Wright v. State

670 P.2d 1090, 1983 Wyo. LEXIS 373

• Court: Wyoming Supreme Court
• Decided: October 19, 1983
• Docket: 83-43
• Status: Published

Opinions

ROONEY, Chief Justice.

A jury found appellant guilty of an unlawful delivery of Schedule I controlled substance, marijuana, in violation of § 35-7 — 1031(a)(ii), W.S.1977. He was sentenced to two to four years in the Wyoming State Penitentiary. The limits set by the legislature for incarceration upon violation of this section are not less than one nor more than ten years.

Appellant words the issue on appeal as follows:

“The District Court committed reversible error and abused its discretion in sentencing Grant Alan Wright, a first-time offender, to a term of from two to four years in the Wyoming State Penitentiary, in that:

“(a) the District Court did not give due consideration to Mr. Wright’s petition for probation;

“(b) the District Court failed to set forth its reasons for denying probation;

“(c) the District Court ignored the recommendations expressed in the presen-tence report;

“(d) no aggravating circumstances were presented to support the District Court’s sentence; and

“(e) the sentence of Grant Alan Wright to the State Penitentiary, without probation, was arbitrary and capricious.”

We do not find an abuse of discretion, and we affirm.

In contending that the sentence was too severe, appellant points to the fact that he was 20 years old, a first time felony offender, an honor student at Sheridan College where he was enrolled as a freshman in a welding program, and a recommendation by a probation and parole agent that he be given probation. In response, appellee points to the sentence as being within the perimeters set by the legislature for the crime, to the consideration of probation by the trial court, to appellant’s basic concern having to do with the manner in which he was found to be involved in the crime rather than with remorse at having committed the crime, to his testimony as to the amount of marijuana in conflict with that of the arresting officers, and to the serious nature of the crime.

Before addressing the specifics of the issue presented by appellant, we note that the standards under which a sentence is examined by us on appeal have been well established. We do not follow the common-law rule that a sentence is not subject to appellate review if it is within the limits set by the legislature.¹

“In a number of cases * * * the courts have expressed an adherence to the common-law doctrine of nonreviewability of criminal sentences. The common-law rule provides, in essence, that an appellate court has no power to review a sentence which is within the limits prescribed for the offense. Although this rule has been the subject, particularly with regard to its application in the federal courts, of continuing debate, and despite the fact that there appears to be a trend away from the strict adherence to the rule, it has continued in force in a significant number of American jurisdictions." Annotation: Review for Exces-siveness of Sentence in Narcotics Case, 55 A.L.R.3d 812, 822 (1974).

As long ago as 1927, we indicated that we would modify a legal sentence if the trial court abused its discretion in imposing it. State v. Sorrentino, 36 Wyo. 111, 253 P. 14, 16 (1927). Since then, we have repeatedly set forth the fact that a sentence will be reviewed for abuse of discretion. Cav-anagh v. State, Wyo., 505 P.2d 311 (1973); Peterson v. State, Wyo., 586 P.2d 144 (1978); Sanchez v. State, Wyo., 592 P.2d 1130 (1979); Jones v. State, Wyo., 602 P.2d 378 (1979); Búck v. State, Wyo., 603 P.2d 878 (1979); Sorenson v. State, Wyo., 604 P.2d 1031 (1979); Kenney v. State, Wyo., 605 P.2d 811 (1980); Scheikofsky v. State, Wyo., 636 P.2d 1107 (1981); Daniel v. State, Wyo., 644 P.2d 172 (1982); Taylor v. State, Wyo., 658 P.2d 1297 (1983); and Eaton v. State, Wyo., 660 P.2d 803 (1983).

