text:
    Renee DUPONT, Plaintiff-Appellee, v. James M. PRESTON, D.D.S., Defendant-Appellant.
    No. 98CA2480.
    Colorado Court of Appeals, Div. V.
    April 27, 2000.
    As Modified on Denial of Rehearing July 20, 2000.
    Certiorari Granted Oct. 10, 2000.

      The Leventhal Law Firm, P.C., Beth L. Krulewitch, Denver, Colorado, for Plaintiff-Appellee.
    Joel N. Varnell & Associates, J. Gregory Morrell, Greenwood Village, Colorado, for Defendant-Appellant.
    McDermott and Hansen, William J. Hansen, Denver, Colorado, for Amicus Curiae Colorado Trial Lawyers Association.
   Opinion by

Judge CASEBOLT.

In this dental malpractice action arising under the Health Care Availability Act (HCAA), defendant, James M. Preston, D.D.S., appeals the judgment entered on a jury verdict in favor of plaintiff, Renee Du-pont. We modify the judgment and, as modified, affirm.

Plaintiff commenced this action to recover damages for injuries she sustained as a result of the dental care defendant provided to her. The jury found in favor of plaintiff and awarded her $240,000 for noneconomic losses, $22,000 for physical impairment, and $34,938.12 for medical expenses. The trial court awarded prejudgment interest and entered judgment on the verdict.

L.

Defendant first contends the trial court erred in denying his challenge for cause to a prospective juror. We disagree.

Challenges for cause in a civil case are governed by C.R.C.P. 47(e), and are limited to instances in which the potential juror: (1) is incompetént' to be a juror; (2) is related within the third degree to any party; (8) is involved in certain relationships with any party; (4) has previously served on a jury or been a witness in a previous trial between the same parties for the sime cause of action; (5) has an interest in the outcome of the action; (6) has formed or expressed an unqualified opinion as to the merits of the action; or (7) exhibits enmity or bias concerning either party.

If a potential juror falls within any one of the first five categories listed above, the bias of the juror is implied and the trial court must dismiss the juror. Safeway Stores, Inc. v. Langdon, 187 Colo. 425, 532 P.2d 337 (1975). However, a challenge cause under the remaining two categories requires a showing that the juror is biased fact. Action Realty v. Brethouwer, 633 P.2d 522 (Colo App.1981).

Sustaining a challenge for cause on grounds other than those p10v1ded for in C.RC.P. 47(e) has the effect of giving the challenging party an additional peremptory challenge, and constitutes reversible error. Faucett v. Hamill, 815 P.2d 989 (Colo.App 1991).

Here, the challenged juror stated that, as a recent law school graduate, he had knowledge concerning provisions of the HCAA, specifically its limitations on damages and the provisions that prevent disclosure of such limitations to the jury. See § 13-64-302(1), C.R.S.1999. However, during in camera questioning, this juror stated that he would not disclose that information to the other jurors and would be able to disregard the limitations in determining whether to award damages, and the amount, if any, to award.

Defendant nevertheless requested that this juror be excused from the panel for cause because he had specific knowledge of the damage limitations that were not to be disclosed to the jury. The trial court denied defendant's request.

We perceive no error in the trial court's rejection of defendant's challenge for cause. Despite the fact that the HCAA prohibits disclosure of the limitations on damages to the jury, defendant's basis for the challenge is not one of the enumerated reasons contained in C.R.C.P. 47 for dismissing a potential juror. Thus, the trial court properly denied defendant's request. See Fawcett v. Hamill, supra (fact that potential juror was a lawyer was not sufficient ground to dismiss for cause because that reason is not listed in C.R.C.P. 47(e)).

IL

Defendant next contends the trial court erred in instructing the jury that it could make a separate damage award for physical impairment. Specifically, he asserts that § 18-64-204, C.R.S.1999, specifies the categories for which a jury may make an award, and that this statute does not contain a separate category for physical impairment. Therefore, he contends, the General Assembly must have intended to exclude physical impairment as an item of recoverable damage under the HCAA. We disagree.

Our primary task in construing a statute is to determine and give effect to the intent of the General Assembly. To discern legislative intent, we look first to the statutory language. Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo.1997).

A statute must be construed as a whole and an interpretation must give consistent, harmonious, and sensible effect to all parts of the statute. City of Grand Junction v. Sisneros, 957 P.2d 1026 (Colo.1998).

Section 18-64-204 provides, in relevant part:

(1) If Hability is found in a trial under [§ 18-64-201, et seq.], the trier of fact, in addition to other appropriate findings, shall make separate findings for each claimant specifying the amount of:
(a) Any past damages for each of the following types:
(I) -Medical and other costs of health care;
(I1) Other economic loss except loss of earnings;
(III) Loss of earnings; and
(IV) Noneconomic loss.
(b) Any future damages and the period of time over which they will be paid, for each of the following types:
(I) -Medical and other costs of health care;
(II) Other economic loss except loss of future earnings which would be incurred for the life of the claimant or any lesser period;
(III) Loss of future earnings which would be incurred for the work life expectancy of the claimant or a lesser period; and
(IV) Noneconomic loss which would be incurred for the life of the claimant or any lesser period.

We agree that this statute does not specifically list physical impairment as an element of recoverable damages. However, neither does the statute expressly describe pain and suffering, loss of enjoyment of life, emotional distress, or other elements of damages. Nevertheless, that does not mean that such damages are not recoverable. Instead, the statute describes "types" of damages that are recoverable, broadly separating four separate types of damage into past and future damages. >

Under the plain language of the statute, a plaintiff may recover -for "economic" and "noneconomic" past and future losses. Hence, the issue is whether physical impairment is either an economic or noneconomic logs within the meaning of this statute.

Section 18-64-202, C.R.S.1999, contains the definitions that are applicable to the provision at issue, and thus those specific definitions supply the meanings of the words and phrases contained in § 13-64-204. Section 13-64-202(5), C.R.S.1999, defines "noneco-nomic loss" as "nonpecuniary harm for which damages are recoverable under the laws of this state." Section 18-64-202(1), C.R.S. 1999, defines "economic loss" as "pecuniary harm for which damages are recoverable under the laws of this state." Hence, we must determine whether physical impairment is a recoverable item of damage under Colorado law. We conclude that it is.

For quite some time, Colorado case law has recognized "physical impairment" as a harm for which compensation may be sought and awarded. Cf. Barter Machinery & Supply Co. v. Muchow, 169 Colo. 100, 453 P.2d 804 (1969); Heckman v. Warren, 124 Colo. 497, 238 P.2d 854 (1951); Cookman v. Caldwell, 64 Colo. 206, 170 P. 952 (1918). Further, as defendant admits, the General Assembly explicitly has recognized physical impairment or disfigurement as a separate element of personal injury damages recoverable in tort actions. See § 13-21-102.5(5), C.R.S.1999 ("nothing in this section shall be construed to limit the recovery of compensatory damages for physical impairment or disfigurement"); Herrera v. Gene's Towing, 827 P.2d 619 (Colo.App.1992).

We also note that the HCAA was adopted in 1988, two years after the General Assembly recognized physical impairment as a recoverable element of damages in § 13-21-1025. Because the General Assembly is presumed to be aware of laws already existing on the subject when it passes new legislation, City & County of Denver v. Rinker, 148 Colo. 441, 366 P.2d 548 (1961), we may presume it intended to recognize physical impairment as a recoverable item of damage under the HCAA.

For these reasons, we conclude that damages for physical impairment are "recoverable under the laws of this state."

Physical impairment may be a harm that results in pecuniary loss. "Pecuniary" in this context means "of or relating to money;" that is, a monetary loss. Random House Webster's Unabridged Dictionary 1428 (2d ed.1998). Physical impairment may also be nonpecuniary. See Matthews v. Industrial Commission, 627 P.2d 1128 (Colo.App.1980) (some anatomical impairments have no material effect on a person's status in the labor market).

For example, a professional football player whose leg is amputated sustains a physical impairment that would most certainly entail a pecuniary loss. However, the same injury to a theoretical physicist whose work involves primarily critical thinking and analysis might not involve a similar pecuniary loss, but if the scientist's hobby were playing tennis, it would certainly involve a nonpecuniary loss.

