author: HILL, Chief Justice. LEHMAN, Justice,

text:
    2003 WY 154
    Nathan JONES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-201.
    Supreme Court of Wyoming.
    Nov. 25, 2003.

      Representing Appellant: Kenneth M. Ko-ski, State Public Defender; Donna D. Do-monkos, Appellate Counsel; and Tina N. Ke-rin, Senior Assistant Appellate Counsel.
    Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehu-rek, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Prosecution Assistance Program; and Billie LM. Addleman, Student Intern.
    Before HILL, C.J., LEHMAN, KITE, and VOIGT, JJ, and BURKE, D.J.
   HILL, Chief Justice.

[T1] By order entered on March 18, 2002, pursuant to a Writ of. Review, this matter was referred to the district court by this Court, with directions that the district court consider whether the sentences previously imposed: on Appellant, Nathan Jones (Jones), were to be served consecutively or concurrently with an earlier sentence. Jones v. State, Case No. 02-49. By order entered on June 5, 2002, the district court determined, "that [Jones's] sentence herein shall run consecutive to any previously imposed sentence including the sentence the defendant is serving for case number 8801{iIn The District Court Second Judicial District for first-degree murder." Jones has appealed from that determination. We will reverse and remand for further proceedings consistent with this opinion.

ISSUES

[T2] Jones raises these issues:

I. Whether the trial court erred in not considering concurrent sentences for [Jones]?
II. Whether [Jones's] sentences were originally ordered by the trial court to be concurrent, and as a result, [Jones's] right to due process has been violated by the treatment of the sentences as consecutive?
III. Whether the Wyoming presumption of consecutive sentencing fails to pass constitutional muster, as it denies each erimi-nal defendant the individualized protection of due process of law?

The State rephrases the issues thus:

I. Did the district court abuse its discretion when it corrected the 1998 Judgment and Sentence to provide that [Jones's] 1993 sentences should run consecutively to [his] 1975 sentence?
II. Was [Jones's] right to due process violated when his 1993 sentences were construed to run consecutively to his 1975 sentence?
III, Does Wyoming's rule, that sentences which are silent as to whether they run concurrently or consecutively shall be presumed to be consecutive sentences, violate due process of law?

FACTS

[13] Jones was convicted of first-degree, felony murder for his 1974 participation in the robbery and murder of a service station attendant in Sinclair, Wyoming. He was sentenced to life in prison. The Court affirmed that conviction and the sentence imposed. Jones v. State, 568 P.2d 837 (Wyo.1977). During the years of his incarceration, Jones was a model prisoner and he was awarded a number of commutations of his life sentence. Eventually he was eligible for parole, and on January 11, 1989, Jones was placed on parole. His parole was revoked and reinstated on September 12, 1990, after Jones was found guilty of an assault. The apparent basis for this seemingly contradictory action was that, although Jones was convicted of the assault, the victim (Jones's wife) recanted her testimony in proceedings before the parole board.

[T4] Jones was convicted of aiding and abetting armed robbery and conspiracy to commit armed robbery for his 1998 involvement in an armed robbery in Casper. An appeal of that conviction was affirmed by this Court. Jones v. State, 902 P.2d 686 (Wyo.1995).

[T5] At Jones's sentencing hearing on September 2, 1998, the district court sentenced Jones to two terms of 20-25 years in the penitentiary, those sentences to be served concurrently. At the time of that sentencing, Jones asked if the sentences would be concurrent with his previously imposed sentence. Although the parole board had not yet revoked his parole, it was perceived by all that such a revocation was inevitable. In response to that query, the district court opined: "If the parole board revokes your parole and give[s] you a sentence, they will have to say whether that should be concurrent or consecutive with this one."

[16] In a letter filed with the district court on May 7, 1998, Jones informed the district court that the penitentiary had treated his 20-25 year sentences as consecutive to his previous sentence. He asked that that determination be corrected so that he would serve those sentences concurrently with his previous sentence. Then District Judge Dan Spangler (now retired) replied to Jones's letter stating that he should contact his attorney. In October of 1998, Jones followed up with a second letter to the same effect, as well as a motion to amend his sentence to make it concurrent. By order entered on October 5, 1998, the district court denied that motion, treating it as a motion to correct or reduce the sentences. Jones appealed that order. On December 22, 1998, this Court dismissed that appeal for want of prosecution. On May 3, 1999, Jones filed a motion to correct an illegal sentence. By order entered on May 20, 1999, the district court determined it did not have jurisdiction to entertain that motion because the matter was on appeal. A "Notice to the Court," and another letter dated July 6, 1999, from Jones, were filed in the district court on May 28, 1999, and September 8, 1999, respectively. By order entered on September 8, 1999, Jones's motion was again denied on the basis that the matter was on appeal to the Wyoming Supreme Court and the district court did not have jurisdiction. Jones filed yet another motion to correct an illegal sentence on October 5, 1999, pointing out that there was no appeal pending in the matter. By order entered on October 7, 1999, that motion was denied.

[17] Represented by counsel, Jones filed another motion to correct illegal sentence and a coram nobis petition on February 27 and February 28, 2001. By order entered April 26, 2001, those also were denied. On March 4, 2002, a Petition for Writ of Habeas Corpus was filed in this Court. The essence of that petition was that the parole board did not have constitutional or statutory authority to decide matters related to sentencing and, in this instance, the parole board was performing just such a function by deciding that the sentences at issue here were consecutive rather than concurrent. See Brenning v. State, 870 P.2d 349, 352 (Wyo.1994). The sentence to be imposed, as well as whether it is concurrent or consecutive, is the exclusive province of the judicial branch.

[T8] This Court considered the Petition for Writ of Habeas Corpus and determined that it should be converted to a Petition for Writ of Review under W.R.A.P. 13. The grant of the writ was designed to facilitate review of the district court's actions in this matter. The order granting the writ provided these guidelines:

The Court further finds that, due to the district court's refusal, at the time of sentencing, to designate [Jones's] 1998 aggravated robbery sentences as either concurrent or consecutive to his parole sentence, it would not be appropriate or just in this instance for the courts to stand silent and allow the Board of Parole to rely on the presumption of consecutive sentencing found in Loper v. Shillinger, 772 P.2d 552, 553 (Wyo.1989) and Apodaca v. State, 891 P.2d 83, 85 (Wyo.1995). Therefore, pursuant to its supervisory power, this Court finds that the district court should be directed to correct the 1998 judgment and sentence to include a designation regarding whether the 1993 sentences are to be served concurrently or consecutively to [Jones's] parole sentence. The Court also notes that, despite the fact that this matter may technically be res judicata due to the district court's repeated | denials of [Jones's] various motions to correct an illegal sentence, its decision is made in the interests of justice as well as in the interest of requiring the judicial branch to discharge its duties. See also W.R.Cr.P. 32(c)(2)(C).

[19] A hearing was held in the district court on May 8, 2002, to consider this matter. At that hearing the State argued that the sentences should be consecutive to the parole sentence, ie., Jones would receive no credit toward serving those sentences until he had first completed the remainder of his previous sentence. The State's threshold contention was that the sentences should be presumed to be consecutive because that is the rule historically espoused by Wyoming's jurisprudence with respect to that issue. Apodaca v. State, 891 P.2d 83, 85 (Wyo.1995); Pearson v. State, 866 P.2d 1297, 1299 (Wyo.1994); Loper v. Shillinger, 772 P.2d 552, 553 (Wyo.1989) (also see dissent at 772 P.2d 553-57). Defense counsel argued for the proposition that if all that was required by this Court's remand was employment of that presumption, then this Court could easily have done so itself. We agree with defense counsel's interpretation of our remand. It is evident that application of the presumption was defeated by Judge Spangler's articulated refusal to consider that issue at the time he sentenced Jones. In other words, the record is clear that Judge Spangler did not intend that the presumption should apply, but rather that it was a matter in the hands of the parole board. Moreover, the district court's acquiescence in the parole board's application of the presumption of the sentences being consecutive did not resolve the question either.

[T 10] -In the alternative, the State argued that the sentence should be consecutive in any event, because making the sentences concurrent would unduly depreciate the seriousness of both Jones's current offense, as well as his earlier murder conviction. In supporting this argument, the prosecutor made reference to a "secret sentencing system" that existed in late 1980's, ie., the commutation. The prosecutor contended that Jones had received six commutations, even though he "gunned down an innocent gas station store owner." The prosecutor also argued that Jones was put on parole again in 1990, "[dlespite the fact that he committed a battery while on parole." Continuing, the prosecutor stated that, "I am still aghast that the parole board, even after all this, still does not hold Mr. Jones to the maximum sentence to which he could have been committed, turning him loose in 1999 to serve this sentence." At the conclusion of the hearing, the district court determined that the Apodaca presumption should apply and, thus, the sentences would be consecutive. In addition, the district court determined, after a review "of the entire tran-seript of the trial of this matter and of the sentencing," that the sentences should be consecutive. The district court declined to consider any information about Jones's exemplary conduct as a penitentiary inmate in the years between 1993 and 2002.

