Baker v. State

2011 WY 123 BAKER, Appellant

David Dale

(Defendant), Wyoming,

The STATE of (Plaintiff).

Appellee S-10-0229,

Nos. S-10-0230.

Supreme Wyoming. Court of

Aug. contentions, and we his claims

considered decisions. district court's will affirm the ISSUES S-10-0229, Bak No. Mr. In Docket [T2] follows: the issues as er states applicable Apprendi 1. The rule of Appellant consecutive sentence where the maximum, statutory beyond the received is jury to the presented was not of the sentence. enhancement of the Constitution 2. It was a violation with, but Appellant was sentenced where any notice that he was not receive did with, nor was he convicted being charged jury cumulative crime. by the of a Appel- could not sentence 3. The Court where there lant to consecutive statutory authority to do so. is no vio- Jeopardy Clause was 4. The Double Appellant received the sentences lated as merge where conviction required to were underlying felony required was of the impose a sentence for to convictand order endangerment. child S-10-0230, Mr. Baker lists In Docket No. issues: three to for the Court clear error 1. access to the Court deny Appellant jurisdiction to had no ruling the Court pro- Farm to Wyoming Honor order the Dale Bak- Appellant: David Representing relating possession in its duce documents er, pro se. Appellant. to A. Appellee: Wyoming Appellant Bruce Salz- Representing to law 2. Pursuant General; Terry Armitage, L. all Attorney right to burg, has a Constitutional General; Paul- Attorney identifying D. Michael him Deputy referencing and documents General; Attorney Jen- Wyoming Depart- ing, possession Assistant Senior Attorney General. Lynn Craig, Assistant ny ment of Corrections. right Appellant has a Constitutional GOLDEN, HILL, C.J., KITE, Before filed of all documents required service BURKE, VOIGT, JJ. into the District Court. BURKE, Justice. FACTS appeals, David consolidated In these [T1] 2007, Mr. Baker was August, court's challenges Baker Dale methamphetamine-related on six convicted fllegal an to correct of his motion denial imprisonment charges. He was sentenced district claims that He also sentence. four years of the first eight on each for six to grant him access it did not court erred when to be served charges, with the sentences Wyo- correspondence between to e-mail impris concurrently. was sentenced He and the ming Department of Corrections twenty-four months eighteen Having onment Defender's Office. Wyoming Public ed that "the illegal. charges, sentence is not on each of the last And two with the concurrently, sentences to be served but con insofar as the matter a request to correct sentence, secutive to the the first four request is denied." appealed. counts. Mr. Baker We reversed August On the district court entered his charges, convictions on two of the and confirming its order its denial of the motions. S-10-0229, affirmed the other four. Baker v. In Docket No. Mr. Baker chal- 39, 223 (Wyo.2010) WY P.3d ¶ lenges the district court's denial of his motion (Baker I). We remanded the case to the to an illegal correct sentence. We note that resentencing district court for pursued accordance he has not appeal an of the denial of 44, 223 Id., opinion. with our P.3d at 558. his motion for ¶ sentence reduction. remand, imposed On the district court the seeking [T5] addition to reduction and remaining same sentences as before on the correction of his sentence in the district charges. Accordingly, four Mr. Baker was court, Mr. petitioned Baker also the United years eight sentenced to six to on each of the Supreme States Court to review his case counts, first two to concurrently; be served through a writ of certiorari. In connection eighteen twenty-four and to months on each petition, with his requested Mr. Baker counts, of the last two to be served concur the Wyoming Public pro- Defender's office rently other, with each but consecutive to the vide him complete copies with trial his sentences on the first two counts. appellate record. Although many documents April Baker, [T4] On Mr. acting provided Baker, were to Mr. he continued to se, pro filed a motion for sentence reduction assert that other documents had been with- 85(b). pursuant to W.R.Cr.P. He asked the held. He filed a motion the district court suspend district court to his compel sentences and for an order Wyoming to the Public place or, him supervised probation on provide Defender's Office to him with "the Record," alternative, Complete specifically including to order that the sentences for all "Suppression Hearing Photographs, four counts any concurrently. ... be served The district court hearing E-Mails, scheduled a on the and all Documents, Confidential August motion on 2010. At hearing, Photographic pertaining Evidence Mr. Baker indicated that one of the proceedings." issues he The district court considered had raised in his motion for sentence reduc this during motion hearing the held on Au- 35(b) pursuant tion gust 2, W.R.Cr.P. should be 2010. provided Information during considered as a motion to correct hearing an the indicated that Mr. Baker had 35(a). pursuant to W.R.Cr.P. given nearly been pertinent all of the docu- district permitted ments, court present Mr. Baker to exception the photo- of several argument under either or both. rule After graphs prosecution the provided had to the Wyoming considering Mr. Public prior argument Defender's Office Baker's on the sentence, motion to reduce his the district Mr. unclear, Baker's trial. For reasons left court concluded as follows: Wyoming Public Defender's Office no longer photographs. had those imposed

