Oakley v. State

• Decision Date: 19 March 1986
• Docket Number: No. 85-180,85-180
• Citation: 715 P.2d 1374
• Parties: John Marshall OAKLEY, II, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1374

715 P.2d 1374

John Marshall OAKLEY, II, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 85-180.

Supreme Court of Wyoming.

March 19, 1986.

Leonard Munker, State Public Defender, Julie Naylor, Appellate Counsel, Gerald M. Gallivan, Wyoming Defender Aid Program, and John A. Masterson, Student Intern, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Timothy L. Goddard, Legal Intern, for appellee.

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

URBIGKIT, Justice.

John Oakley, now convicted of his third felony (the last being aggravated robbery), was sentenced pursuant to Wyoming's habitual-criminal statute, § 6-10-201, W.S.1977 (1983 Replacement), to a confinement of ten to 20 years. He appeals by contending that his sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and Art. 1, § 14, of the Wyoming Constitution, and that his commission of aggravated robbery is not the required violent felony for habitual-criminal sentence enhancement under § 6-10-201(b)(i).

We affirm.

Appellant Oakley visited his brother, David, in Laramie in January, 1985. During one night, while David was asleep, three rifles and a television were stolen from the apartment and were duly reported to the police.

Thereafter, on February 11, 1985, a man wearing a bandana over the lower half of his face entered the Fix-N-Mix Liquors in Cheyenne carrying one of those stolen rifles. The masked man, later identified as Oakley, declared, "This is a hold up," and at gunpoint, ordered one employee to face the wall. The other employee was ordered to open the cash-register drawers. Appellant absconded with $936, and disappeared into the darkness. The next day, a rifle was found on the roof of a garage near the Fix-N-Mix Liquors. The employees identified appellant, both through a photograph line-up and later at the preliminary hearing, and identified the rifle which was found on the roof as the robbery weapon. The rifle was an unloaded .22, incapable of being fired as it was missing a firing pin.

Appellant was first found guilty of aggravated robbery under § 6-2-401(c), W.S.1977 (1983 Replacement). The jury then found that he had twice previously been convicted of felonies and appellant was sentenced by the trial court under the habitual-criminal statute, § 6-10-201, W.S.1977 (1983 Replacement), for a penitentiary term of ten to 20 years.

Oakley does not argue here that his sentence was an abuse of discretion, nor contend that Wyoming's habitual-criminal statute, § 6-10-201, is unconstitutional. He first asserts that the sentence imposed on him pursuant to the habitual-criminal statute constitutes cruel and unusual punishment.

Although this is not an abuse-of-discretion case, our analysis of sentence review in Wright v. State, Wyo., 670 P.2d 1090 (1983), reh. denied 707 P.2d 153 (1985), is helpful in perspective. Chief Justice Rooney explained in Wright that:

"* * * We do not follow the common-law rule that a sentence is not subject to appellate review if it is within the limits set by the legislature." 670 P.2d at 1091.

However, he acknowledged that imposing sentence

" '* * * is a burdensome decision which no trial judge could lightly make and which we will not lightly overturn.' " 670 P.2d at 1092, quoting from Scheikofsky v. State, Wyo., 636 P.2d 1107, 1113 (1981).

See also State v. Sorrentino, 36 Wyo. 111, 253 P. 14, 16 (1927), and the lengthy list of citations in the concurring opinion of Justice Thomas in Wright v. State, supra, 670 P.2d at 1097.

Oakley, to the contrary, bases his assertion that his sentence was cruel and unusual punishment and therefore violative of the Eighth Amendment largely on the recent United States Supreme Court decision in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Because of this reliance on Solem, it is helpful to review the line of cases leading up to that decision.

In perspective, the United States Supreme Court would seem to be wrestling with its role in criminal-sentencing review. ¹ In Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), that Court decided that a life sentence imposed after a third nonviolent felony conviction under a Texas recidivist statute was not cruel and unusual punishment under the Eighth Amendment. The Rummel court, in a five-to-four decision, ² stated that:

"* * * for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative." 445 U.S. at 274, 100 S.Ct. at 1139.

