author: GREENWOOD, Judge: BENCH, Judge

text:
    2002 UT App 384
    STATE of Utah, Plaintiff and Appellee, v. Manuel Ernesto SAMORA, Defendant and Appellant.
    No. 20010988-CA.
    Court of Appeals of Utah.
    Nov. 15, 2002.
    Joan C. Watt and John K. West, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, and Jeanne B. Inouye, Assistant Attorney General, for Appellee.
    Before Judges JACKSON, BENCH, and GREENWOOD.
   OPINION

GREENWOOD, Judge:

T1 Manuel Ernesto Samora (Defendant) appeals from a sentence for attempted joyriding with intent to temporarily deprive owner, a class A misdemeanor, in violation of Utah Code Ann. § 41-la-1314 (1998) and Utah Code Ann. § 76-4-101 (1999). Defendant argues that the trial judge erred in imposing a harsher sentence following reversal of his original sentence on appeal. We vacate Defendant's sentence and remand. |

BACKGROUND

T2 On August 8, 2000, Defendant pleaded guilty to attempted unlawful control of a motor vehicle with intent to temporarily deprive owner. As part of his plea agreement with the State, Defendant agreed to pay restitution to the victim. The trial court accepted Defendant's guilty plea and agreed to release him on his own recognizance pending sentencing. The trial court set sentencing for September 22, 2000, in front of a different trial judge. When Defendant failed to appear for his September 22 sentencing, the trial court sentenced him in absentia to the statutory maximum one-year sentence, imposed a fine of $2500, a surcharge, and attorney fees. The trial court did not impose restitution. * '

13 Defendant appealed his sentence in absentia, claiming it violated due process and Rule 22(a) of the Utah Rules of Criminal Procedure. On September 7, 2001, this court in a per curiam opinion vacated Defendant's sentence and remanded his case for resen-tencing in accordance with State v. Wanosik, 2001 UT App 241, 31 P.3d 615, cert. granted, 42 P.3d 951 (Utah 2002).

T4 On November 16, 2001, Defendant appeared for resentencing before the judge who previously sentenced him. During re-sentencing, defense counsel requested that the trial court waive or substantially reduce Defendant's fine so Defendant could pay the restitution that he originally agreed to as part of the plea negotiation. Defense counsel also requested that Defendant be granted credit for the six months he had served on his sentence awaiting the original appellate disposition.

15 After taking testimony regarding the restitution amount owing, the trial court re-sentenced Defendant to the maximum one-year jail term, denying Defendant good-time credit for the six months he had served. The court again imposed the maximum $2500 fine, a surcharge, and attorney fees. In addition, the court ordered that Defendant pay $744.80 in restitution. -

I 6 Defendant filed a Motion to Reconsider Sentence asking the trial court to reconsider its denial of credit for time served. The trial court granted Defendant's Motion to Reconsider and gave him credit for the time he had served.

ISSUE AND STANDARD OF REVIEW

T7 Defendant claims the trial court erred by imposing restitution at resentencing when restitution was not imposed as part of Defendant's original seritence. Because sentencing errors involve questions of law, we review for correctness. See State v. Kenison, 2000 UT App 322, ¶ 7, 14 P.3d 129.

ANALYSIS

T8 Defendant argues that the trial court erred when it imposed restitution at resentencing without waiving or substantially reducing the fine Defendant owed. He contends that due process and Utah Code Ann. § 76-3-405 (1999), preclude the imposition of a harsher sentence after a case is reversed on appeal. The State argues that Defendant invited any sentencing error when he declared his obligation to pay restitution. Alternatively, the State asserts that the trial court may increase the penalties upon resen-tencing when the original sentence was illegal or is based on facts not known to the court at the time of the original sentencing.

I 9 In North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 2080, 28 L.Ed.2d 656 (1969), the Supreme Court held that when resentencing a defendant, due process prevents the sentencing judge from increasing the sentence when that increase is motivated by vindictiveness. To free defendants from the apprehension of such a retaliatory motivation, the Supreme Court held that "whenever a judge imposes a more severe sentence upon a defendant," the reasons must affirmatively appear on the record and "be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." Id. at 766, 89 S.Ct. at 2081. But see Texas v. McCullough, 475 U.S. 134, 140-42, 106 S.Ct. 976, 980-81 (1986) (stating that language "[rlestricting justifications for a sentence increase to only 'events that occurred subsequent to the original proceeding'" was not "intended to describe exhaustively all of the possible cireumstances in which a sentence increase could be justified.").

T 10 The Utah Code also addresses limitations on resentencing, as follows:

(1) Where a conviction or sentence has been set aside on direct review or on collateral attack, the court shall not impose a new sentence for the same offense or for a different offense based on the same conduct which is more severe than the prior sentence less the portion of the prior sentence previously satisfied.
(2) This section does not apply when:
(a) the increased sentence is based on facts which were not known to the court at the time of the original sentence, and the court affirmatively places on the record the facts which provide the basis for the increased sentence;. ...

Utah Code Ann. § 76-38-405.

111 In State v. Sorensen, 639 P.2d 179, 180 (Utah 1981), the supreme court discussed the requirements of due process and section 76-3-405 in relation to resentencing. The supreme court held that section 76-8-405

prevents the Utah constitutional right to appeal (Article VIII, $ 9) from being impaired "by imposing on a defendant who demonstrates the error of his conviction the risk that he may be penalized with a harsher sentence for having done so."

Id. (quoting Chess v. Smith, 617 P.2d 341, 343 (Utah 1980)).

In the context of the due process requirement of North Carolina v. Pearce, [395 U.S. 711, 89 S.Ct. 2072], which seeks to assure that there is no chilling or deterring of the criminal defendant's exercise of his basic constitutional right to appeal, and in light of the Utah constitutional constraint against impairing the right to appeal, as articulated in Chess v. Smith, [617 P.2d 341], we think the meaning of our statutory prohibition against a "more severe" see-ond sentence is clear. The second sentence cannot exeeed the first in appearance or effect, in the number of its elements, ©U.C.A., 1953, § 76-3-201, or in their magnitude.

Sorensen, 639 P.2d at 181 (alteratlons in original).

12 Our supreme court has also observed that section 76-3-405 is "more stringent than the due process protection [and] 'allows for no exceptions.'" State v. Bakalov, 1999 UT 45, ¶ 73, 979 F.2d 799 (quoting Sorensen, 639 P.2d at 180). Although the State agrees that as a general rule a sentence imposed after a successful appeal cannot be more severe than the prior sentence, it argues that Defendant's case is different because he invited any error by volunteering that he owed restitution.

113 Defendant acknowledges he did not argue at resentencing that the trial court was precluded from imposing a harsher sentence on resentencing. However, Defendant asserts plain error on appeal. The State counters, and our dissenting colleague agrees, that Defendant invited error by initiating the discussion of restitution and acknowledging that it was owed. Accordingly, the State asserts that a plain error analysis is not available. See State v. Perdue, 813 P.2d 1201, 1206 (Utah Ct.App.1991) (stating invited error defeats claim of plain error). We have two initial responses. First, as noted in Wanosik, rule 22(e) permits this court to consider whether a defendant was illegally sentenced " 'even if the issue is raised for the first time on appeal!" State v. Wanosik, 2001 UT App 241, ¶ 28 n. 11, 31 P.3d 615, cert. granted, 42 P.3d 951 (Utah 2002) (quoting State v. Brooks, 908 P.2d 856, 860 (Utah 1995)). Second, the colloquy between the trial court and Defendant's counsel lacked sufficient clarity to construe it as an invitation or stipulation for the trial court to violate section 76-3-405.

14 We acknowledge that Defendant did not provide a plain error analysis in his brief, alluding to it only in the standard of review section, perhaps relying on the proposition stated in Wanosik and Brooks, that the issue did not need to be preserved in the trial court. As noted in the dissenting opinion, plain error will be found only if the appellant establishes that "(i) an error exists; (i) the error should have been obvious to the trial court; and (iii) the error is harmful...." State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993). The third factor is clearly established because Defendant received a more harsh sentence on resentencing. We next examine the first factor, whether error occurred, because that analysis is necessary to a plain error evaluation and also necessary if we have jurisdiction under Wanosik and Brooks. We note that this issue is addressed in Defendant's brief.

