Capellen v. State

• Court: Wyoming Supreme Court
• Writing for the Court: Burke
• Citation: Capellen v. State, 161 P.3d 1076, 2007 WY 107 (Wyo. 2007)
• Decision Date: 12 July 2007
• Docket Number: No. 05-127.,05-127.
• Parties: Rick L. CAPELLEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

161 P.3d 1076

2007 WY 107

Rick L. CAPELLEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 05-127.

Supreme Court of Wyoming.

July 12, 2007.

Representing Appellant: Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Senior Assistant Appellate Counsel. Argument by Mr. Roden.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric A. Johnson, Faculty Director, Jonathan Haidsiak, Student Director, and William L. Foster, Student Intern, of the Prosecution Assistance Program. Argument by Mr. Foster.

Before VOIGT, C.J., and GOLDEN, HILL,^* KITE, BURKE, JJ.

BURKE, Justice.

[¶ 1] Appellant, Rick Capellen, pled guilty to one felony and four misdemeanor drug-related charges. The district court sentenced Mr. Capellen to eight to twelve years on the felony conviction and to time served during presentence incarceration on the misdemeanor convictions. On appeal, Mr. Capellen claims he was deprived of a fair sentencing hearing because the district court considered unreliable evidence offered by the prosecutor. We affirm.

ISSUE

[¶ 2] Did the district court abuse its discretion in relying upon evidence presented by the prosecution at Mr. Capellen's sentencing hearing?

FACTS

[¶ 3] During a field interview with Mr. Capellen, Riverton police officers observed Mr. Capellen attempting to hide something under his leg while he was in the driver's seat of his vehicle. After Mr. Capellen complied with the officers' request to exit the vehicle, they discovered a baggie containing methamphetamine in the area where Mr. Capellen had been seated. The officers arrested Mr. Capellen for possession of a controlled substance. A search of Mr. Capellen's person incident to his arrest revealed two additional baggies of methamphetamine, a baggie containing marijuana, and $2,149.26 in currency. The combined weight of the three baggies of methamphetamine was approximately two grams. Upon searching Mr. Capellen's vehicle, the officers discovered a backpack on the backseat, inside of which was 24 grams of methamphetamine and drug paraphernalia commonly associated with the use and distribution of methamphetamine, including various zip lock style bags, syringes, ledger-style notes, and digital scales.

[¶ 4] When questioned that afternoon by DCI Agent Jeff Smith, Mr. Capellen stated that he had picked up two passengers earlier that morning and that they were in his vehicle at the time of the arrest. Mr. Capellen informed Agent Smith that he purchased the small bags of methamphetamine found on his person from one of his passengers. He also admitted to having sold one-half gram of methamphetamine to another individual for $75.00 a few days earlier, although he "usually `gives' the [m]ethamphetamine to people rather than `selling' it to them."

[¶ 5] The State charged Mr. Capellen with a total of eight criminal counts: two counts of misdemeanor possession of methamphetamine in violation of Wyo. Stat. Ann. § 35-7-1031(c)(i)(C) (LexisNexis 2005); two counts of misdemeanor possession of marijuana in violation of Wyo. Stat. Ann. § 35-7-1031(c)(i)(A) (LexisNexis 2005); one count of felony delivery of methamphetamine in violation of Wyo. Stat. Ann. § 35-7-1031(a)(i) (LexisNexis 2005); one count of felony possession with intent to deliver methamphetamine in violation of Wyo. Stat. Ann. § 35-7-1031(a)(i) (LexisNexis 2005); one count of carrying a concealed weapon in violation of Wyo. Stat. Ann. § 6-8-104(a) (LexisNexis 2005); and one count of operating a vehicle without liability insurance in violation of Wyo. Stat. Ann. § 31-4-103 (LexisNexis 2005). The amended information included notices that Mr. Capellen faced enhanced penalties on several of the counts as a result of his prior convictions for drug offenses.

[¶ 6] Mr. Capellen ultimately pled guilty pursuant to a plea agreement to one count of delivering methamphetamine, two counts of possessing methamphetamine, and two counts of possessing marijuana. In exchange for Mr. Capellen's guilty pleas, the State dismissed the remaining charges and the sentence enhancements on the charges subject to the plea agreement. Under the terms of the plea agreement, the parties agreed to a one-year sentence on each of the misdemeanor drug offenses, which would be served concurrently to each other and to the sentence imposed on the felony delivery charge. The parties had no agreement as to the sentence on the delivery charge. The district court accepted Mr. Capellen's guilty pleas and conditionally accepted the plea agreement pending receipt of the pre-sentence investigation report (PSI).

