Wright v. State

• Decision Date: 19 October 1983
• Docket Number: No. 83-43,83-43
• Citation: 670 P.2d 1090
• Parties: Grant Alan WRIGHT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1090

670 P.2d 1090

Grant Alan WRIGHT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 83-43.

Supreme Court of Wyoming.

Oct. 19, 1983.

Bruce P. Badley and Fred R. Dollison, Badley & Rasmussen, Sheridan, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Senior Asst. Atty. Gen., and Rowena L. Heckert, Asst. Atty. Gen., for appellee.

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

ROONEY, Chief Justice.

A jury found appellant guilty of an unlawful delivery of Schedule I controlled substance, marijuana, in violation of § 35-7-1031(a)(ii), W.S.1977. He was sentenced to two to four years in the Wyoming State Penitentiary. The limits set by the legislature for incarceration upon violation of this section are not less than one nor more than ten years.

Appellant words the issue on appeal as follows:

"The District Court committed reversible error and abused its discretion in sentencing Grant Alan Wright, a first-time offender, to a term of from two to four years in the Wyoming State Penitentiary, in that:

"(a) the District Court did not give due consideration to Mr. Wright's petition for probation;

"(b) the District Court failed to set forth its reasons for denying probation;

"(c) the District Court ignored the recommendations expressed in the presentence report;

"(d) no aggravating circumstances were presented to support the District Court's sentence; and

"(e) the sentence of Grant Alan Wright to the State Penitentiary, without probation, was arbitrary and capricious."

We do not find an abuse of discretion, and we affirm.

In contending that the sentence was too severe, appellant points to the fact that he was 20 years old, a first time felony offender, an honor student at Sheridan College where he was enrolled as a freshman in a welding program, and a recommendation by a probation and parole agent that he be given probation. In response, appellee points to the sentence as being within the perimeters set by the legislature for the crime, to the consideration of probation by the trial court, to appellant's basic concern having to do with the manner in which he was found to be involved in the crime rather than with remorse at having committed the crime, to his testimony as to the amount of marijuana in conflict with that of the arresting officers, and to the serious nature of the crime.

Before addressing the specifics of the issue presented by appellant, we note that the standards under which a sentence is examined by us on appeal have been well established. We do not follow the common-law rule that a sentence is not subject to appellate review if it is within the limits set by the legislature. ¹ "In a number of cases * * * the courts have expressed an adherence to the common-law doctrine of nonreviewability of criminal sentences. The common-law rule provides, in essence, that an appellate court has no power to review a sentence which is within the limits prescribed for the offense. Although this rule has been the subject, particularly with regard to its application in the federal courts, of continuing debate, and despite the fact that there appears to be a trend away from the strict adherence to the rule, it has continued in force in a significant number of American jurisdictions." Annotation: Review for Excessiveness of Sentence in Narcotics Case, 55 A.L.R.3d 812, 822 (1974).

As long ago as 1927, we indicated that we would modify a legal sentence if the trial court abused its discretion in imposing it. State v. Sorrentino, 36 Wyo. 111, 253 P. 14, 16 (1927). Since then, we have repeatedly set forth the fact that a sentence will be reviewed for abuse of discretion. Cavanagh v. State, Wyo., 505 P.2d 311 (1973); Peterson v. State, Wyo., 586 P.2d 144 (1978); Sanchez v. State, Wyo., 592 P.2d 1130 (1979); Jones v. State, Wyo., 602 P.2d 378 (1979); Buck v. State, Wyo., 603 P.2d 878 (1979); Sorenson v. State, Wyo., 604 P.2d 1031 (1979); Kenney v. State, Wyo., 605 P.2d 811 (1980); Scheikofsky v. State, Wyo., 636 P.2d 1107 (1981); Daniel v. State, Wyo., 644 P.2d 172 (1982); Taylor v. State, Wyo., 658 P.2d 1297 (1983); and Eaton v. State, Wyo., 660 P.2d 803 (1983).