115 We begin our analysis by determining whether the presumption of vindictiveness as described in Pearce is applicable. See Pearce, 395 U.S. at 725, 89 S.Ct. at 2080; State v. Babbel, 813 P.2d 86, 87 (Utah 1991). The State argues that the principles underlying Pearce are not applicable in this case because Defendant's original sentence was illegal, and under Babbel, id. at 88, an illegal sentence is void and not subject to the sentence protections articulated in Pearce, Sor-ensen, Chess, and section 76-8-405. However, we find the State's reliance on Babbel to be misplaced.

T16 In Babbel, the defendant was sentenced to a term less than the applicable statute's minimum mandatory requirements. 813 P.2d 86. The supreme court concluded that the principles underlying Pearce, Soren-sem, Chess, and section 76-3-405 did not apply because a defendant is unlikely to appeal a sentence that is unlawfully lenient, so there is a "minimal chilling effect on the right to appeal." Id. at 88. Unlike Babbel, Defendant's resentencing did not result from an original sentence contrary to statutory minimum mandatory requirements. Rather, Defendant's original sentence was vacated because he was sentenced in absentia. The sentence itself was not illegal, but the manner in which it was imposed was contrary to law. Furthermore, allowing a harsher sentence when the original sentence was imposed in an illegal manner would have a "chilling effect on the right to appeal," id., and impair the Utah Constitution's guaranty of the right to appeal. See Sorensen, 639 P.2d at 181. Therefore, because Babbel is not applicable, we conclude that the due process discussion in Pearce, Sorensen, and Chess require us to apply a presumption of vindictiveness. Accordingly, we next consider whether the presumption is successfully rebutted.

T17 During resentencing the following colloquy took place:

DEFENSE COUNSEL: [Mr.: Samoral would like the Court to be aware of some of the things that he's been doing while he's been incarcerated. He served two months in jail before he was sentenced originally on this case and then he served an additional approximately four months, I think, since- .
MR. SAMORA: Six. Six months.
DEFENSE COUNSEL: Six months. And it would be-
THE COURT: While you were pursuing the appeal?
DEFENSE COUNSEL: Yes, your Honor.
THE COURT: Yeah. Well, I mean, the point is, I guess, made.
DEFENSE COUNSEL: [I]t would be my request on behalf of Mr. Samora that the Court do a couple of things. One, that the Court would waive the fine. There is some restitution owing that was part of the negotiation in this case to the victim.... Mr. Samora and the victim in the case had a fairly long-term relationship before this all happened and there was, as part of the negotiation, he's to pay some restitution with respect to that.
We'd ask the Court to-to waive or at least to reduce the fine substantially and- and ask that the Court give him credit for time served on this case.
THE COURT: All right. Thank you....

{18 After receiving the victim's testimony regarding the amount of restitution owed, the trial judge imposed the maximum one-year sentence, $2500 fine, a surcharge, and attorney fees. The court also ordered Defendant to pay $744.80 in restitution, without any reduction in the fine, as Defendant had requested. The trial judge initially denied Defendant's request for credit for the six months he had already served on his one-year sentence, but relented after Defendant filed his Motion to Reconsider Sentence.

1 19 The State argues that although Defendant "may have hoped for a reduction in his fine," the record does not indicate that his agreement to pay restitution was conditioned on such a reduction. However, after reading the sentencing proceeding transcript in context, it is apparent that Defendant was asking the trial court to waive or substantially reduce his fine so that Defendant could instead pay restitution. It is unreasonable to believe that Defendant volunteered to assume responsibility for restitution, which if imposed would substantially increase the monetary amount of Defendant's sentence, on the mere hope that his fine would be waived or reduced. Furthermore, given extant case law and section 76-3-405, Defendant was not required to submit to a restitution order as part of resentencing, nor was the trial court empowered to order the same. Given the record we have before us, we cannot conclude that the presumption of vindictiveness has been rebutted. Therefore, error occurred because Defendant received a harsher sentence after exercising his constitutional right to appeal his original sentence.

120 The State, however, also argues that Defendant's harsher sentence was appropriate under Utah Code Ann. $ 76-3-405(2)(a), which allows for an increased sentence when it is "based on facts which were not known to the court at the time of the original sentence." The State argues that because the trial judge did not review the record, which included Defendant's obligation to pay restitution, before originally sentencing Defendant, the prohibition against a harsher sentence does not apply. We disagree.

121 The record discloses that restitution was discussed at Defendant's plea hearing. In addition, the record includes the "Statement of Defendant, Certificate of Counsel and Order," signed by Defendant, in which he agrees to pay restitution. The State cannot claim that the facts regarding restitution were unknown at the time of the original sentencing because the trial judge did not review the record before sentencing Defendant. A trial judge, like every other party to a proceeding, is charged with knowledge of what is in the record. Therefore, the trial judge's failure to familiarize himself with the record in this case does not satisfy the lack of knowledge requirement found in section 76-3-405. Furthermore, as noted in the per curiam opinion vacating Defendant's original sentence, the trial court at the original sentencing did not provide an opportunity for Defendant's counsel or the State to provide any information relevant to sentencing. See State v. Samora, 2001 UT App 266 (per curiam).

122 Having concluded that error occurred, we now turn to whether "the error should have been obvious to the trial court." Dunn, 850 P.2d at 1208. Section 76-8-405, federal case law, Bakalov, and Sorensen clearly prohibit a harsher sentence on resen-tencing absent specific circumstances. The trial court did not address nor specify any basis for deviating from that mandate. Therefore, the error should have been recognized by the trial court.

CONCLUSION

[ 23 We conclude that we have jurisdiction in this case despite Defendant's failure to preserve the issues before the trial court because the trial court illegally imposed sentence in the first sentencing. Alternatively, there was plain error in imposing sentence. Given the record before. us, we conclude that the presumption of vindictiveness or 'retaliation has not been rebutted and Defendant received a harsher sentence on resentencing in derogation of section 76-8-405 and principles of due process. Therefore, we reverse and remand for sentencing in accordance with this opinion. At resentencing, the restitution order must be eliminated, or at Defendant's option and with the trial court's agreement, the fine may be reduced by the amount of restitution. +

24 I CONCUR: NORMAN H. JACKSON, Presiding Judge.

BENCH, Judge

(dissenting):

125 I see this case much differently than do my colleagues.

126 Judge Robin W. Reese took Defendant's plea. In that proceeding, Defendant agreed to pay restitution to the victim, his former girlfriend. Sentencing was then scheduled before Judge J. Dennis Frederick. When Defendant failed to appear for sentencing, Judge Frederick sentenced him in absentia. No sentencing information was presented at that proceeding, and Judge Frederick imposed the maximum jail time and fine. On the first appeal, this court reversed Defendant's sentence in accordance with State v. Wanosik, 2001 UT App 241, 31 P.3d 615, cert. granted, 42 P.3d 951 (Utah 2002). We then remanded the case for re-sentencing.

T27 At the resentencing hearing, Defendant appeared and affirmatively asserted that, under his plea agreement, he owed restitution. He said he owed about $900, maybe "a little higher," although the victim testified that $744.80 would cover her losses. Judge Frederick ordered Defendant to pay the lesser sum in restitution, plus the maximum jail time and fine. Apparently, Defendant had hoped that he would be ordered to pay just the restitution and:no fine. Defendant's attorney made the following statement to the court:

It ... would be my request on behalf of Mr. Samora that the Court do a couple of things. One, that the Court would waive the fing. There is some restitution owing that was part of the negotiation in this case to the victim. They've-Mr. Samora and the victim in the case had a fairly long-term relationship before this all happened and there was, as a part of the negotiation, {an agreement] to pay some restitution with respect to that.' f
We'd ask the Court to-to waive or at least to reduce the fine substantially and- and ask that the Court give him eredit for time served on this case.

128 Defendant never claimed below that the imposition of restitution, in addition to the fine, would violate due process or Utah Code Ann.. § 76-8-405 (1999). Because Defendant did not raise this issue below, we are precluded from addressing it unless Defendant can demonstrate. that exceptional circumstances exist or plain error occurred. See State v. Holgate, 2000 UT 74,¶ 11, 10 P.3d 346. On appeal, Defendant mentions plain error in reciting what he believes to be the applicable standard of review, but does not even purport to demonstrate how the trial court plainly erred. We, therefore, are precluded from addressing the issue.

