Despain v. State

• Decision Date: 05 May 1989
• Docket Number: Nos. 88-172,88-196,s. 88-172
• Citation: 774 P.2d 77
• Parties: Robert W. DESPAIN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). (Two Cases)
• Court: Wyoming Supreme Court

Page 77

774 P.2d 77

Robert W. DESPAIN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). (Two Cases)

Nos. 88-172, 88-196.

Supreme Court of Wyoming.

May 5, 1989.

Leonard D. Munker, State Public Defender, Steven E. Weerts, Sr. Asst. Public Defender, and Tom Quinn, Student Intern, WDAP, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Sylvia Lee Hackl, Sr. Asst. Atty. Gen., and Sherry Batzer, Student Intern, for appellee.

Before THOMAS, URBIGKIT, MACY and GOLDEN, JJ., and GRANT, District Judge.

URBIGKIT, Justice.

These two sequential criminal convictions present three questions considering rights to a speedy trial: time from arrest to date of trial (delay in prosecution); time from filing of information to date of trial (delay in district court trial); and delay in sentence after entry of a guilty plea (delay in sentencing).

We affirm, finding no error of procedural or constitutional dimension.

On April 6, 1987, with more than five years served on a 1982, ten-to-twenty year aggravated robbery sentence, appellant Robert W. DeSpain (DeSpain) was classified to a "trustee" position and transferred from the Wyoming State Penitentiary in Rawlins, Wyoming to the Wyoming State Honor Farm in Riverton, Wyoming. A month and a half later, in the company of other prisoners, he walked away at night for a visit to town and its available bars, returning voluntarily before morning. He had taken a midnight furlough, in colloquial terms. Unfortunately, one of the other prisoners who also returned, apparently brought back intoxicating beverages into the confinement facility. Thus, DeSpain was arrested for the offense of escape from official detention, W.S. 6-5-206(a)(i), for which he was charged in county court, waived preliminary hearing, arraigned July 15, 1987 in district court, and first entered a plea of not guilty. On September 2, 1987, he changed his plea to nolo contendere. A pre-sentence investigation report was ordered, which was completed and filed with the court on February 16, 1988. Two changes in counsel occurred and on April 25, 1988, a sentence hearing was held in which DeSpain was given a penitentiary sentence consecutive to the incomplete term on the prior offense with a new sentence of one and a half to three years. Appeal from that sentence is taken. Shortly after entry of the nolo plea, DeSpain was returned to the Wyoming State Penitentiary to resume serving the 1982 incomplete penitentiary sentence. ¹

The issue for his first appeal is embraced in a constitutional deprivation of a right to a speedy sentence as an aspect of a speedy trial requirement found in both state and federal constitutions. The cause for delay in sentencing is intrinsic to the other charges which, following trial conviction, are also presented in the second appeal based on his complaint of a denied speedy trial.

Two days after his entry of the nolo plea to the Honor Farm escape charge, DeSpain, on September 4, 1987, in conjunction with another prisoner, really did try to escape from the Fremont County jail in Lander, Wyoming. This planned, but unsuccessful nighttime effort involved an assault on two jailers with a razor blade melted into the end of a toothbrush. Subsequently, DeSpain was charged with escape, aggravated assault, and manufacture of a deadly weapon with intent to inflict bodily harm. The initiation of these criminal charges occurred by completion of a criminal complaint and warrant dated September 28, 1987 which was processed by service upon him at the Wyoming State Penitentiary on October 21, 1987. After waiver of a preliminary hearing on December 15, 1987, DeSpain was initially scheduled for arraignment in district court on January 13, 1988, which session was delayed by weather, and then completed on January 20, 1988. He entered pleas of not guilty on all the charges arising from the Fremont County jail break. Trial was scheduled for March 21, 1988 and then continued by the district court to be held on April 26, 1988 because of a scheduling conflict for the prosecuting attorney who was subpoenaed to appear as a witness in federal court. Additionally, DeSpain's first appointed counsel withdrew at the end of December and other counsel from the staff of the In early March 1988, a pretrial conference was held with the accused in attendance to settle arrangements for a scheduled March trial. Later, on March 16, 1988, following the issuance of the subpoena of the prosecuting attorney, the trial date was rescheduled with the concurrence of defense counsel. The trial itself was scheduled in conjunction with a hearing on various motions which had been made by DeSpain on the second offense arising from the Fremont County jail escape and motion attacking contended delay in first offense, Honor Farm, sentencing. The two-day April trial resulted in a jury verdict of convictions on the attempted escape and aggravated assault charges and acquittal on the manufacture of a deadly weapon charge. As a result, DeSpain was further sentenced to terms of eight-to-ten years on attempted escape and eight-to-ten years on aggravated assault, consecutive to each other and consecutive to all other sentences which included both the prior escape sentence and the still incomplete 1982 sentence from which the initial escape had occurred. Appeal from this second offense sentencing was also taken presenting issues generally of speedy trial from date of arrest to date of trial and speedy trial from filing of the information in the district court to the date of trial--the 120-day rule under Rule 204, Uniform Rules for the District Courts of the State of Wyoming.

