Bernard v. State: Wyoming Supreme Court Reinforces Res Judicata Limits on Rule 35(a) Motions and Requires Conformity Between Oral and Written Sentences

Introduction

In David P. Bernard, Jr. v. State of Wyoming, 2025 WY 66 (Wyo. June 13 2025), the Wyoming Supreme Court confronted a familiar post-conviction maneuver: a “motion to correct an illegal sentence” under Wyoming Rule of Criminal Procedure 35(a). The appellant, David P. Bernard Jr., pled guilty to 20 counts of sexual exploitation of a child but, after failing to file a direct appeal, later claimed that the multiple sentences violated the Double Jeopardy Clauses of the United States and Wyoming Constitutions.

The Court did not reach the merits of the double-jeopardy argument. Instead, it held that res judicata bars Rule 35(a) challenges that could have been raised on direct appeal absent a showing of “good cause.” At the same time—on its own motion—the Court discovered a clerical inconsistency between the district judge’s oral pronouncement and the written judgment and remanded solely for that correction.

The decision fortifies Wyoming’s commitment to finality in criminal judgments while underscoring courts’ continuing duty to ensure that written judgments match oral sentences.

Summary of the Judgment

Issue as Framed by Court: Whether res judicata bars Bernard’s Rule 35(a) claim that his sentences constitute multiple punishments for the same offense in violation of double jeopardy.
Holding: Yes. Because Bernard could have raised the double-jeopardy argument on direct appeal and failed to show good cause for not doing so, res judicata precludes the claim.
Disposition: District court’s denial of the Rule 35(a) motion affirmed. Case remanded solely to correct a discrepancy between oral and written sentences (Counts 15–20 to run consecutive to Counts 8–14, not Counts 1–14).

Analysis

Precedents Cited and Their Influence

Goetzel v. State
- Goetzel I, 2017 WY 141, 406 P.3d 310 – First articulated that Rule 35(a)’s “at any time” language does not trump res judicata; discretionary application depends on good cause.
- Goetzel II, 2019 WY 27, 435 P.3d 865 – Reaffirmed the doctrine and described its purposes (judicial economy, finality, certainty).
Gould v. State, 2006 WY 157 – Confirmed res judicata’s reach to issues “raised or which could have been raised” in prior proceedings.
Hamill v. State, 948 P.2d 1356 (Wyo. 1997) – Bedrock case rejecting the argument that Rule 35(a)’s timing provision precludes res judicata.
Peterson v. State, 2023 WY 103, 537 P.3d 749 – Most recent reiteration that Rule 35(a) motions can indeed be barred.
Ferguson v. State, 2013 WY 117, 309 P.3d 831; Hicks v. State, 2018 WY 15 – Provide the “good cause” escape valve from res judicata.
Palomo v. State, 2018 WY 42, 415 P.3d 700; Wanberg v. State, 2020 WY 75 – Establish that an oral sentence controls over a conflicting written judgment and mandate correction on remand.

Legal Reasoning

Justice Gray, writing for a unanimous Court, applied a two-step analysis:

Is the claim res judicata?
Because Bernard pled guilty on December 6 2022 and failed to file a direct appeal within 30 days (W.R.A.P. 2.01(a)), any constitutional challenge to multiplicity or double jeopardy could (and should) have been brought then. The Court treated the absence of a direct appeal as fatal unless “good cause” excused it. No such cause was alleged or proven.
Should the Court nevertheless entertain the claim?
Bernard urged a policy-based waiver, emphasizing that Rule 35(a) allows correction “at any time” and citing Utah and Maryland authority permitting broad review. The Court declined, invoking stare decisis and finding no injustice in enforcing finality where the defendant had forgone earlier review.

After rejecting the Rule 35(a) bid, the Court—acting sua sponte—identified a clerical incongruity. The judge’s oral ruling made Counts 15–20 consecutive only to Counts 8–14, but the written judgment said consecutive to Counts 1–14. Under Palomo, the oral sentence governs. Consequently, a limited remand was ordered to correct the written judgment.

Impact of the Decision

Res Judicata Strengthened. Bernard cements the principle that Rule 35(a) is not an open-ended substitute for direct appeal. Defendants and counsel must identify and preserve sentencing errors promptly, or demonstrate good cause later.
Counsel’s Strategic Calculus. Post-conviction counsel will confront a higher hurdle in resurrecting unpreserved sentencing errors; ineffective-assistance claims may become the chief path to good-cause relief.
Double Jeopardy Litigation. Although unresolved on the merits, the case signals that multiplicity/double-jeopardy challenges arising from multiple child-pornography counts must be raised on direct appeal.
Clerical Accuracy. The decision reiterates courts’ continuing responsibility to ensure written judgments conform to oral pronouncements—even when neither party flags the issue.
Administrative Efficiency. The Court’s simultaneous affirm-and-remand template showcases a procedural device: preserving finality on substantive grounds while tidying up the record on collateral, non-prejudicial errors.

Complex Concepts Simplified

Res Judicata: A doctrine that once a court has decided an issue (or could have decided it) in a previous proceeding, the same party cannot raise that issue again in a later proceeding. Its goals are efficiency and finality.
Rule 35(a) – Motion to Correct an Illegal Sentence: Allows a criminal defendant to ask the sentencing court (or the appellate court) to fix a sentence that, on its face, violates law. Although the rule says “at any time,” Wyoming courts apply res judicata unless the defendant shows “good cause” for not raising the error sooner.
Double Jeopardy – Multiple Punishments: The constitutional ban on being punished more than once for the same offense. In child-pornography cases, the question often is whether each file or each transmission constitutes a separate offense.
Oral vs. Written Sentence: The sentence pronounced in open court (the oral sentence) is the legally binding judgment. If the written judgment conflicts, the written document must be revised to match the oral pronouncement.

Conclusion

Bernard v. State is less about the substantive limits of double jeopardy and more about procedural discipline. The Wyoming Supreme Court:

Reaffirmed that Rule 35(a) is bounded by res judicata and requires defendants to show good cause for belated challenges.
Emphasized adherence to precedent (stare decisis) absent compelling injustice.
Demonstrated vigilance in correcting record-keeping discrepancies between oral and written sentences.

The ruling sends a clear message: defendants must timely litigate sentencing issues or justify their delay, and trial courts must ensure written judgments mirror oral rulings. Going forward, attorneys should view direct appeals as the primary battleground for sentencing challenges and treat Rule 35(a) as a narrow safety valve rather than a second chance.