Harmless Statutory Mislabeling in Expungement and Waiver of “Substantial Danger” Challenges; Registration Lapses Not a Categorical Bar to Termination

I. Introduction

The State of Wyoming v. Dixon Dean Cole, 2026 WY 19 (Wyo. Feb. 11, 2026), addresses two post-conviction remedies that often intersect in sex-offense cases: (1) expungement of a conviction record and (2) termination of the duty to register as a sex offender. Dixon Dean Cole sought expungement of two 1997 convictions arising from abuse of two minors under ten: a reduced misdemeanor sexual assault in the fourth degree and a felony immoral/indecent liberties-type offense (charged under repealed statutes but treated as “equivalent” to current offenses for registration purposes). The district court expunged only the misdemeanor conviction and separately terminated Cole’s registration duty arising from the felony. The State appealed both orders.

The Supreme Court of Wyoming affirmed, resolving three core issues:

  1. Whether the district court committed reversible error by using the felony expungement statute to expunge a misdemeanor conviction.
  2. Whether the district court abused its discretion in finding Cole was not “a substantial danger to himself, any identifiable victim or society,” when the State did not properly raise that challenge below.
  3. Whether the district court abused its discretion in terminating sex-offender registration for the felony while Cole faced a pending failure-to-register prosecution.

II. Summary of the Opinion

The Court held:

  • The district court did err by expunging the misdemeanor under Wyo. Stat. Ann. § 7-13-1502 (felony expungements), but the error did not warrant reversal because the record established eligibility under the correct statute, Wyo. Stat. Ann. § 7-13-1501 (misdemeanor expungements), and the practical result—expungement of “records of conviction” in the DCI repository—was the same.
  • The Court refused to consider the State’s appellate argument that the district court abused its discretion on the “substantial danger” finding because the State did not adequately raise that issue below; it was not jurisdictional and did not meet any exception.
  • The district court did not abuse its discretion in terminating Cole’s registration duty for the felony under Wyo. Stat. Ann. § 7-19-304, even though Cole had a pending failure-to-register charge, because the statute’s structure contemplates that “periods in which the offender was not registered as required by law” affect the ten-year calculation rather than acting as an automatic bar.

III. Analysis

A. Precedents Cited

1. Statutory interpretation (de novo)

The Court reiterated that statutory interpretation is reviewed de novo, citing Black Diamond Energy of Del., Inc. v. Wyo. Oil & Gas Conservation Comm'n, 2020 WY 45. That framing allowed the Court to declare the district court’s use of the felony expungement statute erroneous as a legal matter, even while affirming the outcome.

2. Discretion and abuse-of-discretion framework

To evaluate the expungement and registration-termination rulings (as discretionary decisions), the Court relied on a line of cases defining abuse of discretion as whether the trial court’s choice was reasonable and within the bounds of sound judgment:

  • Brown v. State, 2005 WY 37 (quoting Wilks v. State, 2002 WY 100) for the proposition that the inquiry is “the question of the reasonableness of the trial court’s choice.”
  • Martin v. State, 720 P.2d 894 for the classic definition of discretion as “sound judgment” not exercised arbitrarily or capriciously.
  • SP v. State, 2025 WY 101 (quoting Int. of JN, 2024 WY 105) for the “exceeds the bounds of reason under the circumstances” formulation.

These authorities mattered because the State’s challenges (especially on registration termination) largely asked the Supreme Court to reweigh circumstances—something the abuse-of-discretion standard resists.

3. Issue preservation / arguments raised for the first time on appeal

The Court invoked Wyoming’s preservation doctrine to reject the State’s “substantial danger” attack, citing Stevens v. Governing Body of Town of Saratoga, 2025 WY 35 and its quotation of Crofts v. State ex rel. Dept. of Game and Fish, 2016 WY 4. Those cases supplied the policy reason: it is unfair to reverse a trial court for reasons never presented to it. The Court treated the State’s “danger” argument as a new appellate theory—not jurisdictional and not fundamental—thus waived.

4. Registration equivalency under repealed statutes; standing to appeal

The opinion relied on State, Off. Of Atty. Gen., Div. of Crim. Investigation v. Thomason, 2008 WY 143 in two ways:

  • Substantive equivalency: Thomason was used to support treating convictions under repealed statutes as equivalent to current sex-offense provisions for registry purposes—critical because Cole’s convictions arose under repealed laws, yet his registration duty depended on present statutory cross-references.
  • Appellate standing/jurisdiction: The Court noted a potential jurisdictional question because the sex-offender registration statutes do not expressly grant a State appeal as the expungement statute does. The Court nevertheless found standing based on Thomason’s prior allowance of a similar appeal.

B. Legal Reasoning

1. The “wrong statute” problem in misdemeanor expungement—error without reversal

The Court began with plain statutory lines:

  • § 7-13-1502(a) applies to “a person convicted of a felony or felonies.”
  • § 7-13-1501(a) applies to “a person…convicted of a misdemeanor.”

Because Cole sought, and the district court granted, expungement of a misdemeanor under § 7-13-1502, the Court held that was legal error. But it treated the error as non-dispositive because:

  • The record conclusively showed Cole satisfied the correct misdemeanor eligibility timing requirement in § 7-13-1501(a)(i) (more than five years after sentence expiration, including probation and programs).
  • The remaining misdemeanor limitations (firearm involvement; certain health-care-provider/patient offenses) were not implicated.
  • Both expungement statutes, once granted, reach the same operative object: expungement of “records of conviction” as defined in the DCI repository.