STANDARD OF REVIEW

[T11] 'We review sentences for an abuse of discretion.

Sentencing decisions are within the broad discretion of the sentencing court. Smith v. State, 941 P.2d 449, 750 (Wyo.1997). This Court will not disturb a sentence on the ground of sentencing procedures absent a showing by the defendant of an abuse of discretion, procedural con-duet prejudicial to him, cireumstances that manifest inherent unfairness and injustice, or conduct that offends the public sense of fair play. Brower v. State, 1 P.3d 1210, 1216 (Wyo.2000). In that regard, the trial judge abuses his discretion if he premises a sentence on a mistaken reading of the law. Cook v. State, 710 P.2d 824, 825 (Wyo.1985).
The discretion of the trial court is also limited by the fact that a sentencing court may only impose those sentences that have been authorized by the legislature. Williams v. State, 949 P.2d 878, 880 (Wyo.1997); Wyo. Stat. Ann. § 6-10-104 (Lexis-Nexis 2001) ("I[wlithin the limits prescribed by law" the court is "to determine and fix" punishment).
Daugherty v. State, 2002 WY 52, ¶¶ 12-13, 44 P.3d 28, ¶¶ 12-18 (Wyo.2002).

DeLoge v. State, 2002 WY 155, ¶ 9, 55 P.3d 1233, 19 (Wyo.2002); also see Bitz v. State, 2003 WY 140 ¶ 7, 78 P.3d 257, ¶ 7 (Wyo.2003).

DISCUSSION

Did the District Court Weigh the Options of Consecutive and Concurrent

[T 12] While the focus of our review is for an abuse of discretion, it is frequently important that the record be reasonably clear with respect to the findings of the district court in its sentencing decision, in order that meaningful appellate review can be achieved. The ABA Standards for Criminal Justice: Sentencing, (3rd ed.1994), provide this guidance:

Standard 18-6.5 Sentencing for more than one offense
(a) A sentencing court should impose a sanction appropriate to the offense of conviction and should not consider other offenses of which the defendant was not charged, which were dismissed prior to determination of guilt, or of which the defendant was acquitted.
(b) In sentencing an offender convieted of multiple offenses, a sentencing court ordinarily should impose a consolidated set of sentences that appropriately takes into account the offender's current offenses and criminal history.
(c) In sentencing an offender for offenses that were part of an episode,
(1) a sentencing court should not increase the severity of the sentence or change the type of sanction merely as a result of the number of counts or charges made from a single episode, and
(1) where the separate offenses are not merged for sentencing, a sentencing court should consider imposition of sane-tions of a type and level of severity that take into account the connections between the separate offenses and, in imposing sanctions of total confinement, ordinarily should designate them to be served concurrently.
(d) In sentencing an offender for an offense graded by the amount of money or property involved, a sentencing court ordinarily should determine the appropriate sentence by treating the offense as a single offense and determining its gravity by eu-mulating the amounts of money or property in the separate offenses.
(e) In sentencing an offender for multiple offenses not within (c) or (d), a sentence-ing court should be guided by the presumptive sentence derived by reference to the sentence appropriate for the most serious current offense. Under guidance from the agency performing the intermediate function, a sentencing court may impose an enhanced sentence by treating other current offenses as part of an offender's erimi-nal history or as factors aggravating the most serious offense.
(£) When multiple sentences of total confinement are to be served consecutively, a sentencing court should impose sentences that do not exceed a total term reasonably related to the gravity of the offenses.
(g) In sentencing an offender who is subject to service of a prior sentence, a sentencing court should take into account the unexecuted part of the prior sentence in shaping a consolidated set of sentences.

[T183] A resource manual from the National Judicial College provides these additional suggestions:

Outline for Imposition of Sentence
In imposing sentence, it is important that you address all of the necessary issues. For ease in assuring that is done, you may wish to use the following outline:
1. Basis for Decision: Explain the information that you have considered, e.g., presentence repbrt, testimony at trial, testimony at hearing.
2. Nature of the Offense: Include the statutory punishment range.
3. Factors: Enumerate the statutory aggravating and mitigating factors that you find detailing the evidence which supports each. If the factors are not statutory, articulate the findings and evidence which form the basis for the decision.
4. Victim Impact: Address the harm to the victim.
5. Nature of the Offender: Detail the offender's background and your appraisal of the offender given your observation of the offender during the trial and sentencing hearing (and the offender's testimony if applicable). Appropriate details include credibility, remorse, attitude, tendencies, industry, health, general moral character, and habits, including drug and alcohol use. Inappropriate details include certain lifestyle choices, race, gender, ethnicity, and decision to demand trial.
6. Announcement of Sentence: Announce the term, the range, if appropriate, and the manner of service. If your sentence involves conditions that the offender must satisfy, detail them individually. If the sentence requires follow-up court appearance, announce the date.
Imposing Sentences for Multiple Offenses , ‘
When an offender is convieted of more than one offense, you must not only determine the appropriate sentence for each offense, but you also must determine whether the sentences should run coneur-rently or consecutively. State law generally establishes what you must find to impose sentences consecutively. Therefore, when faced with an offender with multiple offenses, after determining the appropriate sentence for each, you should determine whether, under the cireumstances, you should impose a concurrent or consecutive sentence.
Generally, to impose consecutive sentences, you must make some finding of an aggravating cireumstance that the legislature has established. It is recommended that you specify the exact statutory reasons that a consecutive, rather than a concurrent, sentence has been imposed for all the reasons illustrated above.

Penny J. White, Sentencing Guide for State Trial Judges, at 43-44, The National Judicial College (1998).

[1 14] On remand, the district court made no findings that would support a conclusion that the sentences at issue should have been imposed consecutive to the earlier sentence. It is clear that at the time the sentences were originally imposed, the district court did not consider the issue at all, but rather determined that it was a question for the parole board. At the 2002 sentencing hearing, the prosecutor did not focus the attention of the sentencing court on the factors that counseled in favor of a finding that the sentences should be consecutive. Rather, the prosecutor's argument was given over to an emotional attack on the functions of the parole board and executive clemency, essentially exhorting the district court to punish Jones for the perceived sins of the parole board and the Governor. Given these circumstances, we are unable to effectively perform a meaningful review of the provision that the sentences be consecutive to the previous sentence. We are compelled to remand for another hearing at which the district court should enumerate the sources of its information, receive all information that may guide its decision, and make findings as appropriate. While such detailed findings are always beneficial to the review process, they are not always mandated. However, here, we remain as uncertain as to the foundation for imposition of consecutive sentences as we were prior to the remand. We conclude that a remand for further development of the record and the rendition of detailed findings is necessary under the unique cireumstances of this case.

Intent of Original District Judge

[115] Jones argues that the original sentencing proceedings evince an intent that the sentences be concurrent to the previous sentence. We perceive, at best, great ambiguity, and are unable to discern such an intent from the record extant.

Constitutionality of the Presumption of Consecutive Sentences in the Face of Silence

[T 16] We decline to recognize the district court's determination that the sentences be presumed to be consecutive. The record does not support that conclusion. It is clear that the purpose of this Court's remand was to decide the issue on its merits, without reference to the presumption. Given these cireumstances, and our decision to remand this matter for further proceedings, we need not address the constitutional issue raised, because it is not a factor in this case.

CONCLUSION

[T 17] The resolution of this issue remains clouded because of the district court's threshold reliance on the "consecutive" presumption, the prosecutor's championing of factors not relevant to sentencing, and the failure of the district court to make basic findings justifying the consecutive sentence. Because the interests of justice, as well as the interests of requiring the Judicial Branch to discharge its duties, has not yet been well served, this matter is remanded to the district court with directions that a new sentencing hearing be held consistent with this opinion.

LEHMAN, Justice,

dissenting.

[1 18] After careful review of the underlying facts, applicable case law, and the reasoning utilized by the majority in reaching its decision, I must respectfully dissent.