In Scheikofsky v. State, supra, 636 P.2d 1107 at 1112-1113, we said:

“This court has stated its approach to sentence review many times. If a trial court’s determination of the terms of imprisonment is within the statutory limits, it will not be disturbed absent a clear abuse of discretion. Hanson v. State, Wyo., 590 P.2d 832, 835 (1979); Jones v. State, Wyo., 602 P.2d 378, 380 (1979); Smith v. State, Wyo., 564 P.2d 1194, 1202 (1977); Daellenbach v. State, supra, at 683 [562 P.2d 679 (1977)]. A sentence will not be disturbed because of sentencing procedures unless the defendant can show an abuse of discretion, procedural conduct prejudicial to him, and circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play. Hicklin v. State, Wyo., 535 P.2d 743, 751, 79 A.L.R.3d 1050 (1975). That is a nebulous standard, but it is as precise as we care to make it. We have an abiding reluctance to review a trial judge’s determination of sentence. The determination is a burdensome decision which no trial judge could lightly make and which we will not lightly overturn."

In defining an abuse of discretion, we have said that:

“A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. In deter min’ng whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. An abuse of discretion has been said to mean an error of law committed by the court under the circumstances. * * * ” Martinez v. State, Wyo., 611 P.2d 831, 838 (1980).

The search for “reasonableness” and the recognition of the “circumstances” involved are complex with reference to sentence imposition. It is generally recognized that sentence imposition involves consideration of two broad categories: (1) the crime and its circumstances, and (2) the character of the criminal.²

The differences in severity of punishment allocated by the legislature to the several crimes reflect a recognition that some crimes are more serious than others. Crimes of violence may properly carry a heavier sentence than non-violent crimes, The circumstances surrounding the commission of a crime can likewise effect the amount of sentence, e.g. John Doe and Richard Roe were both convicted of the same crime. Both broke a window and took merchandise from a business establishment without permission. John Doe took bottles of intoxicants for his own consumption. Richard Roe took a loaf of bread for his hungry child. Richard Roe’s sentence could reasonably be less than that of John Doe.³

The character of the criminal could reasonably increase or decrease his sentence. His family background, education, intelligence, employment history, age, training, criminal and delinquency record, attitude, etc., well bear upon the accomplishment of the purpose of the sentence.

And the purpose of the sentence enters into the application of both of the two broad categories considered in imposing a sentence. Although sometimes denominated otherwise, it is generally recognized that a sentence is imposed for one or more of four purposes: (1) rehabilitation, (2) punishment (specific deterrence and retribution), (3) example to others (general deterrence), and (4) removal from society (incapacitation or protection of the public). Rehabilitation is a laudable purpose, but there has been considerable disillusionment with it in the last ten to fifteen years. Nonetheless, methods by which a cancer to society can be turned into a societal asset are always desirable. Sometimes punishment results in rehabilitation. Sometimes it is a deterrent. Sometimes it is retribution only. The purpose of a sentence as an example to others is often overlooked. A person in a prominent position who is convicted of embezzlement may not need rehabilitation or additional education. The notoriety of his conviction may be more than adequate punishment, and removal from society would serve no use. But if a prison sentence were not imposed, another person in a similar prominent position could well believe it worth a chance to attempt a similar embezzlement — probation being the probable sentence should his attempt fail. Removal from society may be necessary to prevent continued criminal action by an individual. There are some who will hurt others at every favorable opportunity unless they are in confinement. These four sentencing purposes are in accord with Art. 1, § 15, Wyoming Constitution: “The penal code shall be framed on the humane principles of reformation and prevention.” Rehabilitation results in reformation. Punishment results in both reformation and prevention. Example to others results in prevention. And removal from society also results in prevention.

A sentencing judge is also aware of the vital effect on the life of one convicted which results from his forced confinement — sometimes for a major span of such life. Likewise, he is apprehensive about having on his conscience the rape, assault or death of an innocent person at the hands of a convicted person who was not sentenced to confinement for an adequate time. The judge must isolate himself from (1) the “sob-sister” type who pressures for leniency on the basis of the convicted person’s humanity without consideration of the injured victims and other pertinent factors, and (2) the vengeful “blood-at-any-cost” type who pressures for “hanging” without consideration of the human nature of the convicted one and the circumstances surrounding him and the crime itself.

The purpose of the foregoing brief summary of some of the factors and philosophy involved in sentencing is to illustrate the complexity of the act of sentencing and, thus, of that which is pertinent to a determination of whether or not discretion was abused in the imposition of a given sentence. Turning then to the specifics of the issue here presented on appeal in light of such factors, we do not find an abuse of discretion.