Accordingly, physical impairment does not necessarily result in exclusively pecuniary or exclusively nonpecuniary harm. Nonetheless, because it is an element of damages that is "recoverable under the laws of this state" as either economic or noneconomic loss, see § 18-64-202(1) & (5), we reject defendant's argument that § 18-64-204 prohibits recovery for physical impairment.

Defendant relies on Ledstrom v. Keeling, 10 F.Supp.2d 1195 (D.Colo.1998) to support his contention. We are not persuaded to follow the Ledstrom rationale.

In Ledstrom, the federal district court concluded that damages for physical impairment were included within the $250,000 limitation on damages for noneconomic injuries specified by § 13-64-8302, C.R.5.1999. Here, however, defendant has not asserted the applicability of the damage cap contained in § 13-64-302 concerning the damages the jury awarded. Instead, he has contended that § 13-64-204 prohibits recovery for physical impairment.

Further, the Ledstrom court appears to have assumed that "physical impairment" is exclusively a noneconomic loss. As previously noted, a physical impairment does not always neatly fall into the category of either economic or noneconomic loss.

In addition, the Ledstrom court applied the definition of "noneconomic" loss found in § 13-21-102.5(2)(b) in determining whether the damage cap in § 13-64-302 would apply to damages awarded for physical impairment. Section 13-64-8302 provides:

The total amount recoverable for all damages for a course of care for all defendants in any civil action for damages in tort brought against a health care professional . whether past damages, future damages, or a combination of both, shall not exceed one million dollars, present value per patient, ... of which not more than two hundred fifty thousand dollars, present value per patient, . shall be attributable to non-economic loss or injury, as defined in section 13-21-102.5(2)(a) and (2)(b) ....

(emphasis added).

By its plain language, this provision specifically incorporates and makes applicable the definition of noneconomic loss or injury set forth in § 13-21-102.5, C.R.S.1999.

Section 183-21-102.5(2)(b) provides: "Noneconomic loss or injury" means non-pecuniary harm for which damages are recoverable by the person suffering the direct or primary loss or injury, including pain and suffering, inconvenience, emotional stress, and impairment of the quality of life, ...

While we agree that the statutory definition found in § 18-21-102.5(2)(b) is directly incorporated into the damage cap set forth in § 13-64-802(1), that definition is not applicable to § 13-64-204. Rather, as previously noted, the definition contained in § 13-64-202 is the one that pertains here. See § 13-64-202 (stated definitions apply to "this part 2"); § 18-64-8302 (damage cap is contained in “part 3”).

Indeed, the definition of "noneconomic" loss contained in §$ 13-21-102.5(2)(b), as incorporated into § 13-64-8302(1), is different from that contained in § 13-64-202. In contrast to the definition prescribed in section 13-64-202, this definition sets forth specific components of noneconomic loss. Under § 18-21-102.5, nonecomomic loss or injury means "nonpecuniary harm for which damages are recoverable ... including pain and suffering, inconvenience, emotional stress, and impairment of the quality of life." In contrast, noneconomic loss defined in § 13-64-202 means "nonpecuniary harm for which damages are recoverable in this state."

In our view, the General Assembly had different definitions in mind for both statutes because the statutes serve different purposes. Section 13-64-204 specifies the types of damages that are recoverable and requires the jury to make express findings concerning past and future damages. In this way, the two temporal damage categories (past and future) can be separated and periodic payments of future damages can then be ordered. Section 183-64-302, however, is a damage cap, and by incorporating the provisions of § 18-21-102.5(2)(b), this HCAA provision limits amounts recoverable for very specific items of noneconomic losses; i.e., pain and suffering, inconvenience, emotional stress, and impairment of the quality of life.

If possible, we must give effect to every word of the statute. Charlton v. Kimata, 815 P.2d 946 (Colo.1991). Our interpretation serves this goal by employing both definitions of noneconomic loss and harmonizing the differing language.

Moreover, the HCAA damage cap applies to "noneconomic loss or injury as defined in § 13-21-102.5(2)(a) and (2)(b)." (emphasis added). Accordingly, the HCAA incorporates the language contained in that particular subsection and nothing more. We specifically note that there is no mention of physical impairment contained in § 13-21-102.5(2)(b).

In addition, because physical impairment can involve either pecuniary or nonpecuniary loss, and the literal language of § 13-21-102.5 is applicable only to nonpecuniary harm, that is an additional reason specifically not to construe physical impairment as being necessarily included in the definition of non-economic losses set forth in § 13-21, 102.5(2)(b).

For these reasons, we reject defendant's contention that Ledstrom v. Keeling, supra, mandates a different result.

Here, the trial court properly instructed the jury to determine separately the amount of past damages attributable to any physical impairment and any future damages allocable to any such impairment. Accordingly, we perceive no error.

IIL

Defendant next contends there is insufficient evidence in the record to support the jury's award of $30,000 for future medical expenses. We disagree.

The amount of damages to be awarded is a matter within the sole province of the jury and may not be disturbed unless it is completely without support in the record. The amount of damages awarded may be an approximation, provided that the fact of damages is certain and provided the plaintiff introduces some evidence that is sufficient to permit a reasonable estimation of damages. Hauser v. Rose Health Care Systems, 857 P.2d 524 (Colo.App.1993).

Here, defendant acknowledges there was testimony that: (1) plaintiff would need an implant that would cost $1,800 in addition to a crown costing approximately $800 and (2) plaintiff would require one additional dental visit per year for the remainder of her life expectancy of 40 years, or approximately $2,760. Defendant overlooks, however, testimony that the pain plaintiff was experiencing at the time of trial would never completely resolve and that she would have to manage that pain with some kind of medication for the remainder of her life. In addition, plaintiff had consulted a neurologist for the pain she was experiencing, and there was evidence that plaintiff was taking prescription anti-convulsant medication for pain at the time of the trial.

We conclude that there is sufficient evidence in the record to support the jury's award of future medical expenses. The fact that plaintiff? would incur future medical expenses was certain. And, the jury had before it some figures for calculating the cost of the future dental procedures, as well as receipts for past bills and prescriptions. Consequently, because the evidence in the record is sufficient to allow the jury to approximate plaintiffs future medical expenses, we decline to disturb that finding. See Hauser v. Rose Health Care Systems, supra.

IV,

Defendant next contends that the aggregate amount of damages and interest awarded to plaintiff for noneconomic injuries must be reduced to $250,000 because the statutory limitation on noneconomic damages includes prejudgment interest awarded on those damages. We agree.

In her brief, plaintiff initially contended that defendant had failed to preserve this issue for appeal. However, at oral argument before us, plaintiff withdrew that contention.

As noted previously, § 13-64-802(1), C.R.S.1999, limits noneconomic damages, whether past, present, or future, to $250,000. In addition, § 13-64-302(2), C.R.S.1999, provides that "prejudgment interest ... is deemed to be a part of the damages awarded in the action ... and is included within each of the limitations on liability...." Section 13-64-302(2) was apparently adopted by the General Assembly in response to the supreme court's decision in Scholz v. Metropolitan Pathologists, P.C., 851 P.2d 901 (Colo.1993), in which the court held that prefudgment interest was not subject to the statutory eap.

Here, based on the jury's verdict, the trial court entered judgment for plaintiff for a total of $296,983.12, of which $240,000 represented noneconomic damages. In addition, the court awarded prejudgment interest at 9% per annum on the total damage award. Because plaintiff may not recover more than $250,000 in noneconomic loss, inclusive of prejudgment interest, and the amount of the damages awarded plus prejudgment interest thereon would improperly exceed $250,000, the amount of prejudgment interest awarded on the noneconomic damages may not exceed $10,000.

v.

' Relying upon § 13-64-205(1)(d), C.R.S. 1999, defendant contends the jury's award of future damages cannot be sustained because plaintiff failed to present expert testimony at trial as to calculation of the present value of the future damages. We disagree.

If the legislative intent is immediately apparent based upon the commonly understood and accepted meanings of the statutory language, the statute should be applied as written. Farmers Insurance Exchange v. Bill Boom, Inc., 961 P.2d 465 (Colo.1998).

A statute must be construed as a whole, and an interpretation must give consistent, harmonious, and sensible effect to all parts of the statute. City of Grand Junction v. Sisneros, supra.

An interpreting court must give effect to every word of the statute unless the result would be absurd. Dikeou v. Dikeou, 928 P.2d 1286 (Colo.1996).

