Bitz v. State

• Decision Date: 31 October 2003
• Docket Number: No. 02-169.,02-169.
• Citation: 78 P.3d 257,2003 WY 140
• Parties: Delvin Lee BITZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

78 P.3d 257

2003 WY 140

Delvin Lee BITZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 02-169.

Supreme Court of Wyoming.

October 31, 2003.

Representing Appellant: Kenneth M. Koski, Public Defender; Donna D. Domonkos, Appellate Counsel; Marion Yoder, Senior Assistant Public Defender; and James N. Wolfe, Assistant Public Defender.

Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Daniel M. Fetsco, Assistant Attorney General.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

VOIGT, Justice.

[¶ 1] This is an appeal from a conviction for taking indecent liberties with a minor, in violation of Wyo. Stat. Ann. § 14-3-105(a) (Michie 1994). We reverse and remand for re-sentencing because the district court improperly considered at sentencing uncharged crimes and victim impact testimony from those crimes.

ISSUE

[¶ 2] Did the district court abuse its discretion and violate the appellant's right to due process of law when imposing sentence by considering, over the appellant's objection, unproven and denied charges, and by considering the victim impact statement of a person who was not the victim of the charged crime, without making specific findings as required by W.R.Cr.P. 32(a)(3)(C) and in conformity with Wyo. Stat. Ann. § 7-21-103 (LexisNexis 2003)?

FACTS

[¶ 3] On March 23, 2001, an Information was filed in the circuit court in Uinta County, Wyoming, charging Delvin Lee Bitz (the appellant) with seven counts of first-degree sexual assault and one count of third-degree sexual assault. An Amended Information filed on April 6, 2001, charged the same offenses, with slight changes in the dates of some of the alleged offenses. After a preliminary examination in the circuit court, five of the first-degree sexual assault counts and the third-degree sexual assault count were bound over for trial in the district court. A "District Court Information" was filed on April 9, 2001, containing the six counts that had been bound over and noting the two counts that had been dismissed. Subsequently, the two dismissed counts were re-filed, bound over to district court, and joined with the others. Four of the first-degree sexual assault counts named the appellant's step-daughter, CS, as the victim. The three remaining first-degree sexual assault counts and the third-degree sexual assault count named the appellant's daughter, CB, as the victim.

[¶ 4] After considerable pre-trial wrangling, the case went to jury trial on February 19, 2002. Prior to any witness testimony, counsel informed the district court that a plea agreement had been reached. The terms of the agreement were: (1) the appellant would plead guilty to a single amended count of taking indecent liberties with his step-daughter; (2) the State would move to dismiss and would not re-file the other charges; and (3) the parties would argue sentencing. A change-of-plea hearing immediately was held. The appellant pled guilty as agreed, and for a factual basis admitted that, sometime in August 1995 he had touched his thirteen- or fourteen-year-old step-daughter's breasts "by going up under her nightgown." The district court accepted the plea agreement and the plea and entered an order for a presentence investigation.

[¶ 5] The subsequently filed Amended District Court Information alleged a single count of indecent liberties with a child, but did not name or otherwise identify the child.¹ In the Presentence Investigation Report (PSI) filed thereafter, the "official version" of the offense contained this single allegation, but it also contained a deputy sheriff's probable cause narration as to all of the originally charged offenses involving the step-daughter. Appended to the PSI were victim impact statements from both the appellant's step-daughter and daughter.

[¶ 6] At the sentencing hearing held on May 23, 2002, the appellant objected to inclusion of the dismissed charges in the PSI and objected to the district court's consideration of those charges, which he denied. The district court, however, noted that there was probable cause to believe those crimes were committed or they would not have been bound over for trial. In addition, the district court indicated that it also had considered the victim impact statements appended to the PSI, including the statement of the appellant's daughter, who was not the victim of the crime to which the appellant had pled guilty. Finally, after citing Mehring v. State, 860 P.2d 1101 (Wyo.1993), as authority for consideration of information beyond the charged crime, the district court informed the appellant that it simply did not believe his denials. The appellant was then sentenced to imprisonment for a term of five to eight years.

STANDARD OF REVIEW

[¶ 7] We review sentencing decisions for an abuse of discretion.

