Cohee v. State, 04-57.

• Decision Date: 15 April 2005
• Docket Number: No. 04-57.,04-57.
• Citation: 2005 WY 50,110 P.3d 267
• Parties: Lloyd L. COHEE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

110 P.3d 267

2005 WY 50

Lloyd L. COHEE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 04-57.

Supreme Court of Wyoming.

April 15, 2005.

Representing Appellant: Richard R. Jamieson of Jamieson & Robinson, LLC, Casper, Wyoming.

Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and James Michael Causey, Assistant Attorney General, Cheyenne, Wyoming.

Before HILL, C.J., and GOLDEN, KITE, and VOIGT, JJ., and STEBNER, D.J. Ret.

VOIGT, Justice.

[¶1] An eighty-three-year-old man was sentenced to the penitentiary for aggravated vehicular homicide and he appeals, alleging abuse of discretion in the district court's rejection of a plea agreement, in its refusal to consider probation, and in its sentencing him to prison. We affirm.

ISSUES

[¶2] The appellant raises the following issues:

1. Did the district court abuse its discretion by rejecting the parties' plea agreement?

2. Did the district court violate the appellant's right to due process of law by not allowing enough time to hear his motion to reconsider?

3. Did the district court abuse its discretion by refusing to consider probation?

4. Did the district court violate the appellant's rights under Article 1, § 15 of the Wyoming Constitution?

5. Did the district court abuse its discretion by sentencing the appellant to prison?

[¶ 3] The State adds the following issue for our consideration:

6. Did the appellant's guilty plea waive the issues that involve matters preceding entry of that plea?

STANDARD OF REVIEW

[¶ 4] 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.1966)."

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 [v. State, 860 P.2d 1101,] 1115 [(Wyo. 1993)].

Bitz v. State, 2003 WY 140, ¶ 7, 78 P.3d 257, 259 (Wyo.2003). "The abuse-of-discretion standard of review reaches the question of the reasonableness of the trial court's choice." Martinez v. State, 2002 WY 10, ¶ 7, 39 P.3d 394, 396 (Wyo.2002). It is an abuse of discretion for a sentencing judge to premise a sentence upon a mistaken reading of the law. Jones v. State, 2003 WY 154, ¶ 11, 79 P.3d 1021, 1025 (Wyo.2003) (quoting DeLoge v. State, 2002 WY 155, ¶ 9, 55 P.3d 1233, ¶ 9 (Wyo.2002)). Furthermore, the record should "be reasonably clear with respect to the findings of the district court in its sentencing decision, in order that meaningful appellate review can be achieved." Id. at ¶ 12, 79 P.3d at 1025.

FACTS

[¶ 5] On December 12, 2002, while driving intoxicated, the appellant caused a motor vehicle accident that killed Kevin Johnson. The appellant was charged with aggravated vehicular homicide, in violation of Wyo. Stat. Ann. § 6-2-106(b) (LexisNexis 2003), which offense is a felony punishable by not more than twenty years imprisonment. At the time of the accident, the appellant was eighty-two years old.

[¶ 6] The appellant waived his right to a preliminary hearing and entered a plea of not guilty at his arraignment in district court. Subsequently, however, the appellant changed his plea to guilty pursuant to a plea agreement containing the following terms: (1) a guilty plea; (2) a joint sentencing recommendation of eight to ten years imprisonment; (3) suspension of that sentence under Wyo. Stat. Ann. § 7-13-107 (LexisNexis 2003); (4) the length of any county jail sentence to be argued by the parties; and (5) supervised probation for a period of seven years, with certain conditions: Intensive Supervision Probation, house arrest, electronic monitoring, travel restrictions, alcohol consumption restrictions, driving restrictions, and counseling.¹ The district court deferred acceptance of the plea agreement pending receipt of a presentence investigation report.

[¶ 7] At the outset of the scheduled sentencing hearing, the district court indicated that it might reject the plea agreement because it was too lenient. The parties defended the agreement as being appropriate, given the appellant's age. Nevertheless, the district court rejected the plea agreement, for the following reasons: (1) the seriousness of aggravated vehicular homicide as an offense; (2) the aggravating factors of the specific incident, including eyesight problems, excessive alcohol consumption, driving on the wrong side of the road, other near accidents, and prior offenses; and (3) the wrong message would be sent by a lenient plea agreement. The appellant responded by withdrawing his guilty plea, and the matter was again scheduled for trial.

[¶ 8] Following the aborted sentencing hearing, the appellant filed a motion seeking reconsideration of the decision to reject the plea agreement. The appellant's attorney advised the court that "about a half a day" would be required to hear the motion. The judge responded as follows:

THE COURT: Okay. I did just take a quick look at that. I don't see it in the file here today; I think it's probably being processed. But I had a couple of impressions.

One is I don't know that the question of the Court's accepting or not accepting a plea agreement is an evidentiary matter. My understanding under the rule is that the parties can propose a plea agreement and the Court, based upon the record, the plea, and the presentence investigation can either accept or reject the plea agreement. And I attempted to do that under the rules. And so that's a concern I have I don't know that it's an evidentiary matter subject to a burden of proof or a showing as to why a judge should or should not accept a proposed plea agreement in a particular case.

The second impression I have is that I'd be glad to take a look at any error you think that I may have made, especially procedurally or with respect to the exercise of my judicial discretion. So I'd be glad to give you a hearing and an opportunity to be heard, but I have that threshold concern.

And my thought would be maybe I'd be willing to hear argument. Like I say, if I have done something improperly, I'd sure be glad to reconsider where I landed. But in cases such as this, I think the majority of district judges in the State when taking a plea will not be bound by plea agreements and especially in matters that may have sensitivities and difficulties such as this case.

And my very strong impression was that I did not like the limitations imposed upon me as to the sentencing options in this case, the limited suspended sentence that was proposed. There was question in my mind as to whether any restitution would be required. There was no fine. I mentioned at the hearing the Court cannot order Intensive Supervised Probation based upon feedback I received from Probation and Parole. Those limitations alone cause me some significant concern as to the plea agreement.

So with those things said, why don't you submit your request for a setting, and then I'll take a look at it. And I don't know if we can give you half a day. And like I say, I don't think it's an evidentiary matter, but I'd sure want to give you an opportunity to be heard on it; okay? Just submit a request for setting with what time you think is necessary.

[¶ 9] Following up on the judge's suggestion, the appellant filed a written request for a three-hour hearing. The district court's Notice of Setting, however, granted only a fifteen-minute hearing. At the hearing, the appellant argued that, given the opportunity to present evidence in support of the plea agreement, he would have produced witnesses, including the probation and parole agent who prepared the presentence investigation report and the appellant's counselor, both of whom supported the agreement. The district court once again denied the appellant's request, on the ground that W.R.Cr.P. 11 leaves the matter of accepting or rejecting a plea agreement to the discretion of the trial court, and does not contemplate an evidentiary hearing. The district court then denied the motion for reconsideration.

[¶ 10] Less than two months after the motion for reconsideration was heard and denied, the appellant filed a request for another change-of-plea hearing. On February 4, 2004, he entered a "cold plea" of guilty to the charged offense.² The district court accepted the plea and went directly to sentencing, at the request of the parties. Relying primarily on the presentence investigation report and the victim impact statements and letters already submitted, the State called only the victim's wife as a witness. The State then recommended a sentence of incarceration for a period of 24 to 120 months.

[¶ 11] The appellant called two witnesses: the probation and parole agent who prepared the presentence investigation report and the administrator of the assisted living facility where the appellant was residing. In argument, the appellant addressed concerns the district court had made known...