Section 18-64-205(1)(d), C.R.S.1999, provides in pertinent part that "after hearing relevant expert testimony, the jury shall determine the present value of future damages...."

Defendant interprets this provision to require the presentation of expert testimony by the plaintiff to permit the jury to fulfill its mandate to reduce the total amount of future damages to present value. He asserts that no evidence was presented to the jury from which it could calculate present value and therefore the amount of the verdiet must be remitted by $250,000, the amount of the future damages. Plaintiff responds that the statute does not mandate presentation of expert testimony. We agree with plaintiff.

First, § 18-64-202(2), C.R.S.1999, defines "future damages" as "damages of any kind arising from personal injuries which the trier of fact finds will accrue after the damages findings are made." Accordingly, contrary to plaintiff's contention, all future damages, whether pecuniary or nonpecuniary, must be discounted to present value.

Second, the statutory language does not specifically require expert testimony. The only thing the provision explicitly requires, by using the word "shall," is determination of present value. See People v. Guenther, 740 P.2d 971 (Colo.1987) (the word "shall," when used in a statute, involves a mandatory connotation and is thus the antithesis of discretion or choice).

In other contexts, the General Assembly has expressly required the presentation of expert testimony. See $ 18-64-401, C.R.S. 1999 (qualifications as expert witness in medical malpractice actions or proceedings); § 13-20-602, C.R.S.1999 (requiring certificate of review in actions against licensed professionals); Shelton v. Penrose/St. Francis Healthcare System, 984 P.2d 623 (Colo.1999). However, it has not done so in § 13-64-205. And, absent words that command the presentation of expert testimony, we decline to read such a limitation into the statute when its plain language does not warrant it. See Schlessinger v. Schlessinger, 796 P.2d 1385 (Colo.1990) (a court should be careful to avoid judicial legislation by adding to a statute that which the legislature did not deem proper); Jones v. People, 155 Colo. 148, 393 P.2d 366 (1964) (a court may not change the laws enacted by the legislature); Digital Equipment Corp. v. Industrial Claim Appeals Office, 894 P.2d 54 (Colo.App.1995) (court is not at liberty to read non-existent terms into the plain language of a statute).

In our view, the language "after hearing relevant expert testimony" does not dictate a contrary result. The word "relevant," which modifies "expert testimony," suggests court discretion to determine both the need for, and the seope of, such testimony.

Here, neither party presented economic experts to assist the jury in determining present value. However, the jury was properly instructed that all future damages must be reduced to present value. The jury was further instructed that the present value determination should be made by "discounting [damages] by a reasonable commercial rate to today's value." The verdict form contained the jury's present value calculations of all such future damages.

A jury is entitled to receive evidence and appropriate mathematical guidance on the method of adjusting future losses to present value. See Failing v. Burlington Northern Railroad Co., 815 P.2d 974 (Colo.App.1991); Brady v. Burlington Northern Railroad Co., 752 P.2d 592 (Colo.App.1988). However, when, as here, there is no evidence introduced during trial as to any particular method of reducing future damages to present worth, the trial court is not required to formulate a method in its instructions but may instead give a general instruction on the jury's duty in this regard. Failing v. Burlington Northern Railroad Co., supra. Further, a jury is presumed to be capable of following instructions and presumed to follow a trial court's instructions. Armentrout v. FMC Corp., 842 P.2d 175 (Colo.1992).

For these reasons, we perceive no error. And, in view of this disposition, we need not address which party bears the burden of presenting any expert testimony.

That part of the judgment awarding damages and prejudgment interest for noneco-nomic losses is modified to limit the award to $250,000. As modified, the judgment is affirmed.

Judge ROTHENBERG and Judge KAPELKE concur.


source: Caselaw Access Project

author: Judge RULAND.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lucio MUNOZ, Defendant-Appellant.
    No. 99CA0123.
    Colorado Court of Appeals, Div. I.
    April 27, 2000.
    Certiorari Granted Sept. 18, 2000.

      Ken Salazar, Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David F. Vela, Colorado State Public Defender, Cynthia Camp, Deputy State Public Defender, Denver, Colorado, for Defendant, Appellant.
   Opinion by

Judge RULAND.

Defendant, Lucio Munoz, appeals from the trial court's order denying his Crim. P. 85(c) motion for post-conviction relief. We affirm and remand for correction of the mittimus.

Defendant was charged originally with first degree criminal trespass and conspiracy to commit theft, Pursuant to a plea agreement, defendant pled guilty to theft, a class four felony. Section 18-4-401(@2)(c), C.R.S. 1999. The parties' written sentencing agreement provided as follows:

That sentencing shall be open to the court; however, if an initial sentence to the Department of Corrections is imposed, the parties agree to a cap of nine (9) years. The parties further agree that this sentence shall run concurrently with the sentence imposed in Weld County.

At the providency hearing, the trial court correctly advised defendant that he was subject to mandatory aggravated range sentencing:

Now, this is a felony charge.... If the judge found that the case had extraordinary aggravation about it or that the person was in what they call the aggravated-sentencing range or the enhanced range for any reason ... then it could be as much as twelve years.

Thus, defendant was informed that in the absence of the sentence agreement, the maximum possible sentence would 'be 12 years.

With reference to the plea agreement, the court stated:

Now, what the attorneys are telling me is that you are going to plead guilty to a felony charge of theft. You have been promised that the sentence-it would be up to the Court, up to the Judge, but the sentence would be no more than nine years in prison .... (emphasis in original)

Defendant indicated that he understood the court's advisement, and the court accepted his plea.

The court sentenced defendant to nine years in the Department of Corrections (DOC) to be served concurrent with another sentence. However, the trial court neglected to note on the mittimus that defendant would also be subject to a three-year period of mandatory parole pursuant to § 18-1-105(1)(a)(V)(A), C.R.8.1999.

Later, defendant filed this pro se Crim. P. 35 motion alleging that requiring him to serve a three-year period of mandatory parole in addition to a nine-year DOC sentence violated the sentence agreement. As relief, defendant asked the court to modify his sentence so that the total of his DOC sentence and his mandatory parole period did not exceed nine years.

The trial court denied defendant's motion without conducting an evidentiary hearing or granting his request for appointment of counsel. This appeal followed.

Defendant's Crim. P. 35(c) motion was based on People v. Sandoval, 809 P.2d 1058 (Colo.App.1990). However, while defendant's appeal was pending, the supreme court overruled Sandoval in Craig v. People, 986 P.2d 951 (Colo.1999). The court held that cases involving post-conviction challenges to mandatory parole require a two-part inquiry.

First, the appellate court must independently review the parties' plea agreement. In this review, we must determine objectively whether the defendant was promised a sentence related to mandatory parole that was statutorily prohibited. In making this determination, pursuant to Craig, we interpret stipulations for "Department of Corrections" sentences as referring only to the imprisonment component of a sentence and not as including any promise concerning mandatory parole. See also People v. Snare, 7 P.3d 1025 (Colo.App.1999).

Under the second prong of the Craig analysis, the appellate court must determine whether the defendant was properly advised that he or she would be subject to a period of mandatory parole. In addition, defendant should be informed of the maximum possible length of that parole period, and the fact that mandatory parole is a, consequence distinct from imprisonment.

Here, as to the first prong, the parties' only sentence stipulation was for a nine-year "Department of Corrections" sentence cap. Thus, we conclude that there was no stipulation with respect to the mandatory parole period. Accordingly, we conclude that the agreement is not invalid under Craig.

With respect to the second prong of the Craig analysis, we conclude that the court's advisement was deficient because the record fails to indicate that defendant was informed of mandatory parole in any manner. However, in Craig, our supreme court also stated:

[Iln cases where the defendant is alerted as to the full range of penalties to which he could legitimately be exposed, but is not apprised of the consequence of mandatory parole, harmless error results when the term of imprisonment, combined with the mandatory period of parole, falls within the range of sentence that the defendant was at risk of receiving.
While the failure to advise a defendant of both the fact and length of mandatory parole constitutes error ..., a defendant, having been notified of the maximum available penalties, is not entitled to reformation of a combined sentence of imprisonment and mandatory parole that falls within the range of penalties he was at risk of receiving.

Craig v. People, supra, 986 P.2d at 964; see also People v. Tyus, 776 P.2d 1143 (Colo.App.1989).