[1191 The facts in this case are not complicated. While on parole, appellant committed a new crime. He was sentenced to a term of years at the Wyoming State Penitentiary on that new crime in 19983. Upon his return to the penitentiary, appellant's parole was revoked. However, the 1998 sentence did not indicate the timing of the sentence, i.e. whether it should be served concurrently with or consecutively to the original sentence if appellant's parole were revoked. Appellant sought a determination on this issue and posed that question to this court. We remanded the matter to the district court to correct the sentence by designating whether the 19983 sentence was to be served coneur-rently with or consecutively to the original sentence. On remand, the district court performed a review of "the entire transeript of the trial in this matter and of the sentencing." 110. In its review, the district court found that the record was essentially silent regarding the original sentencing court's intent on this timing matter and thus, relying on Apodaca v. State, 891 P.2d 83 (Wyo.1995) and similar case authority, it determined that the sentences were to be served consecutively. This appeal followed.

[120] The determination we must make in this case is whether the district court abused its discretion when ordering the sentences to be served consecutively. When considering an abuse of discretion, we must determine whether the trial court could reasonably conclude as it did. Herrera v. State, 2003 WY 25, ¶ 10, 64 P.3d 724 ¶ 10 (Wyo. 2003). We look to whether the trial court exercised sound judgment with regard to what is right under the cireumstances without doing so arbitrarily or capriciously. Brown v. State, 2003 WY 72, ¶ 9, 70 P.3d 238, 9 (Wyo.2003). Our purpose is not to substitute our judgment for that of the trial court. Considering that the district court reviewed the entire record and applied the applicable case law, I would find no abuse of discretion.

[121] The district court's determination is well within the bounds of the applicable law. In Apodaca, a case with almost exactly the same fact scenario as this case, Apodaca was convicted of a new crime while on parole and was sentenced to a term of years for the new crime. The trial court, aware that Apo-daca might have his parole revoked, refused to determine if the new sentence should be served consecutively or concurrently with his parole sentence. Rather, the district court declined to act until the parole board determined whether Apodaca's parole would be revoked. The parole board later revoked Apodaca's parole, but the district court declined to take further action. Upon review of Apodaca's sentence, this court held that, when the trial court is silent, the presumption is that the sentences are to be served consecutively. Apodaca, 891 P.2d at 84-85.

[122] This court's initial confirmation that no presumption of concurrency exists when multiple sentences are imposed and the record is silent as to the timing of those sentences occurred in Loper v. Shillinger, 772 P.2d 552 (Wyo.1989). We stated, at 558:

We decline to adopt the presumption advanced by petitioner. The sentencing judge has discretion to determine whether sentences shall be served consecutively or concurrently. Eaton v. State, 660 P.2d 803 (Wyo.1983). Here, the sentencing judge was aware that petitioner was on parole at the time he was sentenced. Petitioner was advised that his guilty plea could result in revocation of parole. The judge did not specify that the four concurrent sentences would run concurrently with the remainder of his original sentence in the event that parole was revoked.

To presume concurrency in this situation ignores the logic of the United States Supreme Court as articulated in Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399, 116 A.L.R. 808 (1938):

Parole is intended to be a means of restoring offenders who are good social risks to society; to afford the unfortunate another opportunity by clemency-under guidance and control of the [parole] Board. Unless a parole violator can be required to serve some time in prison in addition to that imposed for an offense committed while on parole, he not only escapes punishment for the unexpired portion of his original sentence, but the disciplinary power of the Board will be practically nullified. 304 U.S. at 863, 58 S.Ct. at 874.

We see no reason to adopt a presumption which would have the effect of rewarding

one who uses release on parole as an opportunity to commit further crimes.

[¥23] Following Loper, we decided Pearson v. State, 866 P.2d 1297 (Wyo.1994). In Pearson, the defendant was on parole when he was convicted of a new crime. The sentencing court for the new crime was silent as to whether the new sentence should run consecutively to or concurrently with the parole sentence in the event parole was revoked. The defendant filed a motion to correct the sentence claiming that his sentences should run concurrently. His motion was denied and he appealed. Again this court held that "if no specification is made as to whether multiple sentences are concurrent or whether they are consecutive, the sentences will be deemed to be consecutive whether they are imposed in the same case, in different cases, or by different courts." Pearson, at 1299.

[124] Thus it is clear, in the face of a sentencing court's silence regarding the timing of multiple sentences, Wyoming recognizes a presumption of consecutive sentences. Given this case's similarities to the above-mentioned cases, I cannot conclude that it was error for the district court to consider this presumption. The majority appears to distinguish Apodaca, Pearson, and Loper from the facts of this case in several ways. I am unable to agree, however, that these distinctions are sufficient to find traction for a different result.

[125] The majority first determines that if this court believed the presumption of consecutive sentences should apply, we could have applied it without remanding to the district court. In Apodaca and Pearson, the trial courts denied motions by the defendants to change their sentences to run concurrently where the sentence itself was silent and the prison was treating their sentences as consecutive. In both cases, we upheld the denial by the trial courts. In Loper, although that defendant utilized a writ of certiorari to attain review by this court, we again reached a similar result. Moreover, it should be recognized that, as a result of this court's determination in Loper, Loper served consecutive sentences without further order from the trial court either confirming or overturning the decision rendered by the parole board.

[126] In this case, appellant originally came before this court by way of a writ of habeas corpus which was converted to a petition for writ of review. This case did not involve a direct appeal from action taken by the district court; therefore, we requested the district court make a ruling so we could, in fact, review the action. Accordingly, the matter was remanded for that purpose, and the trial court performed the necessary review. While the district court certainly was not required to apply the consecutive presumption, it is not error that it considered the presumption in making its determination given the wide discretion sentencing courts have in these matters.

[127] The majority next concludes that the original sentencing court clearly did not intend for the consecutive presumption to apply because it expressly declined to make such a determination. The original sentencing court stated that it could not make the determination because the parole had not yet been revoked and that if it were revoked the parole board could make that determination. Obviously, the original sentencing court was incorrect in delegating its judicial function to the parole board. However, in Apodaca, Pearson, and Loper, in the face of a silent designation, prison officials essentially determined that the sentences should be served consecutively. This court affirmed those executive branch determinations by applying the consecutive presumption. Creating a vacuum by not performing a judicial function does not translate into intent of the judicial officer when the vacuum is then filled by others. The only difference between Apoda-ca, Pearson, Loper, and this case is that the original sentencing court specifically stated that the parole board would make that decision. While such a delegation was incorrect, appellant has received a full review and a judicial determination of his sentence by the district court, which is more than the defendants in Apodaca, Pearson, and Loper received.

[128] The majority also discusses the prosecutor's failure on remand to focus his argument on factors that counsel in favor of consecutive sentences. The majority points to the prosecutor's attack on the parole board and references to the seriousness of the crime for which appellant was originally charged. I am not convinced that the prose-eutor's comments regarding the parole board have any relevance to whether the district court abused its discretion. Furthermore, the circumstances affecting sentencing were presented to the original sentencing court. The district court reviewed a transcript of those entire proceedings. After review, the district court stated that it believed that the facts established by that transcript indicated that the sentences should be consecutive.

[129] Lastly, we must keep in mind that in this case the district court was simply asked to correct the sentence by designating whether the sentences were to be served concurrently or consecutively,. It was not asked to resentence the appellant or to make specific findings. Indeed, Wyoming law does not specifically require a trial court to render specific findings in sentencing matters. Nor does Wyoming law require a specific finding of aggravating circumstances in order to impose consecutive sentences as is suggested by the majority's reference to the Sentencing Guide for State Trial Judges in 113. Rather, we have stated, "separate penalties will ordinarily be exacted upon convictions for distinct offenses." Tilley v. State, 912 P.2d 1140, 1142 (Wyo.1996) (quoting Kennedy v. State, 595 P.2d 577, 577 (Wyo.1979)). I do agree with the majority that it is comforting to have basic findings made by a trial court when we set about to review the trial court's conclusion with an abuse of discretion standard. However, the absence of these specific findings does not definitively indicate an abuse of discretion.

