Smallwood v. State

• Decision Date: 28 March 1989
• Docket Number: No. 88-170,88-170
• Parties: Paul Douglas SMALLWOOD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 798

771 P.2d 798

Paul Douglas SMALLWOOD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 88-170.

Supreme Court of Wyoming.

March 28, 1989.

Steven E. Weerts, Sr. Asst. Public Defender, Public Defender Program, Cheyenne, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., Stephen N. Goodrich, Legal Intern, Cheyenne, for appellee.

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

GOLDEN, Justice.

Appellant Paul Douglas Smallwood seeks remand for resentencing before a different judge, claiming the sentencing judge erred in not granting appellant's disqualification motion and abused his discretion by allegedly considering dismissed sexual abuse charges in imposing sentence. This criminal appeal was previously before us in Smallwood v. State, 748 P.2d 1141 (Wyo.1988) [Smallwood I ], where we reversed the conviction and remanded to the district court because that court had erroneously accepted a guilty plea without advising the accused of the maximum possible penalty in contravention of W.R.Cr.P. 15(c).

On remand and following certain procedural activities, which we will describe in more detail below, the accused again entered a guilty plea to felony child abuse under W.S. 6-2-503 (June 1983 Repl.). The district court judge, who had sentenced him the first time to a term in the penitentiary of not less than four nor more than five years, again imposed an identical sentence. The district court judge gave him credit off both the minimum and maximum terms for the 565 days already served. The limit set by the legislature for incarceration upon violation of this section is not more than five years. W.S. 6-2-503 (June 1983 Repl.).

Appellant raises two issues on appeal:

1. The trial court abused its discretion in sentencing appellant to four to five years in the state penitentiary. ¹

2. The trial judge erred by refusing to recuse himself from appellant's case.

We affirm.

FACTS

We incorporate by reference the facts stated in Smallwood I; the mandate on reversal there was filed on February 18, 1988.

On March 9, 1988, the district court set a pretrial conference for April 6, 1988. On March 18, 1988, appellant's counsel filed separate motions to dismiss all counts of the information which the state had earlier dismissed in connection with the guilty plea which was the subject of Smallwood I, for a change of venue on grounds of pretrial publicity, and for change of judge. In the motion for change of judge, appellant's counsel sought peremptory disqualification under W.R.Cr.P. 23(d), or in the alternative, disqualification for cause under W.R.Cr.P. 23(e), supported by appellant's affidavit. On March 29, 1988, the district court set all of these motions for hearing for April 6, 1988, to coincide with the pretrial conference also set for that day.

On April 6, 1988, appellant, his counsel, and the county attorney appeared before the district court judge. The judge addressed appellant, saying the court had been informed by appellant's counsel that he wished to change his plea to a plea of guilty to the felony child abuse charge. Appellant confirmed this. At this point, the judge thoroughly informed appellant of the advice to a defendant as set out in W.R.Cr.P. 15(c). In response, appellant answered that he understood what the judge was telling him. Next the judge asked appellant if he understood that by pleading guilty he was giving up "all of those motions that you previously filed," to which appellant replied, "Yes, sir, I do." The judge then asked appellant if he understood he would be asked questions about the offense to which he was pleading guilty, and appellant would be required to answer those questions under oath under penalty for perjury. Appellant replied that he understood; the judge asked him whether he had "any questions for the court before I accept your change of plea," and appellant answered, "No, sir, I don't."

