Kallas v. State
Decision Date | 07 August 1985 |
Docket Number | No. 84-260,84-260 |
Citation | 704 P.2d 693 |
Parties | Dennis KALLAS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
Court | Wyoming Supreme Court |
Leonard D. Munker, State Public Defender, Martin J. McClain, Appellate Counsel, Wyo. Public Defender Program, Cheyenne, and Patricia L. Odell, Defender Aid Program, Laramie, for appellant (defendant).
A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen.; and John W. Renneisen, Senior Asst. Atty. Gen., for appellee (plaintiff).
Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.
Appellant, twenty-nine years old, pled guilty, pursuant to a plea agreement, to one count of second-degree sexual assault in violation of § 6-2-303(a)(v), W.S.1977 1, and to one count of taking indecent liberties with a minor in violation of § 14-3-105, W.S.1977. 2 He was sentenced to ten to twenty years under § 6-2-303(a)(v) and to We affirm.
five to ten years under § 14-3-105. On appeal he contends (1) that the convictions were improper inasmuch as he should have been charged under the incest statute, § 6-4-402, W.S.1977 3 (the victims of appellant's acts were his daughters, ages four and six years), which he contends to be a special statute and an exception to the sexual-assault and indecent-liberties-with-a-minor statutes, and (2) that the court abused its discretion in imposing the sentences.
Appellant's contention that the incest statute, § 6-4-402, W.S.1977, is a special statute barring his conviction under the second-degree sexual-assault statute, § 6-2-303, W.S.1977, or under the indecent-liberties-with-a-minor statute, § 14-3-105, W.S.1977, is being raised for the first time on appeal. He did not move to dismiss the information or the amended information to which he pled guilty, and he did not move to withdraw his plea of guilty. The contention was never presented to the trial court.
* * * " Armijo v. State, Wyo., 678 P.2d 864, 867 (1984).
Appellant does not argue lack of jurisdiction. The district court had jurisdiction over appellant, and it had criminal jurisdiction over the offenses charged and the offense appellant contends should have been charged. Any constitutional challenge was settled in United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), which involved two separate offenses of felons in possession of firearms, carrying different penalties.
Selectivity in the enforcement of criminal laws is, of course, subject to constitutional constraints. [By footnote the Court referenced this statement to selective enforcement 'based upon an unjustifiable standard such as race, religion, or other arbitrary classification.'] And a decision to proceed under § 922(h) does not empower the Government to predetermine ultimate criminal sanctions. Rather, it merely enables the sentencing judge to impose a longer prison sentence than § 1202(a) would permit and precludes him from imposing the greater fine authorized by § 1202(a). More importantly, there is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from the one he faces in the latter context. The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause. [Citations.] Just as a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution neither is he entitled to choose the penalty scheme under which he will be sentenced. [Citations.]
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Nowack v. State, 87-74
...against any class of defendants. [citations omitted] The same issue was presented to this Court with the same result. Kallas v. State, 704 P.2d 693 (Wyo.1985). In Kallas the defendant, who was the father of the victim, was charged with second degree sexual assault, § 6-2-303(a)(v), W.S.1977......
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