[¶ 7] The PSI reflected an extensive criminal history and Mr. Capellen's prior probation failures. It also contained a recommendation for incarceration in lieu of probation. Mr. Capellen took exception to the criminal history section of the PSI which included numerous dismissed charges and allegations of unlawful conduct with no disposition. He filed a motion to have it stricken and replaced with a list of his actual convictions. The district court granted Mr. Capellen's motion and then accepted the terms of the parties' plea agreement.

[¶ 8] At sentencing, the prosecutor argued for a lengthy prison term on the delivery charge. The prosecutor characterized Mr. Capellen as a substantial supplier of methamphetamine in the Fremont County area. In support of that characterization, she pointed to the quantity of methamphetamine found in Mr. Capellen's possession at the time of his arrest, the discovery of paraphernalia associated with the manufacturing and distribution of methamphetamine during a search of Mr. Capellen's home, and information received from two drug informants.

[¶ 9] The prosecutor presented the testimony of DCI Agent Jeff Smith, who investigated the charges against Mr. Capellen. Agent Smith detailed the methamphetamine-related items found when a search warrant was executed at Mr. Capellen's residence. Among the items discovered were scales, paraphernalia, lab parts, a handwritten diagram for the construction of a lab, and a recipe for making methamphetamine. Agent Smith also described information he obtained from informants regarding their knowledge and drug-related dealings with Mr. Capellen. Based on his experience and his investigation of the case, Agent Smith opined that Mr. Capellen was involved in the trafficking of methamphetamine in Fremont County. Defense counsel moved to strike Agent Smith's reference to the information obtained from the two informants, and the district court granted the motion.

[¶ 10] Defense counsel argued for a suspended sentence of three to six years with the requirement that Mr. Capellen complete a long-term drug treatment program. The district court declined Mr. Capellen's request for probation and sentenced him to 331 days on each of the misdemeanor convictions and eight to twelve years on the felony delivery conviction, with the sentences to be served concurrently. The district court awarded Mr. Capellen 331 days presentence confinement credit on each sentence. In pronouncing sentence on the delivery charge, the district court specifically referred to the seriousness of the offense, Mr. Capellen's criminal history, the drug-related items found in Mr. Capellen's home, Agent Smith's opinion concerning Mr. Capellen's drug activities, and the methamphetamine found in the backpack recovered from Mr. Capellen's car. Mr. Capellen timely appealed from the district court's judgment and sentence.

STANDARD OF REVIEW

[¶ 11] We review a trial court's sentencing decision under an abuse of discretion standard. Manes v. State, 2004 WY 70, ¶ 9, 92 P.3d 289, 292 (Wyo.2004). We will not disturb a sentence on appeal because of sentencing procedures unless the appellant can demonstrate an abuse of discretion, procedural conduct prejudicial to the appellant, and circumstances manifesting inherent unfairness and injustice or conduct which offends the public sense of fair play. Peden v. State, 2006 WY 26, ¶ 10, 129 P.3d 869, 871-72 (Wyo.2006); Bitz v. State, 2003 WY 140, ¶ 7, 78 P.3d 257, 259 (Wyo.2003); Mehring v. State, 860 P.2d 1101, 1115 (Wyo.1993).

DISCUSSION

[¶ 12] In this appeal, Mr. Capellen complains of errors at sentencing which he claims denied him a fair sentencing hearing and violated his right to due process. He asserts that the prosecutor improperly presented evidence which did not appear in the PSI and characterizes the evidence as "unreliable" and "undocumented." In that regard, he identifies the following: 1) ownership of the backpack containing 24 grams of methamphetamine found on the backseat of his vehicle; 2) items recovered from a search of his home; and 3) Agent Smith's testimony that Mr. Capellen was a drug dealer and the basis for that opinion. Mr. Capellen contends the district court erred in relying upon this information in sentencing.

[¶ 13] First, Mr. Capellen asserts it was never proven that the backpack containing 24 grams of methamphetamine belonged to him, and that the allegation was made at sentencing "for the first time." It is apparent that the quantity of methamphetamine from the backpack was not the basis for the delivery charge to which Mr. Capellen pled guilty. However, Mr. Capellen's complaint that the State associated the backpack with him "for the first time" at sentencing is simply not borne out by the record. The backpack and its contents were identified in the affidavit of probable cause supporting the information, and that statement was repeated verbatim in the PSI:

. . . The Defendant's vehicle was also searched incident to arrest, at which time a backpack was located in the rear seat of the vehicle, which contained suspected Methamphetamine along with other paraphernalia commonly used in the use and distribution of Methamphetamine including various zip lock style bags,...