Heggen v. State

• Decision Date: 05 October 1990
• Docket Number: No. 89-84,89-84
• Citation: 800 P.2d 475
• Parties: Thomas HEGGEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 475

800 P.2d 475

Thomas HEGGEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 89-84.

Supreme Court of Wyoming.

Oct. 5, 1990.

Frank R. Chapman, Casper, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Paul S. Rehurek, Sr. Asst. Attys. Gen., Cheyenne, for appellee.

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

GOLDEN, Justice.

Thomas Heggen, convicted of one count of submitting a false claim with intent to defraud, raises issues identical to those raised in Hudson v. State, No. 89-83 (Wyo. Oct. 5, 1990) and Billis v. State, No. 88-250 (Wyo. Oct. 5, 1990), concerning the constitutionality of W.S. 7-13-301 (June 1987 Repl.) ("new 301").

We affirm.

From March through May, 1987, Mr. Heggen, while employed, filed a series of false unemployment claims with the Employment Security Commission which netted him $1,584 in benefits he was not entitled to receive. Under a plea agreement, in return for Mr. Heggen's plea of guilty to one count of submitting a false claim with intent to defraud in violation of W.S. 6-5-303(b)(June 1983 Repl.), the state agreed not to pursue seven other counts of the same crime, and a charge of obtaining property by false pretenses in violation of W.S. 6-3-407(a)(i)(Cum.Supp.1984), and to recommend a sentence of a two-year probation plus restitution. Being apprised of the plea bargain, the district court judge accepted the guilty plea and ordered a presentence investigation report. Before the sentencing proceeding, Mr. Heggen filed a motion for "new 301" treatment. At the sentencing proceeding, Mr. Heggen requested that the court make a record concerning whether the court would have handled Mr. Heggen under "new 301" but for the state's refusal to consent to that treatment. The court declined to say what it would do were the statute different and found that "new 301" requires the consent of both parties. The court sentenced Mr. Heggen to two years supervised probation. This appeal followed.

Mr. Heggen raises issues identical to those raised in Billis and Hudson, namely:

1. Whether W.S. 7-13-301 (June 1987 Repl.), requiring the state's consent to the court's deferring further proceedings and placing a defendant on probation without entry of a judgment of conviction, infringes on the judicial department's sentencing power in violation of the principle of separation of powers explicitly stated in Wyo. Const. art. 2, § 1.

2. Whether 1987 Wyo.Sess.Laws, ch. 157, § 3, enacting W.S. 7-13-301 (June 1987 Repl.), was enacted in violation of Wyo. Const. art. 3, § 20, which proscribes altering or amending a bill during its passage through the legislature so as to change the bill's original purpose.

3. Whether 1987 Wyo.Sess.Laws, ch. 157, § 3, enacting W.S. 7-13-301 (June 1987 Repl.), was enacted in violation of Wyo. Const. art. 3, § 24, which mandates the passage of a bill containing only one subject which must be clearly expressed in the bill's title.

4. Whether the prosecutor's refusal to consent to sentencing under § 7-13-301 was arbitrary and an abuse of discretion and therefore violated Wyo. Const. art. 1, §§ 2 and 7.

Although the state asserts that Mr. Heggen has not preserved these issues since he failed properly to raise them below, we have chosen to consider them as explained in Hudson.

Our decisions in Billis and Hudson, in particular, and in Mollman v. State, No. 89-21, 800 P.2d 466 (Wyo. Oct. 5, 1990), and Lowry v. State, No. 88-312, 800 P.2d 401 (Wyo. Oct. 5, 1990), are dispositive here. See also companion cases, Vigil v. State, No. 88-310 (Wyo. Oct. 5, 1990); McIver v. State, No. 88-311 (Wyo. Oct. 5, 1990); Moon v. State, No. 88-304 (Wyo. Oct. 5, 1990); and Magarahan v. State, No. 89-4 (Wyo. Oct. 5, 1990) . Applying those decisions in this case, we hold that "new 301" is constitutional in terms of the issues raised here and that the prosecutor's refusal to consent to "new 301" treatment in Mr. Heggen's case was neither arbitrary nor an abuse of discretion in violation of Wyo. Const. art. 1, §§ 2 and 7. Accordingly, we affirm.

URBIGKIT, C.J., filed a dissenting opinion in which MACY, J., joins.

MACY, J., filed a dissenting opinion in which URBIGKIT, C.J., joins.

URBIGKIT, Chief Justice, dissenting, with whom MACY, Justice, joins.