1 29 We would be precluded from addressing the issue even if Defendant had articulated a plain error argument on appeal. "To establish plain error, an appellant must demonstrate that (1) an error exists, (i) the error should have been obvious to the trial court, and (ii) the error is harmful'" State v. Pecht, 2002 UT 41,¶ 18, 48 P.3d 981 (quoting State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993)). Plain error, however, can never be urged when the appellant affirmatively invites the court's ruling. See State v. Perdue, 813 P.2d 1201, 1206 (Utah Ct.App.1991) (stating that "where invited error butts up against manifest injustice [or plain error}, the invited error rule prevails"). "The doctrine of invited error 'prohibits a party from setting up an error at trial and then complaining of it on appeal'" Id. at 1205 (citation omitted). Otherwise, a criminal defendant could invite prejudicial error and "implant it in the record as a form of appellate insurance...." State v. Parsons, 781 P.2d 1275, 1285 (Utah 1989). In this case, Defendant affirmatively raised the issue of restitution and agreed that restitution was owing. He did not claim that, if restitution were ordered, he had a due process or statutory entitlement to a reduction in the fine. Given how he invited the court to impose restitution, Defendant is now in no position to challenge it on appeal. See Perdue, 813 P.2d at 1205.

30 Even if we could properly reach the merits of Defendant's contention on appeal, the argument fails because the first sentence had no legal effect. At resentencing, the trial court was therefore not limited by the terms of the first sentence. See State v. Babbel, 813 P.2d 86, 88 (Utah 1991) (stating that " 'the rule followed by most jurisdictions is that an unlawful sentence is of no legal effect, allowing the court to correct the sentence by imposing lawful terms at any time the illegality is discovered, regardless of whether the correction involves an increase' ") (quoting Annotation, Power of Court to Increase Severity of Unlawful Sentence-Modern Status, 28 A.L.R.Ath 147, 152 (1984)).

1 31 The main opinion is wrong in trying to distinguish this case from Babbel. In Bab-bel, the Utah Supreme Court cited the statute that preceded rule 22(e) of the Utah Rules of Criminal Procedure for the proposition that the trial court can " 'correct an illegal sentence, or a sentence imposed in an illegal manner, at any time'" Babbel, 813 P.2d at 87 (citation omitted). The supreme court stated that "[the correction of an illegal sentence stands on a different footing from the correction of an error in a convietion." Id. at 88. Therefore, the court held that "the principles underlying" the cases holding that federal due process prohibits a harsher sentence from being imposed in a second trial for the same offense after a reversal of the first conviction, "have no application [to tlhe correction of an illegal sentence." Id.

132 The initial sentence in the present case was illegal because it was improperly imposed in Defendant's absence. That was precisely how the first appeal was argued. When we remanded the case, we expressly noted that the court may correct an illegal sentence at any time. See State v. Samora, 2001 UT App 266 at n. 1 (per curiam) (unpublished mem. decision) (referring to Utah R.Crim. P. 22(e)). My colleagues cannot now change course and hold that a sentence imposed contrary to law is not an illegal sentence. Rule 22(e) itself treats equally "an illegal sentence" and "a sentence imposed in an illegal manner." Utah R.Crim. P. 22(e). Because this case involves an illegal sentence, there can be no presumption of vindictiveness as described in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072 (1969). See Babbel, 813 P.2d at 87-88. When it resentenced Defendant, the trial court was therefore not limited by the terms of the prior sentence. See id.; see also Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986) (quoting United States v. Goodwin, 457 U.S. 368, 374, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), for the proposition that "[nlothing in the Constitution requires a judge to ignore 'objective information ... justifying the increased sentence' ").

83 Accordingly, I would affirm the sentencing order.

      . Wanosik held that due process and Utah Rule of Criminal Procedure 22(a) require a trial court to conduct adequate inquiry into the actual vol-untariness of Defendant's absence before proceeding to sentence in absentia. 2001 UT App 241, ¶ 37-38, 31 P.3d 615.

      . The burden is on the State to establish that Defendant's harsher sentence did not violate the requirements of due process and section 76-3-405. See North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656 (1969).

      . We discuss the colloquy in more detail later in this opinion.

      . The State's brief does not address the Pearce presumption of vindictiveness, arguing instead that because the original sentencing court did not know about restitution agreed to in the plea negotiations, the imposition of restitution at re-sentencing was necessarily nonretaliatory.


source: Caselaw Access Project

author: KITE, Justice. LEHMAN, Justice,

license: Public Domain

text:
    2002 WY 179
    T.M., a Minor, Through R.T. COX, her Guardian Ad Litem; A.O., a Minor, through Cheryl Ranck Schwartz, her Guardian Ad Litem, Appellants (Intervenors-Defendants), v. EXECUTIVE RISK INDEMNITY INC., a Delaware corporation, Appellee (Plaintiff).
    No. 01-264.
    Supreme Court of Wyoming.
    Dec. 16, 2002.
    Rehearing Denied Jan. 15, 2003.

      W.W. Reeves of Reeves & Miller, Casper, Wyoming, Representing Appellants.
    Dan B. Riggs and Jonathan Botten of Lo-nabaugh & Riggs, Sheridan, Wyoming; and Cathy A. Simon, Charles A. Jones, and Vieki E. Fishman of Ross, Dixon & Bell, LLP., Washington, DC, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   KITE, Justice.

[11] TM. and A.O. (children), through their appointed guardians ad litem, appeal from a summary judgment in favor of Executive Risk Indemnity Inc. (Executive) holding a professional liability policy issued to Beth D. Griswold, Ed.D. (Dr. Grigwold), a psychologist, provides no coverage for injuries sustained by the children as a result of sexual abuse by Dr. Griswold's husband while they were in foster care in the Griswold home. We hold the professional services provision and the household member exclusion contained in the policy are ambiguous. Construing those provisions against the insurer, we further hold: (1) there is coverage under the professional services provision of the policy if a jury determines Dr. Griswold negligently performed or failed to perform psychological services for the children while they were under her care; and (2) whether the children "regularly reside[d] with" Dr. Griswold is a question of fact precluding application of the household member exclusion as a matter of law to deny coverage. Accordingly, we reverse the district court's order and remand for further proceedings.

ISSUES

[12] We address the following issues:

1. Whether there is coverage for Dr. Griswold under the professional services provision of the policy if she negligently performed or failed to perform professional services for the children while they were under her care.
2. Whether application of the household member exclusion as a matter of law to deny coverage is precluded because whether the children regularly resided with Dr. Griswold is a question of fact.

FACTS

[13] Dr. Griswold was a licensed psychologist in the State of Wyoming with background and experience working with child victims of abuse. In 1996, the Department of Family Services (DFS) recruited and selected Dr. Griswold and her husband as foster parents, and it placed the children in their home for foster care. While the children were under the Griswolds' care, Mr. Griswold sexually abused them.

[T4] In 1999, the children, through their appointed guardians ad litem, filed a com'plaint against Dr. Griswold alleging claims for negligence and professional negligence. The complaint alleged Dr. Griswold knew, prior to taking the children into her home, that her husband had previously been accused of sexually abusing children and yet she informed no one at DFS of his prior history. It further alleged that Dr. Griswold held herself out to DFS as being specially qualified to serve as a foster parent and DFS relied on ker professional expertise and experience in selecting her home for foster care and placing the children in her care. The complaint alleged that Dr. Griswold breached her professional duties as a psychologist by failing to disclose her husband's history to DFS, taking the children into her home when she knew his history, and failing to recognize and act upon signs that abuse was occurring.

[15] Executive filed a declaratory judgment action seeking a determination that the professional liability insurance policy issued to Dr. Griswold provided no coverage for the claims against her. The children intervened and counterclaimed for declaratory judgment requiring Executive to defend and indemnify Dr. Griswold. Executive responded with a motion to dismiss and for judgment on the pleadings, contending there was no coverage because Dr. Griswold had no duty to perform and, in fact, performed no professional services for the children and because the policy excludes claims by regular residents of the psychologist's household.

[16] After a hearing, the district court denied the motion, finding "a reasonable person might conclude that Dr. Griswold was providing professional services to the [children] and that they were not regular residents of the household." The parties proceeded with discovery and then filed eross-motions for summary judgment. After a hearing, the district court-a different judge presiding-granted Executive's motion for summary judgment, holding there was no coverage under the professional liability policy for Dr. Griswold's alleged negligence. The decision letter states, "a reasonable person would probably conclude that Dr. Gris-wold exhibited negligence in her dealings with [the children], D.F.S., and her husband." However, the district court concluded that, as a matter of law, the professional services provision did not apply because Dr. Griswold did not have a solely professional relationship with the children and' the household member exclusion did apply because the children regularly resided with her.