Consistent with that discussion, in People v. Priester, 996 P.2d 766 (Colo.App.2000), a division of this court held that a trial court's advisement that does not specify the length of the mandatory parole period may constitute harmless error. That is, the error is harmless if the total of defendant's stipulated sentence and the mandatory parole period is less than the maximum sentence that defendant was advised he was "at risk of receiving." As noted in Priester:

When the supreme court discussed the sentence which the defendant "risked receiving," it referred to the maximum sentence which the defendant was advised he could receive before entering into a plea bargain.

People v. Priester, supra, 996 P.2d at T7O.

Consistent with | Craig and Priester, we conclude that the trial court's failure to advise defendant of mandatory parole in any manner was harmless error. This is because the total amount of the stipulated sentence and the mandatory parole period (12 years) is equal to the maximum sentence defendant was advised he was at risk of receiving without a sentence stipulation. People v. Priester, supra.

Thus, we affirm the trial court's order summarily denying defendant's motion. See People v. Brack, 796 P.2d 49 (Colo.App.1990) (under Crim. P. 35(c), a court need not hold an evidentiary hearing if the motion, the files, and the record of the case clearly establish that the allegations are without merit); People v. Hickey, 914 P.2d 877 (Colo.App.1995) (limited statutory right to counsel in post-eonviction proceedings exists only where allegations are factually sufficient to warrant a hearing).

Based upon our disposition of the above issues, it is unnecessary to address the prosecution's argument concerning a remand to the trial court. |

Finally, we reject defendant's double jeopardy argument for the reasons set forth in People v. Mayes, 981 P.2d 1106 (Colo.App.1999). We remand the cause to the trial court with directions to correct the mittimus so that it accurately indicates that defendant is subject to a three-year period of mandatory parole pursuant to § 18-1-105(1)(a)(V)(A), C.R.S.1999. Craig v. People, supra.

The order is affirmed, and the cause is remanded with directions to correct the mit-timus.

Judge METZGER and Judge NIETO concur.


author: GOLDEN, Justice.

text:
    2004 WY 53
    The STATE of Wyoming, Petitioner, v. Carol Marie WILLIAMS, Respondent.
    No. 02-96.
    Supreme Court of Wyoming.
    May 13, 2004.
    Representing Petitioner: Hoke MacMillan, Wyoming Attorney General; Paul S. Rehu-rek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Matthew F. Redie, Special Assistant Attorney General and County and Prosecuting Attorney for Sheridan County. Argument by Mr. Redle.
    Representing Respondent: Kenneth M. Koski, State Public Defender; Donna D. Do-monkos, Appellate Counsel. Argument by Ms. Domonkos.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[¶ 1] In this case, this Court granted the State’s petition for writ of review to determine the narrow question whether the district court transgressed the holding in Maryland v. Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 2014, 144 L.Ed.2d 442 (1999) (per curiam), when the district court granted the defendant’s motion to suppress incriminating evidence seized by law enforcement officers during a lawful traffic stop which led to charges that the defendant, the driver of the stopped vehicle, possessed three or more grams of methamphetamine and a quantity of marijuana in violation of state law.

[¶ 2] We hold that the district court erred as a matter of law in granting the defendant’s motion to suppress on the mistaken understanding that the automobile exception to the search warrant requirement has a separate exigency requirement. In Dyson, the United States Supreme Court reaffirmed its previous holdings that

the automobile exception [to the search warrant requirement] does not have a separate exigency requirement:
“If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment ... permits police to search the vehicle without more.”

Dyson, 527 U.S. at 467,119 S.Ct. at 2014.

[IT 3] In its petition for writ of review, the State presented these questions:

1. Was there probable cause sufficient to justify the trooper’s search of the automobile drive by [Williams]?
2. Prior to conducting a search of the interior of the vehicle and any closed containers, was the officer obligated to obtain a search warrant?

In its appellate brief, the State has reiterated these issues and added one more:

Did [Williams] fail to adequately preserve the issue of independent state constitutional analysis?

While Williams in her appellate brief has phrased the issues somewhat differently than the State, the issues are essentially the same as the State’s.

FACTS

[¶4] Around 5:00 p.m., Wednesday, September 26, 2001, Wyoming State Trooper Kelly Broad and his drug detection dog, Joey, were patrolling Interstate Highway 90 south of Sheridan in Sheridan County, Wyoming. Trooper Broad and his dog, Joey, had worked together as a canine unit since August of 2000. They had received training in drug detection, trained together on a near daily basis, and had been certified by the California Narcotics Canine Association. The dog, Joey, had been trained to identify marijuana, heroin, methamphetamine, and cocaine. Trooper Broad regularly performs “proofing” exercises that are used to reasonably assure that his dog alerts only to the designated controlled substances. There had been no “proofing” issues with his dog around the time in question in this case. As Trooper Broad traveled eastbound on the highway, he saw a 1988 maroon-colored Pontiac Bonneville without a front license plate traveling westbound on the highway. When the Pontiac passed Trooper Broad, he saw that it displayed a Wyoming license plate on the rear bumper. Wyoming law requires vehicles registered in Wyoming to display front and rear license plates. Wyo. Stat. Ann. § 31-2-205(a) (LexisNexis 2003). Trooper Broad crossed the highway median and stopped the Pontiac.

[¶ 5] In the Pontiac, Trooper Broad saw a female driver, a male passenger, and a large dog. Trooper Broad asked the driver of the Pontiac for her driver’s license, registration, and proof of insurance. The driver handed Trooper Broad a South Dakota identification card, which identified her to be Carol Williams, proof of insurance, and a vehicle registration indicating that the owner of the Pontiac was one Dusty Linder of Gillette. Williams stated that she had a valid South Dakota driver’s license but did not have it with her. At Trooper Broad’s request, Williams stepped out of the Pontiac and to the rear of it by Trooper Broad’s patrol car. Trooper Broad returned to his patrol car and requested his dispatch to run a driver’s license check and criminal history cheek on Williams. Trooper Broad then returned to Williams and asked her questions about the Pontiac, who owned it, why she was driving it, and her travel itinerary. During this conversation, Williams was rapidly smoking a cigarette and appeared very nervous.

[¶ 6] It is unclear from the record when during this stop Trooper Broad received information from his dispatch that Williams had a valid South Dakota driver’s license and the Pontiac registration and proof of insurance checked out; however, he did receive such information. Trooper Broad then issued Williams a warning citation for the license plate display violation. Next, Trooper Broad told Williams to wait by the patrol car while he checked the Pontiac’s vehicle identification number inside the Pontiac. As Trooper Broad checked the Pontiac’s vehicle identification number, he conversed with Williams’ passenger who was in the vehicle. Trooper Broad questioned the passenger about the passenger’s and Williams’ travel itinerary and purpose of their trip.

[¶ 7] It is unclear from the record when during this stop Trooper Broad ran a driver’s license check and a criminal history check on Williams’ passenger, but Trooper Broad tes- ■ tified that he had done so. Because Trooper Broad detected inconsistencies between Williams’ answers and her passenger’s answers to his questions, Trooper Broad left the passenger in the Pontiac and returned to Williams who was still standing at the rear of the Pontiac and by the patrol car. Trooper Broad questioned Williams about the inconsistencies he had detected. According to Trooper Broad, Williams’ answers to his questions did not clarify the detected inconsistencies, and Williams appeared to become more nervous. During this questioning, Trooper Broad, who was carrying a portable radio, received a call from his dispatch informing him that Williams had some type of drug violation in her criminal history. During Trooper Broad’s continuing questioning, Williams, who had finished smoking one cigarette, asked Trooper Broad if she .could smoke another one; Trooper Broad told her she could not. According to Trooper Broad, Williams still appeared nervous, walked from the rear of the Pontiac toward the driver’s side door of the Pontiac, opened the driver’s sid.e door and grabbed a cigarette. Trooper Broad told her several times to put the cigarette back inside the Pontiac, Williams finally dropped the cigarette, and walked back to the rear of the Pontiac.