[130] Thus, I would find that the district court simply applied Wyoming law after a review of the trial and sentencing transcript. The district court could reasonably conclude as it did and did so without acting arbitrarily or capriciously. I would hold, therefore, that the actions of the district court were correct, and no abuse of discretion occurred. To do otherwise results in the unnecessary erosion of well-established and well-reasoned Wyoming case authority.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Complainant, v. John S. DUNSMOOR, Respondent.
    No. 03PDJ024.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    Oct. 24, 2003.
    Attorney Regulation. The Hearing Board disbarred Respondent, John S. Dunsmoor, attorney registration number 11247 from the practice of law in the State of Colorado. In May 2002, Dunsmoor was charged in a one-count criminal information in the United States District Court for the Northern District of Indiana pursuant to 18 U.S.C. § 664 (1994) for embezzling funds of employee pension and welfare benefit plans. Also in May 2002, Dunsmoor was charged in a one-count information filed in the United States District Court for the District of Colorado pursuant to 18 U.S.C. § 1957 (1994) for money laundering. In June 2002, Dunsmoor pled guilty to both of the above charges. Respondent's conduct violated Colo. RPC 8.4(b) constituting grounds for discipline pursuant to C.R.C.P. 251.5. Respondent was ordered to pay the costs of the disciplinary action. '
   Opinion by

Presiding Disciplinary Judge, ROGER L. KEITHLEY,

and Hearing Board Members GAIL C. HARRISS and DAVID A. HELMER,

both members of the bar.

REPORT, DECISION AND IMPOSITION OF. SANCTION

SANCTION IMPOSED: ATTORNEY DISBARRED

A Sanctions Hearing pursuant to C.R.C.P. 251.15(b) was held on October 28, 2003, before the Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") and two Hearing Board Members, Gail C. Har-riss and David A. Helmer, both members of the bar. James C. Coyle, Deputy Regulation Counsel, represented the People of the State of Colorado ("People"). John S. Dunsmoor, the respondent, ("Dunsmoor") appeared by telephone.

The Colorado Supreme Court immediately suspended Dunsmoor from the practice of law in Colorado in Case No. O8SA102Z2 on April 21, 2008. The suspension was based upon a March 17, 2003, Petition for Immediate Suspension filed by the People based on the same factual basis giving rise to these proceedings. The People filed a Complaint in this disciplinary matter on April 16, 2008. The Citation and Complaint were sent via regular and certified mail to the respondent on the same date. The People filed a Proof of Service on May 21, 2008. . The Proof of Service shows that the Citation and the Complaint were sent to both Dunsmoor's registered business address and his registered home address. In addition, the Citation and Complaint were also sent to a recently discovered home address, as well as to Dunsm-oor at the Florence, Colorado, federal prison camp. Dunsmoor failed to file an Answer to the complaint. Dunsmoor did submit a letter dated May 29, 2003, which did not admit or deny any allegation contained in the Complaint, but could be considered as a written statement of mitigation. The Hearing Board accepts such document (Exhibit D to the People's Motion for Default) as a written statement for mitigation purposes only.

On June 5, 2003, the People moved for default on the claims set forth in the Complaint. Copies of the Motion for Default were sent to Dunsmoor at his home and prison camp addresses. Dunsmoor did not oppose the People's Motion for Default.

On July 14, 2008, the PDJ granted the Motion for Default as to the facts set forth in the Complaint, which were deemed admitted, and as to the claims set forth in the Complaint, which were deemed established. The PDJ directed that the matter be set for a trial/sanctions hearing. Copies of the PDJ's Order Re: Default were sent to Dunsmoor at his home and prison camp addresses.

The matter was originally scheduled for September 283, 2008, but continued to October 14, 2003. At Dunsmoor's request, the October 14, 2003, hearing date was vacated and the matter was then rescheduled for October 28, 2003, at 9:00 a.m.

At the Sanctions Hearing Dunsmore openly acknowledged that his conduct required disbarment and apologized to the court for his misconduct. The Hearing Board considered the facts established by the entry of default, the People's argument and Dunsm-oor's statement, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

John S. Dunsmoor has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on October 16, 1981, and is registered upon the official records of the Supreme Court, registration number 11247. He is subject to the jurisdiction of this Court pursuant to C.R.C.P. 251.1(b). 4

All factual allegations set forth in the Complaint were deemed admitted by the entry of default, and therefore are established by clear and convincing evidence. The entry of default also deemed established the violations of the Rules of Professional Conduct set forth therein.

On May 2, 2002, Dunsmoor was charged in a one-count criminal information in the United States District Court for the Northern District of Indiana. The information from the Northern District of Indiana charged the respondent with a violation of 18 U.S.C. § 664 (1994), embezzling funds of employee pension and welfare benefit plans.

On May 22, 2002, Dunsmoor was charged in a one-count information filed in the United States District Court for the District of Colorado. The information from the District of Colorado charged the respondent with a violation of 18 U.S.C. § 1957 (1994), money laundering.

On June 21, 2002, Dunsmoor pled guilty to both of the above charges. Dunsmoor filed a written factual basis for the plea of guilty to both charges in the federal criminal matters on May 2, 2002.

Dunsmoor provided the following factual basis for the 18 U.S.C. § 664 violation, embezzling funds of employee pension and welfare benefit plans:

a. The International Longshoreman's Association Local #1969 ("ILA") was a union representing dock workers at the Port of Indiana in Portage, Indiana.
b. The ILA had a number of employee benefit plans for the benefit of its members, which plans were employee pension and welfare benefit plans subject to Title I of the Employee Retirement Income Seeu-rity Act of 1974 (hereinafter collectively the "ILA Employee Funds").
c. The respondent held himself out as an investment advisor, available to provide advice intended to grow and preserve assets of individuals and entities, and as a Hcensed attorney, available to provide legal advice to individuals and entitles.
d. Michael A. Daher, Sr. owned a company called Leader in Marketing Fulfillment, Inc. ("LMF"), an entity set up to provide investment advice. It was intended that the respondent would share in profits of LMF. Some time in 1998, the Trustees of the ILA Employee Funds hired Daher, LMF and the respondent to act as investment advisors to the ILA Employee Funds. It was agreed that the ILA Employee Funds would pay a fee representing from 1.2% to 24% of the total assets under management. Daher and the respondent represented, and the Trustees believed, that this 1.2% to 2.4% fee was to be the total fee that Daher, LMF or the respondent would receive as a result of work done in connection with the ILA Employee Funds.
e. In or about June 1994, Daher and the respondent advised the Trustees to invest assets of the Pension Fund in a residential development known as Grapevine Villas Project, located in Mesquite, Nevada (the "Grapevine Project").
£. In or about July 1994, relying on the advice of Daher and the respondent, the Trustees agreed to loan to RODEVCO, Inc. money belonging to ILA Employee Funds for the Grapevine Project. Unknown to the Trustees, Daher and the respondent had made arrangements with RODEVCO to obtain more than the 1.2% to 2.4% annual fee. Unknown to the Trustees, RODEVCO had agreed to pay a fee for bringing the loan to the project (the "Point Payments").
g. While RODEVCO had initially agreed to pay only 10% as Point Payments, Daher and the respondent demanded and ultimately received, well in excess of 10%. From on or about July 19, 1994, through on or about February 2, 1996, Point Payments in the total amounts of approximately $1,049,000 were received. These funds represented money of the ILA Employee Funds that was intended to be loaned to advance the Grapevine Project, be secured in the Grapevine Project, and earn interest, not to be paid as undisclosed fees. In addition, Daher and the respondent convinced the Trustees to have the ILA Employee Funds make additional investments by purchasing land near the Grapevine Project, known as the Chardonnay Property. The ILA Employee Funds purchased this land for approximately $950,000 in August 1995. Daher and the respondent had arranged the purchase of this land in May 1995, for approximately $475,625, under the name of a nominee, and Daher and the respondent were the true sellers who profited personally from the sale to the ILA Employee Funds.
h. At some point the respondent decided to disclose at least some of what had been going on to representatives of the ILA Employee Funds. The respondent represented that although the respondent had received funds to which the respondent was not entitled, his role in obtaining those funds had been minimal, The respondent offered to assist the ILA Employee Funds in recovering improperly obtained funds, and the ILA Employee Funds agreed to pay him.
i. In exchange for assisting the ILA Employee Funds in resolving problems which were at least in part the respondent's own making, the respondent was paid $10,000 per month, beginning on or about November 1, 1995, through on or about April, 1998.

