Full Opinion

IN THE SUPREME COURT, STATE OF WYOMING 2026 WY 120 OCTOBER TERM, A.D. 2026 November 10, 2026 JASON WILLIAM MING, Appellant (Defendant) v. S-26-0101 THE STATE OF WYOMING, Appellee (Plaintiff). Appeal from the District Court of Laramie County The Honorable Robin S. Cooley, Judge Representing Appellant: Benjamin J. Sherman, Sherman Law, Cheyenne, Wyoming. Representing Appellee: Keith G. Kautz, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen R. Jones, Senior Assistant Attorney General; Spencer LaDue, Student Intern. Before BOOMGAARDEN, C.J., GRAY, FENN, JAROSH, and HILL, JJ. NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made before final publication in the permanent volume. JAROSH, Justice. [¶1] After he committed a series of thefts from a local Walmart, Jason Ming pleaded guilty to misdemeanor theft. During sentencing, the district court applied the felony sentencing enhancement in Wyo. Stat. Ann. § 6-3-402(j) (2025) after it confirmed there was no dispute Mr. Ming had the requisite prior theft convictions. As a result, the court sentenced him to four to seven years in prison. Mr. Ming appealed, alleging the district court erred by not allowing a jury to consider the application of the sentencing enhancement statute. Finding Mr. Ming forfeited his right to a jury trial with respect to the sentencing enhancement, we affirm in part. We reverse in limited part and remand with directions to correct the Judgment and Sentence. ISSUE PRESENTED [¶2] Mr. Ming presents a single issue on appeal regarding his constitutional right to a jury trial. The State, however, asserts he forfeited that right when he failed to raise a factual issue with respect to his prior convictions. Therefore, we rephrase the issue presented as: Did Mr. Ming forfeit his right to have a jury consider whether his prior convictions qualified for the sentencing enhancement under Wyo. Stat. Ann. § 6-3-402(j)? FACTS AND PROCEEDINGS [¶3] In December 2024, a loss prevention employee at Walmart contacted the Cheyenne Police Department about a series of thefts from a local store. Police were told that between October 22, 2024, and December 16, 2024, Mr. Ming and his girlfriend committed theft by under ringing merchandise.1 Police estimated the amount of stolen goods, across fifteen different incidents, was $1,045.51. Mr. Ming was arrested and charged with felony theft under Wyo. Stat. Ann. § 6-3-402(a)(i), (c)(i), and (h). Several days later, the State amended the Information and added the sentencing enhancement provided for in Wyo. Stat. Ann. § 6-3-402(j). The First Amended Information identified four prior theft-related convictions in California and Wyoming attributable to Mr. Ming. Under the charged enhancement at the time, “[a]ny person convicted of a fifth or subsequent offense for theft, shoplifting, larceny, wrongful taking of property . . . pursuant to a substantially similar law of another jurisdiction separately brought and tried shall be guilty of a felony[.]” Wyo. Stat. Ann. § 6-3-402(j) (2025).2 1 At trial, law enforcement described “under ringing” as the practice of scanning some, but not all, merchandise at a self-checkout kiosk. 2 Effective July 1, 2026, the sentencing enhancement at Section 402(j) is triggered upon “a third or subsequent” qualifying offense. Wyo. Stat. Ann. § 6-3-402(j) (2026). 1 Jury Trial and Change of Plea [¶4] The district court convened Mr. Ming’s felony theft trial on July 8, 2025. Prior to voir dire, the parties met in chambers where the State asked the court whether it was comfortable reviewing Mr. Ming’s prior California and Wyoming convictions for the purpose of the charged enhancement. The district court stated the parties needed “something different” on the verdict form because it only reflected the felony theft charge. Mr. Ming then asked the State what it had with respect to his prior convictions. The State recognized its responsibility to prove the prior convictions for the enhancement, indicated its preference to resolve that issue at sentencing, and stated its intent to offer certified judgments and sentences for each conviction. Mr. Ming did not object or offer a different perspective. He only sought to confirm when the State had originally charged the enhancement — which was in January 2025. The parties then