Thomas Heggen, age thirty-one and married with two children, is "a stable, law-abiding, and productive member of the [Casper] community." In 1987, he and his family were in the process of completing an adoption and were then the victims of the Casper, Wyoming energy depression and consequent unemployment. Unemployed for one and one-half years, he took whatever part-time work he could find until he could obtain full time employment.

His improvidence in obtaining unreported part-time employment while receiving continued unemployment compensation benefits resulted in the filing against him of a nine count felony charge. ¹ The amount involved in the nine count felony charge was $1,584 for which full restitution was made before any final plea was entered. Faced with the totality of the charge with sentences which could, under W.S. 6-5-303(b), total eighteen years and a fine of $18,000, plea negotiation was pursued. ² Faced with the severity of this multiplied penalty aggregation, Heggen negotiated to plead out for an indicated term of probation on the basis of his record as a first offender with no significant prior offenses except one speeding charge. Justification existed here, if it ever exists in this society, to not incarcerate everyone who commits a criminal offense, washed or unwashed, favor or unfavored, since Heggen was a person who had obviously made a mistake.

Eight of the nine felony counts in accord with the plea bargain agreement were dismissed before preliminary hearing in county court and Heggen was then arraigned in the district court on the remaining felony charge. At that arraignment, counsel advised the trial court that in negotiated disposition, eight of the nine felony charges were dismissed with the agreement of a guilty plea to the ninth count and that he "should do no more than a probationary period for this for two years, should make restitution and no other charges would be filed against him." The plea was then made and authenticated:

THE COURT: Mr. Heggen, how do you plead to the charge?

THE DEFENDANT: Guilty.

THE COURT: If you maintain your plea of guilty you are admitting all of the essential facts of the charge, the State will not have to prove any case against you and only issue will be the sentence. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: Have you been induced or threatened by anyone to enter this plea?

THE DEFENDANT: No, sir.

THE COURT: Is the plea made voluntarily and of your own volition?

THE DEFENDANT: Yes, sir.

THE COURT: Are you making your plea after consultation with your attorney?

THE DEFENDANT: Yes, sir.

THE COURT: Do you fully understand the charge that has been filed against you?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand that you have the right to plead not guilty?

THE DEFENDANT: Yes.

THE COURT: Do you understand that if you plead not guilty you would be entitled to a speedy trial by a judge or an impartial jury of 12 persons, which would have to return a unanimous verdict of guilty in order to convict you?

THE DEFENDANT: Yes.

THE COURT: Do you understand at such a trial you would have the right to confront and cross examine the witnesses against you, to have compulsory process for witnesses to testify in your behalf, to testify yourself, and to present other evidence?

THE DEFENDANT: Yes.

THE COURT: Do you understand at such a trial you would be presumed to be innocent and that the prosecution would have to establish your guilt by competent evidence beyond a reasonable doubt?

THE DEFENDANT: Yes.

THE COURT: Do you understand that you would have the right to remain silent, and your silence could not be used against you, that is you could not be compelled to incriminate yourself?

THE DEFENDANT: Yes.

THE COURT: Do you understand that you would have the right to assistance of counsel at such a trial?

THE DEFENDANT: Yes.

THE COURT: Do you understand that if you plead guilty you waive all of these rights, that is you no longer have these rights and there will not be a trial?

THE DEFENDANT: Yes.

THE COURT: Do you understand the agreement as to your plea and sentence in this case?

THE DEFENDANT: Yes.

THE COURT: Do you understand the agreement is that you would be placed on probation for a period of two years, under the supervision of the Wyoming Department of Probation and Parole, your probation being upon the conditions that you not violate any federal, state or local laws, that you obey the rules and regulations of the Probation Department, that you pay any restitution which might be owing less credit for what you have already paid, that you pay $50. to the Clerk of the Court's office for the State Victims Compensation Fund?

THE DEFENDANT: Yes.

THE COURT: Are you making this agreement voluntarily?

THE DEFENDANT: Yes.

THE COURT: The Court finds that the plea agreement was made voluntarily by the defendant with full understanding of its consequences. The Court defers acceptance of the agreement pending further information prior to sentencing. Do you understand that apart from this agreement that you could otherwise be sentenced to as much as two years in the State Penitentiary and a $2,000. fine on this charge?

THE DEFENDANT: Yes.

THE COURT: Do you understand that if you plead guilty I must ask you questions about the offense?

THE DEFENDANT: Yes.

[THE COURT:] Do you understand that if you answer these questions under oath, on the record and in presence of counsel, your answers may later be used [against] you in a prosecution for perjury or false statement?

THE DEFENDANT: Yes.

THE COURT: Do you understand that the elements of this offense are...