Dunsmoor provided the following factual basis for the 18 U.S.C § 1957 violation:

a. As a result of the funds received through the scheme perpetrated on the ILA by Daher and the respondent, on or about July 21, 1994, $260,000.00 in erimi-nally derived finds was wired from the First Interstate Influx Corporation bank to an off shore bank account in the name of Webster and Dyrud at the National Bank of Anguilla. John Dyrud was an attorney in Anguilla that received money into his accounts for the personal benefit of Daher and the respondent.
b. In August 1994, the respondent entered into a contract to purchase an Irwin yacht for the price of $70,000.00 from the Institute of Marine Science, Inc. located in Lauderdale By The Sea, Florida.
c. To facilitate the purchase of the yacht with unlawfully derived funds, the respondent caused several facsimiles to be sent from Anguilla to Colorado and from Anguilla to Florida. On or about September 7, 1994, the respondent received a facsimile from Webster & Dyrud regarding the wire transfer of $69,100.00 from the account of Webster and Dyrud at the National Bank of Anguilla, On or about September 7, 1994, a second facsimile was sent from Webster & Dyrud to the Institute of Marine Science, Inc., regarding the wire transfer for the respondent. The facsimile stated that the money would be wired from the National Bank of Anguilla to the Institute of Marine Science, Inc., the following morning.
d. On or about September 8, 1994, Sun Bank South Florida received a wire transfer for the benefit of Institute of Marine Science, Inc., in the amount of $67,085.00 from the account of Webster and Dyrud at the National Bank of Anguilla.
e. Approximately a week later, on or about September 15, 1994, the Institute of Marine Science, Inc. president, Edward H. Conway signed a notarized Marine Bill of Sale for the sale of an Irwin Yacht to the respondent for the purchase price of $70,000.00. Thus, on or about September 8, 1994, in the Judicial District of Colorado, the respondent knowingly caused a monetary transaction in an amount greater than $10,000 from funds derived from specified unlawful activity for the purpose of purchasing an Irwin yacht.

On December 20, 2002, U.S. District Court Judge Allen Sharp of the Northern District of Indiana sentenced Dunsmoor. The District Court specifically found inter alia that Dunsmoor "used his position of trust as an attorney in the commission of such crimes." Dunsmoor was sentenced to a term of 18 months on both counts, to be followed by a single term of 3 years of supervised release. Dunsmoor was also ordered to pay mandatory restitution in the amount of $2,050,732 for forwarding to various pension plans, welfare plans, supplemental benefit plans, unions, and individuals.

II. CONCLUSIONS OF LAW AND IMPOSITION OF SANCTION

Dunsmoor's convictions on 18 U.S.C. § 664 and § 1957 conclusively established each element of those federal statutes for the purposes of these disciplinary proceedings. See C.R.C.P. 251.20(a).

Colo. RPC 84(b) provides that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects. CR.C.P. 251.5(b) provides that grounds for discipline of attorneys includes any act or omission which violates the criminal laws of the United States. Dunsmoor engaged in eriminal conduct by embezzling funds of employee pension and welfare benefit plans in violation of 18 U.S.C. § 664, and by money laundering in violation of 18 U.S.C. § 1957. The above criminal acts reflect adversely on Dunsm-cor's honesty, trustworthiness or fitness as a lawyer in other respects. By such conduct, Dunsmoor violated Colo. RPC 8.4(b) and C.R.C.P. 251.5(b) authorizes the imposition of discipline.

ABA Standard For Imposing Lawyer Sanctions (1992 & Supp.1992) § 5.11 provides: Disbarment is generally appropriate when: "(al a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft ... (b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice."

Dunsmoor's misconduct was knowing and willful, involved misrepresentation and deceit, was dishonest, and seriously adversely reflected on his fitness to practice law. The misconduct violated two federal criminal statutes. ABA Standard § 5.11 is directly applicable to Dunsmoor's misconduct and suggests that disbarment is the appropriate sanction.

Colorado law also suggests that disbarment is the required sanction under these cireumstances. See People v. Kiely, 968 P.2d 110, 112 (Colo.1998)(lawyer disbarred in reciprocal discipline proceeding based upon a conviction on one felony count of making a false statement on a credit application); People v. Chappell, 927 P.2d 829, 881 (Colo.1996) (attorney disbarred for aiding her client in a class five felony when the attorney assisted the client to violate a child custody order by leaving the state with her child); People v. Terborg, 848 P.2d 346, 347 (Colo.1993) (attorney disbarred for one count of bank fraud arising from his making lease agreements with government entities and pledging or selling the lease agreements to different financial institutions in order to secure loans for a closely held corporation in which he had an interest); People v. Schwartz, 814 P.2d 793, 794 (Colo.1991) (attorney disbarred for conviction of bankruptey fraud and conspiracy to commit bankruptcy fraud); People v. Brown, 726 P.2d 638, 639 (Colo.1986) (district attorney disbarred for conviction of second degree forgery, a class four felony; abuse of public records, a class one misdemeanor; and computer crime, a class four felony).

Pursuant to ABA Standards §§ 9.22 and 9.82 respectively, the Hearing Board considered aggravating and mitigating factors in arriving at the appropriate sanction. The facts deemed admitted in the Complaint established four aggravating factors pursuant to ABA Standard § 9.22. Dunsmoor had a dishonest or selfish motive, ABA Standard § 9.22(b); he engaged in a pattern of misconduct, ABA Standard § 9.22(c); he engaged in multiple offenses, ABA Standard § 9.22(d); and Dunsmoor also had substantial experience in the practice of law, having been admitted to the bar in 1981. ABA Standard § 9.22). In mitigation, Dunsmoor recognizes the wrongful and serious nature of his misconduct and is remorseful. ABA Standard § 9.82(F). In addition, other penalties and sanctions have been imposed against Dunsmoor for his actions. ABA Standard § 9.32(k). No evidence or argument was advanced that Dunsmore had prior discipline. ABA Standards § 9.32(a). The mitigating factors are insufficient to modify the required discipline of disbarment.

III, ORDER

It is therefore ORDERED:

1. JOHN S. DUNSMOOR, attorney registration 11247, is DISBARRED from the practice of law effective immediately.
2. John S. Dunsmoor, is Ordered to pay the costs of these proceedings; the People shall submit a Statement of Costs within ten (10) days of the date of this Order. Respondent shall have five (5) days thereafter to submit a response thereto.


text:
    Kallman S. ELINOFF, Petitioner, v. The People of the STATE of Colorado, Respondent.
    No. 03PDJ048.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    Nov. 14, 2003.
    Attorney Regulation. The Hearing Board reinstated Kallman S. Elinoff, attorney registration number 18677 from the practice of law in the State of Colorado.
   Opinion Issued by a Hearing Board consisting of the

Presiding Disciplinary Judge ROGER L. KEITHLEY,

Hearing Board Members ANNITA M. MENOGAN and BOSTON H. STANTON, JR.,

both members of the Bar.

OPINION AND ORDER REINSTATING KALLMAN S. ELINIOFF TO THE PRACTICE OF LAW

ATTORNEY REINSTATED TO THE PRACTICE OF LAW

On October 15, 2008, a reinstatement hearing was held in the within matter pursuant to C.R.C.P. 251.29 before a Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") and two hearing board members, Annita M. Menogan and Boston H. Stanton, Jr., both members of the bar. W. Daniel Mahoney appeared on behalf of Petitioner Kallman S. Elinoff ("Elinoff"), who was also present. Debora D. Jones, Assistant Regulation Counsel, represented the People of the State of Colorado (the "People").

Elinoff was the sole witness, and he testified on his own behalf. Elinoff's exhibits A through J were admitted into evidence. A Stipulation of the Parties Concerning Petitioner's Compliance With All Disciplinary Orders and Actions Required of Suspended Attorneys and Petitioner's Fitness to Practice Law had previously been submitted and was accepted by the Hearing Board. The Hearing Board considered the argument and exhibits admitted, the Stipulation submitted by the parties, assessed the credibility of the witness, and made the following findings of fact which were established by clear and convincing evidence.

FINDINGS OF FACT

Kallman S. Elinoff took the oath of admission and was admitted to the Bar of the Supreme Court in 1989, and is registered under attorney registration number 18677. He was suspended from the practice of law on June 1, 2001, by Order of the Colorado Supreme Court dated April 30, 2001. In re Elinoff, 22 P.3d 60 (Colo.2001). In its decision, the Supreme Court affirmed the Hearing Board's factual findings concluding that on March 17, 1998, Elinoff represented Douglas Rathbun in a County Court hearing on felony charges. At the conclusion of the hearing, Denver detectives arrested Elinoffs client on unrelated domestic violence charges. Rathbun became upset and pleaded with the officers not to take him to jail right then, as he wanted to see his girlfriend before she was sentenced to prison. The detectives refused to let him go, but allowed him to smoke outside the courthouse. While the four of them where outside, Rathbun continued to plead with the officers for a delay in his incarceration. Elinoff struck up an informal conversation with the detectives and at one point told the detectives that they needed to talk about his client at a level that they all could understand. He reached into his shirt pocket and removed several bills of currency (including a $100 bill), extended the bills toward a detective, and stated that if the detectives would forget the matter for the day, Rathbun would turn himself in the next day. One detective told Elinoff that his conduct was unacceptable, and the detectives took Rathbun to jail. Elinoff himself was not arrested, nor was he charged with violation of any criminal law."

