Lee v. State, No. 00-253.

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtKITE, Justice.
Citation36 P.3d 1133,2001 WY 129
PartiesLynn LEE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Decision Date17 December 2001
Docket NumberNo. 00-253.

36 P.3d 1133
2001 WY 129

Lynn LEE, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff)

No. 00-253.

Supreme Court of Wyoming.

December 17, 2001.


36 P.3d 1135
Sylvia Lee Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Assistant Appellate Counsel; Diane Courselle, Director of the Wyoming Defender Aid Program; and Justin Kallal and Sean Minahan, Student Interns, Representing Appellant

Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Robin Sessions Cooley, Senior Assistant Attorney General, Representing Appellee.

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

KITE, Justice.

[¶ 1] Lynn Lee was charged with five counts of third-degree sexual assault and two counts of immodest, immoral, or indecent acts with a minor. He pleaded guilty to two counts of third-degree sexual assault— Counts III and V—and was initially sentenced to consecutive prison terms of not less than twelve years nor more than fifteen years. He appealed claiming his sentence on Count V was illegal because there was insufficient evidence that the crime occurred after July 1, 1997, when the maximum sentence was increased from five years to fifteen years. He also asserted the court improperly drew negative inferences from his refusal to submit to a psychological evaluation prior to sentencing. We reverse and remand the portion of the corrected sentencing order which removed credit for presentence confinement as to Count V and affirm in all other regards.

ISSUES

[¶ 2] Mr. Lee frames the issues on appeal as follows:

ISSUE I
Did the trial court illegally sentence Mr. Lee as if his offense occurred after July 1997, even though the State failed to establish when the act occurred?
ISSUE II
Did the trial court abuse its discretion when applying sentence to Mr. Lee by forming adverse inferences against Mr. Lee for invoking his Fifth Amendment right against self-incrimination?
ISSUE III
Is the sentence reflected in Mr. Lee's written Order of Sentence illegal as it is inconsistent with the order given in open court?
ISSUE IV
Did the trial court err in failing to give Mr. Lee [c]redit for pre-sentence confinement on both counts for which he was convicted?

The State of Wyoming states the issues as:

I. Whether the sentence entered by the trial court on Count V is a legal sentence, as the record reveals sufficient evidence for the court to determine when the offense occurred?
II. Whether the trial court abused its discretion at sentencing when it considered Appellant's refusal to undergo a psychological assessment?
III. Pursuant to W.R.A.P. Rule 3.01, the record has been corrected to reflect the sentence actually imposed by the trial court, which is a legal sentence.
IV. Whether the trial court erred in correcting its order to reflect pre-sentence confinement credit toward one of two consecutive sentences?

FACTS

[¶ 3] Mr. Lee, who was forty years old at the time of his arrest, engaged in sexual activity with several minors over a period of years. As one of the minors, SB, attempted to extricate himself from the relationship, Mr. Lee resorted to stalking the young man until he was apprehended by the police. While the police investigated the stalking charge, a sordid story emerged involving the long-term sexual abuse of two minor brothers,

36 P.3d 1136
SB and LB, whose family Mr. Lee had purposely befriended. A detailed factual chronology of events was contained in the affidavit of probable cause which was served on Mr. Lee together with the arrest warrant setting forth the charges. Mr. Lee met the family in 1993 through church activities and became a trusted friend, helping them remodel their home and attending many family activities. SB, who was approximately thirteen years old, began spending time alone with Mr. Lee who used SB's interest in rock climbing to develop a close friendship and provide justification for their unsupervised climbing trips. Ultimately, SB's younger brother, LB, was also subjected to Mr. Lee's sexual advances, as was another minor, BB, who was not related to the brothers

[¶ 4] Mr. Lee was charged with five counts of third-degree sexual assault and two counts of taking immodest, immoral, or indecent liberties with a minor. The crimes were alleged to have occurred over a period of several years.1 Prior to arraignment, Mr. Lee entered into a plea agreement pursuant to which he pleaded guilty, with no provision regarding sentencing, to Counts III and V which charged separate counts of third-degree sexual assault. Count III alleged sexual intrusion with SB between March 21, 1995, and September 21, 1995, when SB was fourteen years of age, in violation of § 6-2-304(a)(i) of the Wyoming statutes. Count V alleged sexual intrusion with LB between October 4, 1996, and December 31, 1998, when he was eleven through thirteen years of age, also in violation of § 6-2-304(a)(i). At arraignment, the district court reviewed the charges and questioned Mr. Lee to confirm his complete understanding of those charges and the factual basis for them. With regard to Count V, the sexual assault of LB, the following exchange took place:

