Sampsell v. State

• Decision Date: 02 February 2001
• Docket Number: No. 00-19.,00-19.
• Citation: 2000 WY 12,17 P.3d 724
• Parties: Quay A. SAMPSELL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

17 P.3d 724

2000 WY 12

Quay A. SAMPSELL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 00-19.

Supreme Court of Wyoming.

February 2, 2001.

Representing Appellant: G. Kevin Keller, Cheyenne, WY.

Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Kimberly A. Baker, Senior Assistant Attorney General; and Shawn Matlock, Student Intern.

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

THOMAS, Justice.

[¶ 1] The only claim of error advanced by Quay Sampsell (Sampsell) in this appeal is that the district court committed an abuse of discretion and transgressed the concept of proportionality in imposing sentence upon his conviction, pursuant to his pleas of guilty, of two counts of aggravated vehicular homicide in violation of Wyo.Stat.Ann. § 6-2-106(b) (Lexis 1999).¹ In both counts, Sampsell was charged with causing the death of the victim while driving under the influence of alcohol. On each count, Sampsell was sentenced to a term of not less than six (6) years and not more than ten (10) years in the penitentiary, with an oral pronouncement that the two sentences should be consecutive. The sentences are within the statutory limits prescribed by the legislature for the charged offenses, and the district court neither committed an abuse of discretion nor imposed a disproportionate sentence in this instance. We affirm the Judgment and Sentence of the Court.

[¶ 2] This statement of the issues is found in the Appellant's Brief:

I. Whether the trial court abused its discretion by imposing an excessive sentence based on a presumption that the appellant "willfully" committed the crime of aggravated vehicular homicide.

This Statement of the Issue is found in the Brief of Appellee:

I. Whether the district court abused its discretion in sentencing appellant to consecutive terms of six (6) to ten (10) years for two counts of aggravated vehicular homicide, in violation of Wyo. Stat. § 6-2-106?

[¶ 3] On May 13, 1999, Sampsell ran a flashing red light at the intersection of West College Drive and South Greeley Highway in Cheyenne. He collided with another vehicle, and the driver and the passenger in that car both were killed. At the time of the collision, Sampsell had a blood alcohol level of approximately.217. He had spent the evening drinking with friends at a Cheyenne bar. Charged with two counts, one for each of the victims, of aggravated vehicular homicide by causing the death of the victims while driving under the influence of alcohol, Sampsell entered a plea of guilty to each count at his arraignment.

[¶ 4] In providing a factual basis for his pleas of guilty, Sampsell advised the district court that he had been drinking at a Cheyenne bar. He stated that he left, and did not remember how he arrived at the scene of the collision. He stated that he ran a red light and struck the other vehicle. He agreed that he drove his vehicle after consuming alcohol. Through counsel, Sampsell told the district court that he would not disagree as to the evidence of the location of the collision, and he admitted the date. Sampsell's counsel also told the district court that Sampsell would not contest the evidence that his blood alcohol level was .217 at the time. Sampsell also agreed that the collision caused the deaths of the two victims.

[¶ 5] After receiving a pre-sentence report, and hearing statements from Sampsell; a jail chaplain; a clinical psychologist; Sampsell's father; the parents of the male victim; the mother and stepfather of the female victim; and counsel for the defense and prosecution, the district court proceeded to impose sentence. The district court said:

Having considered these things, I believe that the appropriate sentence is and the Court does hereby impose a sentence of no less than six years nor more than ten years on each of the two counts to be served consecutively, and Mr. Sampsell will be remanded to the custody of the sheriff for the execution of that sentence.

The Judgment and Sentence of the Court is silent as to whether the sentences were imposed to run consecutively or concurrently. Our rule is clear with respect to such discrepancies:

We have held that, when a discrepancy exists between the oral pronouncement and the written order, the oral pronouncement prevails. Lane v. State, 663 P.2d 175, 176 (Wyo.1983).

Smith v. State, 985 P.2d 961, 963 (Wyo.1999). See also Van Riper v. State, 882 P.2d 230, 238 (Wyo.1994)

(quoting Schuler v. State, 668 P.2d 1333, 1341 (Wyo.1983)); Christensen v. State, 854 P.2d 675, 678 (Wyo.1993)

(quoting United States v. Pugliese, 860 F.2d 25, 30 (2d Cir.1988),

cert. denied, 489 U.S. 1067, 109 S.Ct. 1344, 103 L.Ed.2d 813 (1989)); Krow v. State, 840 P.2d 261, 265 (Wyo.1992); McGraw v. State, 770 P.2d 234, 235 (Wyo. 1989); and Fullmer v. Meacham, 387 P.2d 1007, 1009 (Wyo.1964). Sampsell has appealed from the Judgment and Sentence of the Court, and his stance in the appeal correctly assumes that the sentences were imposed to run consecutively.