In the Complaint filed against Elinoff, the People charged Elinoff with conduct constituting the criminal offense of bribery, a class three felony. The Hearing Board originally found that Elinoffs conduct warranted disbarment, but at rehearing determined that a three-year suspension, with one year stayed, was appropriate. The Supreme Court affirmed that decision. In its opinion, the Supreme Court noted that the crime of bribery strikes at the heart of a lawyer's duty to uphold the administration of justice.

After his suspension was made a final order, Elinoff moved with his wife and child to Israel where he had the opportunity to help build and work at an outdoor adventure program for children with disabilities, at-risk youth, and school age children of all backgrounds from around the country. His role as an outdoor counselor included team building activities, assisting young people to elevate their self-esteem, 'and challenging their physical limitations. Throughout his twenty-month stay in Israel, he continually confronted the bribery incident and its impact on his life through discussion with his peers as well as many of the young people with whom he counseled.

Due to the terror crisis in Israel and the demands on the regional police units, Elinoff was asked to join the regional police force as a volunteer police officer. He was selected because of his prior combat experience and exemplary military record. He received training in the elassroom and in the field and was deputized to perform the same duties and was held to the same responsibilities as a regular police officer. He was legally an thorized to make probable cause determinations, effectuate arrest procedures, investigate crimes and testify at trials He was held accountable as a professional in all regards. He accompanied regular police officers on calls, set-up and manned security checkpoints and roadblocks, and patrolled the area for both criminal and terrorist threats. His opportunity to stand in a police officer's shoes afforded him a tremendous insight on how difficult an officer's job can be and how the public perceives their roles. Elinoff now understands the two officers he offended during the bribery incident and the disrespectful behavior that led to his suspen-gion.

Elinoff was also a volunteer assisting the sex assault unit of the prosecution office in Haifa, Israel. Although his role was very limited in nature, his primary objective was to stay active in the profession and by doing so, learned about the Israeli legal system from investigation through trial, lectured to the sex assault investigators of the Department of Social Services, and provided to the unit sorely needed literature available only in the United States.

Upon his return to the United States, Eli-noff found full-time employment as a juvenile offender counselor for Arapahoe County's Residential Work Program, an alternative sentencing program for youth. The program provides an outdoor work and camping experience to juvenile offenders as an alternative to detention. His role as counselor includes providing supervision, acting as a positive role model, and mentoring the at-risk youth through process groups. Elinoff applies his life experiences and the lessons he has learned through his suspension to counsel these young people on the importance of making responsible decisions in order to stay out of trouble and out of the system. He now understands the consequences of making poor decisions, including the loss of his profession, the loss of many professional friendships, and the loss of his reputation. Through these hard lessons, Elinoff is resolved to helping young people at an age when they can still change the course of their future avoid making poor decisions as adults.

Elinoff is also a full-time professor of Homeland Security at Parks College. He teaches a broad range of subjects including Criminal Law and Procedure, counter terrorism procedures and protocols, security management, and current topics involving Homeland Security on a local, national and international level. Elinoff organizes guest lecturers through the police, fire, HAZMAT, FBI, and other agencies. He has created a community outreach program that provides terror awareness training to businesses and community groups at no cost.

In April of 2003, Elinoff initiated and helped organize a fundraiser for Jacob's Journey, a non-profit organization that sends ill children on wilderness trips.

Since October of 1999, Elinoff has sought and received mental health counseling from Dr. Ralph Grasso. During his therapy, he has explored the causes as to why he placed his profession and family at risk and has worked through the behavioral changes needed to prevent a recurrence in the future. Elinoff's therapist provided credible and substantial information that Elinoff has made long strides in recognizing and changing the basis for his poor decision-making in the past and learning how to prevent a recurrence in the future. Elinoff expressed that no day passes that he does not feel remorse for what he did and for the distress he caused the officers. He has previously apologized in person to one of the officers, has expressed publicly his culpability, and acknowledged the damage that he has caused the profession. Following the introduction of all evidence in this proceeding, the People stipulated that Elinoff was rehabilitated and should be reinstated to the practice of law in Colorado.

CONCLUSIONS OF LAW

C.R.C.P. 251.29(b) provides in relevant part:

An attorney who has been suspended for a period longer than one year must file a petition with the Presiding Disciplinary Judge for reinstatement and must prove by clear and convincing evidence that the attorney has been rehabilitated, has complied with all applicable disciplinary orders and with all provisions of this chapter, and is fit to practice law.

C.R.C.P. 251.29(c) further provides in part:

The petition for reinstatement must set forth:
(3) the facts other than passage of time and absence of additional misconduct upon which the petitioning attorney relies to establish that the attorney possesses all of the qualifications required of applicants for admission to the Bar of Colorado, fully considering the previous disciplinary action taken against the attorney;
(4) evidence of compliance with all applicable disciplinary orders and with all provisions of this Chapter regarding actions required of suspended lawyers;
(5) evidence of efforts to maintain professional competence through continuing legal education or otherwise during the period of suspension.

Additionally, certain criteria must be considered in reinstatement proceedings in order to evaluate an attorney's rehabilitation. People v. Klein, 756 P.2d 1013, 1016(Colo.1988) interprets the language of the prior reinstatement rule, C.R.C.P. 241.22. Klein requires:

[Alny determination of that issue [rehabilitation] must include consideration of numerous factors bearing on the [petitioner's] state of mind and ability, such as character, conduct since the imposition of the original discipline, professional competence, candor and sincerity, recommendations of other witnesses, present business pursuits of the [petitioner], the personal and community service aspects of the [petitioner's] life, and the [petitioner's]recognition of the seriousness of his previous misconduct.

Thus, an attorney who desires reinstatement after suspension must bear the burden of proving that he or she (1) is rehabilitated; (2) has complied with all applicable disciplinary orders and all provisions of the Colorado Rules of Civil Procedure relating to attorney discipline regarding actions required of suspended attorneys, and (8) is fit to practice law. All three of the elements of proof must be established before reinstatement may be authorized. The parties stipulated that Elinoff has complied with all prior disciplinary orders and all provisions of the Colorado Rules of Civil Procedure relating to attorney discipline. The parties also stipulated that Elinoff is fit to practice law based upon his continuing legal education and past and current work in the legal field. The facts acknowledged by these Stipulations are accepted. The sole issue at hearing was whether Elinoff has been rehabilitated.

Elinoff had made a fundamental change in his character and his perception of the role of attorneys in our society. His objective undertakings, both the activities engaged in and the results obtained, reveal genuine efforts to restructure those professional shortcomings which culminated in the prior discipline. His efforts have been exemplary. Elinoff has established by clear and convincing evidence that he is, in fact, rehabilitated. Elinoff has testified and the evidence has shown that he has not merely taken responsibility and shown remorse for his conduct, but that he has used the suspension in a positive way to learn to be a different individual and a better professional.

ORDER OF REINSTATEMENT

It is therefore ORDERED:

KALLIMAN S. ELINOFF, attorney registration number 18677, is reinstated to the practice of law effective immediately. Eli-noff shall pay all costs of this reinstatement proceeding. Respondent shall file a Statement of Costs or Notice that costs have been paid within fifteen (15) days of the date of this Order. Petitioner shall have five (5) days to file a Response.


author: CARL B. JONES, Judge:

text:
    2003 OK CIV APP 91
    William D. NAY and Sylvia J. Nay, Plaintiffs/Appellants, v. FIRST FINANCIAL BANK, FSB El Dorado, Arkansas, Defendant/Appellee.
    No. 98,400.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    May 16, 2003.
    Rehearing Denied June 27, 2003.
    Certiorari Denied Oct. 13, 2003.

      Frederick K. Slicker, Tulsa, OK, for Plaintiffs/Appellants.
    Melvin R. McVay, Jr., Thomas P. Manning, Oklahoma City, OK, for Defendant/Ap-pellee.
   OPINION

CARL B. JONES, Judge:

T1 This case involves Plaintiffs' action to recover statutory damages under 46 0.8.1991 § 15 for Defendant bank's failure to timely file a release of mortgage after the underlying debt was extinguished. Plaintiffs, William D. and Sylvia J. Nay, borrowed $90,000.00 from a local bank in Tulsa and granted a mortgage on their property to secure payment of the note. The note and mortgage were assigned to Defendant, First Financial Bank, F.S.B., El Dorado, Arkansas (Bank). On October 1, 1999, Plaintiffs made their last payment on the loan. Bank received the payment and acknowledged in writing that the loan had been paid in full. On November 29, 1999, more than fifty (50) days after the loan had been paid off, Plaintiffs sent Bank a letter requesting that Bank file a release of the mortgage pursuant to Oklahoma law. On December 6, 1999, Bank mailed Plaintiffs a lien release and an accompanying letter stating it was "mandatory" that Plaintiffs file the release with the county clerk. Plaintiffs did not file the release.