STANDARD OF REVIEW

[17] Summary judgment is appropriate when no genuine issue as to any material fact exists and the prevailing party is entitled to judgment as a matter of law. Matlack v. Mountain West Farm Bureau Mutual Insurance Company, 2002 WY 60, ¶ 6, 44 P.3d 73, ¶ 6 (Wyo.2002). A genuine issue of material fact exists when a disputed fact, if it were proven, would have the effect of establishing or refuting an essential element of the cause of action or defense which the parties have asserted. Id. We examine the record from the vantage point most favorable to the party who opposed the motion, and we give that party the benefit of all favorable inferences which may fairly be drawn from the record. Id. We evaluate the propriety of a summary judgment using the same standards and materials as the lower court used. Id. We do not accord deference to the district court's decisions on issues of law. Id.

DISCUSSION

[T8] An insurance policy is a contract and is subject to the general rules of contract - construction. - First Wyoming Bank, N.A., Jackson Hole v. Continental Insurance Company, 860 P.2d 1094, 1097 (Wyo.1993). Where the contract is clear and unambiguous, our inquiry is limited to the four corners of the document. Principal Life Insurance Company v. Summit Well Service, Inc., 2002 WY 172, ¶ 17, 57 P.3d 1257; Evans v. Farmers Insurance Exchange, 2001 WY 110, ¶ 8, 34 P.3d 284, ¶ 8 (Wyo.2001); Sierra Trading Post, Inc. v. Hinson, 996 P.2d 1144, 1148 (Wyo.2000). We interpret an unambiguous contract in accordance with the ordinary and usual meaning of its terms. St. Paul Fire and Marine Insurance Co. v. Albany County School District No. 1, 763 P.2d 1255, 1258 (Wyo.1988). It is only when a contract is ambiguous that we construe the document by resorting to rules of construction. Evans, 2001 WY 110, ¶ 9, 34 P.3d 284; Sinclair Oil Corporation v. Republic Insurance Company, 929 P.2d 535, 539 (Wyo.1996); Martin v. Farmers Insurance Exchange, 894 P.2d 618, 620 (Wyo.1995). Whether a contract is ambiguous is for the court to decide as a matter of law. Evans, 2001 WY 110, ¶ 9, 34 P.3d 284; Martin, 894 P.2d at 620. A contract is ambiguous if indefiniteness of expression or double meaning obscure the parties' intent. Evans, 2001 WY 110, ¶ 9, 34 P.3d 284; Hansen v. Little Bear Inn Company, 9 P.3d 960, 964 (Wyo.2000). Because insurance contracts are contracts of adhesion where the insured has little or no bargaining power to vary the terms, we strictly construe ambiguities against the insurer. Evans, 2001 WY 110, ¶ 9, 34 P.3d 284. In the case before us, two particular provisions of the Executive insurance policy are at issue: the professional services provision and the household member exelusion.

A. Professional Services Provision

[19] The policy provides that it covers claims made against Dr. Griswold for her wrongful acts. The term "wrongful act" is defined in the policy as follows:

"Wrongful Act" means any actual or alleged negligent act, error or omission, or any actual or alleged Defamation solely in the performance of, or actual or alleged failure to perform, professional services for others in Your profession as a psychologist, including Your services as a member of a formal accreditation or professional review board of a hospital or professional society, or professional licensing board.

(Emphasis added.) The children argue there is insurance coverage pursuant to this provision because, in failing to recognize the risk of or prevent the sexual abuse, Dr. Griswold negligently performed or failed to perform professional services in her profession as a psychologist within the meaning of the policy. Executive disputes this reading of the policy, arguing there is no coverage because Dr. Griswold was acting as a foster parent, not a psychologist, to the children and any wrongful acts or omissions she may have committed were not solely in the performance of or failure to perform professional services as the policy requires.

[110] In interpreting the professional services provision, as with any other contract provision, we look first to the four corners of the document and interpret the language, if possible, according to its plain and ordinary meaning. The provision states there is coverage for any negligent act or omission or any defamation solely in the performance of or failure to perform professional services to others as a psychologist. The most striking feature of the provision is that it does not lend itself easily to reasonable interpretation. When read literally as it is written, the provision suggests there is coverage for: (1) any negligent acts and omissions, whether or not in the performance of professional services; and (2) defamations solely in the performance of professional services. We do not find this to be a reasonable interpretation given the policy is a psychologist's professional liability policy implying coverage not for any and all negligence but for only professional negligence. We mention this possible interpretation merely to illustrate the provision's poor draftsmanship. The difficulty of interpretation does not end there.

[T11] The provision can be read to suggest rather broad coverage is intended. The provision does not, for example, restrict coverage to negligence in providing professional services to "patients" or "clients" but provides coverage for negligence in performing professional services for "others." The provision likewise suggests there is coverage for "any" negligent act or omission in the performance of or failure to perform professional services rather than delineating specific acts or omissions for which coverage is available. It also appears from the last clause of the provision that the intended scope of coverage goes beyond actual therapy or counseling services-it expressly includes service on professional boards within the phrase "professional services for others in [ylour profession as a psychologist." Use of the word "including" implies the existence of a range of other professional services not specifically enumerated in the policy. Viewed in this light, the provision seems to provide coverage for a rather broad spectrum of psychological services.

[T12] However, as Executive points out, the use of the word "solely" in the provision suggests a narrower seope-one limiting coverage to acts or omissions committed by Dr. Griswold while acting exclusively as a psychologist in a formal professional relationship with a patient or client and not in some broader capacity. Executive asserts that, because Dr. Griswold was acting as a foster mother for the children and DFS throughout the period of abuse and not solely, if at all, as the children's psychologist, the professional liability policy does not cover her acts.

[113] "Solely" is defined as "1 : without an associate (as a companion or assistant) : singly, alone 2 : to the exclusion of alternate or competing things (as persons, purposes, duties)." Webster's Third New International Dictionary 2168 (1961). Giving the word "solely" its plain and ordinary meaning and reading it in isolation from the other language in the provision, one might interpret the provision as excluding coverage for all but a narrow category of negligent acts or omissions occurring exclusively in the context of a psychologist-patient relationship. Taken to its extreme, the word "solely" might even be read to require such a complete nexus between the negligent act and the performance of professional services as to exclude coverage if professional services are provided to anyone with whom the psychologist also happens to be friends, attends church, or has some other nonprofessional relationship. Given the broad language used elsewhere in the provision, we are not convinced such a strict, literal interpretation was intended or is reasonable.

[114] Instead, presented with language which lends itself to such vastly different interpretations, we are compelled to conclude the provision is ambiguous. We apply the rule that ambiguity in an insurance policy is construed against the insurer and in favor of coverage. Application of this rule leads us to reject Executive's interpretation of the provision as excluding coverage because the alleged acts of professional negligence occurred while Dr. Griswold was also acting as a foster parent for the children and DFS. Rather, construing the provision against the drafter, we hold there is potential coverage under the policy for professional negligence if Dr. Griswold negligently performed or failed to perform psychological services for the children even though she was also acting as a foster parent.

[115] In reaching this result, we point to the rule that we will not construe a contract of insurance so strictly as to thwart the general object of the insurance. Eisenbarth v. Hartford Fire Insurance Company, 840 P.2d 945, 950 (Wyo.1992). This policy was intended to protect Dr. Griswold from lability 'in the event she negligently performed or failed to perform services for others as a psychologist. When the ambiguities in the provision are construed in favor of coverage, the policy protects Dr. Griswold from liability if, in the course of agreeing to act or acting as a foster parent, she utilized her skills as a psychologist and did so in a negligent manner. -If Executive intended to narrowly limit coverage to those situations where Dr. Gris-wold was providing formal psychological services to patients or clients with whom she had no other nonprofessional relationship, it could have easily done so. It did not, and we will not rewrite the policy to limit coverage in that manner.

[T16] We remand the case for trial on the factual question of whether Dr. Griswold negligently performed or failed to perform professional services for the children. In answering this question, the jury should consider the following principles:

First, a "professional service" is generally defined as one arising out of a vocation or occupation involving specialized knowledge or skills, and the skills are mental as opposed to manual. Second, the determination of whether a particular act or omission falls within the scope of a professional services exclusion depends upon the nature of the activity rather than the position of the person responsible for the act or omission.