DUE CONSIDERATION TO PETITION FOR PROBATION

When probation is an alternative to incarceration, the sentencing judge must consider it. Daniel v. State, supra; Jones v. State, supra; Kenney v. State, supra; Taylor v. State, supra; Eaton v. State, supra.

“ * * * The only right which an applicant for probation possesses is that his petition should be considered by the court. * * * ” Sanchez v. State, supra, 592 P.2d at 1137.

We also commented that it would be helpful if the reasons for granting or denying probation were noted by the sentencing judge.

“We strongly recommend that the trial judges explain their reasons for denying probation and indicate the factors they considered in imposing sentence.” Daniel v. State, supra, 644 P.2d at 180.

In this case, a presentence investigation was conducted and the report was made to the judge. At the start of the sentencing proceedings, the court inquired:

“ * * * Counsel are aware of the presen-tence investigation summary which has been submitted through the Probation and Parole Department. Do each of you have a copy?”

Appellant’s counsel acknowledged receipt of the copy and noted a few minor mistakes in it, i.e. appellant moved to Sheridan (not Sundance) when he was in the eighth (not third) grade, and his mother’s first name is “Emile” not “Emmile.” Appellant’s counsel made a detailed plea to the court for probation, referring a number of times to the presentence report. The prosecuting attorney argued to the court that a sentence of incarceration be imposed, calling attention to the seriousness of the crime.

Before imposing sentence, the court said to appellant:

“Well, Mr. Wright, the Court is impressed with your background and I’m very encouraged with the fact that you are doing well in school and we will take that of course into consideration. The crime of which you stand convicted is a very serious one even though it was for the delivery of a small amount. It was nonetheless a delivery and therefore under our statutes a felony. Considering all the factors in the case, the Court determines that you are not a fit subject for probation, but that because of all the circumstances, a minimum sentence is going to be imposed and that will be a period from two to four years in the Wyoming State Penitentiary. * * * ”

The court also specifically called appellant’s attention to his “right to petition the Court for a sentence reduction within 120 days.”⁴

The sentencing court obviously did give consideration to the request for probation.

“ * * * The fact that probation was requested and the appearance of a probation plan in the pre-sentence report can lead to no conclusion but that the court could not avoid giving it consideration. * * * ” Beaulieu v. State, Wyo., 608 P.2d 275 (1980).

The judge and counsel talked about probation, reference was made to the presentence report which contained a recommendation of probation, and the court specifically advised appellant that, in the court’s opinion, “you are not a fit subject for probation” in consideration of “all the factors in the case.” Under the circumstances, we cannot say that the court created an error of law or acted in a manner exceeding the bounds of reason. Probation was considered. The severity of the crime and “all the factors” of the case were considered. There was no abuse of discretion in failure to give due consideration to the petition for probation.

FAILURE TO SET FORTH REASONS FOR DENIAL OF PROBATION

As already noted, we “strongly recommend” explanation of the reasons for denial of probation, Daniel v. State, supra, 644 P.2d at 180, but we have not been presented with a situation in which the failure to provide such explanation amounted to an abuse of discretion. In this case the court did refer to the severity of the crime as a reason for denial, but it pointed to “all the factors in the case” as indicating appellant to not be a “fit subject for probation.” All of the considerations outlined in the first part of this opinion were undoubtedly balanced with reference to the circumstances of this case by an experienced judge. He gave a reason for his sentence. He noted the potential for correction within 120 days. The record reflects the passage of sufficient time in which he could consider his options. It reflects the gathering of pertinent information.

The court did not fail to give reasons for not granting probation, and failure to do so is not, ipso facto, error.

IGNORING RECOMMENDATION IN PRESENTENCE REPORT

There is nothing in the record to reflect that the court ignored the recommendation made by the probation agent in the presentence report.⁵ The court obviously considered the report and all that was in it. Appellant’s counsel called the court’s attention to the fact that the report reflected that “incarceration would seem to be inappropriate in this particular action.”

