Kelley v. State

2009 WY 3, 199 P.3d 521, 2009 Wyo. LEXIS 3, 2009 WL 82280
CourtWyoming Supreme Court
DecidedJanuary 14, 2009
DocketS-08-0123
StatusPublished
Cited by4 cases

This text of 2009 WY 3 (Kelley 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
Kelley v. State, 2009 WY 3, 199 P.3d 521, 2009 Wyo. LEXIS 3, 2009 WL 82280 (Wyo. 2009).

Opinions

VOIGT, Chief Justice.

[¶ 1] The appellant contends that his constitutional right to equal protection of the laws was violated when the district court arbitrarily and capriciously did not grant him first-offender status under Wyo. Stat. Ann. § 7-13-801 (LexisNexis 2007). Alternatively, he argues that the district court's denial of first-offender status was an abuse of discretion. We affirm.

ISSUES

[T2] The appellant states the issues substantially as follows:

1. Was the appellant treated arbitrarily and capriciously when he was denied the benefit of disposition of his case under Wyo. Stat. Ann. § 7-183-8017

2. Did the denial of first-offender status violate the equal protection clauses of the United States Constitution and the Wyoming Constitution?

3. Did the district court abuse its discretion in its application of Wyo. Stat. Ann. § 7-13-301 in sentencing the appellant?

[¶ 3] The issue that we will address, however, because it is mandated by our standard of review when there has been no objection below, is whether the district court committed plain error in denying first-offender status to the appellant.

FACTS

[T4] A Felony Information was filed on November 5, 2007, in the Cireuit Court of Albany County, Wyoming, charging the appellant with one count of burglary and one count of buying, receiving, concealing or disposing of property obtained in violation of the law. The appellant waived his right to a [523]*523preliminary examination and his case was bound over to district court for trial. At arraignment, the appellant pled guilty to burglary pursuant to the following plea agreement, which was set forth verbally on the record by the prosecutor:

THE COURT: Mr. [Prosecutor], I understand there is a plea agreement. Would you state that for the record, please?
MR. [PROSECUTOR]: I will, Your Hon- or. Thank you. The plea agreement and recommendation is the defendant will plead guilty to Count I, burglary. The State will dismiss Count No. II. The defendant's agreed to full restitution to both counts, Counts I and II. And [Victim] has already given a victim impact statement wherein they requested restitution in the amount of $5,620. And that includes a $5,000 reward, which, to be quite blunt, under the restitution statutes may or may not be granted by the Court. That would be a matter for the Court, if it went to hearing.
The defendant has agreed to pay that full amount, the $5,620, as in his words, he has said he wants to take full responsibility for this situation. Simon Contractors has not yet contacted our office. The amount of their restitution will be determined before their [sic] sentencing.
The State, in return for this, will consent to the defendant being treated as a first offender under Wyoming Statute 7-13-301, and the State will, in fact, recommend that the defendant be treated as a first offender, due in large part to his willingness to stand up and pay the $5,000 reward. "My attorneys explained to me that I may be able to fight that at restitution hearing, but I deserve to pay it. I'm going to take care of that." And so the State at his sentencing, will recommend first offender, as he took responsibility.

[T5] In recognition of the plea agreement, the district court withheld adjudication and ordered a presentence investigation report. That report quoted the plea agreement and the State's recommendation for first-offender treatment, and included a recommendation for probation. The district court did not, however, grant the appellant first-offender status. Instead, the district court entered an adjudication of guilt and sentenced the appellant to incarceration for a period of three to five years. That sentence was suspended and the appellant was placed on supervised probation for a period of four years.

WYO. STAT. ANN. $ 7-13-301

[¶ 6] Wyo. Stat. Ann. § 7-18-301 provides in relevant part as follows:

(a) If a person who has not previously been convicted of any felony is charged with or is found guilty of or pleads guilty or no contest to any misdemeanor except any second or subsequent violation of W.S. 31-5-2883 or any similar provision of law, or any second or subsequent violation of W.S. 6-2-501(a) or (b) by a household member as defined by W.S. 35-21-102 against any other household member or any similar provision of law, or any felony except murder, sexual assault in the first or second degree, aggravated assault and battery or arson in the first or second degree, the court may, with the consent of the defendant and the state and without entering a judgment of guilt or conviction, defer further proceedings and place the person on probation for a term not to exceed five (5) years upon terms and conditions set by the court....

STANDARD OF REVIEW

[17] Sentencing decisions generally are subject to review for an abuse of discretion. Smith v. State, 941 P.2d 749, 750 (Wyo.1997). This sentencing discretion extends to the decision of whether to grant first-offender status under Wyo. Stat. Ann. § 7-18-801. Rawson v. State, 900 P.2d 1136, 1138 (Wyo.1995). In exercising its sentencing discretion, the district court may consider a wide variety of factors and cireumstances. Gorseth v. State, 2006 WY 109, ¶ 15, 141 P.3d 698, 703 (Wyo.2006); Cohee v. State, 2005 WY 50, ¶ 4, 110 P.3d 267, 269 (Wyo.2005). The appellant bears the burden of proving that the sentencing court abused its discretion by resting the sentence on "false or improper premises." Peden v. State, 2006 WY 26, ¶ 10, 129 P.3d 869, 872 (Wyo.2006).

[524]*524"However, when no objection is made concerning the consideration of a particular factor, review is necessarily confined to a search for plain error. Plain error, as we have often stated, occurs when the record clearly shows an error that transgressed a clear and unequivocal rule of law which adversely affected a substantial right."

Hirsch v. State, 2006 WY 66, ¶ 31, 135 P.3d 586, 598 (Wyo0.2006) (quoting Manes v. State, 2004 WY 70, ¶ 9, 92 P.3d 289, 292 (Wyo.2004)).

DISCUSSION

[18] The appellant presents multiple arguments in this appeal, none of which get him past the plain error requirement that he show an error that violated a clear and unequivocal rule of law. First, in his constitutional argument, he quotes Small v. State, 689 P.2d 420, 425 (Wyo.1984) (quoting State v. Freitas, 61 Haw. 262, 602 P.2d 914, 922 (1979)), for the proposition that "[the Equal Protection Clause mandates that all persons similarly situated shall be treated alike, both in the privileges conferred and in the liabilities imposed." In Small, this Court held that the habitual criminal statute did not violate equal protection principles in applying to involuntary manslaughter, but not to aggravated vehicular homicide. Id. at 429. Nevertheless, the appellant contends that the general principle espoused in Small was violated by the district court in his case when it denied to him first-offender treatment that would have been offered to others similarly situated. That argument is based upon the following comments by the judge at sentencing:

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Bluebook (online)
2009 WY 3, 199 P.3d 521, 2009 Wyo. LEXIS 3, 2009 WL 82280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelley-v-state-wyo-2009.