[¶ 8] At this time, Trooper Broad asked Williams if she had anything illegal in the Pontiac, and she answered she did not. Trooper Broad then asked her if she had any marijuana, heroin, cocaine, and methamphetamine in the Pontiac, and she answered she did not. Trooper Broad asked her for her consent to search the Pontiac, she asked him why, he told her he felt there was something illegal in the vehicle, and he asked her again if there was, and she answered no. Trooper Broad again asked if he could search the vehicle, and she answered no. Trooper Broad then directed Williams to remove the large dog from the Pontiac and asked the passenger to step out of the Pontiac. The passenger identified as his two bags in the back seat, and Trooper Broad removed them from the vehicle.

[¶ 9] Next, Trooper Broad retrieved the drug detection dog, Joey, from the patrol car in order to perform an exterior sniff of the Pontiac and gave the command to find drugs. The dog walked to the rear passenger door on the driver’s side of the Pontiac and alerted. Trooper Broad opened that door and placed the dog inside the vehicle. The dog alerted on a small pillow on the floor of the rear seat area. The dog also alerted on a marijuana cigarette in the rear seat. Trooper Broad returned his dog to the patrol car, returned to the Pontiac, and opened the small pillow. Inside the pillow Trooper Broad found a smaller, purple-colored, velvet-textured bag, a pipe, a small baggy of marijuana, and a small digital scale in a box. Inside the small, purple-colored, velvet-textured bag, Trooper Broad found plastic baby bottle liners, one of which contained a white powdery substance, and a small glass vial also containing a white powdery substance.

[¶ 10] Trooper Broad arrested Williams and notified other law enforcement personnel to come to his location to process the Pontiac and other evidence. In addition to the evidence found by Trooper Broad, law enforcement personnel found inside the Pontiac’s glove box an envelope and leather bag, each containing several hundred dollars in cash.

[¶ 11] The State charged Williams with felony possession of methamphetamine in violation of Wyo. Stat. Ann. § 35-7-1031 (c)(iii)(C), and misdemeanor possession of marijuana in violation of Wyo. Stat. Ann. § 35 — 7—1031(a) (c)(i). After Williams’ preliminary hearing, she was bound over for arraignment; she entered pleas of not guilty. Through counsel, Williams then filed a motion to suppress the incriminating evidence seized during Trooper Broad’s traffic stop. At the evidentiary hearing on Williams’ suppression motion, the only witness who testified was Trooper Broad. Following the evi-dentiary hearing, the district court granted Williams’ motion and entered its order suppressing the evidence seized as a result of Trooper Broad’s traffic stop. The State filed its petition for a writ of review, which this Court granted.

DISCUSSION

Standard of Review

[¶ 12] When reviewing a district court’s ruling on a motion to suppress, this Court does not disturb findings on factual issues made by the district court unless they are clearly erroneous. State v. Evans, 944 P.2d 1120, 1124 (Wyo.1997) (citing Bravo v. State, 897 P.2d 1303, 1305 (Wyo.1995)). At the suppression hearing, the district court has the opportunity to assess the credibility of the witnesses and the weight to be given the evidence and to make the necessary inferences, deductions and conclusions; therefore, we view the evidence in the light most favorable to the district court’s determination. Evans, 944 P.2d at 1124 (citing Wilson v. State, 874 P.2d 215, 218 (Wyo.1994)). On those issues where the district court has not made specific findings of fact, this Court will uphold the general ruling of the court below if supported by any reasonable view of the evidence. Neilson v. State, 599 P.2d 1326, 1330 (Wyo.1979). The issue of law, whether an unreasonable search or seizure has occurred in violation of constitutional rights, is reviewed de novo. McChesney v. State, 988 P.2d 1071, 1074 (Wyo.1999). A district court judgment may be affirmed on any proper legal grounds supported by the record. Robinson v. State, 11 P.3d 361, 367 (Wyo.2000); see also Chapman v. State, 638 P.2d 1280, 1286 n. 7 (Wyo.1982); Jones v. State, 602 P.2d 378, 382 (Wyo.1979).

The Parties’ Contentions in the District Court

[¶ 13] Williams’ motion to suppress contained two paragraphs pertinent to our review:

17) Although Officer Broad had a valid reason to stop [Williams] for failing to have a front license plate, the resulting search of the vehicle was unreasonable and illegal pursuant to U.S. Const. Fourth Amendment and Wyo. Const. Art. 1 § 4.
18) Officer Broad did not have a search warrant, the search was not the result of a valid arrest or arrest warrant, [Williams] did not consent to the search and Officer Broad did not have probable cause to search the vehicle, therefore the search was illegal and in violation of the U.S. Const. Fourth Amendment and Wyo. Const. Art. 1 § 4.

[¶ 14] In response to these assertions, the State agreed that Trooper Broad’s initial traffic stop of Williams was lawful because of the license plate display violation; Trooper Broad did not have a search warrant; Trooper Broad’s search was not the result of a valid arrest or arrest warrant; and Williams did not consent to the search. The State disagreed, however, that Trooper Broad did not have probable cause to search the Pontiac without a search warrant and that the resulting search was unreasonable and illegal under the Fourth Amendment of the United States Constitution and Article 1, Section 4 of the Wyoming Constitution. ■ During the State’s closing argument, State’s counsel and the district court judge discussed federal case law concerning the automobile exception to the search warrant requirement. State’s counsel maintained that probable cause and a vehicle are the two things that must be present before a law enforcement officer can search a vehicle without a warrant. The district court judge expressed disagreement with that statement, remarking, “Well, actually, probable cause and exigency.” In reply, State’s counsel, said, “No, there .is no requirement of exigency.”

[¶ 15] After State’s counsel concluded his closing argument, Williams’ counsel presented a brief closing argument. In full, it was as follows:

Well, Your Honor, we think our motion should be granted. [The prosecutor] refers to the Fourth Amendment. This is also under the Wyoming Constitution, as well.
We’d just note to the Court there is a case out of Colorado, People of Colorado versus H. Haley. It’s an unpublished opinion 41 P.3d 666, 2001 WL 1491444. Deals with an almost exact same situation as we have here. The Supreme Court of Colorado upheld the motion to suppress and denied the State of Colorado’s appeal trying to overturn the trial court’s granting. In fact, the Supreme Court of Colorado has consistently held that the actual sniffing by the dog of the exterior of the vehicle constitutes a search.
Where does this end? You get pulled over for a simple traffic citation and you’ve got a fast food bag in your car and a cell phone and the next think you know, you’ve got a drug-sniffing dog all around your car. There was no consent given in this case. We think this evidence should be suppressed, Your Honor.

[¶ 16] Williams’ closing argument is notable for several reasons. First, there was no argument of federal case law on the automobile exception to the search warrant requirement. Second, although Williams? counsel stated “[t]his is also under the Wyoming Constitution, as well,” there was no cogent argument of an independent state constitutional analysis. Counsel’s mere uttering the words “Wyoming Constitution” was no analysis at all. Counsel failed to preserve the issue for purposes of áppellate review. Bailey v. State, 12 P.3d 173, 177-78 (Wyo.2000); Doles v. State, 994 P.2d 315, 319-20 (Wyo.1999); Gronski v. State, 910 P.2d 561, 565-66 (Wyo.1996); Wilson, 874 P.2d at 219. Third, Williams’ counsel did not challenge the reliability of the drug detection dog’s alerts or training. Fourth, Williams’ counsel did not raise issues about the duration of the traffic stop and the existence or non-existence of reasonable articulable suspicion. Finally, Williams’ counsel referred to People v. Haley, 41 P.3d 666 (Colo.2001), decided solely on grounds of the Colorado Constitution, and claimed it dealt with “an almost exact same situation as we have here,” but did not state the significant facts, issues, complete holding, or the reasons supporting the holding in that case; and counsel did not analyze the facts in Williams’ case in light of the significant facts and holding in the Colorado case.

The District Court’s Ruling

[¶ 17] Having heard counsels’ closing arguments, the district court ruled orally from the bench. The pertinent portions of that oral ruling were:

1. “[S]earches without a warrant are per se unreasonable unless the officer can demonstrate the existence of facts showing probable cause to believe instrumentalities of crime exist and that circumstances justify one of the many exceptions to the rule requiring a search warrant.”
2. “[T]he court is going to find that there was no probable cause to search, number one.”
3. “I will make a finding that there was a lawful stop of the vehicle in this ease.”
4. “Because there was no probable cause to suspect contraband, there was no circumstance justifying a warrantless search
5. “With respect to this dog sniff, ... [e]ven if a dog sniff is merely probable cause development and not a search, this court holds that the officer still should have gotten a warrant to look inside the pillow case and the car.
“And the reason for that — well, best example would — might be United States v. Chadwick, because that’s a dog case.
“In this case the court finds that the vehicle was not free to leave, there was no danger, therefore, of the auto being removed; and the officer could have sought a search warrant in this case.”
6. “Frankly, I’m not ruling on the dog sniff. I’m not saying that it was a search or not a search, but I’m saying that even if it was ... not a search, the officer still would have needed a warrant to look inside the pillow case ... and the car.”

