Friday was to be the sentencing date for 17-year-old Wyatt Bear Cloud, who plead "Guilty" to Felony Murder in the 1st Degree on September 8th, just days before he was to go to trial. Bear Cloud is one of three defendants involved in the August 26, 2009 shooting death of Robert Ernst.
However, on January 10, 2011, Bear Cloud's new public defender, Kerri M. Johnson of Casper, filed a Motion to Challenge the Constitutionality of a Wyoming Statute regarding Punishment for First Degree Felony Murder for a Juvenile as Cruel and Unusual Punishment in Violation of the Wyoming and United States' Constitutions.
In the filing document, Ms. Johnson writes, "According to the affidavit of probable cause, as well as facts proved in two separate trials in this case showed that on August 26th, 2009, [Dharminder] Sen and ]Dennis] Poitra [Jr.] met earlier in the evening and discussed plans to burglarize houses. They then went to Wyatt's house. The three then decide to act on the plan and eventually end up at the Ernst home...”
“… The Ernst's apparently awakened by the presence of Sen and Poitra, yelled at Sen, who then shot Mr. Ernst three times while Poitra stood by. Wyatt was not present in the room during the shooting. Evidence would show that he was either down the hallway or downstairs when the shooting took place. Upon hearing the gun fire, Wyatt fled the scene. Because the defendant is a juvenile and he did not attempt to kill, intend to kill or kill Mr. Ernst, a sentence of life or life without parole is cruel and unusual punishment."
Summarizing the fifteen-page Motion document, Ms. Johnson writes that "Wyatt Bear Cloud stands before the Court facing sentencing for his conviction of felony murder and one count of conspiracy to commit aggravated burglary and one count of aggravated burglary. At issue is whether or not the sentence for the felony murder is constitutional under either the United States Constitution or the Wyoming Constitution. Based on the reasoning in [similar court cases], this court should hold that sentencing a juvenile, who did not kill a human being, to either life or life without the possibility of parole constitutes cruel and/or unusual punishment."
"Wyatt was the least culpable of all three defendants in this case. He was not a part of the initial planning, he did not possess a weapon and he was not in the same vicinity when [Dharminder] Sen shot Mr. Ernst. He was barely sixteen years old at the time of the crime but functioning well below that age level emotionally and mentally. Although children should be held accountable for their crimes, the criminal justice system should never make them disposable. A sentence of life or life without parole sends the message to society that a child who does not kill anyone is forever irredeemable and it subjects a child of this age to hopeless, lifelong punishment and segregation. That is, and cannot be, a usual or acceptable response to childhood criminality."
In response to the motion, Prosecuting Attorney Matt Redle on January 11th filed a Clarification of the Defendant's Motion, saying that the defendant's motion "requests that the Court find the statutory sentences to be unconstitutional but makes no request for the Court to provide a particular remedy, e.g., dismissal, annulment of a final judgment, reduction of sentence or some other form of sentence to be imposed with respect to the Defendant's conviction for Felony Murder."
Mr. Redle asked for Bear Cloud's sentencing to be continued; Judge Fenn agreed to that request and has now set the sentencing date for February 9th, 2011 at 1:45 pm.
20-year-old Dennis Poitra, Jr., was found guilty in early September and sentenced in November to life in prison without the possibility of parole. The shooter, 17-year-old Dharminder Sen, was found guilty in October; Sen is scheduled to be sentenced January 27th in 4th Judicial District Court.