Clouse v. State

776 P.2d 1011, 1989 Wyo. LEXIS 159, 1989 WL 71628
CourtWyoming Supreme Court
DecidedJune 27, 1989
Docket88-298
StatusPublished
Cited by17 cases

This text of 776 P.2d 1011 (Clouse v. State) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clouse v. State, 776 P.2d 1011, 1989 Wyo. LEXIS 159, 1989 WL 71628 (Wyo. 1989).

Opinions

GOLDEN, Justice.

Leonard B. Clouse, charged with two counts of first degree sexual assault and two counts of armed robbery, entered into a plea bargain in which he pleaded guilty to one count of each of those crimes in exchange for dismissal of the remaining charges. Sentenced to a minimum of sixty years and a maximum of seventy-five years with credit for time served, he appeals and [1012]*1012seeks remand for resentencing. He contends the sentencing court abused its discretion, violated his right to due process, violated his right against self-incrimination and erroneously failed to indicate whether or not it had relied on disputed information contained in the presentence investigation report.

We affirm.

ISSUES

Clouse states the issues as:

I. Whether the sentence imposed on the Appellant was an abuse of discretion which resulted in a failure of justice and a violation of Article 1, Section 15 of the Wyoming Constitution?
II. Whether the Appellant’s right to due process was violated by the court’s reliance on unfounded assumptions and assertions of prior criminal activity?
III. Whether the defendant’s right against self incrimination was violated by the consideration of statements concerning prior criminal activity in determining sentence?
IV. Whether the trial court’s failure to indicate whether it had relied on disputed information in the presentence report requires that the case be remanded for resentencing?
The state frames the issues as:
I. Were the sentences imposed on appellant by the district court an abuse of discretion or a failure of justice?
II. Did the district court err in considering the presentence investigation and were the court’s findings without support in the record?
III. Was information compelled in violation of appellant's Fifth Amendment right against self-incrimination considered by the district court?
IV. Is reversal for procedural errors at sentencing proper, absent a showing of prejudice?

FACTS

Four months after completing a six-year prison sentence for armed robbery, Clouse was arrested around 10:30 p.m. on October 9, 1987, on suspicion of armed robbery of a convenience store and two acts of first degree sexual assault on the store’s clerk. The arrest took place at the scene of the crimes near Gillette, Wyoming.

According to the presentence investigation report, Clouse committed the convenience store crimes in this way. At about 10:15 p.m. he entered the store when the clerk was alone. He walked behind the counter, showed the clerk a loaded handgun, ordered the clerk to open the cash register, which she did, and reached in and took out all the bills. Next, he ordered the clerk to open a second cash register, but it could not be opened. A customer entered the store; instead of leaving the store, Clouse ordered the clerk to accompany him to a bathroom in the rear of the store. Inside that room, pointing the loaded gun at the clerk, he ordered her to remove her clothing and perform oral sex on him. As he kept the gun pointed at her, she began gagging and could not breathe. Clouse then ordered her to lay on the floor; he laid on top of her and raped her. After raping her, he pointed the gun at her and told her the police better not be outside. Fortunately, an on-duty Gillette policeman passing by in his patrol car had seen Clouse standing behind the store counter. Knowing that a male should not be working at this particular store and realizing that the person he saw matched the description of a person wanted for an October 2, 1987, robbery of a Gillette Common Cents Store, the policeman pulled his car into the store’s parking area. Entering the store and positioning the customer out of harm’s way, the policeman arrested Clouse as he was leaving the bathroom. Frightened, the victim had remained in the bathroom where she was found by officers.

Clouse did not deny or dispute this rendition of the crime. The presentence investigation also includes an account of the tragic effect Clouse’s criminal episode has had on the store clerk.

Clouse entered initial pleas of not guilty, not guilty by reason of mental illness or deficiency and not triable by reason of mental illness or deficiency. After mental [1013]*1013evaluations, Clouse changed his plea pursuant to a plea bargain. In exchange for the state’s dismissing the Common Cents Food Store armed robbery charge and one of the two sexual assault charges arising from the convenience store armed robbery, Clouse pleaded guilty to that armed robbery and the remaining charge of first degree sexual assault.

After taking Clouse’s change of plea, the sentencing court ordered a presentence investigation report. The sentencing court told Clouse that he was to cooperate fully with the probation officer, so his report could be completed in a timely fashion. The sentencing court also told Clouse that he would receive a copy of that report and would have an opportunity to make any additions or corrections that he believed were necessary.

At the sentencing proceeding, Clouse told the sentencing court that he had received and had a chance to review a copy of the presentence investigation report. Responding to the sentencing court’s question whether Clouse had any additions or corrections to make to that eleven-page report, Clouse’s attorney told the sentencing court of four additions or corrections:

1. He reminded the court that, as page six of the report showed, Clouse had spent 357 days in jail since his arrest.
2. He referred the court to the probation officer’s statement at the bottom of page seven of the report that Clouse voluntarily and without coercion had admitted to the probation officer that he (Clouse) had committed two armed robberies in Cody and Powell, but that the police departments in those towns reported they had no contact with Clouse. Clouse’s attorney asked the sentencing court to disregard “those pending charges and that statement,” because when Clouse made that statement he was in custody; the probation officer was acting as an agent for the police; the probation officer had not informed Clouse of his Miranda rights; and the sentencing court had told Clouse at his change of plea proceeding to answer all of the probation officer’s questions.
3. He referred the court to the probation officer’s statement at the top of page ten of the report, in which that officer expressed his impression that Clouse believed he had somehow been treated unjustly. Clouse’s attorney explained to the court that Clouse felt the court’s denials of his earlier motions were unfair, since he felt the motions had merit.
4. He referred the court to the probation officer’s statement on page eleven of the report, in which the officer expressed his strong impression that Clouse’s only remorse was that he had been caught. Clouse’s attorney took exception to the officer’s impression, telling the court that Clouse felt remorse and his guilty plea was evidence of that remorse.

After hearing from Clouse’s attorney on these foregoing matters, the sentencing court determined that neither the state nor Clouse had any evidence to present.

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Bluebook (online)
776 P.2d 1011, 1989 Wyo. LEXIS 159, 1989 WL 71628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clouse-v-state-wyo-1989.