Carson v. State
Decision Date | 25 March 1988 |
Docket Number | No. 87-221,87-221 |
Citation | 751 P.2d 1317 |
Parties | Kelly Ray CARSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
Court | Wyoming Supreme Court |
Julie D. Naylor, Appellate Counsel, Public Defender Program, for appellant.
Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., and Paul S. Rehurek, Asst. Atty. Gen., for appellee.
Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.
This is an appeal from a second probation revocation, raising the issue of impeachment by probationer of his current conviction for automobile burglary. We not only affirm the revocation, but also, by concurrent decision, affirm the conviction for auto burglary in Carson v. State, Wyo., 751 P.2d 1315 (1988).
Kelly Ray Carson, appellant, for his age of now 22, has led an interesting life. Sentenced in 1985 to a probationary term of one to five years, with 60 days in county jail suspended, on a guilty plea to auto burglary, he had by then encountered more than a dozen prior, minor criminal infractions.
His first effort at probation was patently unsuccessful, and in 1986, the first petition for revocation of probation was filed, accompanied by a bench warrant. Probation was revoked in part on the claim:
The resulting revocation order provided a two- to four-year penitentiary sentence with "execution of the above-imposed sentence * * * suspended and the Defendant shall be placed on supervised probation for a period of two (2) years" with probation to be served concurrently with a probation period of another criminal proceeding, and with very specific terms provided, including compliance with rules of the State Department of Probation and Parole. This order was entered March 20, 1987, pursuant to a hearing held November 17, 1986, when a basis for revocation had been determined, and lasted only until June 25, 1987, when another petition for revocation was issued asserting:
The criminal conduct which was the subject of the second revocation proceeding had occurred on November 21 or 22, 1986, only a few days after the initial revocation hearing had been concluded. See Chapman v. State, Wyo., 728 P.2d 631 (1986).
Based on the failure to obey terms of probation, revocation was entered and a sentence of two to four years was provided, to be served concurrently with service of the sentence resulting from the May 19, 1987 auto-burglary conviction. It is from the revocation of probation that this appeal is presented. 1 Although the scope of inquiry here is restricted, the evidence at the revocation hearing, at the very least, furnished a message of a high degree of disdain by Carson toward probation terms, including restitution, nondrinking, pursuit of counseling, and completion of his GED.
The specific issue now considered is the denial by the trial court of efforts by the defendant to impeach the auto-burglary jury-trial conviction at the revocation hearing.
This dispositive issue of the effort of an individual on probation to impeach the validity of a subsequent criminal conviction, although novel in Wyoming, is not without considerable review in other jurisdictions. We adopt what is sometimes defined as the majority rule that the court, in considering revocation of parole or probation, is entitled to rely on the criminal conviction for decision. We follow this rule, established by the New Jersey courts in State v. Zachowski, 53 N.J.Super. 431, 147 A.2d 584, 588 (1959):
This presumptive and conclusive principle is similarly followed in Aceveda v. State, Alaska, 571 P.2d 1013 (1977); People v. Robinson, 43 Cal.2d 143, 271 P.2d 872 (1954); State v. Roberson, 165 Conn. 73, 327 A.2d 556 (1973); State v. Woods, 215 Kan. 295, 524 P.2d 221 (1974); State v. Serio, 168 N.J.Super. 394, 403 A.2d 49 (1979); State v. Louis, 97 N.J.Super. 35, 234 A.2d 240 (1967); State v. Holcomb, W.Va., 360 S.E.2d 232 (1987).
Beyond the scope of conclusionary status determined by conviction, the opportunity for the presentation of evidence not in collateral attack but presented by defendant for consideration of mitigation, is vested in the discretion of the trial court. By reception of evidence for mitigation, the court is not obligated to retry the facts of conviction for a determination of what did occur. See Buckelew v. State, 48 Ala.App. 418, 265 So.2d 202, cert. denied 409 U.S. 1060, 93 S.Ct. 558, 34 L.Ed.2d 512 (1972); State v. Woods, supra;...
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...it would engender of mandatory notice before trial to antedating any constitutional challenge to the prior conviction. Carson v. State, 751 P.2d 1317 (Wyo.1988); People v. Pronovost, 773 P.2d 555 (Colo.1989); People v. Hampton, 696 P.2d 765 (Colo.1985); W.R.Cr.P. 16.1. See also Parham v. St......
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Carson v. State, 87-201
...of the demonstrative display of an unidentified fuzz-buster, we affirm the conviction. 1 This case is conjunctive to Carson v. State, Wyo., 751 P.2d 1317 (1988) as this conviction precipitated the probation revocation in the other appeal.2 Among other testimony, it was related that Carson p......