THE COURT: Okay. Going to Count [V], this apparently involved somebody whose initials are LB. Do you know who I'm talking about when I refer to LB?
THE DEFENDANT: Yes, sir, I do.
THE COURT: Okay. And do you know LB's birth date?
THE DEFENDANT: Yes, I do.
THE COURT: It says here it was October 4, 1985; is that correct?
THE DEFENDANT: To the best of my knowledge, yes.
THE COURT: All right. It says these events occurred between October 4, 1996 and December 31, 1998. Is that accurate?
THE DEFENDANT: I believe so, yes.
THE COURT: Can you tell me more definitely than that when these events occurred with [L]B?
THE DEFENDANT: No, I cannot.
THE COURT: That's a range of almost two years. You can't be more specific than two years?
THE DEFENDANT: No, I can't.

[¶ 5] Attempting to further clarify the date the events in Count V occurred, the district court continued:

THE COURT: Okay. Now, LB, who is younger, how many times did you have sexual contact with him?
THE DEFENDANT: Much fewer. It was only a couple instances.
THE COURT: Okay. So this would be one of two incidents that we're talking about here?
THE DEFENDANT: Yeah, of three or four.
THE COURT: Three or four?
36 P.3d 1137
THE DEFENDANT: Yes.
THE COURT: Well, was it one or two or three or four?
THE DEFENDANT: Three or four.
....
THE COURT: All right. Tell me about one of them that occurred between this — did — well, first of all, did they all occur between October 4, '96 and December 31, '98?
THE DEFENDANT: Yes, sir.

The district court also fully informed Mr. Lee that the maximum penalty for the charge of third-degree sexual assault was fifteen years in prison and by pleading guilty he would be forfeiting his rights to a jury trial, to require the state to prove its allegations, to put on evidence, and to contest the state's case.

[¶ 6] The affidavit of probable cause, which was attached to the warrant served on Mr. Lee, contained the detailed statement LB made to the investigating officer concerning the sexual assaults including the fact they occurred through the fall of 1998 until LB's parents began to regulate the time he spent with Mr. Lee. The affidavit also contained a summary of BB's statement to the officer that he witnessed the assaults on LB in the fall of 1997 when he returned to Gillette upon release from the Wyoming Boys' School.

[¶ 7] Subsequent to arraignment, the state filed a motion for a personality/psychological assessment for use during sentencing. Mr. Lee objected to the assessment. A hearing was held and briefs were filed by both parties concerning whether Mr. Lee could be forced to submit to such an assessment. The district court ultimately concluded Mr. Lee had the constitutional right to refuse to undergo such an assessment. However, the district court informed Mr. Lee his refusal would be taken into account in the course of sentencing.

[¶ 8] At the sentencing hearing, the district court considered additional evidence including the presentence investigation (PSI) report prepared according to W.R.Cr.P. 32(a) which included the affidavit of probable cause and the counselors' interviews of LB concerning the assaults occurring through the fall of 1998. On behalf of Mr. Lee, counsel submitted Mr. Lee's twenty-two-page handwritten letter commenting on facts contained in the PSI report and the affidavit of probable cause in which he noted the inaccuracies he observed and provided his version of the facts. In the cover letter to the district judge, counsel specifically requested the letter be considered "Defendant's Version" of the offenses charged and included on page ten of the PSI report under the appropriate heading. Counsel further remarked that Mr. Lee did not give his letter directly to the probation and parole agent because he did not trust that individual to include it in the PSI report as it had been written. In the letter, Mr. Lee vociferously asserted that the assaults on LB could not have occurred any earlier than two years prior to his arrest, which would have been the spring of 1998. He claimed this time frame could be confirmed by determining when he purchased a certain couch upon which the assaults apparently took place. At the conclusion of the hearing, the district court orally sentenced Mr. Lee pursuant to his guilty plea to Counts III and V to two separate incarceration terms of twelve to fifteen years to be served consecutively.

