Jones v. State

• Decision Date: 01 March 2002
• Docket Number: No. 00-327.,00-327.
• Citation: 41 P.3d 1247,2002 WY 35
• Parties: Craig JONES, Petitioner, v. The STATE of Wyoming, Respondent.
• Court: Wyoming Supreme Court

41 P.3d 1247

2002 WY 35

Craig JONES, Petitioner, v. The STATE of Wyoming, Respondent.

No. 00-327.

Supreme Court of Wyoming.

March 1, 2002.

Mike Cornia, Evanston, WY, Representing Petitioner.

Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and T. Alan Elrod, Assistant Attorney General, Cheyenne, WY, Representing Respondent.

Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.

VOIGT, Justice.

[¶ 1] The petitioner, Craig Jones, filed a Petition for Writ of Review asking this Court to address certain issues concerning his sentencing. We granted his petition and ordered that his case be remanded for resentencing. After being resentenced, Jones filed a second Petition for Writ of Review regarding the Judgment and Sentence Upon Remand, which petition was granted by this Court.

[¶ 2] We affirm, but remand for amendment of the Judgment and Sentence Upon Remand to conform to this opinion.

ISSUES

[¶ 3] The petitioner presents the following issues for review:

ISSUE I. Can incarceration be followed by probation?

ISSUE II. Did the trial court impermissibly increase [the petitioner's] sentence?

ISSUE III. Are the conditions of probation illegal?

FACTS

[¶ 4] On November 20, 1998, a jury found the petitioner guilty of driving while under the influence (DWUI) causing serious bodily injury, in violation of Wyo. Stat. Ann. § 31-5-233(h) (Michie 1997). The county court (now referred to as circuit court) sentenced the petitioner on February 8, 1999, to twelve months in the county jail, with all but eight to nine months suspended. The circuit court ordered the petitioner to pay a $50.00 surcharge to the Crime Victims Compensation Fund, $20.00 court costs, and a $3,000.00 fine. It further ordered that the petitioner be placed on three years' supervised probation, specifying nineteen terms and conditions to be followed.¹ On February 22, 1999, the petitioner filed a Notice of Appeal to the district court. That appeal was unsuccessful and a request for reconsideration was denied.

[¶ 5] The petitioner's first Petition for Writ of Review was filed with this Court after the district court's affirmance of his conviction and its contemporaneous denial of reconsideration. On November 30, 1999, this Court issued an Order of Partial Remand for Reconsideration of Sentence and Order Denying the Balance of the Petition for Writ of Review. We ordered that a different circuit court judge "resentence the petitioner with particular respect to the indeterminate length of the sentence originally imposed (should incarceration be ordered) and what may constitute lawful and proper terms and conditions of probation (should the assigned court consider probation)[.]"

[¶ 6] At resentencing on March 10, 2000, the circuit court ordered the petitioner to serve twelve months in the county jail with all but nine months suspended; ordered him to pay $2,771.80 to the Crime Victims Compensation Fund; $2,306.00 in restitution; $20.00 in court costs; and a $3,000.00 fine. The circuit court further ordered that the petitioner be placed on three years' supervised probation, with thirteen terms and conditions to be followed.² After the district court's affirmance and denial of a rehearing motion, the petitioner's second Petition for Writ of Review was filed in this Court. This Court granted review on December 19, 2000.

CAN INCARCERATION BE FOLLOWED BY PROBATION?

[¶ 7] The question is whether the DWUI statute then in effect allowed probation following incarceration when the conviction resulted from violation of Wyo. Stat. Ann. § 31-5-233(h)(i).³ This statute provided, in pertinent part:

Whoever causes serious bodily injury to another person resulting from the violation of this section shall be punished upon conviction as follows:

(i) If not subject to the penalty under paragraph (ii) of this subsection, by a fine of not more than five thousand dollars ($5,000.00), imprisonment for not more than one (1) year, or both[.]

Wyo. Stat. Ann. § 31-5-233(h)(i).

[¶ 8] It is clear that nothing in subsection (h) expressly permitted probation to follow jail time. However, the district and circuit courts agreed that such a sentence was permissible under Wyo. Stat. Ann. § 31-5-233(e), which stated:

(e) Except as provided in subsection (h) of this section, a person convicted of violating this section is guilty of 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. * * * The judge may suspend part or all of the discretionary portion of an imprisonment sentence under this subsection and place the defendant on probation on condition that the defendant pursues and completes an alcohol education or treatment program as prescribed by the judge. Notwithstanding any other provision of law, the term of probation imposed by a judge under this section may exceed the maximum term of imprisonment established for the offense under this subsection provided the term of probation together with any extension thereof, shall in no case exceed three (3) years.[⁴]

(Emphasis added.)