The judge asked several more questions to satisfy the requirements for a change of plea. Next, the judge listened to appellant's testimony about his having physically abused his daughter as charged and found that a factual basis existed for the guilty plea. The judge asked appellant if he would prefer to have sentencing delayed until the judge received reports from the penitentiary. Appellant's counsel stated On May 12, 1988, the sentencing proceeding was held. After learning that appellant, his counsel, and the county attorney had each reviewed the penitentiary report, had no additions or corrections to be made to it, and had no additional evidence to offer, the judge heard the county attorney recommend the original sentence. Appellant's counsel recommended his client's release from prison and placement on probation. Appellant's counsel prefaced his recommendation with the observation, "The court knows what Mr. Smallwood was sentenced to because this court sentenced Mr. Smallwood." In his recommendation appellant's counsel asked the judge to consider only that his client had admitted striking his daughter with a belt and slapping his ex-wife's face, for which slapping he had already received a six-month sentence. Counsel emphatically urged the judge not to consider the criminal charges that the prosecution had dismissed, some of which involved alleged sexual child abuse. Counsel urged the judge to consider the penitentiary report which revealed that appellant had served his sentence quietly and without incident, and the mental health reports which concluded he was a physically nonviolent person of borderline intelligence who could neither read nor write and showed no signs of being a pedophile.

that preference, and the court recessed the proceeding.

After hearing counsel's recommendation, the judge asked appellant if he had anything he would like to say and if he knew of any reason why he should not be sentenced at that time. Appellant answered in the negative. In passing sentence, the judge stated he had considered:

1. probation;

2. the same reasoning and factors which he had previously considered in the original sentence;

3. the state penitentiary report which stated he had not attended counseling or therapy sessions and had not done anything to help rehabilitate himself in any way;

4. appellant had no probation plan; and

5. appellant had not demonstrated remorse and tended to minimize the gravity of the offense.

Since the judge considered and found present the same reasoning and factors which he had considered when he imposed the original sentence, we have carefully examined that reasoning and those factors for the purposes of this appeal. For that original sentencing the judge had before him the nine-page presentence report prepared by a probation officer, a report of a mental health examination prepared by Dr. Bernice B. Elkin, and a report of a psychological evaluation prepared by Dr. Jacques P. Herter. In addition, the judge heard appellant's testimony as developed by his counsel's direct examination at sentencing. Summarizing, we can relate the presentence report contained verbatim statements of appellant's ex-wife and daughter describing the specific incidents of physical abuse committed on them which formed the basis of the criminal charges to which appellant pleaded guilty; accounts of past abusive conduct by appellant directed toward his family members demonstrating an unmistakable pattern of abusive behavior; and accounts of alleged attempted sexual contact by appellant toward his daughter. In this presentence report, both his ex-wife and daughter expressed fear of appellant based on his past behavior.

Appellant was given ample opportunity to challenge the information contained in the presentence report. In his sentencing testimony, he denied the allegations of sexual contact with his daughter, admitted his ex-wife was afraid of him, admitted he had previously threatened his ex-wife, admitted spanking his children with a belt, admitted physically abusing his daughter by hitting her on the leg with a belt, and admitted slapping his wife's face. In passing the original sentence, the judge said he had considered:

1. Dr. Elkins' report;

2. the presentence report which indicated a history of abusive behavior by appellant;

3. probation and had found appellant's probation plans to be unrealistic 4. Appellant had minimalized his role in this situation and had avoided accepting any responsibility for it; and

5. the gravity of the offenses and the vulnerability of children to be abused by their parents.

Against this factual background, we now consider appellant's two issues.

DISQUALIFICATION OF JUDGE

With reference to his peremptory-disqualification-of-judge issue, appellant makes two assertions of interest. First, he claims that our reversal in Smallwood I essentially voided appellant's change of plea from not guilty to guilty, and therefore required a new arraignment for him to make a plea. Second, at oral argument appellant's counsel claimed that the new arraignment was held on April 6, 1988, in the proceeding in which appellant pleaded guilty and "gave up" all of the previously filed motions, including the motion for peremptory disqualification of the judge. Appellant reluctantly recognizes that his disqualification motion was filed before this new arraignment. He also concedes that W.R.Cr.P. 23(d) requires that this motion shall be filed "at the time of his arraignment and following his entry of his plea." The short irrefutable answer to appellant's issue is that not only was his motion not timely filed within the rule, he also abandoned it at the very time he was required to make it under the rule, since he claims the April 6 proceeding was his "new arraignment." We need not decide whether appellant's "new arraignment" theory is correct, or whether appellant was still being handled under his original arraignment in December, 1986. Under either scenario appe...