Rummel received a mandatory life sentence under the Texas statute as required after conviction of a third felony. In appealing his sentence to the United States Supreme Court, Rummel argued for a proportionality concept--a scale by which the Court could measure the crime against the punishment. The Court rejected the concept in denying Rummel's attempt to compare his sentence with the sentence he would have received for the same crime in another state or for a different crime in his state of Texas. 445 U.S. at 281-282, 100 S.Ct. at 1142-43.

Next came Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556, reh. denied 455 U.S. 1038, 102 S.Ct. 1742, 72 L.Ed.2d 156 (1982). Hutto was given a 40-year sentence for possession of nine ounces of marijuana. A United States District Court held that the sentence violated the Eighth Amendment. The United States Supreme Court reversed the district court, ³ and held that the district court had clearly erred in even considering whether the sentence fit the crime. The Court said:

"* * * [W]e distinguished between punishments--such as the death penalty--which by their very nature differ from all other forms of conventionally accepted punishment, and punishments which differ from others only in duration. This distinction was based upon two factors. First, this 'Court's Eighth Amendment judgments should neither be or appear to be merely the subjective views of individual Justices.' * * * And second, the excessiveness of one prison term as compared to another is invariably a subjective determination, there being no clear way to make 'any constitutional distinction between one term of years and a shorter or longer term of years.' " 454 U.S. at 373, 102 S.Ct. at 705.

Further,

"Hutto makes crystal clear that under Rummel it is error for appellate courts to second-guess legislatures as to whether a given sentence of imprisonment is excessive in relation to the crime * * *." Solem v. Helm, supra, 463 U.S. at 311, 103 S.Ct. at 3020, BURGER, C.J., dissenting. ⁴

By last pronouncement, the United States Supreme Court sent into the world Solem v. Helm, supra. Helm had been convicted of six nonviolent felonies in South Dakota. The seventh felony conviction, for writing a check for $100 on an account which did not exist, ⁵ subjected him to South Dakota's habitual-criminal statute and a sentence of life in prison without parole. Guided by Rummel, each reviewing court affirmed the sentence until Helm's appeal reached the Eighth Circuit Court of Appeals. The Eighth Circuit distinguished Rummel from Helm because Rummel's life sentence carried with it the possibility of parole while Helm's sentence did not. The United States Supreme Court agreed with the Eighth Circuit, and held that Helm's sentence violated the Eighth Amendment. ⁶

In Solem, the United States Supreme Court adopted a proportionality analysis by embracing the concept they had forcefully rejected in Rummel and Hutto:

"In sum, a court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." 463 U.S. at 292, 103 S.Ct. at 3010-11.

Despite its change in direction, the Court did not overrule Rummel.

We can analyze Oakley's sentence under either Rummel or Solem and still conclude that Oakley's sentence is not cruel and unusual punishment violative of either the Eighth Amendment to the United States Constitution or Art. 1, § 14 of the Wyoming Constitution. Rummel precluded federal courts from making a proportionality analysis of length of sentences in all but the most unusual circumstances. ⁷

The majority in Solem stated the following about Rummel:

"[S]ince the Rummel Court * * * offered no standards for determining when an Eighth Amendment violation has occurred, it is controlling only in a similar factual situation." 463 U.S. at 303 n. 32, 103 S.Ct. at 3016-3017 n. 32.

We need only compare the facts of Rummel to Oakley to determine that Oakley's punishment is not cruel and unusual. Rummel received a mandatory life sentence upon conviction of a third felony under the Texas recidivist statute. Appellant here received a ten to 20 year sentence for a third felony conviction (armed robbery) under the Wyoming recidivist statute. We are comfortable in concluding that because Rummel's life sentence was upheld under an Eighth Amendment challenge, Oakley's ten to 20 year sentence need not be disturbed by this court under a similar challenge.

Turning to Solem, appellant Oakley's primary objection to his sentence under the proportionality test raises consideration of the gravity of the offense and the harshness of the penalty--the first prong of the Solem test. Oakley points out that Solem would require consideration of "the harm caused or threatened to the victim or society, and the culpability of the offender." 463 U.S. at 292, 103 S.Ct. at 3010-11, and consequently contends that when robbing the Fix-N-Mix he deliberately chose to use a nonfunctional gun,...