying Mr. Silva’s motion for sentence reduction is
therefore affirmed.
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