Duke University v. St Paul Fire and Marine Insurance Company, 96 N.C.App. 635, 386 S.E.2d 762, 765 (1990) (citation omitted). If, upon application of these principles to the facts presented, the jury finds Dr. Griswold provided services to the children arising out of her specialized knowledge or experience as a psychologist, it must consider whether her acts or omissions in doing so fell below the applicable standard of care for psychologists. If, however, the jury finds Dr. Griswold merely performed services for the children as any other foster parent would have done-services which did not arise from her specialized knowledge or skills as a psychologist, the professional negligence claim must fail.

[117] The parties spend considerable time in their briefs addressing whether Dr. Griswold owed a professional duty to the children. Executive asserts that Dr. Gris-wold owed no duty to the children because she did not have a therapist/client relationship with them, a necessary prerequisite, Executive contends, to the existence of a duty. The children argue Dr. Griswold did owe a duty to them because she used her professional expertise while serving as a foster parent and, having done so, must be held to the same level of competence as any other psychologist in the performance of profes— sional services.

[T18] The - determination - of whether a duty exists is for the court to decide as a matter of law., JK ex rel. DK v. MK, 5 P.3d 782, 792 n. 2 (Wyo.2000).

A duty exists where, "upon the facts in evidence,' such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other-or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant."

Id. (quoting Goodrich v. Seamands, 870 P.2d 1061, 1064 (Wyo.1994)). The existence of a physician-patient type relationship is one "such relation" which establishes a duty. Meyer v. Mulligan, 889 P.2d 509, 513 (Wyo.1995); Vassos v. Roussalis, 625 P.2d 768, 772 (Wyo.1981). The determination of whether a physician-patient relationship exists is. typically a question of fact which cannot be resolved on summary judgment. Meyer, 889 P.2d at 513-14. In this case, the jury must determine whether a professional relationship existed between Dr. Griswold and the children; that is, whether, in the course of serving as a foster parent, Dr. Griswold performed professional services for the children. If the jury decides, based upon the facts presented, that a professional relationship existed between Dr. Griswold and the children, that finding establishes the duty, and the standard is fixed as that which is required of a reasonable person in light of the cireumstances. Roybal v. Bell, 778 P.2d 108, 111 (Wyo.1989).

B. Household Member Exclusion

[119] The policy contains the following exclusion for claims brought by household members of the insured:

IV. EXCLUSIONS-CLAIMS COVERED: NOT
We will not cover any Claim:
H. by any other person or organization covered under this policy, or for injury or damage sustained by any spouse or Household Member of any individual covered under this policy.

The policy defines household member as "any person who regularly resides with" the named insured.

[120] ' Executive claims, and the district court found, that the children regularly resided with Dr. Griswold within the meaning of the policy, so there was no coverage. The children argue they did not regularly reside with Dr. Griswold within the policy's meaning because their placement in her home was a formal, temporary arrangement which the state regulated and controlled pursuant to contracts of varying lengths subject to termination when they were able to return to their permanent homes. The children also contend that whether they "regularly reside[d] with" Dr. Griswold is a question of fact for a jury to determine.

[121] We begin our discussion by noting that part of the claim in this case is that Dr. Griswold should never have agreed to the children being placed in her home. To the extent the children allege claims for negligence occurring before their actual placement in the Griswold home, we hold their injuries are not excluded under the household member exclusion. We are not willing to read the provision so broadly as to exclude claims for injuries which, although occurring while the children resided with Dr. Griswold, were set in motion by allegedly negligent acts or omissions preceding their placement in the home.

[122] Wyoming has not previously considered the meaning of the phrase "regularly resides with" in an exclusionary clause of an insurance policy. The court has considered, however, the meaning of the words "resident" and "residence" as used in Wyoming statutes. In that context, the court has said that, for purposes of the divorce statutes, the question of residence is one of fact. Black v. De Black, 1 P.3d 1244, 1249 (Wyo.2000). The court has also said that, in construing the Wyoming Insurance Guaranty Association Act, Wyo. Stat. Ann. §§ 26-81-101 through 26-81-117 (LexisNexis 2001), failure to define the term "resident" in the statute "makes it an ambiguous term which is subject to varying interpretations." Wyoming Insurance Guaranty Association v. Woods, 888 P.2d 192, 197 (Wyo.1994). While these cases are not directly relevant to the issue presented here, they do illustrate the broader point that the question of residency is generally factual in nature and, left undefined, the term is subject to differing interpretations.

[123] Among the jurisdictions that have considered the word "resident" or the phrase "regularly resides with" in an insurance policy, the results have varied. Finding the term "resident" to require more than temporary placement and to require an element of permanency, the court in Country Mutual Insurance Company v. Watson, 1 Ill.App.3d 667, 274 N.E.2d 136, 138 (1971), held there was coverage for injuries sustained by a foster child temporarily residing in the insured's home despite an exclusion for injuries sustained by residents of the insured's household. Several other courts have found coverage in the face of similar exclusions, holding that the words "resident" or "regularly resides with" are ambiguous and must be construed in favor of the insured. Zulakis v. Auto-Owners - Insurance Company, - No. 221948, 2001 WL 1480713, 2001 Mich.App. LEXIS 1874 (Mich.Ct.App. Nov.20, 2001); Vanguard Insurance Company v. Racine, 224 Mich.App. 229, 568 N.W.2d 156 (1997), appeal dismissed by 459 Mich. 946, 601 N.W.2d 99 (1999); Nationwide Mutual Insurance Company v. Diehl, 768 F.Supp. 140 (E.D.Pa.1990); Napier v. Banks, 19 Ohio App.2d 152, 250 N.E.2d 417 (1969).

[124] We find this approach persuasive. Just as the failure to define the term "resident" in the statutes makes it an ambiguous term subject to varying interpretations, Wyoming Insurance Guaranty Association, 888 P.2d at 197, the failure to define "regularly resides with" in an insurance policy leaves the phrase open to differing interpretations. We hold the undefined phrase "regularly resides with" as used in the policy is ambiguous. Construing it in favor of coverage, we reject Executive's contention that the children resided with Dr. Griswold as a matter of law and hold the issue is a question of fact for determination at trial.

[125] We are aware that, in construing similar policy language, other courts have reached the result Executive would have this court reach. Executive cites Jenks v. State, 507 So.2d 877 (La.Ct.App.1987), for example, in which the court construed a homeowner's policy containing an exclusion for bodily injury to residents of the insured's household. In that case, however, the policy expressly limited the term "residents" to the insured's relatives and "any other person under the age of 21 who is in the care of" any insured. 507 So.2d at 879. Other courts have upheld policy exclusions containing the same or similar language. Merchants Mutual Insurance Co. v. Artis, 907 F.Supp. 886 (E.D.Pa.1995); Allstate Insurance Company v. Shockley, 793 F.Supp. 852 (S.D.Ind.1991), aff'd, Allstate Insurance Company v. Desjarlais, 980 F.2d 733 (7th Cir.1992). Unlike the exelusions at issue in those cases, the policy in this case contains no limitation on the phrase "regularly resides with," nor does it attempt to define the phrase in any other. way. On that basis, we find the exclusion in this case distinguishable from those in the above cited. cases.

[126] Executive also cites A.G. by Waite v. Travelers Insurance Company, 112 Wis.2d 18, 331 N.W.2d 643 (Ct.App.1983), as support for upholding the exclusion. In that case, the court held that, as a matter of law, a child placed in a family operated foster home for one year pursuant to court order was a resident of the household for insurance purposes. The court based its holding on three factors: (1) state precedent; (2) evidence the family considered the foster care situation in contracting for insurance; and (8) "commonsense policy considerations," including a state statute suggesting the legislature intended foster children to be considered residents for insurance purposes. 331 N.W.2d at 648. None of these factors is present in this case, and, for that reason, we do not find the court's rationale in A.(G@. persuasive.

CONCLUSION

[127] The professional services provision and the household member exclusion contained in the policy are ambiguous. Construing the language against the drafter, we hold: (1) there is coverage under the professional services provision if a jury finds Dr. Griswold provided professional psychological services to the children while they were under her care, and (2) whether the children regularly resided with Dr. Griswold is a question of fact precluding application of the household member exclusion as a matter of law to deny coverage.

[128] Reversed and remanded for further proceedings consistent with this opinion.

