Martin v. State, No. 86-29

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: Before THOMAS; BROWN; THOMAS
• Citation: 720 P.2d 894
• Parties: Robert Paul MARTIN, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Docket Number: No. 86-29
• Decision Date: 18 June 1986

Page 894

720 P.2d 894 Robert Paul MARTIN, Jr., Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff). No. 86-29. Supreme Court of Wyoming. June 18, 1986.

Page 895

Wyoming Public Defender Program, Leonard D. Munker, State Public Defender, Julie D. Naylor, Appellate Counsel, Cheyenne, and Leslie K. Delk, Public Defender, Laramie, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Attorney General, Criminal Division; John Renneisen, Sr. Asst. Atty. Gen.; Nancy S. Tabor, Legal Intern, Cheyenne, for appellee.

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

BROWN, Justice.

Appellant Robert Paul Martin, Jr., was convicted in Park County of first degree sexual assault and sentenced to imprisonment for not less than eight years nor more than fifteen years. He urges a single issue on appeal:

"Whether the district court committed reversible error and abused its discretion in sentencing Paul Robert Martin, Jr., to a term of eight to fifteen years in the Wyoming Penitentiary for a violation of § 6-2-302(a)(i), W.S.1977."

We will affirm.

In the early morning of May 2, 1985, appellant invited Rita Smith, the victim, to come out of Cassie's Supper Club in Cody, Wyoming, and look at his dog. After exhibiting the dog, appellant grabbed the victim, dragged her to the southeast corner of Cassie's and forcibly threw her to the ground. Appellant thereupon partially removed the victim's pants and rearranged her other garments whilst she struggled to get free and otherwise resisted. Appellant then and there perpetrated a sexual assault on the victim, which untoward behavior is proscribed by § 6-2-302(a)(i), W.S.1977 (June 1983 Replacement). The victim suffered injuries to her head, nose, eye and scratches on her back.

Appellant eventually entered a plea of nolo contendere. A presentence investigation was accomplished, together with a mental and physical examination. After these reports were reviewed and a hearing held, appellant was sentenced to not less than eight years nor more than fifteen years at the Wyoming Penitentiary.

Page 896

The standards under which a sentence is examined on appeal may not be as clear as we had supposed. In Wright v. State, Wyo., 670 P.2d 1090, 1091-1092 (1983), we said:

" * * * We do not follow the commonlaw rule that a sentence is not subject to appellate review if it is within the limits set by the legislature.

" * * * * *

"As long ago as 1927, we indicated that we would modify a legal sentence if the trial court abused its discretion in imposing it. State v. Sorrentino, 36 Wyo. 111, 253 P. 14, 16 (1927). Since then, we have repeatedly set forth the fact that a sentence will be reviewed for abuse of discretion. Cavanagh v. State, Wyo., 505 P.2d 311 (1973); Peterson v. State, Wyo., 586 P.2d 144 (1978); Sanchez v. State, Wyo., 592 P.2d 1130 (1979); Jones v. State, Wyo., 602 P.2d 378 (1979); Buck v. State, Wyo., 603 P.2d 878 (1979); Sorenson v. State, Wyo., 604 P.2d 1031 (1979); Kenney v. State, Wyo., 605 P.2d 811 (1980); Scheikofsky v. State, Wyo., 636 P.2d 1107 (1981); Daniel v. State, Wyo., 644 P.2d 172 (1982); Taylor v. State, Wyo., 658 P.2d 1297 (1983); and Eaton v. State, Wyo., 660 P.2d 803 (1983)."

In Scheikofsky v. State, Wyo., 636 P.2d 1107, 1112-1113 (1981), we said:

"This court has stated its approach to sentence review many times. If a trial court's determination of the terms of imprisonment is within the statutory limits, it will not be disturbed absent a clear abuse of discretion. Hanson v. State, Wyo, 590 P.2d 832, 835 (1979); Jones v. State, Wyo., 602 P.2d 378, 380 (1979); Smith v. State, Wyo., 564 P.2d 1194, 1202 (1977); Daellenbach v. State, supra at 683 [Wyo., 562 P.2d 679 (1977) ]. A sentence will not be disturbed because of sentencing procedures unless the defendant can show an abuse of discretion, procedural conduct prejudicial to him, and circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play. Hicklin v. State, Wyo., 535 P.2d 743, 751, 79 A.L.R.3d 1050 (1975). That is a nebulous standard, but it is as precise as we care to make it. We have an abiding reluctance to review a trial judge's determination of sentence. The determination is a burdensome decision which no trial judge could lightly make and which we will not lightly overturn."

In defining an abuse of discretion, we have said that:

"A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. An abuse of discretion has been said to mean an error of law committed by the court under the circumstances. * * * " Martinez v. State, Wyo., 611 P.2d 831, 838 (1980).

However, in a recent case involving standards under which a sentence is reviewed we employed language that could be construed to modify the standards set out in Wright and Scheikofsky, supra. In Holmes v. State, Wyo., 715 P.2d 196, 197 (1986), we said:

"The rule is clear in this jurisdiction that there is no error in the imposition of a sentence by a trial court so long as the sentence is within the statutory limit authorized by the legislature. * * * "

We will continue to follow the rule stated in Wright, Scheikofsky and cases cited therein, that sentences within the statutory limit authorized by the legislature are reviewable for an abuse of discretion. We wish to clarify, however, past statements we have made which...