[¶ 9] Six days later and prior to the entry of the written sentencing order, the state filed a motion to correct an illegal sentence which recognized that Mr. Lee had been erroneously sentenced on Count III because the crime occurred before the July 1, 1997, effective date of the amendment to § 6-2-306(a)(iii) that increased the maximum term for...

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22 practice notes
  • State v. Burgess, No. 2006-871.
    • United States
    • New Hampshire Supreme Court
    • February 26, 2008
    ...the PSI is relevant to the defendant's potential for rehabilitation, which is an appropriate sentencing consideration. See Lee v. State, 36 P.3d 1133, 1141 (Wyo.2001) ("A defendant's failure to cooperate in the PSI is certainly a valid factor for a trial court to consider in contemplating t......
  • Sincock v. State
    • United States
    • United States State Supreme Court of Wyoming
    • September 12, 2003
    ...proof of an additional fact which the other does not." Pope v. State, 2002 WY 9, ¶ 15, 38 P.3d 1069, ¶ 15 (Wyo.2002); Lee v. State, 2001 WY 129, ¶ 20, 36 P.3d 1133, ¶ 20 (Wyo. [¶ 10] Initially, application of the statutory elements test in order to resolve the issue of merger would appear t......
  • State v. Burgess, No. 2006-871.
    • United States
    • Supreme Court of New Hampshire
    • February 26, 2008
    ...the PSI is relevant to the defendant's potential for rehabilitation, which is an appropriate sentencing consideration. See Lee v. State, 36 P.3d 1133, 1141 (Wyo.2001) ("A defendant's failure to cooperate in the PSI is certainly a valid factor for a trial court to consider in contemplating t......
  • Van Haele v. State, No. 03-138.
    • United States
    • United States State Supreme Court of Wyoming
    • May 25, 2004
    ...merely requires the court to satisfy itself that a factual basis exists for the guilty plea before accepting such plea. Lee v. State, 2001 WY 129, ¶ 14, 36 P.3d 1133, ¶ 14 (Wyo.2001) (citing Rude, at 7). Additionally, this court has expressly held that the above-cited requirements do not ap......
  • Request a trial to view additional results
22 cases
  • State v. Burgess, No. 2006-871.
    • United States
    • New Hampshire Supreme Court
    • February 26, 2008
    ...the PSI is relevant to the defendant's potential for rehabilitation, which is an appropriate sentencing consideration. See Lee v. State, 36 P.3d 1133, 1141 (Wyo.2001) ("A defendant's failure to cooperate in the PSI is certainly a valid factor for a trial court to consider in contemplating t......
  • Sincock v. State
    • United States
    • United States State Supreme Court of Wyoming
    • September 12, 2003
    ...proof of an additional fact which the other does not." Pope v. State, 2002 WY 9, ¶ 15, 38 P.3d 1069, ¶ 15 (Wyo.2002); Lee v. State, 2001 WY 129, ¶ 20, 36 P.3d 1133, ¶ 20 (Wyo. [¶ 10] Initially, application of the statutory elements test in order to resolve the issue of merger would appear t......
  • State v. Burgess, No. 2006-871.
    • United States
    • Supreme Court of New Hampshire
    • February 26, 2008
    ...the PSI is relevant to the defendant's potential for rehabilitation, which is an appropriate sentencing consideration. See Lee v. State, 36 P.3d 1133, 1141 (Wyo.2001) ("A defendant's failure to cooperate in the PSI is certainly a valid factor for a trial court to consider in contemplating t......
  • Van Haele v. State, No. 03-138.
    • United States
    • United States State Supreme Court of Wyoming
    • May 25, 2004
    ...merely requires the court to satisfy itself that a factual basis exists for the guilty plea before accepting such plea. Lee v. State, 2001 WY 129, ¶ 14, 36 P.3d 1133, ¶ 14 (Wyo.2001) (citing Rude, at 7). Additionally, this court has expressly held that the above-cited requirements do not ap......
  • Request a trial to view additional results

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