In Scheikofsky v. State, supra, 636 P.2d 1107 at 1112-1113, we said:

"This court has stated its approach to sentence review many times. If a trial court's determination of the terms of imprisonment is within the statutory limits, it will not be disturbed absent a clear abuse of discretion. Hanson v. State, Wyo., 590 P.2d 832, 835 (1979); Jones v. State, Wyo., 602 P.2d 378, 380 (1979); Smith v. State, Wyo., 564 P.2d 1194, 1202 (1977); Daellenbach v. State, supra, at 683 [562 P.2d 679 (1977) ]. A sentence will not be disturbed because of sentencing procedures unless the defendant can show an abuse of discretion, procedural conduct prejudicial to him, and circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play. Hicklin v. State, Wyo., 535 P.2d 743, 751, 79 A.L.R.3d 1050 (1975). That is a nebulous standard, but it is as precise as we care to make it. We have an abiding reluctance to review a trial judge's determination of sentence. The determination is a burdensome decision which no trial judge could lightly make and which we will not lightly overturn."

In defining an abuse of discretion, we have said that:

"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. * * * " Martinez v. State, Wyo., 611 P.2d 831, 838 (1980).

The search for "reasonableness" and the recognition of the "circumstances" involved are complex with reference to sentence imposition. It is generally recognized that sentence imposition involves consideration of two broad categories: (1) the crime and its circumstances, and (2) the character of the criminal. ²

The differences in severity of punishment allocated by the legislature to the several crimes reflect a recognition that some crimes are more serious than others. Crimes of violence may properly carry a The character of the criminal could reasonably increase or decrease his sentence. His family background, education, intelligence, employment history, age, training, criminal and delinquency record, attitude, etc., well bear upon the accomplishment of the purpose of the sentence.

heavier sentence than non-violent crimes. The circumstances surrounding the commission of a crime can likewise effect the amount of sentence, e.g. John Doe and Richard Roe were both convicted of the same crime. Both broke a window and took merchandise from a business establishment without permission. John Doe took bottles of intoxicants for his own consumption. Richard Roe took a loaf of bread for his hungry child. Richard Roe's sentence could reasonably be less than that of John Doe. ³

And the purpose of the sentence enters into the application of both of the two broad categories considered in imposing a sentence. Although sometimes denominated otherwise, it is generally recognized that a sentence is imposed for one or more of four purposes: (1) rehabilitation, (2) punishment (specific deterrence and retribution), (3) example to others (general deterrence), and (4) removal from society (incapacitation or protection of the public). Rehabilitation is a laudable purpose, but there has been considerable disillusionment with it in the last ten to fifteen years. Nonetheless, methods by which a cancer to society can be turned into a societal asset are always desirable. Sometimes punishment results in rehabilitation. Sometimes it is a deterrent. Sometimes it is retribution only. The purpose of a sentence as an example to others is often overlooked. A person in a prominent position who is convicted of embezzlement may not need rehabilitation or additional education. The notoriety of his conviction may be more than adequate punishment, and removal from society would serve no use. But if a prison sentence were not imposed, another person in a similar prominent position could well believe it worth a chance to attempt a similar embezzlement--probation being the probable sentence should his attempt fail. Removal from society may be necessary to prevent continued criminal action by an individual. There are some who will hurt others at every favorable opportunity unless they are in confinement. These four sentencing purposes are in accord with Art. 1, § 15, Wyoming Constitution: "The penal code shall be framed on the humane principles of reformation and prevention." Rehabilitation results in reformation. Punishment results in both reformation and prevention. Example to others results in prevention. And removal from society also results in prevention.

A sentencing judge is also aware of the vital effect on the life of one convicted which results from his forced confinement--sometimes for a major span of such life. Likewise, he is apprehensive about having on his conscience the rape, assault or death of an innocent person at the hands of a convicted person who was not sentenced to confinement for an adequate time. The judge must isolate himself from (1) the "sob-sister" type who pressures for leniency on the basis of the convicted person's humanity without consideration of the injured victims and other pertinent factors, and (2) the vengeful "blood-at-any-cost" type who pressures for "hanging" without consideration of the human nature of the convicted one and the circumstances surrounding him and the crime itself.

The purpose of the foregoing brief summary of some of the factors and philosophy involved in sentencing is to illustrate the complexity of the act of sentencing and, thus, of that which...