moved on to discuss other preliminary matters. [¶5] At trial, the State offered two witnesses — Detective Caresa Marino and Jackaline Garcia Arrendondo, on behalf of Walmart. Their testimony, however, revealed the State could not establish that the stolen merchandise linked to Mr. Ming exceeded the $1,000 felony threshold. Consequently, the State moved to amend the Information to strike the $1,000 element and proceed with a lesser misdemeanor charge. [¶6] Mr. Ming then stated he would plead guilty to misdemeanor theft and leave “the prior four” convictions as “a question for sentencing as it stands.” At that time, the State did not foreclose the need for a bifurcated proceeding but argued the district court could determine whether Mr. Ming’s prior convictions qualified for the enhancement. The district court stated it needed additional time to research the issue, asked the State to formally file its Second Amended Information with the lesser charge, and declared the court would accept Mr. Ming’s change of plea after he reviewed the amended charges with his counsel. [¶7] When the district court convened the next day, it revisited the need to bifurcate the proceedings for the sentencing enhancement. Mr. Ming cited Erlinger v. United States, 602 U.S. 821 (2024), and argued “only a jury may find facts that increase the prescribed range of penalties to which a criminal defendant is exposed.” The State noted it obtained certified judgments and sentences for three out of the four charged prior convictions and was working on the fourth from the applicable jurisdiction in California. [¶8] The district court then asked Mr. Ming how he planned to challenge the prior convictions. Mr. Ming stated he only needed the certified judgments and sentences “to verify that information.” The district court then confirmed Mr. Ming’s position: COURT: So your challenge would be as to whether or not there was a conviction? 2 DEFENSE COUNSEL: Correct, Your Honor. The district court, citing Erlinger, found “if the challenge is simply to whether or not there is a conviction, then that is not a factual basis, and that is a matter that goes to the judge.” The court explained it would consider the existence of the prior convictions at sentencing and announced it would proceed with accepting Mr. Ming’s change of plea. Defense counsel responded that Mr. Ming was prepared to proceed. [¶9] Next, the district court advised Mr. Ming of the potential punishment associated with misdemeanor theft and stated “[a]t sentencing we will then hear argument, and I will make the decision regarding the enhanced provision, which is found in the Amended Information.” The court also reviewed the potential punishments under the sentencing enhancement, Wyo. Stat. Ann. § 6-3-402(j). [¶10] Mr. Ming pleaded guilty to misdemeanor theft as set forth in the Second Amended Information. The district court then ordered the preparation of a presentence investigation report and dismissed the jury. Sentencing [¶11] Mr. Ming was sentenced on October 22, 2025. After reviewing Mr. Ming’s criminal history, the State argued Mr. Ming had six qualifying previous theft convictions, including the four charged as sentencing enhancements in the Second Amended Information. Mr. Ming expressed concern about the absence of certified judgments and sentences for all his prior convictions but did not dispute the convictions identified in the presentence investigation report. Again, the district court asked Mr. Ming to clarify his position and he confirmed: I’m not disputing that those convictions exist, but I don’t know without there being judgment and sentences in front of you or in front of me, that they actually are qualifying offenses. After reviewing each prior conviction, the district court confirmed Mr. Ming did not dispute the prior convictions identified in the Second Amended Information: COURT: And when you say you don’t have arguments [regarding the charged prior convictions], I just want to get on the record, that you are agreeing that the ones you just referred to qualify for previous convictions under Wyoming statute in the subsection (j), under the statute we’re talking about with theft, they do qualify as subsequent offenses under that subsection, correct? 