[¶ 6] Sampsell points out that this Court has rejected the common-law view that a sentence is not subject to appellate review if it is within the minimum and maximum limits set by statute. Wright v. State, 670 P.2d 1090, 1091 (Wyo.1983). Two years later, the standard was explained in Volz v. State, 707 P.2d 179, 184 (Wyo.1985):

The standard this court follows on review of sentencing is well established. This court will not reverse a sentence which is within the statutory limits absent a clear abuse of discretion. Kallas v. State, Wyo., 704 P.2d 693 (1985); Wright v. State, Wyo., 703 P.2d 1102 (1985); Munden v. State, Wyo., 698 P.2d 621, 626 (1985); Young v. State, Wyo., 695 P.2d 1055, 1057 (1985); Jahnke v. State, Wyo., 692 P.2d 911, 930 (1984); Jahnke v. State, Wyo., 682 P.2d 991, 1008 (1984); Ventling v. State, supra, 676 P.2d [573] at 574 [(Wyo.1984)]; Eaton v. State, Wyo., 660 P.2d 803, 806 (1983); Taylor v. State, Wyo., 658 P.2d 1297, 1299 (1983); Wright v. State, Wyo., 670 P.2d 1090, 1092 (1983); Daniel v. State, supra, 644 P.2d [172] at 178 [(Wyo.1982)]; Cyrus v. State, Wyo., 639 P.2d 900, 903 (1982); Scheikofsky v. State, Wyo., 636 P.2d 1107, 1112 (1981); Jones v. State, Wyo., 602 P.2d 378, 380 (1979); Hanson v. State, Wyo., 590 P.2d 832, 836 (1979); Smith v. State, Wyo., 564 P.2d 1194, 1202 (1977); Daellenbach v. State, Wyo., 562 P.2d 679, 683 (1977); Bird v. State, 36 Wyo. 532, 257 P. 2, 3 (1927); State v. Sorrentino, 36 Wyo. 111, 253 P. 14, 16 (1927).

This court in Ventling v. State, supra, reiterated the definition of "abuse of discretion" which applies to sentencing review:

"`"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. * * *"' Wright v. State, supra, 670 P.2d at 1092, quoting Martinez v. State, Wyo., 611 P.2d 831, 838 (1980)." [Ventling] 676 P.2d at 575.

While sentencing involves consideration of two broad categories—the circumstances surrounding the crime, and the character of the criminal, Young v. State, supra, 695 P.2d at 1057; Ventling v. State, supra, 676 P.2d at 575—after reviewing the record, we hold that the trial court gave proper consideration to both of these categories.

[¶ 7] Sampsell first argues that the sentences that were imposed demonstrate an abuse of discretion. He contends that the prosecuting attorney and the district court judge focused on the willfulness of the offense, and points out that, of course, willfulness is not an element of the crime charged. In pressing this argument, Sampsell relies upon an interpretation of the record that is different from our understanding. We quote from the comments of the prosecuting attorney:

The conduct of Mr. Sampsell that night was willful, there's no other way to describe it, and it was incredibly reckless. He chose to go out drinking that [night] with all of his friends from the base. He knew, like any law enforcement officer, he was indeed a security policeman at the base, about what the laws are and what they are not and how incredibly strict they are out at the base about drunk driving. His friends knew that, so they had taken a designated driver that night when they went out to [the bar]. You don't see that in this pre-sentence report. It's a very cold, sterile pre-sentence report.

And it's hard to try — I'm glad the families are here to give you a flavor of emotion of their children's lives, and the best I can do is try to help you understand the events of that night.

[The male victim's mother] indicated her son was at Perkins having dinner while Mr. Sampsell was getting drunk with friends at [the bar]. They went there, they drank for hours. They had a designated driver, took him back to the base, but he wanted to party. He wanted to go all the way down to Fort Collins, but he couldn't get anybody foolish enough to go out with. They tried to get him to stay. He chose to go, he chose to go back to [the bar], he chose to start drinking [their] massive, I believe, 25-ounce micro brews that by his count he pounded down eight or ten. Blood alcohol tells us .21. But we know he had been drinking continuously for at least five hours.

So he went back to [the bar] and continued to drink. He was making a very willful, conscious and deliberate choice. He drank there for several more hours, tried to pick up on a girl who turned him down. This apparently angered him. When everybody was leaving, they tried to get the keys away from him, but he would have nothing to do with that. He tried to fight one individual that tried to get the keys from him, pushed his way out of the bar, jumped into

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