Duffy v. State

Decision Date05 December 1986
Docket NumberNo. 86-21,86-21
Citation730 P.2d 754
PartiesScott Lee DUFFY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Leonard Munker, State Public Defender, Gerald M. Gallivan, Director, Wyoming Defender Aid Program, Laramie, K. Leslie Delk (argued), Appellate Counsel, Cheyenne, and Margaret Maurer, Legal Intern, Laramie, for appellant (defendant).

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen. (argued), and Kevin Saxby, Student Intern (argued), Cheyenne, for appellee (plaintiff).

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

CARDINE, Justice.

After pleading guilty to a two-count information charging him with aiding and abetting an aggravated robbery and conspiring to commit burglary, appellant Scott Duffy was sentenced by the district court to two consecutive terms in the Wyoming State Penitentiary. His sentence on the aggravated robbery count was for not less than 24 years, 11 months, and 29 days and not more than 25 years. The minimum term for the conspiracy count was not less than 9 years, 11 months, and 29 days; the maximum was 10 years. Appellant was to begin serving his first Wyoming sentence as soon as he completed a Colorado sentence which he was serving when he committed the Wyoming crimes.

Appellant maintains that the district court violated Wyoming's indeterminate sentencing statute when it separated the maximum and minimum sentences by only a single day and when it failed to give him credit for the time he spent in the Fremont county jail awaiting trial. He also contends that the court abused its discretion by basing its sentencing decision on ill will toward defense counsel. Finally, in an issue raised for the first time at oral argument, appellant argues that the consecutive sentences were illegal because the two crimes merged.

FACTS

The following facts were presented by the prosecutor at the sentencing hearing, and appellant conceded their accuracy. At about 2:30 a.m. on July 4, 1984, appellant's grandmother, Ada Johnson, was awakened by the sound of breaking glass at her home in Lander. She went to the front door where she was confronted by Richard Sweaney who forced her to open the door at gunpoint. Sweaney made her take him to various parts of the house where valuables were stored. In an empty pillowcase he collected a diamond wrist watch and other jewelry, a .38 caliber handgun, and her purse. He then forced her out of the house, walked her to the edge of her property, and fled to a waiting car driven by one of his accomplices, Michele Frey.

Appellant, Sweaney, and Frey planned the crime over the telephone while appellant was serving time for a Colorado burglary conviction in a halfway house in Castle Rock, Colorado. Appellant told Sweaney how to enter the house and where to look for the valuables. He also encouraged Sweaney to take a firearm. After the burglary, Sweaney and Frey were to travel to Colorado and help appellant flee the state.

The police foiled the plan by apprehending Frey and Sweaney soon after the crime. Based on their confessions, a criminal complaint was filed in Fremont County on July 6, 1984, charging appellant with one count of aiding and abetting aggravated robbery under § 6-1-201(a), (b)(i), W.S.1977 (June 1983 replacement) and one count of conspiracy Appellant initially pled not guilty, and the case was set for trial in December. He changed his plea to guilty, however, at a hearing held on November 14, 1985. At that hearing he waived his right to a pre-sentence investigation; and, after the prosecutor and defense counsel presented the relevant facts, the district court sentenced him to the consecutive terms outlined above. The court explained its sentencing rationale with the following statement:

to commit burglary under § 6-1-303, W.S.1977 (June 1983 replacement). The prosecutor filed a detainer on April 29, 1985; and, in early June, the Colorado authorities allowed appellant's removal to the Fremont County jail.

"I want you to know that I have considered all of the factors to be considered in the American Bar Association Standards of Criminal Justice with reference to sentencing. They're incorporated in this proceeding by reference, each and every one of them. I specifically find there are no mitigating factors applicable to this Defendant. I find the offender the leader of the criminal enterprise; the victim was particularly vulnerable. The victim was treated with cruelty for which this Defendant should be held responsible. The offense involved threatened violence. The Defendant is in need of correctional treatment that can best be provided by the sentence to be imposed. He deserves to be punished given the serious nature of the offense. There's an undue risk if a lesser sentence were imposed, the offender would continue to commit criminal offenses, it being noted this is his sixth and seventh felony. [Appellant, age 22, had five prior felony convictions for burglary, auto theft, auto burglary and second degree forgery.] The Defendant should be punished to deter others from committing crime. He continues to commit crimes even though less restrictive sanctions have been applied. And the isolation of this offender is necessary for the protection of the public among other things."