12 Plaintiffs filed the instant action on June 12, 2000, asserting Bank's failure to file the lien release in accordance with § 15 warranted statutory penalties. Bank filed a lien release with the Tulsa County Clerk, along with the required filing fee of $8.00, four days later. Each side moved for summary judgment and both were denied by the trial court. Following pretrial conference, both parties renewed their summary judgment motions and agreed that all issues in the case presented questions of law. Bank maintained that Plaintiffs demand letter of November 29, 1999, did not meet the requirements of § 15 and, even if it did, Bank satisfied the statute by mailing a release to Plaintiffs seven days later. Plaintiffs claimed their demand letter was proper and that § 15 required Bank, not Plaintiffs, to file the lien release. Plaintiffs also claimed the release filed by Bank was invalid.

T3 The trial court granted Bank's motion for summary judgment and denied Plaintiffs' motion for summary judgment. Plaintiffs motion to reconsider was overruled. From these rulings, Plaintiffs appeal. The matter stands submitted without appellate briefs on the trial court record. See Rule 13(h), Rules for District Courts, 12 O.S.2001, Ch. 2, App. 1, and Rule 1.36, Oklahoma Supreme Court Rules, 12 O.S.2001, Ch. 15, App.

T 4 Title 46 O.S.1991 § 15(A) provides:

Any mortgage on real estate shall be released by the holder of such mortgage within fifty (50) days of the payment of the debt secured by the mortgage and the holder of the mortgage shall file the release of the mortgage with the county clerk where the mortgage is recorded. If, at the end of the fifty-day period, the holder has failed to release the mortgage, the mortgagor may at any time request in writing the holder of the mortgage to release the mortgage and the holder of the mortgage shall have ten (10) days from the date of the request to release such mortgage. If the holder of the mortgage fails to release the mortgage by the end of such ten-day period, he shall then forfeit and pay to the mortgagor a penalty of one percent (1%) of the principal debt not to exceed One Hundred Dollars ($100.00) per day each day the release is not recorded after the ten-day period has expired and the penalty shall be recovered in a civil action in any court having jurisdiction thereof, but the request for the release shall be in writing and describe the mortgage and premises with reasonable certainty. Provided that, the total penalty shall not exceed one hundred percent (100%) of the total principal debt.

The primary issues in this appeal are whether Plaintiffs' demand letter satisfied the requirement of § 15 that such demand "describe the mortgage and premises with reasonable certainty" and, if the demand satisfied that requirement, whether § 15 mandated that Bank, rather than Plaintiffs, file the lien release with the county clerk.

$5 In relevant part, Plaintiffs demand letter stated, "This letter is my written demand for release of the mortgage recorded in reference to the above identified loan which has been paid in full." The letter specifically referenced the loan number assigned by Bank to Plaintiffs loan. Bank does not allege it was unable to identify the mortgage or premises referred to in Plaintiffs' letter. Indeed, Bank executed a release and sent it to Plaintiffs within a week of the demand, and admitted during discovery that the loan number identified Plaintiffs' mortgage. Rather, asserting that § 15 must be strictly construed because it is penal in nature, Bank simply urges Plaintiffs' demand letter did not comply with the statute's requirement of a "description" of the mortgage and premises.

16 While we agree § 15 must be strictly construed, Walker v. Dugger, 1962 OK 88, ¶ 13, 371 P.2d 910, 913, we reject Bank's overly narrow interpretation of the statute. "The fundamental rule of statutory construction is to ascertain and, if possible, give effect to the intention and purpose of the Legislature as expressed in a statute." Samson Hydrocarbons Co. v. Oklahoma Tax Comm'n, 1998 OK 82, ¶ 7, 976 P.2d 532, 535. It is readily apparent the Legislature's intent in enacting the language at issue was to insure mortgage holders are provided sufficient information, via demand letters, to enable them to identify mortgages for purposes of complying with the lien release requirements of § 15. The inclusion of Plaintiffs loan number in the instant demand letter, along with Mr. Nay's name, provided Bank with all the information it needed to identify Plaintiffs' mortgage and file a lien release.

17 Contrary to Bank's suggestion, § 15 does not mandate demand letters contain a literal "deseription" of the mortgage and premises. The phrase "with reasonable certainty" operates to modify the word "describe." We initially note "reasonable certainty" does not mean "absolute certainty." Florafax Int'l, Inc. v. GTE Mkt. Resources, Inc., 1997 OK 7, ¶ 42, 983 P.2d 282, 296. Rather, in the context of § 15, the phrase connotes a description or identification sufficient, when inquiry is pursued, to enable the mortgage holder to identify the mortgage to be released and the premises effected thereby. See Kennedy v. Uhrich, 19836 OK 453, 112, 62 P.2d 994, 996-7 (mechanic's lien competent to support foreclosure action if "description [of property] is sufficient, when inquiry is pursued, to enable a person to identify the premises intended to be de-seribed with reasonable certainty ...").

{8 Other Oklahoma decisions have expressed similar sentiments regarding the term "reasonable certainty." In City of Cherokee v. Tatro, 1981 OK 127, 636 P.2d 337, the Court explained that zoning ordinances which establish zone district boundaries "are required to do so within reasonable certainty so that the zone districts will have definite boundaries reasonably capable of being ascertained ...." Id. at 15, 686 P.2d at 339, quoting Auditorium, Inc. v. Board of Adjustment, 91 A.2d 528 (Del.1952) (emphasis added). Regarding the legal requirement that future effects of an injury must be demonstrated by "reasonable certainty," the Supreme Court has held "evidence is sufficient if it demonstrates that the damages could be computed by just and reasonable inference." Bane v. Anderson, Bryant & Co., 1989 OK 140, ¶ 29, 786 P.2d 1230, 1236 (emphasis added). And, in Fernow v. Gubser, 1945 OK 265, 162 P.2d 535, the Court ruled the description of personal property in a notice of sale on execution "is sufficient if the property is described with reasonable certainty so as to enable prospective bidders, in the exercise of ordinary diligence, to identify it." Id. at " 15, 162 P.2d at 588 (emphasis added).

19 Strict construction of a statute "is that which refuses to extend the law by implications or equitable considerations and confines its operations to cases ... clearly within the letter of the statute, as well as within its spirit or reason." Walker, 1962 OK 88 at ¶ 13, 371 P.2d at 913, quoting Bullington v. Lowe, 1923 OK 978, 221 P. 502, 504. Our interpretation of the word "de-seribe" neither impliedly nor equitably extends § 15. To the contrary, considering the modifying phrase "with reasonable certainty" and the Legislature's intent in enacting § 15, our interpretation squarely fits within the letter and reason of the statute. We hold Plaintiffs' demand letter satisfied the requirements of § 15.

110 With respect to its second argument, Bank contends it was required to file a release with the county clerk only within the first fifty days after the loan was paid. After that period, Bank urges it was merely required "to provide a release" to Plaintiffs. This argument is patently meritless. The first sentence of § 15 states that the mortgage holder "shall file" the mortgage release with the county clerk. The second sentence describes when a mortgagor may request a release and provides that a mortgage holder has ten days to respond thereto. The third sentence then sets forth the penalty for the mortgage holder's failure to "release the mortgage" after the ten-day period and specifies the penalty per day "each day the release is not recorded." The penalty provisions are triggered only after the ten-day period expires.

$11 Under Bank's theory-a mortgage holder is not required to file a release after the initial fifty-day period-the penalty provisions of § 15 would never be invoked. Not only is this argument illogical, but it is also contrary to rules of statutory construction. See Purcell v. Santa Fe Minerals, Inc., 1998 OK 45, ¶ 18, 961 P.2d 188, 193 ("The Legislature is not presumed to perform vain and useless acts when creating law."). Furthermore, statutory provisions are to be construed together, where possible, to give force and effect to each other. Sharp v. Tulsa County Election Bd., 1994 OK 104, ¶ 9, 890 P.2d 836, 840. Title 46 0.98.1991 § 16 states that a mortgage on real property is released "by written instrument, duly signed and acknowledged and recorded in the office of the county clerk as register of deeds." A "release" under § 15 means a written instrument, duly signed and acknowledged and recorded in the office of the county clerk.

