Duffy v. State, 87-160

Decision Date21 March 1990
Docket NumberNo. 87-160,87-160
Citation789 P.2d 821
PartiesScott DUFFY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Wyoming Public Defender Program, Leonard D. Munker, State Public Defender, and Martin J. McClain, Appellate Counsel, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., and Thomas E. Callison, Legal Intern, for appellee.

Before CARDINE, C.J., THOMAS, URBIGKIT and MACY, JJ., and GRANT, District Judge.

THOMAS, Justice.

The double jeopardy implications of separate sentences for aiding and abetting aggravated robbery and for conspiracy to commit burglary present the central issue in this case. Questions also are raised as to whether the sentences imposed, nine years, eleven months and twenty-nine days to ten years to run consecutively to twenty-four years, eleven months and twenty-nine days to twenty-five years, constitute a denial of due process because the appellant, Scott Duffy, is foreclosed from the right to earn statutory good time credits, essential for an early parole, and amount to a violation of the separation of powers doctrine as between the executive and judicial branches of government. A further question is posed as to whether Rule 15, W.R.Cr.P., was infringed because of the failure of the trial court to advise Duffy that it could impose consecutive sentences so that Duffy's plea of guilty was nullified. We hold that there is no violation of the constitutional prohibitions against double jeopardy in this instance, and the plea of guilty is not abrogated by the failure of the district court to advise Duffy of the possibility of consecutive sentences. The record does not demonstrate that the issues relating to the constitutionality of the sentences imposed are ripe for review at this time. The denial by the district court of Duffy's motion for correction of his sentences pursuant to Rule 36, W.R.Cr.P., is affirmed.

Duffy previously appealed his conviction. Duffy v. State, 730 P.2d 754 (Wyo.1986). In the initial appeal, counsel for Duffy attempted to urge error because of the trial court's refusal to merge for sentencing the offenses of aiding and abetting aggravated robbery and conspiring to commit burglary. Trial counsel had not presented that claim in the district court, however, and the appellate counsel had not included the issue in the brief. Consequently, in accordance with our usual appellate discipline, we declined to address that issue. We noted that Duffy was not foreclosed from presenting a claim that his sentences are illegal by a motion under Rule 36, W.R.Cr.P. With respect to issues that were properly presented, the court found no error in the judgment and sentence which had been imposed.

Duffy accepted the invitation to pursue relief under Rule 36, W.R.Cr.P., and did file a motion in the district court to correct an illegal sentence. The district court did not set the motion for hearing within sixty days, and it then was deemed denied in accordance with Rule 301, U.R.D.C. This appeal is from the automatic denial of that motion.

Duffy now presents the same issues that were urged to the district court. The State, as appellee, has accepted Duffy's statement of those issues, which is:

"1. Did the district court's imposition of consecutive sentences in the present case violate the double jeopardy clauses of the United States and Wyoming Constitutions?

"2. Does the sentence in the present case violate due process by denying Appellant a liberty interest, the right to good time?

"3. Does the sentence as structured by the District Court infringe upon the powers delegated to the parole board and thereby infringe upon the constitutionally mandated separation of powers?

"4. Whether the guilty plea was taken in violation of Rule 15, W.R.Cr.P., and whether the proceedings were void and the sentence illegal?"

In the initial proceedings, Duffy entered pleas of guilty to one count of aiding and abetting aggravated robbery in violation of §§ 6-1-201 and 6-2-401, W.S.1977 (June 1983 Repl.), 1 and to one count of conspiracy to commit burglary in violation of §§ 6-3-301, 6-1-303 and 6-1-304, W.S.1977 (June 1983 Repl.). 2 The district court ruled that there was a sufficient factual basis to accept Duffy's pleas of guilty to both charges. As we noted in Duffy, 730 P.2d 754, that factual basis was presented by a summation by the prosecutor of the available evidence to be used at trial and Duffy's admission of the accuracy of that recitation. The record demonstrated that Duffy, while he was incarcerated in Castle Rock, Colorado, had planned the robbery of his grandmother. He did this by telephone calls to two accomplices in Wyoming. Duffy explained to them how to gain entry into his grandmother's house and told them where they probably would find her valuables. The entire plan was that the two fellow conspirators would burglarize the grandmother's home, which was located in Fremont County, Wyoming, and they then would travel to Colorado to help Duffy escape from incarceration.