LEHMAN, Justice,

dissenting.

[129] I respectfully dissent. The definition of "wrongful act" in the insurance contract in this case appears to clearly set forth coverage for the insured while providing professional services for others as a psychologist. I am, therefore, unable"to join the majority in finding ambiguity in that paragraph and, upon review of the analysis, am reminded of Doctors' Co. v. Ins. Corp. of America, 864 P.2d 1018, 1024 (Wyo.1993) in which we said: "The language of an insurance policy is ambiguous if it is capable of more than one reasonable interpretation ... the language will not be 'tortured' to create an ambiguity." (Emphasis added.)

[130] The majority's reading and interpretation of the policy language seems to, if not torture, at least stretch the meaning of the words to arrive at an unreasonable and confusing interpretation. I read the policy language much more plainly. In my reading of the provision in question, I see only instances where the wrongful act is tied entirely to performance of a psychologist.

"Wrongful Act" means any actual or alleged negligent act, error or omission, or any actual or alleged, Defamation solely in the performance of, or actual or alleged failure to perform, professional services for others in Your profession as a psychologist, including Your services as a member of a formal accreditation or professional review board of a hospital or professional society, or professional licensing board. *

(Emphasis added.)

[131] It seems clear that the only reasonable interpretation of this provision leads to the conclusion that the covered "wrongful acts" are those that arise solely out of Dr. Griswold's profession as a psychologist. When I read this provision literally, I see that "wrongful acts" under this provision are any of the following that arise solely out of the performance of professional services in the doctor's profession as a psychologist: actual or alleged negligent acts, actual or alleged errors, actual or alleged omissions, or actual, or alleged defamations. "Wrongful acts". also includes any actual or alleged failure to perform professional services for others in the doctor's profession as a psychologist. The reason the last "wrongful act" must be separated from the rest of the list is to avoid contradiction. It would make little sense to say a "wrongful act" is an actual or alleged failure to perform professional services, solely in the performance of professional services. If the doctor has "failed to perform," then the doctor would not be "in the performance of" professional services. Such language style choices do not render the provision ambiguous.

[182] Furthermore, the meaning of the terms is determined by considering the document as a whole, not by considering small phrases in isolation as the majority opinion seems to do. "[WJe consider the contract as a whole, reading each part in light of all the other parts; ... in other words, we analyze 'the tenor of the contract." Examination Mgmt. Servs., Inc. v. Kirschbaum, 927 P.2d 686, 690 (Wyo.1996). The insurance policy in question was Dr. Griswold's psychologist malpractice insurance. The "tenor" of the contract was that of malpractice insurance covering Dr. Griswold for acts as a psychologist not as a foster parent.

[133] I come closer to agreement with the majority when the discussion turns to the question whether Dr. Griswold was providing professional services for the children. However, the evidence shows that the Griswold home was certified for regular foster care, rather than specialized or therapeutic foster care in which a foster parent would be expected to utilize his or her special training and expertise during the course of the foster care relationship.

[134] Further, in accordance with the understanding between Dr. Griswold and DFS, because Dr. Griswold was not acting as a specialized or therapeutic foster care provider, the children were receiving psychological counseling and therapy from psychologists other than Dr. Griswold. In fact, at trial, another psychologist testified that she was unaware of any professional relationship between Dr. Griswold and the children.

[185] Clearly, Wyo. Stat. Ann. § 14-3-205(a) (LexisNexis 2001) requires any person who has knowledge or reasonable cause to believe that a child has been or may be abused or neglected to report the situation to the appropriate authorities. I also do not dispute that, because of her education and experience, Dr. Griswold could have been more aware than the untrained person to observe signs of abuse. I agree with the district court decision letter that "a reasonable person would probably conclude that Dr. Griswold exhibited negligence in her dealings" with the children. However, for me that does not automatically cause the transposition from providing foster care to providing professional services to the children as a psychologist.

[436] I would, therefore, affirm the district court which considered at length the actual relationship between Dr. Griswold and the children. The district court was not given the opportunity to decide the issue of ambiguity within the contract because it was not raised below; however, I do agree with that court's understanding of the clear meaning of the contract language.

      . The children present these issues:
      1. Whether a licensed psychologist has a duty to act for the benefit of two small girls placed as foster children with the psychologist and her husband by the State in reliance on the professional skill of the psychologist, when a reasonably competent psychologist in the same line of practice would have recognized, based upon professional training and standards under similar circumstances, that the two children were at high risk of sexual abuse by the psychologist's husband, or were being abused by him.
      2. Whether a licensed psychologist regularly engaged by the Wyoming Department of Family Services (DFS) to provide counseling, training and assessment for families in need, including those where sexual abuse has occurred or is suspected, has a professional duty based upon the ongoing professional relationship to warn DFS of the risk of sexual abuse to children in DFS' custody by a foster father candidate where knowledge of the risk came to the psychologist from outside any DFS assignment?
      3. Whether a licensed psychologist who uses her training as a psychologist in the care of foster children in her temporary custody has a duty to apply that professional skill with ordinary care. . .
      4. - If there is a duty as posed in Issue 1, 2 or 3, whether a breach of the duty is a "Wrongful Act'" defined in the psychologist's professional liability insurance policy as "any actual or alleged negligent act, error or omission, or any actual or alleged Defamation solely in the performance of, or actual or alleged failure to perform, ... services for others in Your profession as a psychologist, ..."
      5. Whether foster children placed temporarily with a psychologist and her husband by DFS, with the intention of restoring them to the home of their natural parents as soon as possible, "regularly" reside with the psychologist so that the Household Member exclusion of the psychologist's professional liability policy applies to the claim of the foster children.
      Executive phrases the issues as:
      1. Whether a psychologist['s] professional liability policy provides coverage for a claim brought on behalf of two foster children against their former foster mother where there was no professional relationship between the insured foster mother and either her foster children or any other relevant person or entity.
      2. Whether a household member exclusion in a psychologist['s] professional liability policy precludes coverage for a claim brought on behalf of two foster children against their former foster mother for negligence that allegedly occurred while the children resided for ten and twenty months, respectively, in the home of their insured foster mother.

      . Mr. Griswold was convicted of ten counts of second-degree sexual assault and two counts of taking indecent liberties with the children. Griswold v. State, 994 P.2d 920, 924 (Wyo.1999).

      . The children voluntarily dismissed the negligence claim during the litigation, leaving only the professional negligence claim.


author: VOIGT, Justice.

text:
    2002 WY 182
    William Jeffery DONEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Vincent Leroy Brown, Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff).
    Nos. 01-73, 01-89.
    Supreme Court of Wyoming.
    Dec. 18, 2002.

      Representing Appellants: Kenneth Koski, Public Defender; Donna D. Domonkos, Appellate Counsel; Diane Courselle, Director, Defender Aid Program; and Kirk Morgan, Intern.
    Representing Appellee: Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney -General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Lloyd D. Rickenbach, Intern.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   VOIGT, Justice.

[11] In 2001, Vincent Leroy Brown (Brown) and William Jeffery Doney (Doney) were arrested on probation revocation warrants. Brown first appeared before a judicial officer forty-eight days after the warrant was executed against him and Doney first appeared before a judicial officer eighteen days after the warrant was executed against him. In both appeals, we conclude that, based on the records before us, these delays were unnecessary and violated the W.R.Cr.P. 39(a)(2) requirement that a "probationer arrested on a warrant and taken into custody shall be taken before a judicial officer without unnecessary delay." To remedy this violation, we remand to the district court for modification of its sentencing orders to credit Brown and Doney for time served against their respective minimum and maximum sentences, beginning when each was arrested and ending the date each first appeared before a judicial officer.

ISSUES

[12] We rephrase the issues stated by Brown and Doney as follows:

1. Considering the cireumstances of these particular appeals, was the W.R.Cr.P. 39(a)(2) requirement that "[a] probationer arrested on a warrant and taken into custody shall be taken before a judicial officer without unnecessary delay" violated?

2. If so, what constitutes an appropriate remedy?

FACTS

Brown

[13] In 1998, Brown pled guilty to one count of burglary, a felony. The district court deferred acceptance of that plea pursuant to Wyo. Stat. Ann. § 7-18-801 (Lexis 1999), and conditionally placed him on probation for five years. In February 1999, Brown admitted to violating this probation. The district court revoked the probation, accepted Brown's guilty plea, and sentenced him to a three-to-five year prison term with a recommendation that he be "placed at the Wyoming Conservation Camp. After Brown graduated from the Wyoming Conservation Camp, the district court suspended the balance of his sentence and conditionally placed him on supervised probation for three years.