In effect, the Court adopted a pragmatic affirmance approach: if the record supports expungement under the proper statute and the relief is functionally the same, remand is unnecessary.

2. The “substantial danger” finding—waiver drives the result

The misdemeanor expungement statute adds a mandatory judicial finding: under § 7-13-1501(g), the court must find both eligibility and that the petitioner “does not represent a substantial danger to himself, any identifiable victim or society.”

The State attempted to attack that finding on appeal, but the Court focused on what happened below:

  • The County Attorney’s objection was framed as a statutory bar argument under the felony expungement statute’s sex-offense exclusions (i.e., a categorical ineligibility theory), not as an evidentiary/discretionary “danger” contest under § 7-13-1501(g).
  • At the hearing, the State raised concerns about timing (Cole sought relief after being charged with failure to register) and mentioned possible victim objections, but did not develop a “substantial danger” argument with evidence or focused legal contention.

Applying Stevens and Crofts, the Court declined to consider the State’s new theory on appeal. This is a significant procedural holding: even in sensitive contexts like sex offenses and victim concerns, appellate review remains bounded by preservation rules unless a recognized exception applies.

3. Termination of registration despite a pending failure-to-register charge—statutory structure controls discretion

For Cole’s felony, relief was sought under § 7-19-304 (as applied to an offender specified in § 7-19-302(g)). The statute requires:

  • At least ten years registered, exclusive of confinement periods and “periods in which the offender was not registered as required by law.”
  • A “clean record” as defined in § 7-19-304(d) (no imprisonable->1-year convictions; no sex-offense convictions; successful completion of supervision; successful completion of ordered treatment).

The State did not dispute statutory eligibility or the clean-record criteria; it argued instead that the district court should have denied relief as a discretionary matter because Cole was on bond for failure to register.

The Court emphasized that discretionary review does not allow an appellate court to substitute its own weighing of “problematic” facts. More importantly, it extracted a structural inference from the statute: by directing courts to exclude non-registered periods from the ten-year calculus, the Legislature implicitly rejected a rule that any lapse (even one leading to prosecution) categorically bars termination. A lapse may delay eligibility (by reducing countable time), but it is not automatically disqualifying. That statutory design supported the district court’s choice as reasonable.

C. Impact

1. Practical affirmance when the wrong expungement statute is cited

The opinion signals that Wyoming appellate courts may affirm expungement orders despite a statutory mis-citation when (a) the record supports relief under the correct statute, and (b) the remedy is functionally equivalent. Practitioners should not treat this as permission to plead imprecisely—this was still “error”—but it reduces the likelihood of reversal where the mistake is purely classificatory (misdemeanor vs felony) and the eligibility record is clear.

2. Strengthening preservation discipline in post-conviction relief litigation

The decision reinforces that prosecutorial opposition must be properly framed in the district court. If the State intends to contest the discretionary “substantial danger” criterion in § 7-13-1501(g), it must say so clearly and develop the record accordingly. Otherwise, appellate review will be foreclosed.

3. Clarifying the role of registration lapses in termination petitions

The Court’s reading of § 7-19-304(a)(i) is likely to shape future termination litigation: “periods not registered” are an arithmetic exclusion from the ten-year calculation, not a per se bar. Petitioners with compliance problems may still seek termination if they can show the required countable registration period and satisfy clean-record criteria, while the State must persuade the district court—within its discretion—why the particular lapse should warrant denial.

IV. Complex Concepts Simplified

Expungement
A court-ordered process that removes (or seals in a defined way) the “records of conviction” from the state repository maintained by the Division of Criminal Investigation. Here, the key point is that expungement is statute-driven: misdemeanors and felonies have different authorizing statutes and prerequisites.
“Substantial danger to himself, any identifiable victim or society”
A discretionary safety screening embedded in the misdemeanor expungement statute (§ 7-13-1501(g)). The court must make this finding to grant expungement. In this case, the Supreme Court did not decide whether the finding was substantively correct; it held the State could not challenge it on appeal because it did not properly litigate the issue below.
Abuse of discretion
A deferential appellate standard. The question is not whether appellate judges would have made the same choice, but whether the trial judge’s decision was unreasonable, arbitrary, or beyond the bounds of reason under the circumstances.
Issue preservation / waiver
The rule that arguments generally must be presented to the trial court to be considered on appeal. New theories raised for the first time on appeal are ordinarily rejected unless they implicate jurisdiction or are fundamentally necessary to consider.
Registration termination and “periods not registered”
Wyoming’s termination statute counts only qualifying registered time toward the ten-year threshold. If someone fails to register for a period, that period does not count— but the statute’s structure indicates the person is not automatically disqualified solely due to the lapse.

V. Conclusion

2026 WY 19 establishes a pragmatic but procedurally disciplined approach to post-conviction relief: (1) a district court’s use of the wrong expungement statute for a misdemeanor can be affirmed when the record satisfies the correct misdemeanor statute and the relief is effectively the same; (2) challenges to the statutory “substantial danger” finding must be preserved in the district court or they will not be heard on appeal; and (3) in registration-termination cases, a registration lapse—even one associated with pending failure-to-register charges—does not operate as a categorical bar where the Legislature instead directed courts to exclude non-registered periods from the ten-year calculation.