The two partners in crime went to the grandmother's home in accordance with the plan. One waited outside in a car while the other broke a window of the home to gain entry. The grandmother was awakened by the sound of the breaking glass, and she got up and went to the place where she had heard the noise. There, she discovered the burglar reaching through the broken window and holding a pistol in his hand. He ordered the grandmother to unlock the front door and, when she complied, he entered the house and demanded that she lead him to the safe where she kept her money. The grandmother took him into the bedroom where he removed a .38 caliber pistol from a nightstand. Duffy had told him of the location of that firearm. The robber then insisted that the grandmother show him her other valuables, and she complied with that demand. She took him throughout the house, showing him whatever valuable property he asked for. The robber collected the property in a pillowcase and returned to the waiting vehicle. Police officers successfully apprehended both principals before they could carry out the plan to help Duffy escape, and both of them confessed the robbery to the investigating officers, implicating Duffy in their statements.

On the basis of this factual showing, the district judge accepted the guilty plea. Duffy then was sentenced to a term of not less than twenty-four years, eleven months, twenty-nine days, nor more than twenty-five years, on the charge of being an accessory before the fact to aggravated robbery, and to a consecutive term of not less than nine years, eleven months, twenty-nine days, nor more than ten years, for conspiracy to commit burglary. The court ordered that these sentences were to be served after Duffy was released from incarceration in Colorado.

Duffy's initial and primary contention is that the imposition of separate sentences for aiding and abetting aggravated robbery and for conspiracy to commit burglary placed him in jeopardy twice because the evidence relied upon to establish the factual basis for his plea of guilty on each of the charges was the same series of phone calls from Colorado to Wyoming. He contends that the plan developed from these phone calls resulted in a "single transaction", the burglary of his grandmother's house. In addressing claims of double jeopardy previously, this court consistently has held that each crime committed should be punished. We have agreed with the clear majority of jurisdictions that espouse a philosophy of crime and punishment and eschew the proposition that it is an acceptable result in our society for there to be crime without punishment.

The rule that we have espoused for resolving the question of whether a defendant has been twice placed in jeopardy by virtue of multiple convictions and sentences is to look to the intention of the legislature with respect to whether the conduct should be punished as a single offense or as more than one. Lauthern v. State, 769 P.2d 350 (Wyo.1989); Schultz v. State, 751 P.2d 367 (Wyo.1988); Birr v. State, 744 P.2d 1117 (Wyo.1987). See Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985); Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).

" 'Where consecutive sentences are imposed at a single criminal trial, the role of the [double jeopardy clause] is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.' " Birr, 744 P.2d at 1119, quoting Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). 3

In determining the question of legislative intent, we have examined statutory definitions, Nowack v. State, 774 P.2d 561 (Wyo.1989), 4 and we also have evaluated the other circumstance surrounding the crimes charged, whether they grow out of different transactions or different evidence is required to establish the separate offenses. Nowack. 5 If the conduct that establishes an element of the offense is repeated, we have held that separate crimes were committed even though the other evidence overlaps or is identical. Baum v. State, 745 P.2d 877 (Wyo.1987); Tuggle v. State, 733 P.2d 610 (Wyo.1987); State v. Carter, 714 P.2d 1217 (Wyo.1986); Hamill v. State, 602 P.2d 1212 (Wyo.1979).

" ' * * * [I]f the offenses charged are separate and distinct either with respect to statutory definition, or, because * * * they grow out of different transactions and different evidence is needed to prove each, then the constitutional inhibition against double jeopardy is not applicable and, so long as the offenses charged are not factually inconsistent, a defendant may be found guilty and judgment of sentence thereon may be had as to each of the offenses charged.' " Jackson v. State, 522 P.2d 1356, 1359 (Wyo.1974), cert. den. 419 U.S. 1055, 95 S.Ct. 637, 42 L.Ed.2d 652 (1974), quoting State v. Johnson, 112 Ohio App. 124, ...

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