public defender's office was subsequently appointed for him.

If some particularized concept for this case deserves recognition, it is that DeSpain's history justified care in his transfer from Rawlins to Lander for hearings and trial. Age twenty-six at the time of sentencing, continuing to serve a ten-to-twenty year sentence for the 1982 Gillette aggravated robbery, and faced with the present two charges of escape, with the second complicated by use of weapons and aggravated assault on the jailers, DeSpain had violated probation in 1976 and had also committed another escape in 1979. In 1981, after second parole in Oregon, he was given a three year probation for a sentence for burglary in Montana and then, in violation of that responsibility, was sentenced in Gillette, Wyoming in 1982 for the most recent offense, aggravated robbery. Officers at the penitentiary were entitled to flexibility in arranging travel schedules for appearance in Lander in consideration of this unappealing confinement record. Justification for delay in appearance caused by weather and road conditions was clearly appropriate. Campbell v. State, 26 Ark.App. 133, 761 S.W.2d 613 (1988). Factually, these appeals are also confined by the absence of any reliable guilt defenses and that continued confinement was on the prior sentence leaving DeSpain no opportunity to commence serving the more current sentences.

SPEEDY SENTENCING

This first inquiry addresses whether the district court should have required the penitentiary staff to return or the county sheriff's office to go get DeSpain for sentencing at an earlier date following receipt of the presentence investigation report in mid-February. We do not find justification for that requirement to avoid violation of the Wyoming timely sentence rule. ²

Actually, at the time of the March 2, 1988 conference held with DeSpain in attendance, no one anticipated the postponement later engendered by the federal court conflict for the prosecuting attorney. When the mid-March telephone conference session of the district court and counsel was held to discuss continuance, a May date was first anticipated, but openings in the district court schedule permitted the earlier setting of April. ³

A speedy sentencing review appears for first impression in this court. All prior Wyoming cases involved the more defined subject of speedy trials. The one analysis of this subject by the United States Supreme Court is found in Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957), where that court, in consideration of F.R.Cr.P. 32(a), utilized a constitutional speedy trial thesis for this issue examination.

                In identical fashion to F.R.Cr.P. 32(a), W.R.Cr.P. 33(a)(1) provides that "[s]entence shall be imposed without unreasonable delay."   Rule 204, by express terminology, applies only to trial and the stated time period is unrelated to any period after trial during which normally the presentence investigation report is obtained before sentence is imposed.  Observedly, the trial judge in the Wyoming criminal law system has minimal or no control over the time required for the completion of that report which is prepared by the Probation and Parole Department, an executive branch agency
                

The United States Supreme Court addressed the speedy sentence concern in Pollard, 352 U.S. at 361, 77 S.Ct. at 485-86 assumptively:

Petitioner's other contentions relate to violations of constitutional rights of speedy trial and due process, and significant departure from proper standards of criminal law administration. It is not disputed that a court has power to enter sentence at a succeeding term where a void sentence had been previously imposed. Miller v. Aderhold, 288 U.S. 206 [53 S.Ct. 325, 77 L.Ed. 702 (1933) ]; cf. Bozza v. United States, 330 U.S. 160, 166 [67 S.Ct. 645, 648, 91 L.Ed. 818 (1947) ]. To hold otherwise would allow the guilty to escape punishment through a legal accident.

Petitioner argues that the 1954 sentence violated his right under the Sixth Amendment of the Constitution to a "speedy" trial. He takes this position on the assumption that the case remained, as we have held above, uncompleted after the 1952 trial. We will assume arguendo that sentence is part of the trial for purposes of the Sixth Amendment. The time...