Garton v. State

• Decision Date: 31 January 1996
• Docket Number: No. 95-30,95-30
• Citation: 910 P.2d 1348
• Parties: Roy L. GARTON, Petitioner, v. The STATE of Wyoming, Respondent.
• Court: Wyoming Supreme Court

Page 1348

910 P.2d 1348

Roy L. GARTON, Petitioner, v. The STATE of Wyoming, Respondent.

No. 95-30.

Supreme Court of Wyoming.

Jan. 31, 1996.

Jeffrey A. Tennyson, Jackson, for Petitioner.

William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Mary Beth Wolff, Senior Assistant Attorney General, Cheyenne, for Respondent.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.

THOMAS, Justice.

This case comes before the court upon an order granting in part a Petition for Writ of Review, with the primary question being whether WYO.STAT. § 6-2-506(e)(iii) (Supp.1995), which makes a violation of the stalking statute a felony if the offense is committed "in violation of any condition of probation, parole or bail," is unconstitutionally vague or violates the constitutional right of a defendant to equal protection. In addition, the petitioner, Roy L. Garton (Garton), contends the stalking statute is unconstitutionally vague and overbroad in violation of the First, Fifth, and Fourteenth Amendments to the Constitution of the United States and Article 1, Sections 2 and 6 of the Constitution of the State of Wyoming. In recent cases, we have upheld this statute against the contentions that it is unconstitutionally vague and unconstitutionally overbroad, and we abide by those determinations. We hold that the specific provision making the offense a felony if committed in violation of any condition of probation, parole, or bail is not unconstitutionally vague and does not violate the defendant's right to equal protection. The case is remanded to the district court for further proceedings in accordance with this opinion.

In the Brief of Petitioner, the issues are stated in this way:

I. Is Section 6-2-506, W.S. unconstitutionally vague in violation of the First, Fifth and Fourteenth Amendments of the

United States Constitution and Article I, Sections 2 and 6 of the Wyoming [sic]?

II. Is Section 6-2-506, W.S. unconstitutionally overbroad in violation of the First, Fifth and Fourteenth Amendments of the United States Constitution and Article I, Sections 2 and 6 of the Wyoming Constitution?

III. Is the felony provision of Section 6-2-506(e)(iii), W.S. unconstitutional?

A. Is Section 6-2-506(e)(iii), W.S. unconstitutionally vague?

B. Does Section 6-2-506(e)(iii), W.S. violate the defendant's rights [sic] equal protection?

In the Brief of Respondent, the State of Wyoming (State), the issues are stated in this way:

I. Whether W.S. §§ 6-2-506 et. seq. is unconstitutionally vague or overbroad?

II. Whether the felony status provision of the stalking statute, W.S. § 6-2-506(e)(iii), is unconstitutionally vague or violative of equal protection or due process principles as applied to petitioner?

Garton was charged with one count of making unlawful telephone calls in violation of WYO.STAT. § 6-6-103(a) and (b) (1988), and one count of stalking in violation of WYO.STAT. § 6-2-506(b)(i) and stalking charged as a felony under the enhancement provision of the stalking statute, WYO.STAT. § 6-2-506(e)(iii). The stalking charge under the enhancement provision was filed as a felony violation because Garton was on probation for an unrelated embezzlement conviction at the time of the alleged stalking activities.

The relevant facts, offered through the briefs of the parties, relate to the period of March 17 to March 30, 1994, during which Garton placed numerous anonymous telephone calls to the alleged victim. In those calls, he used lewd and obscene language and suggested lewd and lascivious acts. Other conduct is described, including the mailing of a pornographic video tape suggesting lewd and lascivious acts and the mailing of a condom with several pages from a Penthouse magazine. The constitutionality of the statute proscribing unlawful telephone calls is not before us, and the resolution of the facts remains the business of the district court. We are concerned exclusively with the claims of unconstitutionality of the stalking statute.

Garton raised his claims of unconstitutionality of WYO.STAT. § 6-2-506 by a motion to dismiss in the trial court. The motion to dismiss was denied, and the district court also denied a request by the defendant to certify these constitutional questions to this court. Garton then proceeded with a Petition for Writ of Review, which this court granted only in part and pursuant to which we determined "that the petition for writ of review be * * * granted as to the question whether WYO.STAT. § 6-2-506 is unconstitutional; * * *."

