Apodaca v. State, 4782

Decision Date23 November 1977
Docket NumberNo. 4782,4782
Citation571 P.2d 603
PartiesVincent A. APODACA, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
CourtWyoming Supreme Court

King Tristani, Asst. Public Defender, Cheyenne, for appellant.

V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Division, and Richard H. Honaker, Asst. Atty. Gen., Cheyenne, for appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

GUTHRIE, Chief Justice.

This is an appeal from the sentence by the district judge of the minor appellant to a term of not less than 20 nor more than 40 years in the Wyoming State Penitentiary based upon a guilty plea to the charge of second degree murder in violation of § 6-55, W.S.1957.

Appellant was 15 years of age at the time the crime was committed and 16 at the time of the sentence. He was originally charged with first degree murder. Upon arraignment, appellant pleaded not guilty and not guilty by reason of mental deficiency. He was thereafter, because of said plea, transferred to the Wyoming State Hospital. The examination there resulted in a report that appellant suffered no mental illness or mental deficiency.

Thereafter, an amended information was filed charging appellant with the commission of the crime of second degree murder, and he appeared with his counsel for arraignment upon that charge and at that time withdrew his plea of not guilty by reason of mental deficiency. After an explanation by the trial judge to appellant of the nature of the amended charge, its consequences, and the questions to determine the voluntary character of the plea, reference was also made to a plea bargain which was within his knowledge. After voir dire by the judge to determine if there was a factual basis for a plea, the court conditionally accepted the plea tendered by appellant, but with the statement that the plea would not be entered until it was determined that he could understandingly, knowingly, and intelligently enter such a plea. The hearing was then continued until the court could receive the testimony of Dr. Pace of the Wyoming State Hospital and Dr. Alberts, who had been consulted by defendant. Both doctors agreed that he possessed sufficient mental capacity to fully and knowingly understand, and intelligently make, a decision as to his entry of a guilty plea.

After the conclusion of Dr. Alberts' testimony with regard to appellant's capacity to understand and to enter such plea, the judge asked him if he thought appellant might profit if all or a portion of his sentence were spent in a mental institute rather than the state penitentiary; and secondly, whether it might be better if he were to spend a portion of any sentence during his minority in the Wyoming Industrial Institute before being transferred to the penitentiary. Dr. Alberts expressed the opinion that appellant would greatly benefit from a period of time in the state hospital in a structured environment. He stated an unfamiliarity with the industrial institute, although he did not believe that appellant would be any danger to the other inmates of tender age. Dr. Pace was then recalled and expressed a disagreement with Dr. Alberts, not believing that it would be in his best interest to go to the state hospital, but recommended that it would be to his best interest if he were to go to the Wyoming Industrial Institute for a time.

The court, having determined from the testimony that appellant had the mental capacity to make such decision and enter such plea, again examined him and entered a finding of guilty as charged.

Appellant's counsel then requested a pre-sentence report and asked for a delay to present witnesses and material in mitigation. After affording the opportunity requested, the court then passed the sentence from which this appeal is prosecuted.

In pursuit of his appeal, appellant presents as issues 1. That the sentencing of this minor to the Wyoming State Penitentiary is cruel and inhuman punishment in violation of Article 1, § 14 of the Wyoming Constitution and the Eighth Amendment to the Constitution of the United States.

2. That the trial judge abused his discretion in ignoring the evidence before him when he failed to order the commencement of the incarceration of defendant at the Wyoming Industrial Institute.

3. That the plea was improperly accepted because the court failed to specifically advise appellant that he would be forced to spend a 20-year term before he would become eligible for parole.

These contentions must all be resolved against appellant.

It requires no analysis to demonstrate that this first contention is in effect a charge that the imposition of a sentence to the state penitentiary upon a minor is per se unconstitutional and, although not mentioned in appellant's brief as such, is a direct attack upon the constitutionality of § 7-302, W.S.1957, 1975...

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8 cases
  • Jahnke v. State
    • United States
    • Wyoming Supreme Court
    • 12 December 1984
    ...evidences a clear abuse of discretion and must be reversed. Initially the State meets this argument by relying upon Apodaca v. State, Wyo., 571 P.2d 603 (1977), in which the court followed the traditional rule of not considering questions of a constitutional magnitude which were not present......
  • Hopkinson v. State
    • United States
    • Wyoming Supreme Court
    • 27 May 1983
    ...Wyo., 551 P.2d 680 (1976), or any constitutional question for that matter, Nisonger v. State, Wyo., 581 P.2d 1094 (1978); Apodaca v. State, Wyo., 571 P.2d 603 (1977), unless plain error is thereby present, Edwards v. State, Wyo., 577 P.2d 1380 (1978). Not even all errors of constitutional d......
  • Wright v. State
    • United States
    • Wyoming Supreme Court
    • 19 October 1983
    ...there could not be an abuse of discretion. The rule which this court has followed is perhaps more clearly enunciated in Apodaca v. State, Wyo., 571 P.2d 603, 605 (1977), in which the court "The sentence imposed herein is clearly within the statutory limits as set by the legislature, 20 year......
  • Norgaard v. State
    • United States
    • Wyoming Supreme Court
    • 9 December 2014
    ...sentence as cruel and unusual by failing to raise the issue in the district court, there is precedent to that effect. See Apodaca v. State, 571 P.2d 603, 605 (Wyo.1977) (issue of whether juvenile defendant was subjected to cruel and unusual punishment by being sentenced to the penitentiary ......
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