[¶ 18] Twenty-three days later, the district court judge entered an “Order Suppressing Evidence” which recited in pertinent part:

(1) Trooper Broad conducted a lawful traffic stop;
(2) There was no probable cause to search the vehicle prior to the officer’s dog being led to the car and “alerting”;
(3) No exigent circumstance existed justifying a warrantless search of the vehicle;
(4) This Court is not ruling on whether a “dog sniff’ is a search. Assuming the dog sniff is not a search, the “dog alert” may have constituted probable cause to believe contraband existed on the scene. However, the officer was still required to articulate the dog alert suspicions in an affidavit in support of a request for a search warrant. The officer needed a warrant to search the car and pillow case inside the car;
(5)The vehicle was not free to leave, there was no danger of the auto being removed and the officer should have sought a search warrant in this casef.]

Analysis

[¶ 19] From our careful review of this record, including Williams’ motion to suppress, the State’s response to that motion, counsels’ arguments at the evidentiary hearing, the district court’s oral and written rulings, and the issues identified in the State’s petition for the writ of review and in the parties’ statements of the issues in their briefing to this Court, we see clearly that several legal issues are not before us in this case. We do not have before us any legal issue concerning Trooper Broad’s initial traffic stop for a license plate display violation; the duration of Trooper Broad’s detention of Williams, and the existence or non-existence of reasonable articulable suspicion supporting such detention; the reliability of the drug detection dog’s training and alerts on Williams’ vehicle; and whether the drug detection dog’s sniff of the exterior of Williams’ vehicle constitutes a search for purposes of federal or state search and seizure law. The only legal issue we do have before us is captured in the following paragraph’s of the district court’s order suppressing evidence:

(3) No exigent circumstance existed justifying a warrantless search of the vehicle;
(4) This Court is not ruling on whether a “dog sniff’ is a search. Assuming the dog sniff is not a search, the “dog alert” may have constituted probable cause to believe contraband existed on the scene. However, the officer was still required to articulate the dog alert suspicions in an affidavit in support of a request for a search warrant. The officer needed a warrant to search the ear and pillow case inside the car;
(5) The vehicle was not free to leave, there was no danger of the auto being removed and the officer should have sought a search warrant in this case[.]

[¶ 20] The State has informed us, and our independent research has confirmed, that a significant, if not overwhelming, number of courts have concluded that a trained and reliable drug detection dog’s alert during an exterior sniff of an automobile provides probable cause to search the automobile when the automobile is parked or stopped in a place where the drug detection dog’s law enforcement officer has a right to be. See, e.g., United States v. Jones, 275 F.3d 648, 653-54 (7th Cir.2001); United States v. Sundby, 186 F.3d 873, 876 (8th Cir.1999); United States v. Klinginsmith, 25 F.3d 1507, 1510 (10th Cir.1994); State v. Bergmann, 633 N.W.2d 328, 334 (Iowa 2001); State v. England, 19 S.W.3d 762, 764, 769 (Tenn.2000); State v. Tucker, 132 Idaho 841, 979 P.2d 1199, 1201 (Id.1999); and Kenner v. State, 703 N.E.2d 1122, 1125 (Ind.App.1999). See also, 1 Wayne R. La-Fave, Search and Seizure § 2.2(f), at 450 (3d ed.1996). The district court in the case before us allowed that the drug detection dog’s alert “may have constituted probable cause to believe contraband existed on the scene.” Even with that allowance, however, the district court ruled that Trooper Broad “needed a warrant to search the car and the pillow case inside the car.”

[¶ 21] We must disagree in light of Maryland v. Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 2014, 144 L.Ed.2d 442 (1999) (per.cu-riam). In that case, sheriffs deputies, acting on a tip from a reliable confidential informant that Dyson would be driving a certain automobile containing a large quantity of cocaine, stopped and searched the vehicle, finding twenty-three grams of crack cocaine in a duffel bag in the trunk. Id. at 465-66, 119 S.Ct. at 2013. The trial court denied Dyson’s motion to suppress the evidence, and Dyson was convicted of conspiracy to possess cocaine with intent to distribute. Id. at 466, 119 S.Ct. at 2013. On appeal to the Maryland Court of Special Appeals, Dyson argued thát the trial court had erroneously denied his motion to suppress the cocaine on the alternative grounds that the police lacked probable cause, or that even if there was probable cause, the warrantless search violated the Fourth Amendment because there was sufficient time after the informant’s tip to obtain a warrant. Id. The state appellate court reversed, holding that in order for the automobile exception to the warrant requirement to apply, there must not only be probable cause to believe that evidence of a crime is contained in the automobile, but also a separate finding of exigency precluding the police from obtaining a warrant. Id. Although the state appellate court concluded that abundant probable cause existed, it held the sheriffs deputies search violated the Fourth Amendment because there was no exigency that prevented or even made it significantly difficult for the sheriffs deputies to obtain a search warrant. Id. The United States Supreme Court granted certiorari and reversed the state appellate court’s decision. Id. We quote from the Court’s opinion:

The Fourth Amendment generally requires police to secure a warrant before conducting a search. California v. Carney, 471 U.S. 386, 390-391, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). As we recognized nearly 75 years ago in Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925), there is an exception to this requirement for searches of vehicles. And under our established precedent, the “automobile exception” has no separate exigency requirement. We made this clear in United States v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), when we said that in cases where there was probable cause to search a vehicle “a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not been actually obtained.” (Emphasis added.) In a ease with virtually identical facts to this one (even down to the bag of cocaine in the trunk of the car), Pennsylvania v. Labron, 518 U.S. 938, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996) (per cu-riam), we repeated that the automobile exception does not have a separate exigency requirement: “If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment ... permits police to search the vehicle without more.” Id. at 940, 116 S.Ct. 2485.
In this case, the Court of Special Appeals found that there was “abundant probable cause” that the ear contained contraband. This finding alone satisfies the automobile exception to the Fourth Amendment’s warrant requirement, a eon-elusion correctly reached by the trial court when it denied respondent’s motion to suppress. The holding of the Court of Special Appeals that the “automobile exception” requires a separate finding of exigency in addition to a finding of probable cause is squarely contrary to our holdings in Ross and Labron. We therefore grant the petition for writ of certiorari and reverse the judgment of the Court of Special Appeals.

Dyson, 527 U.S. at 466-67, 119 S.Ct. at 2014. See also, Borgwardt v. State, 946 P.2d 805, 807 (Wyo.1997) (police may search an automobile without having a warrant when they have probable cause to believe that the automobile contains evidence of a crime or contraband); Gronski, 910 P.2d at 564-65 (exigency not required).

[¶ 22] In Williams’ ease, probable cause existed (Joey’s alert on the Pontiac’s exterior) that the Pontiac contained contraband. This finding alone satisfies the automobile exception to the Fourth Amendment’s warrant requirement. The order of the district court that the automobile exception requires a separate finding of exigency in addition to a finding of probable cause “is squarely contrary” to the United States Supreme Court’s holdings in Dyson, Ross, and Labron and to our holdings in Borgwardt and Gronski. We therefore reverse the order of the district court and remand for further proceedings not inconsistent with this decision.

      . Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996) (per curiam); United States v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 2164-65, 72 L.Ed.2d 572 (1982).

      . 1. Whether probable cause existed to justify searching [Williams’] car after a citation had been issued?
      2. Whether the illegal search violated the Wyoming State Constitution?

      . A divided Colorado Supreme Court held that, under Article 2, Section 7 of the Colorado Constitution, "a dog sniff search of a person's automobile in connection with a traffic stop that is prolonged beyond its purpose to conduct a drug investigation intrudes upon a reasonable expectation of privacy and constitutes a search and .seizure requiring reasonable suspicion of criminal activity." 41 P.3d at 672. The court agreed with the trial court that the police acted without reasonable suspicion. Id. at 677.