[T4] On September 26, 2000, the State petitioned the district court to revoke Brown's probation. That same day, the district court issued a warrant for Brown's arrest. The Fremont County sheriffs office arrested Brown on the warrant on January 26, 2001. In orders filed the same day, the district court appointed a public defender to represent Brown in the revocation proceeding and ordered Brown to appear on March 15, 2001, for a "hearing." Brown remained in jail.

[T5] At the hearing on March 15, 2001, the district court advised Brown of the allegations contained in the revocation petition and of the items listed in W.R.Cr.P. 39(a)(8). The district court also informed Brown that since he was in custody, a revocation hearing "must be held within 15 days from today, unless for good cause these limits are extended by the Court." Brown then admitted to violating the terms of his probation. The district court revoked Brown's probation, imposed the three-to-five year prison term, suspended that sentence and ordered Brown to apply for placement at a community alternative center in Wyoming. Upon his successful completion of that program, the district court ordered that Brown again be conditionally placed on supervised probation for three years. The district court decided that Brown should not receive credit for the time he served between his January 26, 2001, arrest and the March 15, 2001, hearing.

DonEy

[16] In 1999, Doney pled guilty to one count of forgery, a felony. The district court sentenced Doney to a three-to-five year prison term, but suspended that sentence and conditionally placed him on supervised probation for three years. On February 2, 2001, the State petitioned the district court to revoke Doney's probation. The district court issued a warrant for Doney's arrest on February 2, 2001, and it appears that the Fremont County sheriff's office arrested Doney on the warrant that same day. Doney filed a financial affidavit on February 5, 2001, and, in an order filed February 6, 2001, the district court appointed the public defender to represent him in the revocation proceeding.

[17] In an Order for Hearing also filed on February 6, 2001, the district court ordered Doney to appear for a "hearing" on February 20, 2001. .At that hearing, the district court advised Doney of the allegations contained in the revocation petition and of the items listed in W.R.Cr.P. 89(2)(B). Doney then admitted to violating the terms of his probation. The district court revoked Doney's probation, again conditionally placed him on supervised probation for three years, and ordered that he successfully complete a community alternative center program. The district court decided that Doney would "not receive credit for the twenty-six (26) days pre-revocation incarceration."

[18] Brown and Doney appeal from the orders imposing their respective probation revocation sentences, which appeals were consolidated for our review. The appellate issues raised by Brown and Doney involve questions of law, which we review de movo. Worcester v. State, 2001 WY 82, 118, 30 P.3d 47, 52 (Wyo.2001).

DISCUSSION

[19] Brown and Doney first argue that W.R.Cr.P. 39(a)(2) was violated in their cases because neither of them' was taken before a judicial officer "without unnecessary delay" following their arrests on probation revocation warrants. To remedy this violation, Brown and Doney seek credit against their sentences for the time they remained incarcerated pending their appearances before a judicial officer. We find the analysis of this issue to be dispositive in both appeals, rendering additional arguments presented by both parties moot.

[¶101 However, we will briefly address the State's contention that Brown and Doney waived our consideration of the claimed W.R.Cr.P. 89(a)(2) violation because both admitted to violating the terms of their respective probations. To support this argument, the State cites to a single case for the general proposition that a "plea of guilty waives all nonjurisdictional defenses." We decline to consider the merits of this argument, absent a more detailed analysis or citation to additional authority pertinent to the particular cireumstances of the instant appeals.

Histroricat CoNnTEXT or 39

Prior to 1991, the criminal rule governing probation revocations provided:

The court shall not revoke probation except after a hearing at which the defendant shall be present and apprised of the grounds on which such action is proposed. The defendant may be admitted to bail pending such hearing. >

W.R.Cr.P. 33(f) (1968). The 1991 criminal rules revision (effective March 24, 1992) created Rule 89 to govern probation revocations, which rule provided, in pertinent part:

(a) Revocation of probation. -Proceedings for revocation of probation shall be initiated by a petition for revocation filed by the attorney for the state, setting forth the conditions of probation which are alleged to have been violated by the probationer and the facts establishing the violation.
(1) Process.-If it appears from a verified petition to revoke probation, or from an affidavit or affidavits filed with the petition, that there is probable cause to believe the probationer violated the terms of probation, the court shall order the probationer to appear before the court on a date and time stated to answer to the allegations in the petition. Upon the written request of the attorney for the state demonstrating good cause therefor, the court may issue a warrant for the probationer. A copy of the petition for revocation shall be served upon the probationer along with the order to appear or warrant.
(2) Appearance-A probationer arrested on a warrant and taken into custody shall be taken before a judicial officer without unnecessary delay, but in any event within 48 hours of arrest.
(8) Advice to Probationer-At the probationer's first appearance before the court, the court shall advise the probationer of the allegations of the petition for revocation and of the contents of any affidavits and shall further advise the probationer: «
(A) Of the probationer's right to retain counsel and, where applicable, the right to appointed counsel;
(B) That the probationer is not required to make a statement and that any statement made could be used against the probationer; °
(C) Of the right to a hearing before a Judge without a jury; |
(D) Of the state's burden of proof;
(E) Of the probationer's right to confront adverse witnesses, to call other witnesses and have court process to obtain the testimony of reluctant witnesses and to present other evidence at the hearing; and
(F) If the probationer is in custody, of the general cireumstances under which release may be secured pending a hearing.
[(4)] Plea -The probationer shall be given a copy of the petition for revocation of probation before being called upon to plead. The probationer shall be called upon to admit or deny the allegations of the petition for revocation. If the probationer admits the allegations of the petition, the court may proceed immediately to disposition, or may set a future date for disposition. If the petitioner denies the allegations of the petition, or declines to admit or deny, the court shall set the matter for hearing.
(A) If further proceedings are to follow the first appearance, the court may commit or release the probationer as provided in Rule 46.2.
(B) A hearing on the petition shall be held within the following time limits:
(1) If .the probationer is in custody because of the probation revocation proceedings, a hearing upon a petition for revocation of probation shall be held within 15 days after the probationer's first appearance before the court following the filing of the petition. If the probationer is not in custody because of the probation revocation proceedings, a hearing upon the petition shall be held within 30 days after the probationer's first appearance following the filing of the petition. For good cause the time limits may be extended by the court.
(i) Where it appears that the alleged violation of conditions of probation consists of an offense with which the probationer is charged in a criminal proceeding then pending, the court may continue the probation revocation proceedings until the termination of the criminal proceeding if the probationer consents, or regardless of consent, if the probationer is not in custody because of the probation revocation proceedings.
[(b) 1 Hearing. -At 'the hearing upon the petition for revocation of probation, the state must establish the violation of the conditions of probation alleged in the petition by a preponderance of the evidence.
(A) The probationer, shall have the right to appear in person and by counsel, and to confront and examine adverse witnesses.
(B) The Wyoming Rules of Evidence shall apply to the adjudicative phase of probation revocation hearings, but not to the dispositional stage.
[(6)] Findings. -If the court finds a violation of conditions of probation and revokes probation, it shall enter an order reciting the violation and the disposition.

W.R.Cr.P. 39 (effective March 24, 1992).

[112] We noted in Cooney v. White, 845 P.2d 353, 366 n. 18 (Wyo.1992), cert. denied, 510 U.S. 813, 114 S.Ct. 60, 126 L.Ed.2d 30 (19983) that ‘

W.R.Cr.P. 39 (effective March 24, 1992) in rewriting the prior judicial probation revocation rule, W.R.Cr.P. 38(f), recognized in specific provisions the due process concerns created by the Cooney litigation. The rule includes an alternative process of an order to appear instead of a bench warrant and arrest, The rule then requires that if arrested, the individual is given the right to a mandatory forty-eight hour judicial appearance.

