Price v. State, 85-88
| Decision Date | 13 March 1986 |
| Docket Number | No. 85-88,85-88 |
| Citation | 716 P.2d 324 |
| Parties | Timothy PRICE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Leonard D. Munker, State Public Defender, Martin J. McClain, Appellate Counsel, and K. Leslie Delk, Asst. Public Defender (argued), for appellant.
A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Kevin Saxby, Legal Intern (argued), for appellee.
Before THOMAS, C.J., ROONEY, * BROWN and CARDINE, JJ., and GUTHRIE, J., Retired.
Timothy Price pled guilty to violating § 6-2-302(a)(i) and (ii), W.S.1977 (June 1983 Replacement), sexual assault in the first degree. The trial court ordered Price to the Wyoming State Hospital for treatment in accordance with § 7-13-605, W.S.1977, and, after conclusion of that treatment, to commitment at the Wyoming State Penitentiary. The total length of his commitment would be not less than fifteen nor more than twenty years.
Over a year after Price had been ordered to the Wyoming State Hospital, the sentencing court ordered that Price be transferred to the Wyoming State Penitentiary. Price appealed from this order, and this court dismissed the appeal on May 1, 1985. On May 24, 1985, we reinstated the appeal.
We affirm the sentence imposed as well as the subsequent order transferring Price from the hospital to the penitentiary.
The events resulting in Price's guilty plea are not in dispute and are of minimal importance. The following is sufficient for our needs.
In 1983, Price offered to drive a fifteen-year-old girl back to a campground at which her family was vacationing near Moran Junction, Teton County, Wyoming. Instead of taking the girl back to the campground, as he promised, Price took the victim to an isolated road where he raped Price was charged with first-degree sexual assault, in violation of § 6-2-302(a)(i) and (ii), W.S.1977 (June 1983 Replacement), and with being a habitual criminal as defined in § 6-10-201, W.S.1977 (June 1983 Replacement). After arraignment, Price was ordered to the Wyoming State Hospital for a thirty-day evaluation. Pursuant to agreement, on January 3, 1984, Price pled guilty to the sexual assault charge, and the habitual criminal count was dismissed.
her a number of times and left her abandoned. She was found the next morning by a member of the Teton County sheriff's office.
A presentence investigation report detailed Price's stormy background, including a number of past offenses for which Price was dealt with in a very lenient manner. This report was in addition to the psychological evaluation from the Wyoming State Hospital, a psychological evaluation from psychologist Brian Miracle, and yet another report from psychologist John Thorn, in which he reviewed documents recording Price's conduct. The Wyoming State Hospital and Dr. Miracle reported that Price was not mentally ill and was competent to stand trial. Dr. Thorn stated that past evaluations had proved inaccurate and that incarceration would not provide Price with an opportunity "to improve his lot."
The court mentioned all of these reports at the sentencing hearing and concluded that there had been a history of repetitive and compulsive behavior accompanied by violence and, therefore, sentenced Price in accordance with §§ 7-13-604 and 7-13-605, W.S.1977. 1 The judgment and sentence entered on February 6, 1984, stated in part:
Price did not timely appeal from this judgment and sentence.
After Price had been committed to the Wyoming State Hospital, a dispute arose over whether his treatment should be considered completed. If the treatment was concluded, the judgment and sentence provided for the judge to order Price committed to the Wyoming State Penitentiary. Over one year after Price had been committed to the hospital, the judge considered "1. Whether the original Judgment and Sentence is void to the extent that it failed to follow the parameters of § 7-13-605 Wyoming Statute (1977).
the treatment completed and ordered that Price be committed to the penitentiary. Price thus brings his appeal to this court, raising the following issues:
Preliminarily we must confront a jurisdictional question. This court is duty bound to inquire into matters affecting jurisdiction and must dismiss an appeal if the record discloses a want of jurisdiction. Merritt v. Merritt, Wyo., 586 P.2d 550, 555 (1978).
The Wyoming Rules of Appellate Procedure allow us to review only final orders. State v. Platte County Department of Public Assistance and Social Services, Wyo., 638 P.2d 165, 168 (1981). As noted above, Price did not appeal from the judgment and sentence when it was originally imposed on February 6, 1984. That was a final order, as defined by Rule 1.05, W.R.A.P., from which an appeal may be taken within fifteen days under Rule 2.01, W.R.A.P. Price failed to so act, but instead has appealed from the order transferring him to the penitentiary which was entered nearly one year after the judgment and sentence. He contends that this order is a final order under the provision of Rule 1.05, W.R.A.P., which states that "an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment" is a final order. According to Price, the order transferring him to the penitentiary finally determined that he would be incarcerated, and thus is a final order from which an appeal may be taken.
Our determination of the sentencing scheme under §§ 7-13-604 and 7-13-605, W.S.1977, and analysis of the sentence imposed in this case, leads us to a contrary conclusion. These statutes provide for a complete sentence to be imposed immediately upon conviction, and this was done by the trial court in the present case. The judgment and sentence entered on February 6, 1984, was a final order when entered. The transfer order appealed here merely enforced the judgment and sentence. It did not determine that Price would be incarcerated for his crime and was not an order which in effect determined the action. An appeal limited to this transfer order would not be properly before this court.
Price, however, has also asserted in his notice of appeal that he is appealing from the judgment and sentence as well as the order of transfer. In his petition to reinstate this appeal, Price asked that this court issue a writ of certiorari so that we could review the original judgment and sentence despite his counsel's failure to timely appeal under Rule 2.01, W.R.A.P. He based this request on the United States Supreme Court decision in Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985), which held that "[a] first appeal as of right * * * is not adjudicated in accord with due process of law if appellant does not have the effective assistance of an attorney." In order to ensure that Price be afforded effective assistance of counsel, we have reinstated his appeal taken from the judgment and sentence. Therefore, this is an appeal from a final order under Rule 1.05, W.R.A.P.
Before reaching Price's illegal sentence and due process arguments, we note that Price failed to move the sentencing court for correction of the "illegal sentence" under We have concluded that, in the interest of judicial economy, we will consider appellant's two substantive claims, i.e., that his sentence was illegal and that he was denied due process when transferred from the mental hospital to prison. Our adjudication should not be construed as a rejection of the general rule that a motion for correction under Rule 36 should be made to the sentencing court in the first instance. The denial of such motion is, of course, a final order from which an appeal may be taken. Hopkinson v. State, Wyo., 704 P.2d 1323 (1985).
Rule 36, W.R.Cr.P., 2 which provides that the court may "correct an illegal sentence at any time." A motion to correct an illegal sentence is normally for the trial court in the first instance. Wright, Federal Practice and Procedure: Criminal 2d § 588 (1982). The United States Supreme Court has, however, stated that "[i]t is more appropriate, whenever possible, to correct errors reachable by the appeal than remit the parties to a new collateral proceeding." Bartone v. United States, 375 U.S. 52, 84 S.Ct. 21, 23, 11 L.Ed.2d 11 (1963). This practice, of resolving the question of a possible illegal sentence on appeal rather than waiting for the appellant to file a Rule 35 motion (Rule 36, W.R.Cr.P.) in district court, has been followed by a number of courts of appeals. See, e.g., United States v. Rosenbarger, 536 F.2d 715 (6th Cir.1976); Berry v. United States, 435 F.2d 224 (7th Cir.1970); but see United States v. Horton, 646 F.2d 181 (5th Cir.1981); United States v. Weiner, 418 F.2d 849 (5th Cir.1969), for...To continue reading
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