Ventling v. State, 83-128

• Decision Date: 15 February 1984
• Docket Number: No. 83-128,83-128
• Citation: 676 P.2d 573
• Parties: Steven Clay VENTLING, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 573

676 P.2d 573

Steven Clay VENTLING, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 83-128.

Supreme Court of Wyoming.

Feb. 15, 1984.

Leonard D. Munker, Wyoming Public Defender, and Sylvia Lee Hackl, Appellate Counsel, Wyoming Public Defender Program, Cheyenne, for appellant.

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

Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.

ROONEY, Chief Justice.

Appellant pled guilty to one count of carrying a dangerous weapon with unlawful intent in violation of § 6-11-101, W.S.1977 (Cum.Supp.1982) ¹ (this section was in effect at the time of this incident, but has been superseded by § 6-8-103, W.S.1977 (June 1983 Replacement)). He was sentenced, after a full hearing, to two to five years in the penitentiary. It is from this sentence and the judgment thereon that the appellant appeals. The sole issue on appeal, as worded by appellant, is as follows:

"Whether the trial court abused its discretion in sentencing Appellant to a term of years in the Wyoming State Penitentiary, rather than placing him on probation."

The standard by which this court reviews sentences is well established and often quoted. We have repeatedly held that we are reluctant to review the length of a sentence imposed by a trial court if it is within the limits set by statute and that we will not disturb a sentence absent a clear abuse of discretion. Wright v. State, Wyo., 670 P.2d 1090, 1092 (1983), reh. granted (January 19, 1984 Order, Wyoming Supreme Court); Eaton v. State, Wyo., 660 P.2d 803, 806 (1983); Taylor v. State, Wyo., 658 P.2d 1297, 1300 (1983); Daniel v. State, Wyo., 644 P.2d 172, 178 (1982); and Jones v. State, Wyo., 602 P.2d 378, 380, 381 (1979).

We have defined an abuse of discretion as follows:

" '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).

Sentence imposition involves consideration of two broad categories--the crime and its circumstances, and the character of the criminal. The latter of these categories could reasonably increase or decrease the criminal's sentence. His family background, education, intelligence, employment record, attitude, etc., may well bear upon the accomplishment of the purpose of the sentence. Wright v. State, supra.

" * * * While the punishment of a wrongdoer should be equal to the measure of his sin, the modern philosophy of penology is that the punishment should fit the offender, and not merely the crime, and the belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender. Responsibility should be the basis of punishment, and individualization the criterion of its application." 24B C.J.S. Criminal Law, § 1974, p. 539.

A brief summary of some of the factors and philosophy involved in sentencing is included at length in the Wright case, supra, and will not be repeated here.

Therefore, we must look both to the circumstances surrounding the crime, as well as to the background of the appellant. This case arose from the following factual situation. On August 17, 1982, Judy Jackson, a teacher and librarian from Vancouver, British Columbia, was traveling with a bike touring group. She was riding her bike several miles ahead of the group when a man, wearing blue jeans and a ski mask and holding a gun, stepped into the road and ordered her to stop. She stopped and got off her bike, at which time the man took the bike into a culvert at the side of the road and demanded that Judy Jackson follow. He also at that time discharged his firearm into the air.

While this was happening, a pickup truck came over the hill and Judy Jackson stopped it and asked the driver for assistance. Another vehicle also stopped at approximately the same time. The man with the gun fled; law enforcement personnel were contacted; a search was begun; and the appellant was apprehended and charged with three counts of carrying a dangerous weapon with unlawful intent. The appellant pled guilty to one count, and the others were dismissed.

The appellant, Steven Clay Ventling, is a former highway patrolman. He was employed as such for the state of Wyoming from 1978 until September 1982, and was so employed at the time of the above-described incident. He was not, however, on duty at the time of the incident. He left the highway patrol to run for the office of sheriff of Carbon County.

The sentencing judge ordered a presentence investigation and report, and appellant's attorney made a lengthy statement to the judge, asking for parole before sentence, or probation. The prosecuting attorney, in her statement to the court, said in part:

"The fact that he stood to lose so much and chose to commit this crime is one of the reasons the State requests this Court deny probation in this matter. If a man choses [sic] to commit a crime like this, in spite of the fact of his pride in his job as a highway patrolman, and his respect that he received from the community, and in spite of the love of a supportive family, if that isn't enough to stop him from committing a crime like this, I ask what good is supervised probation. * * *

* * *

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"The Probation and Parole Agent who worked with this Defendant also recommends that probation be denied. And on behalf of the State, I strongly recommend that probation be denied in this matter."

The appellant was given an opportunity to speak for himself,...