At issue in Cooney was what immunity a prosecutor was entitled to receive based on the following facts, which facts also reveal the referenced "due process concerns:"

Chris J. White, assistant prosecuting attorney (prosecutor) in Park County, Wyoming, directed a probation officer, resident in Evanston, Uinta County, Wyoming, to prepare a false and perjured petition for revocation of probation against Thomas Russell Cooney. Cooney was working in the oil patch at Bairoil, Wyoming, a corner of Sweetwater County, Wyoming, which is an area under the supervision of the parole office in Rawlins, Carbon County, Wyoming. The prosecutor, knowing that revocation was improper and that the form which he, as deputy county attorney (county official), had directed the probation officer (state official) to prepare was untrue, arranged for the form to be filed in the district court. Based upon this false complaint, the prosecutor secured the issuance of a bench warrant resulting in the incarceration of Cooney for thirty-eight days without . opportunity to post bail, be arraigned, secure the assistance of counsel or to obtain any hearing.

Id. at 855.

[T13] The 1991 revision, and subsequent amendments, apparently incorporated procedures designed to meet the federal due process requirements established by Gagnon v. Scarpellh, 411 U.S. 778, 98 S.Ct. 1756, 86 L.Ed.2d 656 (1973) and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d' 484 (1972), as well as other requirements established under Wyoming law. See, e.g., Pearl v. State, 996 P.2d 688 (Wyo.2000) (right to counsel, state constitution); Mapp v. State, 929 P.2d 1222 (Wyo.1996) (due process requirements); Gailey v. State, 882 P.2d 888 (Wyo.1994) (probation revocation procedure and due process requirements); Reese v. State, 866 P.2d 82 (Wyo.1998) (right to a speedy hearing, state constitution); Krow v. State, 840 P.2d 261 (Wyo.1992) (due process rights requirements); Wlodarceyk v. State, 836 P.2d 279 (Wyo.1992), overruled on other grounds by Daugherty v. State, 2002 WY 52, x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x

x x x x

x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x

delay." W.R.Cr.P. 39(a)(2) (effective until September 1, 2001) (Rule 89). We have said that the phrase "without unnecessary delay" contained in W.R.Cr.P. 5(a) is

not subject to precise definition, nor does it call for mechanical obedience. Application of the limits of the term is dependent upon both the facts and cireumstances of the particular case, viewed in light of the purpose of the rule.

Cherniwchan v. State, 594 P.2d 464, 466 (Wyo.1979). It is evident from the plain language of Rule 39(a)(2), and its historical context, that one purpose of the rule is to prevent the "unnecessary" restraint of a probationer's personal liberty between the time he is arrested on a probation revocation warrant and his subsequent appearance before a judicial officer of the court from which the warrant was issued. We note also that a timely appearance is integral to ensuring that a probationer is advised of, and promptly receives consideration regarding, the items listed in Rule 89(a@)@®8). This is especially true concerning a probationer's right to a "speedy disposition of the charges against him" because Rule 39(a)(4)(B) requires that if "the probationer is in custody because of the probation revocation proceedings, a hearing upon a petition for revocation of probation shall be held within 15 days after the probationer's first appearance before the court following the filing of the petition." (Emphasis added.) See also Reese, 866 P.2d at 84.

[115] Viewing the facts and circumstances of Brown's and Doney's appeals in light of this purpose, we conclude that Rule 39(a)(2) was violated. The probation revocation arrest warrant was executed on Brown on January 26, 2001, and, according to the record before us, he remained incarcerated until his next appearance before the district court, that being the March 15, 2001, hearing,. The probation revocation arrest warrant was executed on Doney on February 2, 2001, and, according to the record before us, he remained incarcerated until his next appearance before the district court, that being the February 20, 2001, hearing. The record does not reference any other instance that Brown or Doney appeared before a judicial officer, and the district court did not provide for bond on the face of either arrest warrant.

[116] Given the substantial length of these delays, forty-eight and eighteen days, respectively, we are unable to discern any justification in the record to support their "necessity," even allowing for some reasonable delay due to docket management or the logistics inherent in the arrest and judicial processes. Both probation revocation arrest warrants were executed in Fremont County, the county in which the district court sits, not another jurisdiction, and Brown and Doney were arrested exclusively on the probation revocation warrants, not for any other purpose. The record contains no evidence that the district court's schedule necessitated the delays, although it is difficult to conceive of a scheduling difficulty that would necessitate forty-eight or eighteen days in taking a probationer before a judicial officer for what typically amounts to a brief first appearance. The fact that the district court set Doney's hearing nearly three weeks earlier than Brown's, although Brown was arrested prior to Doney, certainly would undermine such a contention in the instant appeals. The record contains no evidence that the delays were attributable to either Brown or Doney. Accordingly, we can conclude only that the delays were unnecessary and violated Rule 39(a)(2).

REmiEpy ror 39(a)(2) VIOLATION

[N17] Rule 39 does not provide a specific remedy for violating subsection (a)(@2). However, this Court's rulemaking power expressly governs "provisional and final remedies...." Wyo. Stat. Ann. § 5-2-115(a)() (LexisNexis 2001). See also Wyo. Stat. Ann. § 5-2-114 (LexisNexis 2001). Should a Rule 39(2)(2) violation require a remedy, we prefer to tailor that remedy to the cireumstances of each case in light of the harm the rule was promulgated to prevent.

[118] W.R.Cr.P. 2 states that

[these rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.

Given the lengthy, unnecessary delays in the instant appeals, during which delays Brown and Doney remained in custody, and the referenced purpose of Rule 89(2)(2) and its important nexus to subsections (a)(8) and (a)(4), we conclude that Brown and Doney are entitled to a remedy. Yet, Brown and Doney received copies of the revocation petitions at the time the arrest warrants were executed, the district court did appoint Brown and Doney counsel promptly thereafter, and Brown and Doney did eventually appear before the district court and, after the district court advised them in accordance with Rule 39(a)(8), both chose to admit violating the terms of their respective probations and forego a further adjudicatory hearing. The cireumstances do not appear to warrant dismissing with prejudice Brown and Do-ney's probation revocations, and Brown and Doney have not asked that we do so. Therefore, we find it particularly appropriate in the instant appeals to remand to the district court for modification of its sentencing orders to credit Brown and Doney for time served against their respective minimum and maximum sentences, beginning when each was arrested and ending the date each first appeared before a judicial officer. |

      . The return indicates that the Fremont County sheriff's office served the warrant on January 2, 2001. However, this appears to be a mistake. The State filed the revocation petition on February 2nd, the district court issued the arrest warrant on February 2nd, and the arrest warrant is stamped "RECEIVED" by the sheriff's office on February 2nd.

      . The State represented to the district court that Doney had "been in jail since January 26. I count 26 days of incarceration." For purposes of this appeal, it does not appear that Doney was arrested pursuant to a warrant until February 2, 2001. .

      . See Smith v, State, 871, P.2d 186 (Wy0.1994).

      . Indeed, the State concedes that "if Appellants were entitled to credit against their sentences based simply upon the fact of their prehearing detention, their admissions would not foreclose challenge to a denial of that credit."

      . In 1993, the 1991 version of W.R.Cr.P. 39(a)(2) was amended, deleting ", but in any event within x x x x

      . The State appears to concede that Rule 39(a)(2) was violated in the following statement in its appellate brief: "While the court's failure to comply with Rule 39(a)(2) is not excused by Appellants' inaction, at the same time Appellants should not add their own inaction to that of the court and expect to profit thereby."

      . For context purposes only, and noting the absence in the record of any apparent "necessity" for these delays, the delays exceeded the fifteen days within which to hold a probation revocation hearing for a probationer in custody pursuant to Rule 39(a)(4)(B)(i), the ten days within which to hold a preliminary examination for a defendant in custody pursuant to W.R.Cr.P. 5(c), and although Brown remained in custody, the delay in his case exceeded the thirty days within which to hold a probation revocation hearing for a probationer not in custody pursuant to Rule 39(a)(4)(B)(), and the twenty days within which to hold a preliminary examination for a defendant in custody pursuant to W.R.Cr.P. 5(c).

      . At Doney's February 20, 2001, hearing, it took the district court twenty-eight minutes to address Doney, advise Doney of the allegations contained in the revocation petition and in accordance with Rule 39(a)(3), receive and establish a factual basis for Doney's admission of the petitioner's allegations, revoke Doney's probation, hear sentencing recommendations and arguments from the State, Doney's counsel, Doney, and Doney's probation officer, and sentence Doney. At Brown's March 15, 2001, hearing, it took the district court twenty-one minutes to complete these same tasks.

      . See, eg., Reese, 866 P.2d at 84-85 and Murray v. State, 855 P.2d 350 (Wyo.1993), cert. denied, 510 U.S. 1045, 114 S.Ct. 693, 126 LEd.2d 660 (1994).