We addressed the same concerns Garton raises with respect to the unconstitutionality of WYO.STAT. § 6-2-506 on the grounds of vagueness and overbreadth in the consolidated opinions of Luplow v. State; Jennings v. Currier, 897 P.2d 463 (Wyo.1995). We held "the Wyoming stalking statute is not void for vagueness, nor is it subject to constitutional attack as being overbroad." Luplow; Jennings, 897 P.2d at 468. Our analysis addressed claims under the First, Fifth, and Fourteenth Amendments to the Constitution of the United States and Article 1, Sections 6 and 20 of the Constitution of the State of Wyoming. We ruled the statute did not reach any substantial amount of constitutionally protected conduct nor did it fail to specify the proscribed conduct. We recently have reaffirmed that decision in Vit v. State, 909 P.2d 953 (Wyo.1996), and we find no occasion to revisit our position with respect to those issues.

We shall address Garton's contention that WYO.STAT. § 6-2-506(e)(iii), which enhances the offense from a misdemeanor to a felony, is invalid pursuant to the First, Fifth, and Fourteenth Amendments of the United States Constitution ¹ and Article 1, Sections 2 and 6 of the Constitution of the State of Wyoming. ² Garton asserts his right to due process of law is violated because the provision is vague and does not provide adequate notice of the consequences that attach to the first offense for which he was sentenced to probation. He also argues the provision violates the guarantees of equal protection by invoking arbitrary, invidious, and unreasonable classifications between similarly situated people.

Garton confronts a significant burden of persuasion. As we said in Hansen v. State; Pappan v. State, 904 P.2d 811, 817 (Wyo.1995):

Our rule is "that every law must be presumed to be constitutional, with all doubt resolved in its favor * * *." State v. Stern, 526 P.2d 344, 347 (Wyo.1974). This rule has been consistently followed. E.g., Luplow v. State, Jennings v. Currier, 897 P.2d 463 (Wyo.1995); Wyoming Coalition v. Wyoming Game and Fish Comm'n, 875 P.2d 729 (Wyo.1994); Johnson v. State Hearing Examiner's Office, 838 P.2d 158 (Wyo.1992); Righter v. State, 752 P.2d 416 (Wyo.1988); Keser v. State, 706 P.2d 263 (Wyo.1985); Sanchez v. State, 567 P.2d 270 (Wyo.1977). The same proposition is applied to statutory classifications. " 'One who assails a classification must carry the burden of showing that it does not rest on a reasonable basis, but is essentially arbitrary.' Mountain Fuel Supply Company v. Emerson, Wyo., 578 P.2d 1351, 1354-55 (1978)." Hoem v. State, 756 P.2d 780, 782 (Wyo.1988). Furthermore, with respect to Article 1, Section 2 of the Constitution of the State of Wyoming, we have said that the rights there protected are not absolute, but are subject to state regulation in the public interest. State v. Langley, 53 Wyo. 332, 84 P.2d 767 (1938). This constitutional provision does not demand that the law treat everyone with absolute equality, but it does prohibit arbitrary and invidious discrimination. Cavanagh v. State, 505 P.2d 311 (Wyo.1973).

WYO.STAT. § 6-2-506(d) and (e) (Supp.1995) (emphasis added) punishes stalking as either a misdemeanor or a felony:

(d) Except as provided under subsection (e) of this section, stalking is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.

(e) A person convicted of stalking under subsection (b) of this section is guilty of felony stalking punishable by imprisonment for not more than ten (10) years, if:

(i) The act or acts leading to the conviction occurred within five (5) years of a prior conviction under this subsection, or under subsection (b) of this section, or under a substantially similar law of another jurisdiction;

(ii) The defendant caused serious bodily harm to the victim or another person in conjunction with committing the offense of stalking;

(iii) The defendant committed the offense of stalking in violation of any condition of probation, parole or bail; or

(iv) The defendant committed the offense of stalking in violation of a temporary or permanent order of protection issued pursuant to W.S. 7-3-508 or 7-3-509, or pursuant to a substantially similar law of another jurisdiction.

We rely upon the concession of the parties that, at the time of the charged conduct, Garton was on probation for embezzlement. Garton contends the district attorney interpreted WYO.STAT. § 6-2-506(e)(iii) to the end that the person charged with stalking is subject to felony punishment if the offense is committed while he is on probation, parole or bail for any offense whatsoever with a condition that he violate no law. The parties seem to agree that one of the conditions of Garton's probation was that he not violate any federal or state law or municipal ordinance. Garton claims, apparently for affect, that the legislative intent behind the statutory provision was to punish stalking as a felony offense if the defendant commits the crime while on probation, parole, or bail with a specific condition that he not harass or threaten a specific person or persons. He argues that, since he was on parole for an unrelated embezzlement, the district attorney could not charge him with felony stalking.

Garton argues vagueness in this provision. Our rule with respect to...