3 DEFENSE COUNSEL: Yes, Your Honor. COURT: All right. Thank you. I believe with that identification we have a clear record that the State and the defense agree that we do have four qualifying convictions under subsection (j). The district court then sentenced Mr. Ming to four to seven years under the sentencing enhancement.3 This appeal followed. STANDARD OF REVIEW [¶12] We must determine whether Mr. Ming waived, or in the alternative, forfeited his right to have a jury trial as it relates to a statutory sentencing enhancement. This Court has distinguished between a waiver of a right or objection and the forfeiture of a right or objection: We reject attempts by a defendant to turn a trial strategy into an appellate error. The doctrine of invited error prohibits a party from raising on appeal alleged trial court errors that were induced by that party’s actions. When a party affirmatively waives a right or objection, we do not review it; however, when a party merely forfeits a right or objection, we review for plain error. Waiver is the intentional relinquishment or abandonment of a known right, while forfeiture is the failure to make a timely assertion of a right. Waiver requires something more affirmative than simple agreement. Benedict v. State, 2024 WY 55, ¶ 13, 548 P.3d 989, 993 (Wyo. 2024) (quoting Berry v. State, 2023 WY 75, ¶ 28, 533 P.3d 474, 482-83 (Wyo. 2023)); see also Nunamaker v. State, 2017 WY 100, ¶ 9, 401 P.3d 863, 866 (Wyo. 2017) (“Forfeited rights are reviewable for plain error, while waived rights are not.”) (citations omitted). DISCUSSION [¶13] Shortly after his arrest, the State charged Mr. Ming with felony theft and identified four prior theft-related convictions that the State alleged qualified for a sentencing enhancement. The State later amended the Information at trial and downgraded the charge 3 The district court’s Judgment and Sentence incorrectly states Mr. Ming pleaded guilty to “Theft > $1000.” The Judgment and Sentence should reflect that Mr. Ming pleaded guilty to “Theft < $1000” and this Court will issue a limited remand instructing the district court to make the correction. 4 to misdemeanor theft. Despite the lesser theft charge, Mr. Ming remained subject to the sentencing enhancement in Wyo. Stat. Ann. § 6-3-402(j), which at the time read: Any person convicted of a fifth or subsequent offense for theft, shoplifting, larceny, wrongful taking of property, wrongful disposal of property or livestock rustling, any other theft offense under this section, any theft offense under a municipal ordinance or any theft offense pursuant to a substantially similar law of another jurisdiction separately brought and tried shall be guilty of a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both. Wyo. Stat. Ann. § 6-3-402(j) (2025). Although he pled guilty to the charge, Mr. Ming argues a jury needed to determine whether his prior convictions triggered the enhanced penalty provision. [¶14] When a sentencing enhancement is involved, the United States Supreme Court has consistently held almost all factual disputes must be resolved by a jury. See Janssen v. State, 2005 WY 123, ¶ 21, 120 P.3d 1006, 1011-12 (Wyo. 2005) (summarizing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and its progeny). Specifically, the Court has held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury[ ] and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. [¶15] The United States Supreme Court has since upheld Apprendi and held that a defendant is entitled to have a jury unanimously determine whether past offenses were committed on separate occasions for the purposes of the Armed Career Criminal Act. Erlinger v. United States, 602 U.S. 821, 829-35 (2024). Much like the federal Armed Career Criminal Act, the Wyoming sentencing enhancement statute at issue requires the defendant to have substantially similar and “separately brought and tried” qualifying offenses. Wyo. Stat. Ann. § 6-3-402(j) (2025). [¶16] Mr. Ming, citing Erlinger, first raised his objection at his change of plea during the trial. He acknowledged the State provided adequate notice of the charged prior convictions but argued he had not received the respective judgments and sentences to verify those prior convictions. The district court sought clarification as to whether his objection was “whether or not there was a conviction” and Mr. Ming confirmed that was his position. After finding Mr. Ming’s objection fell into the “narrow exception” restated in Erlinger, the district court concluded it could proceed with accepting Mr. Ming’s change of plea and consider the prior convictions at sentencing. 