[¶ 9] The district and circuit courts viewed subsection (e) as the general sentencing provision of Wyo. Stat. Ann. § 31-5-233. While their conclusion that its last sentence permitted the probationary sentence may seem reasonable, we find that the language of the statute is less than clear, so we must determine whether or not it is legally ambiguous. If it is, we must resort to the rules of statutory construction for its interpretation. Statutory construction or interpretation is a question of law that is reviewed de novo. Anderson Highway Signs and Supply, Inc. v. Close, 6 P.3d 123, 124 (Wyo. 2000).

[¶ 10] A statute is ambiguous if its intention is uncertain and it is susceptible to more than one meaning. Amrein v. State, 836 P.2d 862, 864-65 (Wyo.1992). "`A "statute is unambiguous if its wording is such that reasonable persons are able to agree to its meaning with consistence and predictability."'" Moncrief v. Wyoming State Bd. of Equalization, 856 P.2d 440, 443 (Wyo.1993) (quoting Parker Land and Cattle Co. v. Wyoming Game and Fish Com'n, 845 P.2d 1040, 1043 (Wyo.1993) and Allied-Signal, Inc. v. Wyoming State Bd. of Equalization, 813 P.2d 214, 220 (Wyo.1991)). Whether a statute is ambiguous begins with an inquiry respecting the ordinary and obvious meaning of the words employed, according to their arrangement and connection; the statute must be construed reasonably with reference to the aim, purpose, or policy of the enacting body. Moncrief, 856 P.2d at 443 (quoting Parker Land and Cattle Co., 845 P.2d at 1042 and Rasmussen v. Baker, 7 Wyo. 117, 133, 50 P. 819, 823 (1897)); Sue Davidson, P.C. v. Naranjo, 904 P.2d 354, 356 (Wyo. 1995).

[¶ 11] Applying the above-mentioned rules of construction leads this Court to conclude that Wyo. Stat. Ann. § 31-5-233(h)(i) was ambiguous. The petitioner construed the meaning of the term "subsection" and not "section" in the last two sentences of Wyo. Stat. Ann. § 31-5-233(e) to mean that probation was limited to sentences imposed only under subsection (e). The State relied on the term "section" in the last sentence to argue that subsection (e) was the general sentencing provision and probation was allowed under subsections (e) or (h). We find that this statute is subject to varying interpretations or meanings and is ambiguous. Therefore, we will construe the meaning of the statute by looking at legislative intent and the statute's reasonable interpretation in light of its intended purpose.

[¶ 12] It is not difficult to conclude that the legislature's intent was to permit long-term probation for DWUI offenders in order that violators could receive long-term substance abuse treatment. Wyo. Stat. Ann. § 31-5-233(e) states in part that "[t]he judge may suspend part or all of the discretionary portion of an imprisonment sentence under this subsection and place the defendant on probation on condition that the defendant pursues and completes an alcohol education or treatment program as prescribed by the judge." While subsection (h) does not repeat this language, it is unreasonable to think that the legislature meant long-term treatment to be available for low misdemeanor violators of subsection (e), but not for high misdemeanor violators of subsection (h). We find that it is available for both. This intention is reflected in the last sentence of subsection (e), wherein it is provided that extended probation may be imposed "under this section...." Wyo. Stat. Ann. § 31-5-233(e) (emphasis added). This interpretation of the statute also comports with the general rule that penal statutes are construed so as to resolve ambiguities in favor of lenity. Demeulenaere v. State, 995 P.2d 132, 135 (Wyo.2000); Meerscheidt v. State, 931 P.2d 220, 224 (Wyo. 1997).

DID THE CIRCUIT COURT IMPEARMISIBLY INCREASE THE PETITIONER'S SENTENCE?

Increased Sentencing and Double Jeopardy

[¶ 13] "[A] judgment in a criminal case will not be disturbed because of sentencing procedures unless there is a showing of an abuse of discretion, procedural conduct prejudicial to defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the sense of fair play." Hicklin v. State, 535 P.2d 743, 751 (Wyo.1975). The petitioner argues that the circuit court impermissibly increased his sentence by ordering restitution and an increase in the amount owed to the Crime Victims Compensation Fund. Originally, the petitioner was not ordered to pay restitution and was ordered to pay $50.00 to the Crime Victims Compensation Fund. The resentencing judge ordered the petitioner to pay $2,306.00 as restitution and $2,771.80 to the Crime Victims Compensation Fund. The petitioner argues that the added punishment of restitution and the increase in the amount owed to the Crime Victims Compensation Fund violates his...