Coletti v. State

• Decision Date: 16 February 1989
• Docket Number: No. 88-96,88-96
• Citation: 769 P.2d 361
• Parties: Dieter COLETTI, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 361

769 P.2d 361

Dieter COLETTI, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 88-96.

Supreme Court of Wyoming.

Feb. 16, 1989.

Richard H. Honaker of Honaker & Hampton, Rock Springs, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Asst. Atty. Gen., Paul S. Rehurek, Asst. Atty. Gen., argued, and Roger C. Fransen, Sr. Asst. Atty. Gen., for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

CARDINE, Chief Justice.

Appellant Dieter Coletti seeks remand for resentencing before a different judge. The issue arises because the sentencing judge received an ex parte communication from a deputy county sheriff just prior to the sentencing hearing.

We affirm.

Coletti was charged in two separate informations with eight counts detailing various violations of the Wyoming Controlled Substances Act of 1971, W.S. 35-7-1001 through -1057. He entered into a plea bargain; and, on November 6, 1987, he pled guilty to three charges: Possession with intent to deliver marijuana in violation of W.S. 35-7-1031(a)(ii); delivery of marijuana in violation of W.S. 35-7-1031(a)(ii); and possession of marijuana in violation of W.S. 35-7-1031(c). Other terms of the plea bargain included that the prosecution agreed that concurrent sentences would be appropriate in this case and that the prosecution would stand mute at sentencing. A presentence investigation was ordered and prepared, and it was transmitted to the district court on December 18, 1987. The sentencing was originally scheduled for January 8, 1988, but was continued until January 21, 1988. A deputy county sheriff sent a letter to the district judge dated January 18, 1988. On January 20, a copy of the letter was also sent to Coletti's attorney. We will not set the letter out verbatim, but it detailed the deputy sheriff's law enforcement contacts with Coletti and included references to suspicions and a conclusion that Coletti was "a major drug dealer in Cheyenne" and in the "drug business strictly to make money, as [his] 'addiction' is the 'money' not the drugs." Upon receipt of the letter, Coletti's attorney filed a motion requesting the deputy sheriff be reprimanded, the sentencing be continued, the letter be quashed and that Coletti be sentenced by another judge. The sentencing was continued, and at a hearing held on February 2, 1988, the district judge declined to reprimand the deputy sheriff who wrote the letter although he did transmit to the sheriff's office, via the district attorney, an admonition that such communications should never again be addressed to the district court and that the appropriate statutory procedures should be followed in all cases. At that hearing, the district court also specifically found that the communication was improper. He stated:

"It appears to the court that it is not authorized by statute to consider this letter in passing upon the sentencing, and I won't consider this letter.

"The question, then, the court has to answer is this: Can it fairly pass sentencing on this individual in the face of this particular letter?

"The law of evidence is always, at least in matters tried to the court, it is always assumed that the court can separate in its own mind those matters which are relevant and those matters which are irrelevant; those matters which are competent and those matters which are incompetent. And, therefore, based upon those legal principles, the court will not grant the motion for change of judge. It will, however, grant the motion to quash the ex parte communication. It will grant the motion for continuance. * * *

"I will not pass sentence at this time. I want to go back and review in great detail the presentence report, to see what that report shows to this court, and then I will be in a position to determine how this case should be disposed of."

Sentencing was then scheduled for February 12, 1988. The district court sentenced Coletti to two terms of eight to ten years and one term of four to five years, all sentences to be served concurrently.

Appellant stated his argument in this court to be:

"A fundamental component of due process is a fair and impartial tribunal. In this case, after the entry of guilty pleas but before sentencing, an agent of the prosecution communicated ex parte with the sentencing judge in an illegal and unethical manner. This communication tainted the fairness and impartiality of the tribunal to such a degree that the trial court's denial of appellant's motion for change of judge and subsequent sentencing of appellant operated to deny appellant liberty without due process of law."

The State argues that the issue was not properly brought before the district court in a motion pursuant to Rule 23(e), W.R.Cr.P. and therefore the issue should not be addressed by this court. Under the circumstances presented here, we hold that the issue was properly addressed and preserved in the district court. The district court acknowledged receiving and reading the letter, and there is no question but that the communication was improper. Such a communication is clearly contrary to the procedures established by statute and rule. W.S. 7-13-303; Rule 33(c), W.R.Cr.P. Moreover, the Code of Judicial Conduct specifically prohibits a judge from considering ex parte or other communications concerning a pending proceeding. Canon 3A(4), Code of Judicial Conduct. In this case, we question the propriety of the judge reading the contents of the letter. In its very first paragraph the deputy sheriff announces that his intent is to communicate additional information to the court because the presentence report was not complete. The district court should have read no further, and perhaps this issue would have been defused. As much as we might deplore the deputy sheriff's action in sending the letter and the district court's action in reading it, we hold that merely because these acts might merit censure, they do not automatically require reversal and remand for resentencing. See State v. Lake, 12 Kan.App. 275, 740 P.2d 106, 111 (1987).

Coletti contends that the trial court's failure to assign another judge to pronounce sentence violates his right to due process of law. He cites no authority for this proposition, and we have found none to support it. The relevant...