5 [¶17] Although subject to scrutiny, Erlinger acknowledges the principle that “the fact of a prior conviction” does not need to go to a jury. See Erlinger, 602 U.S. at 850-51 (recognizing Almendarez-Torres v. United States, 523 U.S. 244 (1998) as precedent but arguing for a need to revisit the “narrow exception” it created) (Thomas, J., concurring); see also Brown v. State, 2004 WY 119, ¶¶ 13-14, 99 P.3d 489, 494-95 (Wyo. 2004) (discussing the exception as restated in Apprendi and discussing how the reasoning blurred the distinction between elements of a crime and sentencing enhancements). Here, the district court proceeded with caution — it confirmed that the nature of Mr. Ming’s objection was limited to the existence of prior convictions and correctly reserved the matter for sentencing because Mr. Ming did not raise a concern with the time, location, purpose, or character of the prior convictions charged under the enhancement. See Erlinger, 602 U.S. at 835 (discussing hypothetical scenario where a jury might consider whether prior convictions occurred on the same occasion). [¶18] Nothwithstanding the district court’s finding, Mr. Ming argues he preserved his right to a jury trial when he objected before entering his guilty plea. The State argues Mr. Ming waived, or alternatively, forfeited that right because his objection was limited to the existence of his prior convictions. There is a “fine line between positive acts and omissions.” Mackley v. State, 2021 WY 33, ¶ 12, 481 P.3d 639, 642 (Wyo. 2021) (quoting Vaught v. State, 2016 WY 7, ¶ 35, 366 P.3d 512, 520 (Wyo. 2016)). We regard simple agreement as an omission or forfeiture, not a waiver. Id., ¶ 12, 481 P.3d at 642. Forfeiture is also “the failure to make a timely assertion of a right.” Rodriguez v. State, 2019 WY 25, ¶ 25, 435 P.3d 399, 406 (Wyo. 2019) (quoting Nunamaker, ¶ 9, 401 P.3d at 866). [¶19] The Second Amended Information charged Mr. Ming with misdemeanor theft and the enhancement, collectively. They were not charged separately. Mr. Ming stated his objection was limited to confirming the existence of the prior convictions identified in the Information. He then accepted the district court’s decision to review the enhancement at sentencing and willingly entered his guilty plea. We find Mr. Ming forfeited his right because he did not raise a factual dispute with the prior convictions, such as whether the charged previous convictions were “separately brought and tried.” [¶20] Having found forfeiture applies, we would typically review the district court’s actions for plain error. Nunamaker, ¶ 9, 401 P.3d at 866. However, Mr. Ming does not offer any plain error analysis, and therefore, we need not go any further. See Benedict, ¶ 17, 548 P.3d at 994 (stating “[w]e will not conduct a plain error review” where the defendant offers none). Even so, Mr. Ming cannot satisfy the second plain error element because the district court did not transgress a clear and unequivocal rule of law when it determined Mr. Ming’s objection fell within the exception recognized by the United States Supreme Court. See Nunamaker, ¶ 11, 401 P.3d at 867-68 (“Plain error exists when: … (2) there was a transgression of a clear and unequivocal rule of law[.]”); see also Hughes v. State, 2026 WY 66, ¶ 36, 591 P.3d 407, 415 (Wyo. 2026) (finding the district court did not plainly err because it did not contravene a clear and unequivocal rule of law). 6 CONCLUSION [¶21] Mr. Ming did not raise a factual dispute regarding his prior convictions warranting a jury, accepted the district court’s decision to adjudicate the existence of his prior convictions at sentencing, and willingly pleaded guilty to the charged conduct. Therefore, he forfeited his right to have a jury consider the elements of the charged sentencing enhancement in Wyo. Stat. Ann. § 6-3-402(j). Remand is limited to correcting the Judgment and Sentence to state that Mr. Ming pleaded guilty to “Theft < $1000.” [¶22] Affirmed in part, reversed in part, and remanded with directions. 7