After the judgment was entered, appellant was returned to Colorado to finish his prior sentence. His stay in the Fremont County jail was credited against his Colorado term.

INDETERMINATE SENTENCING

Appellant contends that the district court violated § 7-13-201, W.S.1977, which states:

"When a convict is sentenced to the state penitentiary, otherwise than for life, for an offense or crime, the court imposing the sentence shall not fix a definite term of imprisonment, but shall establish a maximum and minimum term for which said convict shall be held in said prison. The maximum term shall not be longer than the longest term fixed by law for the punishment of the offense of which he was convicted, and the minimum term shall not be less than the shortest term fixed by law for the punishment of the offense of which he was convicted."

According to appellant, the trial court essentially imposed determinate sentences on both counts because there was only a single day between the minimum and maximum sentences. But there is nothing in the statute which requires any fixed period of time between the minimum and maximum, and this court would be interfering with an important legislative function if it undertook to establish such a period. We doubt that the legislature overlooked the obvious possibility that a judge might impose the sentences imposed here. Justice Brown, in a concurring opinion in Jahnke v. State, Wyo., 682 P.2d 991, 1010-1011 (1984), noted that such sentences would be possible under the statute. He stated that the judge in that case "could have sentenced Richard [Jahnke] to not less than nineteen years, eleven months and twenty-nine days." The legislature has not amended the statute in response to Justice Brown's observation.

The primary responsibility for criminal sentencing rests with the legislature which has the resources and mandate to create an effective corrections policy. Unless and until the legislature changes § 7-13-201, W.S.1977, sentences like those imposed in

this case will be considered indeterminate and legal.

TIME SERVED

The district court did not give appellant credit for the time he spent in the Fremont County jail awaiting trial. According to appellant, this decision by the court violates the rule stated in Jones v. State, Wyo., 602 P.2d 378, 381 (1979):

"[A] trial judge has discretion to deny or grant credit for time served in pre-sentence custody where: (1) the pre-sentence custody is not due to the defendant's indigency, and (2) the sum of the time spent in pre-sentence custody plus the sentence does not exceed the maximum allowable sentence." (Emphasis added.)

The problem with this argument is that appellant was not being held in the Fremont County jail solely on the Wyoming charges. He was serving his Colorado sentence and could not have been released on bond by the district court. The Interstate Agreement on Detainers provides:

"(d) The temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one (1) or more untried indictments, informations or complaints which form the basis of the detainer or detainers or for prosecution on any other charge or charges arising out of the same transaction. Except for his attendance at court and while being transported to or from any place at which his presence may be required, the prisoner shall be held in a suitable jail or other facility regularly used for persons awaiting prosecution.

"(e) At the earliest practicable time consonant with the purpose of this agreement, the prisoner shall be returned to the sending state.

"(f) During the continuance of temporary custody or while the prisoner is otherwise being made available for trial as required by this agreement, time being served on the sentence shall continue to run but good time shall be earned by the prisoner only if, and to the extent that, the law and practice of the jurisdiction which imposed the sentence may allow.

(g) For all purposes other than that for which temporary custody as provided in this agreement is exercised, the prisoner shall be deemed to remain in the custody of and subject to the jurisdiction of the sending state and any escape from temporary custody may be dealt with in the same manner as an escape from the original place of imprisonment or in any other manner permitted by law." (Emphsis added.) Section 7-15-101, Art. V, W.S.1977.

If we were to hold as appellant suggests, he would receive credit against both his Colorado and Wyoming sentences for the time spent awaiting trial in Wyoming. He would receive a special benefit...

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