Schuler v. State
| Decision Date | 09 September 1983 |
| Docket Number | No. 83-33,83-33 |
| Citation | 668 P.2d 1333 |
| Parties | James SCHULER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Leonard Munker, Sylvia L. Hackl, State Public Defenders, Cheyenne, Gerald M. Gallivan, Director, Wyoming Defender Aid Program, J. Scott Burnworth, Student Intern, Wyoming Defender Aid Program, Laramie, for appellant.
A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., Terry J. Harris, Asst. Atty. Gen., Cheyenne, for appellee.
Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.
James Schuler appeals from a four- to eight-year burglary sentence which was enhanced to a life sentence under the habitual-criminal statute, § 6-1-110, W.S.1977. 1
We will affirm.
Schuler and two other persons were apprehended in the Mountain Bell building in Casper and were thereafter charged with burglary. One defendant pled guilty, while Schuler and the other defendant went to trial together. The jury found Schuler guilty of burglary and his co-defendant guilty of criminal trespass. Following the burglary trial, Schuler was found to be an habitual criminal, as defined by § 6-1-110, supra. The trial judge sentenced Schuler to four to eight years in the state penitentiary for burglary and then enhanced this sentence to life imprisonment under the habitual-criminal statute. The issues raised by "I. Whether the trial court abused its discretion in not considering probation or suspension at sentencing even though the only crime appellant was convicted of was burglary.
the appellant are described in his brief as follows:
The Fourth Issue:
After the filing of the briefs, a fourth issue surfaced for the first time in argument which asks this question:
Is it error to charge a defendant with being an habitual criminal in a separate information?
Two separate informations were lodged against the defendant--the first, in May of 1982, on the burglary charges; the second, in November 1982, wherein Schuler was charged as a person who would be convicted of burglary and who had previously been convicted of three other felonies. The first information, describing the underlying burglary charge, was incorporated by reference in the second complaint, which asked the jury to find Schuler to be, and the court to sentence him as, an habitual criminal.
Rule 16(b)(2), W.R.Cr.P., 2 specifies that the trial court may not hear a case if the information fails to charge an offense. For the first time in argument before this court, the appellant claimed that the trial court was without authority to entertain the habitual-criminal proceedings, because, contrary to the provisions of § 6-1-111, W.S.1977, 3 the defendant was charged with burglary and with being an habitual criminal in two separate criminal complaints.
Under normal circumstances, we would not consider this contention because it was not brought to the attention of the trial court nor was it brought to the attention of this court until the issue was raised in argument here. 4 We choose to address the question in this opinion because some of the prosecutors throughout the state appear to be unclear about the manner in which Prosecutors seeking enhanced sentences under the habitual-criminal statute must bring allegations of habitual criminality under § 6-1-110, W.S.1977 (see n. 1) in the same information with the underlying felony charge. That is, as in this case, if the charge is burglary and the prosecutor seeks to enhance a burglary sentence with the life-imprisonment penalty provided for those proven to be habitual criminals under § 6-1-110, supra n. 1, then both of these allegations should be contained in the same information. The rationale for this will be made more clear as the opinion progresses, but, in short, the reason that the habitual-criminal sentencing enhancement must not be described in a separate information is that being an habitual criminal is not a crime --it is a status. To be an habitual criminal under the statute simply changes the sentencing process so that the sentence which could be imposed for the crime charged (if less than life imprisonment) becomes enhanced to a mandatory life sentence. We said as much in Evans v. State, Wyo., 655 P.2d 1214, 1225 (1982), where we explained:
the habitual-criminal issue should be brought to the district court's attention.
We spoke to the question of pleading repeated convictions in Waxler v. State, 67 Wyo. 396, 224 P.2d 514, 518-519 (1950), quoting from 42 C.J.S. Indictments and Informations, § 145, p. 1057, as follows:
" * * * Where, in case of repeated convictions for similar offenses, the statute imposes an additional penalty, it is generally held that an indictment for a subsequent offense should allege facts showing that the offense charged is a second or subsequent crime within the contemplation of the statute, * * * and also that it is necessary to allege both the present offense and the previous convictions."
The concept was earlier announced in Bandy v. Hehn, 10 Wyo. 167, 67 P. 979, 980 (1902), where we said:
"Provisions of this Act [the habitual-criminal statute] shall apply only when previous convictions are set forth in the information or indictment charging the defendant, and proof thereof shall be made." Section 9-111, W.C.S.1945.
The predecessor statute was enacted in 1937 and remained in effect until the revised habitual-criminal statutes were passed in 1973. The language of the predecessor statute is unambiguous: the habitual-criminal charge must be brought in the same information that charges the current underlying felony. By comparison, we agree that the language of § 6-1-111 is not as free from doubt where it says:
"In charging a person with being an habitual criminal, the information or indictment shall set forth the felony committed within the state and shall allege the * * * previous convictions or felonies relied upon by the state." Section 6-1-111(a), W.S.1977.
Some of the prosecuting attorneys in our state apparently take the position that this statute is open to the interpretation that it only demands that the information charging habitual criminality be complete, in the sense that it should set forth both the prior and the current felonies but does not require that these charges all be made within the four corners of a single information. However, in light of the long history of criminal pleading in this state requiring a single information to charge both the underlying felony and the prior felonies upon which the State relies to enhance the punishment, the proper interpretation of § 6-1-111(a) leads to the conclusion that one and only one information should be brought, despite the fact that two informations would give adequate notice to a defendant.
We turn our attention here to the question having to do with whether there was error committed in this case through the filing of two separate informations, the first of which charges the defendant as follows:
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