      . Ross also teaches that "[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” Ross, 456 U.S. at 825, 102 S.Ct. at 2173. And see Wyoming v. Houghton, 526 U.S. 295, 301-02, 119 S.Ct. 1297, 1301, 143 L.Ed.2d 408 (1999).


text:
    2004 WY 55
    James Martin HARLOW, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    Nos. 99-58, 99-59, 99-60.
    Supreme Court of Wyoming.
    May 14, 2004.
   ORDER CONTINUING STAY OF EXECUTION OF SENTENCE PENDING DISPOSITION OF APPELLANT ‘S PETITION FOR WRIT OF CERTIO-RARI/REVIEW

Pursuant to the terms of this Court’s ORDER ISSUING MANDATE, SETTING NEW DATE FOR EXECUTION OF SENTENCE, AND STAYING EXECUTION OF SENTENCE PENDING FURTHER PROCEEDINGS entered May 29, 2003, counsel for James Martin Harlow filed her CASE STATUS REPORT in this Court on April 28, 2004, informing this Court that, among other things, the District Court of the Second Judicial District denied Mr. Harlow’s petition for post-conviction relief by order entered on April 26, 2004.

In her CASE STATUS REPORT, Mr. Harlow’s counsel further informs this Court that Mr. Harlow, through counsel, intends to, and in fact did on May 11, 2004, timely file a Petition for Writ of Certiorari/Review pursuant to Wyo. Stat. Ann. §§ 7-14-107 (Lexis-Nexis 2003

and W.R.A.P. 13, and, therefore, Mr. Harlow, through counsel, requests that the current stay of execution of sentence under this Court’s order of May 29, 2003, be continued pending the review by this Court of his Petition for Writ of Certiorari/Review.

Having carefully considered Mr. Harlow’s requests to continue the current stay of execution of sentence,

It is ORDERED that the stay of execution of sentence under this Court’s order of May 29, 2003, be, and it is hereby continued pending the review of Mr. Harlow’s Petition for Writ of Certiorari/Review;

It is further ORDERED that this order be published in Pacific Reporter Third.

Justices GOLDEN, LEHMAN, and VOIGT; and Judges SULLINS and BURKE sitting by appointment.


author: LEHMAN, Justice.

text:
    2004 WY 56
    NMC, Appellant (Respondent), v. JLW, ex rel., NAW, a minor child, Appellee (Petitioner).
    No. C-03-7.
    Supreme Court of Wyoming.
    May 17, 2004.

      Representing Appellant: F. Scott Peasley of Peasley Law Office, Douglas, WY.
    Representing Appellee: No appearance.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   LEHMAN, Justice.

[¶ 1] Appellee JLW (Father) petitioned to establish paternity, custody, child support, and visitation in the District Court for the Eighth Judicial District of Wyoming. The district court initially assumed jurisdiction under the emergency provision provided in Wyo. Stat. Ann. § 20 — 5—104(a)(iii) (LexisNex-is 2003). Following a November 18, 2002 hearing, the district court concluded that emergency jurisdiction no longer existed. However, the district court found that significant connections with the state of Wyoming and substantial evidence concerning the minor child’s present or future care, protection, training, and personal relationships warranted the continued exercise of jurisdiction under § 20 — 5—104(a)(ii). Mother claimed the district court lacked subject matter jurisdiction or, in the alternative, jurisdiction in Wyoming constituted a forum non conveniens. Mother appeals the district court’s denial of the motion to dismiss for lack of jurisdiction. We reverse and remand.

ISSUES

[¶ 2] Mother presents the following issues on appeal:

I. Does the [Parental Kidnapping Prevention Act (PKPA) ] preclude a Wyoming court from asserting jurisdiction over a child custody proceeding, under the significant contacts provisions of the [Uniform Child Custody Jurisdiction Act (UCCJA)], when there is a similar action pending in the child’s home state?
II. Can a court establish subject matter jurisdiction under the “significant connections” provisions of W.S. § 20 — 5—104(a)(ii), when initial jurisdiction was assumed under its emergency powers of W.S. § 20-5-104(a)(iii)?
III. Did the district court abuse its discretion by failing to make prompt and meaningful contact with the Texas court to facilitate resolution of this jurisdictional conflict?

Father did not file a brief.

FACTS

[¶ 3] Mother and Father never married. Together they have one child, NAW, born June 20, 1997. Mother and Father lived together and separately in Wyoming. In May 1999, Mother and NAW moved to Houston, Texas. Mother and the minor child were separated on May 24, 2002, as a result of Mother’s overdose on prescription medication. Father traveled to Texas at that time and returned to Wyoming with the child while Mother received medical treatment.

[¶ 4] On June 6, 2002, Father filed a petition to establish paternity, custody, child support, and visitation in the District Court, Eighth Judicial District. In his petition, Father requested that the district court assume jurisdiction under the emergency provisions of the UCCJA. Wyo. Stat. Ann. § 20-5-104(a)(iii). Father also filed a motion with the district court requesting an order for temporary custody of the minor child. The district court granted temporary custody to Father on June 12, 2002, and held a hearing on June 26, 2002, regarding temporary custody, child support, visitation, and jurisdiction.

[¶ 5] After considering the evidence, the district court held that Texas was the child’s “home state” as defined by the UCCJA and that Texas would have jurisdiction over custody issues. The court declined to exercise jurisdiction under § 20-5-104(a)(ii) citing insufficient evidence to establish significant connections. Although the Wyoming court lacked home state and significant connections jurisdiction, it assumed jurisdiction pursuant to § 20 — 5—104(a)(iii). In doing so, the court found that the May 24, 2002 overdose satisfied the requirements for emergency jurisdiction. The court thus concluded that it was in the best interest of the minor child to remain in Father’s custody subject to Mother’s rights of visitation.

[¶ 6] Mother filed an objection to the district court’s jurisdiction contesting subject matter jurisdiction and alleging forum non conveniens. Mother agreed with the district court that Texas was the minor child’s “home state” and that insufficient evidence of significant connections required the court to decline jurisdiction under § 20-5-104(a)(ii). However, Mother specifically alleged that the emergency initially used to grant the Wyoming court jurisdiction had abated and she was no longer a threat to herself or the minor child. In addition, Mother claimed that Texas was the more convenient forum.

[¶ 7] While the action was pending in the Wyoming district court, Mother filed a petition to establish parentage in Harris County, Texas. In support of her challenge to Wyoming’s jurisdiction, Mother claimed that pursuant to Wyo. Stat. Ann. § 20-5-108 (Lexis-Nexis 2003) it was in the best interest of the minor child that Wyoming decline to exercise jurisdiction. In support of dismissing the Wyoming action, Mother again claimed that Texas was the minor child’s “home state,” the majority of evidence concerning the best interests would come from Texas, and that the emergency condition initially supporting jurisdiction in Wyoming no longer existed.

[¶ 8] On September 25, 2002, the Wyoming district court conducted a hearing to determine if the emergency condition warranting jurisdiction still existed. The district court found insufficient evidence to establish that the emergency had abated, and denied the motion to dismiss. The Wyoming court agreed, however, tó contact the district court in Harris County, Texas and notify the parties with the results of the conference. On October 10, 2002, Mother filed a second motion to dismiss for lack of jurisdiction, again contesting subject matter jurisdiction and alleging forum non conveniens. The court heard Mother’s motion to dismiss on November 18, 2002. The court reiterated that, at the time this action was filed, Texas was the minor child’s “home state.” In addition,.the court noted that the emergency jurisdiction previously exercised under § 20 — 5—104(a)(iii) was no longer appropriate. However, the Wyoming court found that it was in the best interest of the child that Wyoming retain jurisdiction under § 20-5-104(a)(ii). Specifically, the district court found that Wyoming should retain jurisdiction because the child and at least one parent had significant connection with the state and there was substantial evidence in Wyoming concerning the child’s future care, protection, training, and personal relationships. The court denied Mother’s motion to dismiss for lack of jurisdiction. Mother seeks review of this order.