"Sentencing decisions are normally within the discretion of the trial court. Hamill v. State, 948 P.2d 1356, 1358 (Wyo.1997). `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.' Smith v. State, 941 P.2d 749, 750 (Wyo. 1997). `An error warrants reversal only when it is prejudicial and it affects an appellant's substantial rights. The party who is appealing bears the burden to establish that an error was prejudicial.' Candelaria v. State, 895 P.2d 434, 439-40 (Wyo.1995) (citations omitted); see also, Robinson v. Hamblin, 914 P.2d 152, 155 (Wyo.1996)

."

Lee v. State, 2001 WY 129, ¶ 10, 36 P.3d 1133, 1138 (Wyo.2001) (quoting Trusky v. State, 7 P.3d 5, 13 (Wyo.2000)

). In imposing sentence, trial courts have broad discretion to consider a wide range of factors about the defendant and the crime. Halbleib v. State, 7 P.3d 45, 47 (Wyo.),

cert. denied, 531 U.S. 968, 121 S.Ct. 404, 148 L.Ed.2d 312 (2000) (quoting Jones v. State, 771 P.2d 368, 371 (Wyo.1989)); Mehring, 860 P.2d at 1115.

DISCUSSION

W.R.CR.P. 32(A)(3)(C)

[¶ 8] The appellant's complaints are related, but distinct. First, he faults the district court for considering controverted material contained in the PSI. Second, he contends that the district court should not have considered victim impact testimony from someone who was not the victim of the crime to which he pled guilty. Assessment of these claims must begin with a review of relevant statutes and court rules.

[¶ 9] Wyo. Stat. Ann. § 7-13-407(a)(ii) (LexisNexis 2003) directs state probation and parole agents to investigate cases referred by any court and to report to the court in writing. W.R.Cr.P. 32(a) implements this directive in regard to PSI's. At issue in the instant case is W.R.Cr.P. 32(a)(3)(C), which establishes the procedure that is to be followed when a defendant contests matters contained in the PSI:

If the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make:

(i) A finding as to the allegation; or

(ii) A determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to penal institutions.

[¶ 10] As indicated above, the district court explicitly relied upon the contested charges that were dismissed as part of the plea agreement. The appellant's primary grievance is that the district court did so without making the findings required by W.R.Cr.P. 32(a)(3)(C)(i). The appellant contends that this case is distinguishable from Blankinship v. State, 974 P.2d 377, 380 (Wyo.1999) (district court did not rely on the contested information); Bloomquist v. State, 914 P.2d 812, 823 (Wyo.1996) (disputed matters either not factual or not crucial to sentencing); Mehring, 860 P.2d at 1117-18 (district court either did not rely on the contested matters or resolved them against the defendant on the record); and Christy v. State, 731 P.2d 1204, 1207 (Wyo.1987) (defendant did not deny or object to the PSI information). See also Van Riper v. State, 999 P.2d 646, 648-49 (Wyo.2000)

(due process not violated where district court considered defendant's corrections and noted them in writing on the PSI).

[¶ 11] The basis of the appellant's argument is not that the district court took into account crimes other than the one to which he pled guilty. Indeed, he concedes that we have previously recognized that W.R.Cr.P. 32(a) authorizes the admission at sentencing of criminal history and character evidence. Mehring, 860 P.2d at 1116. The appellant's argument is, instead, that by considering "other crime" evidence without making the findings required by W.R.Cr.P. 32(a)(3)(C), the district court has violated his due process right to be sentenced only on accurate information. See Swingholm v. State, 910 P.2d 1334, 1339 (Wyo.1996)

; Mehring, 860 P.2d at 1117; and Clouse v. State, 776 P.2d 1011, 1015 (Wyo.1989).

[¶ 12] The State counters the appellant's arguments by citing to several cases where, despite a technical violation of W.R.Cr.P. 32(a)(3)(C), this Court affirmed the conviction and sentence because no prejudice had been shown or because the appellant had not proved that the sentencing judge in fact rested the sentence on false or improper premises. See Blankinship, 974 P.2d at 379; Wayt v. State, 912 P.2d 1106, 1109 (Wyo.1996); Johnson v. State, 790 P.2d 231, 232 (Wyo. 1990); and Smallwood v. State, 771 P.2d 798, 802 (Wyo.1989). In addition, the State contends that the district court complied with W.R.Cr.P. 32(a)(...