112 To the extent Bank relies upon Pfalzgraf v. Ward, 1939 OK 541, 98 P.2d 931, for the proposition Bank was not required to file a release, we deem such reliance unfounded. The version of § 15 at issue in Pfalegraf did not require mortgage holders to file releases. See 46 O.S.1981 § 15. However, § 15 has clearly imposed such a duty since its amendment in 1977. See Laws 1977, c. 156, § 2, eff. Oct. 1, 1977. We also reject Bank's argument that Plaintiffs should be estopped from seeking penalties under § 15 because they (1) voiced no complaint after receiving the December 6, 1999, release from Bank and (2) waited six months to file their lawsuit. First, § 15 does not require an aggrieved mortgagor to correspond further with a mortgage holder after he or she bas made a written request for a release. The statute simply requires the mortgagor to request the release and then authorizes the mortgagor to seek penalties in a civil action if the release is not filed within ten days. Furthermore, Plaintiffs' petition was filed within the applicable statutory period. 12 O.S. Supp.1996 § 95(4). See also Tucker v. FSB Mortgage of Little Rock, 1994 OK CIV APP 110, 886 P.2d 498 (mortgagor filed suit six months after making written demand).

113 Lastly, we address Plaintiffs' contention that the release ultimately filed by Bank was invalid. On its face, the instrument appears to be a valid release in all respects. However, Plaintiffs allege the individual who notarized the release was not a notary on the date of acknowledgment. Bank counters that a serivener's error resulted in an incorrect acknowledgment date, but that the notary was duly certified as such on the actual date of acknowledgment. Being otherwise properly executed, Bank urges the June 16, 2000, release is valid. We agree with Bank. The release was signed and sealed by an authorized corporate officer and acknowledged by a licensed notary public who attested she personally knew the officer and witnessed his signature. As set forth in Standard 6.2, Title Examination Standards, 16 O.S.2001, Ch. 1, App., an incorrect acknowledgment date does not impair marketability. Notwithstanding the erroneous acknowledgment date, Bank's release contained "enough correct data to identify the grant[ ] being released with reasonable certainty." Title Examination Standard 244. The release is therefore valid under Oklahoma law.

114 Upon de movo review of the instant record, Hoyt v. Paul R. Miller, M.D., Inc., 1996 OK 80, ¶ 2, 921 P.2d 350, 351-52, we conclude there exists no genuine issue of material fact and hold Plaintiffs are entitled to judgment as a matter of law. See Shelley v. Kiwash Elec Co-op., Inc., 1996 OK 44, ¶ 15, 914 P.2d 669, 674. Accordingly, the trial court should have entered judgment for Plaintiffs. We further hold the trial court abused its discretion in overruling Plaintiffs' motion to reconsider. Bank of Okla., N.A. v. Portis, 1997 OK CIV APP 32, ¶ 8, 942 P.2d 249, 252. On the basis of the foregoing, the judgment of the trial court is reversed and remanded with instructions to enter judgment for Plaintiffs. Statutory penalties under § 15 shall be computed to June 16, 2000, the date Bank filed its valid release.

{15 REVERSED AND REMANDED WITH INSTRUCTIONS.

HANSEN, J., and MITCHELL, P.J., concur.

      . Plaintiffs' summary judgment materials included evidence that Bank consistently and repeatedly used the loan number as a unique identifier for Plaintiffs' mortgage and premises: All communications from Bank used the loan number; Bank asked that the loan number be referenced in all communications to it, including telephonic communications; payment coupons used the loan number; the loan number is included on the promissory note; Bank's acknowledgment of payment referenced the loan number; and the mortgage release filed by Bank prominently displayed the loan number.


author: BAY MITCHELL, Presiding Judge. HANSEN, J.,

text:
    2003 OK CIV APP 98
    Roy COPELAND, Plaintiff/Appellee, v. TELA CORPORATION, d/b/a Red Dog Café, Defendant/Appellant, and Donald E. MacKey, Defendant.
    No. 97,172.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Aug. 1, 2003.
    Certiorari Denied Nov. 10, 2003.

      Michael P. Rogalin, Oklahoma City, OK, for Defendant/Appellant.
    Doug Friesen, Oklahoma City, OK, . for Plaintiff/Appellee.
   Opinion by

BAY MITCHELL, Presiding Judge.

1 Tela Corporation, d/b/a Red Dog Café or "Red Dog" seeks review of an order entering judgment on a jury verdict in favor of Roy Copeland, Plaintiff/Appellee or "Copeland." Copeland brought an action under a dram shop liability theory as recognized in Brigance v. Velvet Dove Restaurant, 1986 OK 41, 725 P.2d 300, 304. The jury awarded Copeland damages for injuries received when he was struck by a car driven by a customer of Red Dog. The customer had been drinking beer at the Red Dog prior to the accident and was intoxicated. After trial, a jury found Red Dog 48% negligent, the intoxicated customer/driver 50% negligent and contributory negligent on the part of Copeland at 7%. The compensatory damages were set at $300,000 by the jury, with $129,000 of that amount against Red Dog. The jury also awarded punitive damages in favor of Copeland and against Red Dog in the amount of $65,000.

T2 Red Dog complains on appeal that certain evidence was admitted which should have been excluded. It points to evidence in the form of a videotape which showed four men, hired by Copeland, entering the Red Dog and drinking beer until they became inebriated and then being served more alcohol. At the end of the videotape were seenes of a woman, that worked in the Red Dog as a stripper, performing a lewd dance in front of the four hired men. In certain portions of the videotape, the female dancer was seen making lascivious physical contact with one of the hired men. Red Dog objected to the introduction of the evidence on the grounds that it did not represent the usual business practices of the Red Dog, that is, serving alcohol to patrons after they were inebriated, but contained only isolated incidents taken out of context. Red Dog also objected that the scenes were filmed more than one year after Copeland's accident, the seenes on the videotape were not similar to the cireumstances that occurred on the night of the accident but were isolated incidents, and that the videotape did not comport with the requirements of 12 0.8.1991 § 2404(B). Red Dog alleges that the portion of the evidence showing the lewd dance was more prejudicial than it was probative, because the jury believed Red Dog was morally inferior and awarded excessive damages, therefore it should have been excluded pursuant to 12 0.§.1991 § 2403. Put another way, Red Dog contends the videotape did not prove dram shop liability and, if it did, the indecency of the dancers "bad acts" inflamed the jury to inflate the damages award.

{3 The Oklahoma Evidence Code, 12 0.8. 1991 § 2101 et seq., allows all relevant evidence to be admitted unless excluded by rules of evidence. Title 12 0.98.1991 § 2401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." More particularly, 12 0.8.1991 § 2406, provides "evidence of ... an organization's routine practice ... is relevant to prove that the conduct of the ... organization on a particular occasion was in conformity with the habit or routine practice." Therefore, the portion of the videotape that showed alcohol being served to Copeland's hired men after they were intoxicated had some relevance to show it was common business practice of Red Dog to serve alcohol to intoxicated patrons. No abuse of discretion is shown here.

T4 Copeland also contends the portion of the videotape showing Red Dog's semi-nude dancer rubbing provocatively against Copeland's hired man was relevant to prove that Red Dog violated its own policies, here, the rule prohibiting contact between the dancers and patrons. This may be marginally relevant to show a general disregard by Red Dog of its internal rules. But even relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, needless presentation of cumulative evidence, or unfair and harmful surprise." Title 12 0.8.1991 § 2408. The trial court must seek a balance of probative value and potential prejudice on the facts of each case. Our concern is that this evidence had little or nothing to do with whether Red Dog was negligent in serving alcohol to intoxicated patrons. The likely prejudice is obvious. The evidence may be slightly relevant, but the risk of prejudice far outweighs any probative value. It should have been excluded.

T5 The judgment appealed must be reversed and this case is remanded for a new trial.

T6 REVERSED AND REMANDED.

JONES, J., concurs.

HANSEN, J.,

concurs in part, dissents in part:

While I agree the video tape should have been excluded as its probative value is far outweighed by the inherent prejudicial effect, I do not agree the balance of the tape was correctly admitted. I would exclude the entire videotape. The majority cites no decision upholding the relevance of "routine practice" a year after the involved action occurred. The year later practice is too far removed to have any relevance to the issues here.

      . The exact facts of the accident are found in the prior case of Copeland v. Tela Corporation d/b/a Red Dog Saloon and Café and Donald Mackey, 1999 OK 81, 996 P.2d 931.

      . 12 0.$.1991 § 2404(B). Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

      . 12 0.$.1991 § 2403. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, needless presentation of cumulative evidence, or unfair and harmful surprise.