The court did not ignore the recommendation, it simply did not accept it. Nor is the court required to accept such recommendations. It is the court’s duty to impose sentence. It is not the duty of a probation agent to do so. To require the court to accept the recommendation of a probation agent as a matter of law would transfer the sentencing duty from the court to the probation agent. Discretion was not abused through failure of the court to accept the recommendation for sentence made by a probation agent.

AGGRAVATING CIRCUMSTANCES TO SUPPORT SENTENCE

The contention that there need be aggravating circumstances to support a sentence of confinement and the circumstances of aggravation in this case are sufficiently explored in the first part of this opinion and in the section relative to “Failure to set forth reasons for denial of probation.” That said there makes it unnecessary to further comment on the contention that the record relative to aggravating circumstances reflects an abuse of discretion by the court in imposing a sentence of confinement.

ARBITRARY AND CAPRICIOUS NATURE OF SENTENCE

Again that already here said refutes the contention that failure to grant probation to appellant was an arbitrary and capricious action on the part of the trial court. In his brief, appellant argues that the court said appellant’s sentence would not be as great if he pled guilty as it would be if he were found guilty after trial. We have diligently searched the record and find nothing said by the court to support that argument. Accordingly, we do not address the issue.

COMMENT ON DISSENTING OPINIONS

In an effort to give succor to a criminal, both dissenting opinions accept the statement of the convicted person as to the facts of the criminal incident. They refuse to recognize that a jury did not believe his story and found that he lied when he contended that he was entrapped, and that he lied when he said that he did not institute the conversation and transaction for sale of the “drugs” by him. Rather, the jury believed the contrary evidence and convicted him of the crime.

The dissenting opinions quote from the criminal’s testimony and disregard the jury’s conclusion that such testimony was false.

We have repeatedly said that:

“On appeal, when presented with a challenge to the trier of fact’s findings, we are required to accept the evidence of the prevailing party — in this instance the prosecution — as true, and leave out of consideration entirely the evidence of the appellant in conflict therewith. * * * ” Browder v. State, Wyo., 639 P.2d 889, 891 (1982).

“ * * * and giving to the State those inferences which may be reasonably and fairly drawn from it. * * * ” Tillett v. State, Wyo., 637 P.2d 261, 263 (1981).

See McCarty v. State, Wyo., 616 P.2d 782, 786 (1980); Leppek v. State, Wyo., 636 P.2d 1117, 1119 (1981); Mainville v. State, Wyo., 607 P.2d 339, 341 (1980); Padilla v. State, Wyo., 601 P.2d 189, 191 (1979); Reinholt v. State, Wyo., 601 P.2d 1311, 1312 (1979) and many others.

In this instance, the dissenting opinions do the opposite and accept the testimony concerning the circumstances surrounding the commission of the crime, as related by the criminal, as true and disregard the testimony to the contrary. Witness Young testified about a conversation with David Jones, a friend of appellant. He was then asked:

“Q. During the course of this conversation did Mr. Wright, the defendant, enter into the conversation at all?

“A. He did.

“Q. What was the subject that Mr. Wright brought up?

“A. Mr. Wright brought up the subject of offering to sell me some marijuana.

“Q. Had you at any time asked Mr. Wright for some marijuana?

“A. I did not.”

Witness Miller testified:

“Q. As between Agent Young and Mr. Wright, who was the individual that first brought up purchasing marijuana?

“A. Mr. Wright.

“Q. Did Agent Young at that time ask to purchase marijuana from Mr. Wright?

“A. No, he didn’t.”

Appellant does not deny the sale of marijuana to Young. The jury found appellant guilty of the crime as charged.

It is true that the sentencing considerations can be much broader than those concerning guilt. But if we question the discretion of the trial court for refusing to accept the jury findings, we are straying far from the definition of abuse of discretion (see supra); and if we are encroaching on the proposition whereby we disregard the evidence of the appellant and consider only that of the appellee when a challenge is made on appeal to actions predicated upon findings by the trier of facts, we are throwing appellate fundamentals into disarray.