STANDARD OF REVIEW

[¶ 9] In reviewing a question of subject matter jurisdiction:

We conduct a de novo review of jurisdictional questions pursuant to “the inherent power, and the duty, to address jurisdictional defects on appeal.... ” Gookin v. State Farm Fire & Cas. Ins. Co., 826 P.2d 229, 232 (Wyo.1992). If a lower court acts without jurisdiction, “this court will notice the defect and have jurisdiction on appeal, not on the merits, but merely for the purpose of correcting the error of the lower court in maintaining the suit.” Gookin, at 232.

Pawlowski v. Pawlowski, 925 P.2d 240, 242 (Wyo.1996) (citation omitted). Further, “[i]n child custody proceedings, the determination of whether to exercise jurisdiction or to defer to the courts of another'state is reviewed for an abuse of discretion.” Steele v. Neeman, 6 P.3d 649, 653 (Wyo.2000) (citing Ritter v. Ritter, 989 P.2d 109, 111 (Wyo.1999)).

DISCUSSION

[¶ 10] Mother contends the district court improperly exercised subject matter jurisdiction. In support, Mother argues that “home state” jurisdiction should take priority over jurisdiction based on significant connections. We are persuaded by Mother’s argument.

[¶ 11] Wyoming’s statutes concerning child custody jurisdiction are modeled on the UCCJA. Wyo. Stat. Ann. § 20-5-104. When the Wyoming Legislature adopted the UCCJA, it made the purposes for doing so clear. The uniform act was intended to help avoid conflict and competition among jurisdictions and instead focus on the well-being of affected children. Additionally, the uniform act promotes cooperation and communication among states to determine which jurisdiction can most effectively determine the best interests of the child. In situations where a child satisfies more than one jurisdictional criteria, the intent of the act is- to direct litigation to the state with the “closest connection and where significant evidence concerning his care, protection, training and personal relationships is most readily available[.]” § 20-5-102(a)(iii).

[¶ 12] The PKPA is a federal counterpart to state laws concerning child custody jurisdiction. Like the UCCJA, the PKPA was enacted to limit jurisdictional conflict over child custody issues and to deter parental kidnapping for the purpose of receiving custody awards. Peterson v. Peterson, 464 A.2d 202, 204 (Me.1983); Tufares v. Wright, 98 N.M. 8, 644 P.2d 522, 525 (1982); Sams v. Boston, 181 W.Va. 706, 384 S.E.2d 151, 156 (1989). The legislative findings regarding the PKPA indicate that Congress intended to “promote cooperation between State courts to the end that a determination of custody and visitation is rendered in the State which can best decide the case in the interest of the ehild[.]” Congressional Findings and Declaration of Purposes, Pub.L. No. 96-611, § 7(e)(1), 94 Stat. 3569 (1980). Further, Congress sought to “expand the exchange of information ... between States which are concerned with the same child” and to “discourage continuing interstate controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child.” Id. at §§ 7(c)(2), 7(c)(4).

[¶ 13] This court addressed both these acts and their respective purposes in State ex rel. Griffin v. Dist. Court of Fifth Dist., 831 P.2d 233 (Wyo.1992). We found that “[a] fundamental purpose of both the UCCJA and the PKPA is to avoid conflict and promote cooperation.” Id. at 237. Furthermore, both acts are intended to limit forum shopping, deter interstate abductions and unilateral moves, and promote decisions in the best interest of the child. Id. The UCCJA and PKPA also share the fundamental jurisdictional concept “that the child’s ‘home state’ should have preeminent authority to determine custody and visitation and that authority should be respected elsewhere.” Bruner v. Tadlock, 338 Ark. 34, 991 S.W.2d 600, 604 (1999) (citing Robert A. Leflar, American Conflicts of Law § 243 (4th ed.1986)). We noted that “the UCCJA ‘significant connection’ criteria is eliminated as a ground for jurisdiction under the PKPA where, as here, there is a ‘home state[.]’ ” Griffin, at 239 n. 8. Ignoring Texas’ “present ‘home state’ status to determine custody by recognizing Wyoming jurisdiction under tenuous ... reliance on one of the overlapping UCCJA/PKPA jurisdictional criteria would circumvent the purposes of both Acts.” Griffin, at 237.

[¶ 14] From the outset, the record indicates that the Wyoming district court considered Texas to be the minor child’s “home state” under § 20-5-104(a)(i), and Mother does not contend that the Wyoming court improperly exercised emergency jurisdiction under § 20 — 5—104(a)(iii). Emergency jurisdiction under the UCCJA is, however, temporary. Trader v. Darrow, 630 A.2d 634, 638-39 (Del.1993). Indeed, the district court subsequently assumed jurisdiction under the significant connection provisions in § 20-5-104(a)(ii), following a finding that the condition initially warranting emergency jurisdiction had abated. The district court then evaluated the respective connections with both Wyoming and Texas and determined them to be roughly equivalent. Consequently, the Wyoming court continued to exercise jurisdiction based on the significant connections provision, regardless of “home state,” and entered a temporary custody arrangement. No formal custody determination has been made by any court.

[¶ 15] In formulating a formal custody arrangement, “[b]oth the PKPA and the UCCJA provide a jurisdictional preference for the child’s ‘home state’ immediately preceding an application for an original custody determination.” Griffin, 831 P.2d at 238; see also 28 U.S.C.S. § 1738A(e)(2)(A)(ii); Wyo. Stat. Ann. § 20-5-104(a)(i). In the present case, Texas has been the child’s “home state” for the minimum six-month period immediately preceding commencement of the custody proceeding in Wyoming. The child was absent from Texas only because of Father’s removal of the child to Wyoming. Consequently, the “home state” initial child custody provision of the Texas statutes is satisfied, granting jurisdiction to that state. Vernon’s Texas Codes Ann., Family Code § 152.201(a)(1) (2002).

[¶ 16] “A foreign state which is neither a decree state nor a home state may not assume jurisdiction in contravention to the UCCJA and PKPA preference for ‘home state’ jurisdiction.” Griffin, 831 P.2d at 240. Furthermore, Wyoming’s exercise of jurisdiction would be contradictory to the intent of the Wyoming legislature when adopting the UCCJA to avoid the jurisdictional competition and direct the litigation to the state where the child and his family have a closer connection. See Wyo. Stat. Ann. § 20-5-102. Thus, the Wyoming district court is required to relinquish jurisdiction to the Texas court for a determination of child custody. Because our resolution of Mother’s first issue is determinative, we need not address Mother’s remaining issues.

CONCLUSION

[¶ 17] Remanded to the district court for entry of an order in accord with this opinion/

      . Wyo. Stat. Ann. § 20-5-104 (LexisNexis 2003) provides in pertinent part:
      (a) A court of this state competent to decide child custody matters has jurisdiction to make a child custody determination by initial decree or modification decree if:
      (i)This state is the home state of the child at the time of commencement of the proceeding, or was the child's home state within six (6) months before commencement of the proceeding and the child is absent from the state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state;
      (ii) It is in the best interest of the child that a court of this state assume jurisdiction because the child and his parents, or the child and at least one (1) contestant, have a significant connection with the state and there is available in this state substantial evidence concerning the child’s present or future care, protection, training and personal relationships;
      (iii) The child is physically present in this state and has been abandoned or if it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent!.]

      . The Wyoming Statutes, the UCCJA, and the PKPA all define "home state” as:
      [T]he state in which the child immediately preceding the time involved lived with his parents, á parent or a person acting as parent, for at least six (6) consecutive months, and in the case of a child less than six (6) months old the state in which the child has lived since birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six (6) month or other period[.]
      Wyo. Stat. Ann. § 20-5-103(a)(v); see also Uniform Child Custody Jurisdiction Act § 2(5) (1968); 28U.S.C. § 1738A(b)(4) (2003).

      . The Wyoming Legislature specifically provided in § 20-5-102:
      (a) The general purposes of this act are:
      (i) To avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;
      (ii) To promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child;
      (iii) To assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state;
      (iv) To discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child;
      (v) To deter abductions and other unilateral removals of children undertaken to obtain custody awards;
      (vi) To avoid relitigation of custody decisions of other states in this state insofar as feasible;
      (vii) To facilitate the enforcement of custody decrees of other states;
      (viii) To promote and expand the exchange of information and other forms of mutual assistance between the courts of this state and those of other states concerned with the same child; and
      (ix) To make uniform the law of those states which enact it.
      (b) The provisions of this act shall be construed to promote the general purposes stated in this section.