Sen’s Appeal Brings No Change

Last week, Dharminder Vir Sen appealed the ruling of Sheridan County District Court Judge John G. Fenn in the Wyoming Supreme Court. According to court documents, Sen was convicted of first degree felony murder, aggravated burglary, and conspiracy to commit aggravated burglary for his participation in the killing of Sheridan businessman Robert Ernst in 2009.

Sen first appealed the conviction because imposing a mandatory life sentence without the possibility of parole for those under the age of eighteen at the time of their crime violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Sen was 15 at the time of the crimes. Following the United States Supreme Court’s decision in Miller V Alabama and the Wyoming Supreme Court’s decision in Bear Cloud V Wyoming, they vacated his sentences and remanded for resentencing on all counts. The District Court resentenced Sen to life imprisonment for the first degree murder conviction, 20-25 years for the conspiracy conviction, and 10-25 years for the aggravated burglary conviction. The court ordered for him to serve the murder and conspiracy sentences concurrently and the aggravated burglary to run consecutively to them. Due to the court’s ruling, Sen would have to serve at least 35 years before he becomes parole eligible, which is one of the reasons that he appealed his case to the Supreme Court.

Sen questioned if serving at least 35 years of his sentence before he is eligible for parole is unconstitutional under the Eighth Amendment of the U.S. Constitution and in violation of Article 1, Section 14 of the Wyoming Constitution, both regarding cruel and unusual punishment. Because Sen did not provide a reasoned argument under Article 1, Section 14 of the Wyoming Constitution separately from his argument about the Eighth Amendment, the court’s analysis was limited to the Eighth Amendment claim. Sen conceded that he was appropriately sentenced to life imprisonment, however, he claimed that because he will not be eligible for parole for 35 years, the district court imposed a functionally equivalent de facto life without parole sentence that is therefore unconstitutional under the rulings of Miller and Bear Cloud. Those rulings established that children are constitutionally different from adults for purposes of sentencing because juveniles have diminished culpability and greater prospects for reform. The Supreme Court disagreed that the sentence was functionally equivalent to a life without parole sentence. Sen claimed that any aggregate sentencing structure imposed on a juvenile offender which results in a period of parole ineligibility beyond 25 years is unconstitutional, but the court found that there is no indication that our legislature intended for the 25 year period of parole ineligibility to apply to aggregate sentences imposed for multiple crimes.

Sen also questioned if his aggravated burglary sentence was grossly disproportionate and unconstitutional. He contended that his sentence of 10 to 25 years for aggravated burglary, viewed in isolation, violates his Eighth Amendment and Article 1, Section 14 rights. Again, the court's analysis was limited to his Eighth Amendment claim because he did not present an independent analysis of Article 1, Section 14. Sen characterized his crimes as car-hopping and asserted that there is substantial disparity between his sentence and sentences for similar crimes in Wyoming. He also suggested the district court should not have considered the fact that he subsequently used the gun obtained in the burglary to shoot and kill his victim. He further argued that the district court did not consider his age when sentencing him for aggravated burglary. Sen did not suggest an appropriate length for his aggravated burglary sentence, rather saying that any sentence for aggravated burglary should have been ordered to run concurrently to his life sentence for first degree murder. The court did not agree. The court further stated that this crime is not simply a car hopping case as there was no question that Sen stole the gun, practiced with it, and then broke into a house in the middle of the night and used the gun. The sentence is within the range of 5 to 25 years specified in Wyoming Statutes, so the court concluded the sentence of 10-25 years was not extreme under the circumstances. The Supreme Court also found no merit in the claim that the district court did not consider Sen’s status as a juvenile in determining an appropriate sentence.

Ultimately, the Wyoming Supreme Court found no Eighth Amendment violations with respect to the convictions and they affirmed the sentences.