The dissenting opinion of Justice Cardine recognizes that the evidence was such that the jury could find appellant guilty, but then it concludes that he “was not a dealer in drugs nor engaged in the business.” The crime committed by appellant had nothing to do with “dealing” in drugs or “engaged in the business” of drugs — although appellant obviously was found to have done both. He acknowledged that he made a sale. He was charged with, and the jury found him guilty of violation of § 35-7-1031(a)(ii), W.S.1977, in that he “did unlawfully deliver” a controlled substance. “Deliver” is defined in § 35-7-1002(a)(vi), W.S.1977, as “the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.” Of course these are questions of fact, and the jury found them to be against appellant.

The dissenting opinion of Justice Rose ranges far and wide in contending that the criminal should not receive a penitentiary sentence — all founded on (1) the false premises that he was entrapped,⁶ (2) that he did not initiate the sales transaction, and (3) that the criminal was “not in the drug business” and had not “in any way been associated with drugs.” The jury verdict dictates just the opposite. Contrary to that said in Justice Rose’s dissenting opinion, he did possess the drugs long before he made the sale. He acknowledged that he kept them in his automobile, i.e. in his possession. The extensive dicta in Justice Rose’s opinion need not be of concern at this time. I will note, however, that I consider the words “necessary and proper to the complete exercise of its appellate and revisory jurisdiction” in Art. 5, § 3 of the Wyoming Constitution to pertain to that which they modify, i.e. to “other writs,” and not to pertain to the writs specified in the section (including certiorari).

Affirmed.

1 . At the time of the commission of the crime and of the trial, § 6-1-105, W.S.1977, provided:

“Within the limits prescribed by law, the court shall determine and fix the punishment for any felony or misdemeanor, whether the punishment consists of imprisonment, or fine, or both, and when any person is sentenced to imprisonment in the penitentiary, the court shall declare in its sentence, for what period he shall be imprisoned; and in all cases of a conviction of an offense, the court shall render judgment against the defendant for the costs of prosecution.”

Such section is now replaced by § 6-10-104, W.S.1977, (1983 Replacement), which provides:

“Within the limits prescribed by law, the court shall determine and fix the punishment for any felony or misdemeanor, whether the punishment consists of imprisonment, or fine, or both.”

In most instances the legislature sets the “limits prescribed by law” for imprisonment in terms of a minimum and maximum number of years.

2 . Re philosophy of sentencing see e.g. Burns and Mattina, Sentencing, The National Judicial College (1978); Campbel¹, Law of Sentencing, The Lawyers Co-operative Publishing Co. (1978); Killipger and Cromwell, Corrections and Administration, West Publishing Co. (1976); Rich, Sutton, Clear and Saks, Sentencing by Mathematics, The National Center for State Courts (1982).

3 . This example exposes the fallacy of the proposition that those convicted of the same crime should receive proportionately equal sentences.

4 . Rule 36, W.R.Cr.P., provides:

“The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. The court may reduce the sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court having the effect of upholding the judgment of conviction. The court may also reduce a sentence upon revocation of a probation as provided by law.”

Although we are aware of the fact that some trial judges have changed a rather severe penitentiary sentence to probation within the 120-day period, having in mind that a 15- or 30-day exposure to penitentiary life by the defendant would be the most beneficial way to “shock” him from engaging in future criminal activity, we do not here comment upon the propriety of such action one way or the other.

5 . The probation agent recommended that “Defendant be given probation in this matter.”

6 . After quoting from his dissent in Janski v. State, Wyo., 538 P.2d 271, 282 (1975), relative to condemnation of law enforcement officers who “ ‘encourage and assist parties to commit crime,’ ” and whose function “ ‘does not include the manufacturing of crime,’ ” and after setting out a list for entrapment, Justice Rose says in his dissenting opinion:

“Apparently the jury believed that Wright was predisposed to commit the crime even if the agents initiated the solicitation of marijuana. Considering the evidence in the light most favorable to the prosecution, I therefore would concede that the jury’s failure to find entrapment in this case does not amount to plain error even though that issue weighs guilt-ridden and delicately balanced upon the scales of justice.”

Later he states that the criminal “was duped by agents employed by the State of Wyoming” and notes that he uses “the verb ‘duped’ advisedly” and that it “means ‘deceived’ or ‘cheated.’ ” See n. 3 to Justice Rose’s dissenting opinion.