sentences At the re- appear to ap- be quest court, of the district prosecutor propriate; they appropriate were at the provided Compact two time; containing Disks excessive, within range the lower photographs to the Wyoming Public Defend- of the [provided by sentences I statute]. er's Office. The CD's were then sent to Mr. acknowledge that Mr. Baker has done well Baker. Farm; at the Honor presumed but it is people will do well. And the reward point, however, At [T6] this Mr. Baker for that good is the provided time that an Farm, inmate at Wyoming Honor Department of Corrections. ISo possess was not allowed to or use CD's. think the sentences appro- were result, As a Mr. Baker's case worker at the

priate, remain appropriate, and will not Wyoming Honor Farm returned the two grant any further reduction of sentence. Wyoming CD's to the Public Defender's Of- regard With to Mr. Baker's motion to correct According Baker, fice. to Mr. Wyoming illegal sentence, the district court conclud- Public eventually provided Defender's Office issues revolve appeal Mr. Baker's [T9] mean- In the photographs. prints him that his court's order around the district however, a "Motion time, Baker filed Mr. charges would be on the last two Duces Te- Subpoena to Issue the Court consecutively to the sentences on served to direct cum," asking the district charges. His brief includes this two him with first provide Farm to Honor Wyoming between correspondence explanation of his claim: all e-mail copies of Wyoming Public case worker his for Counts sentence allowed The maximum 6-4-405(c) concerning § the CD's. pursuant to W.S. V and VI Defender's Office (5) By the court years incarceration. five hearing on court held The district consecutive sen- [Mr. Baker] At the September this motion I to and V and VI Counts tences on Counts he no it clear that Baker made hearing, Mr. serving a maximum is now Baker] II [Mr. part of his as sought this information longer (10) years, double of of ten sentence by the of his case review to obtain effort by maximum statute. allowed for the Instead, he Supreme Court.1 States United support basis, to that his sentences correspondence he claims sought the e-mail On that court erred when illegal, and the district are Wyoming Public De the complaint against to file with he intended fender's Office those sen- his motion to correct it denied Considering Mr. Bar. Wyoming State tences. purpose, Baker's stated such claims us We review [¥10] subpoena was "not requested that the found of review: ing following standard Mr. Baker's in the context of appropriate" a trial court's denial of reviews This Court matter, motion. and denied the criminal by illegal sentence a motion to correct S-10-0230, challenges Mr. Baker No. Docket standard. using an abuse of discretion ruling. However, is limited to this discretion by trial court as to determination DISCUSSION legal or ille- the sentence was whether illegal is one which gal.... An Illegal Sen- to Correct Denial of Motion limits, multiple statutory imposes exceeds tence of- imprisonment for the same terms of Baker's convictions two of Mr. After [T8] fense, violates constitutions or otherwise 39, 223 I, P.3d in Baker ¶ were reversed a sentence the law. Whether charges: 557, four convicted on he remained referencing applicable by determined a controlled sub possession Count provisions, and is constitutional statute or engage in intent to precursor with the stance statutory interpretation. The subject to laboratory operation, in viola a clandestine appropriate determination whether 35-7-1059(a)(i) § Wyo. Ann. tion of Stat. facts is a to a set of applied rule was (LexisNexis 2007); conspiracy II for Count law, review. requiring de novo question of opera laboratory in a clandestine engage 125, 6-7, State, 141 163 v. 2007 WY McDaniel Stat,. § tion, Ann. 35-7- Wyo. in violation of (internal citations (Wyo0.2007) P.3d 838 VI, 1059(a)(iv); en child and Counts V omitted). punctuation Ann. Wyo. Stat. dangerment, in violation of that his 6-4-405(a)(ii). remand, Mr. Baker contends {111] he was sen § On holding in violate the years impris consecutive eight to terms of six tenced Jersey, 530 U.S. Apprendi v. New counts, the first two on onment each 2362-63, 435 147 L.Ed.2d 120 S.Ct. concurrently. He run two sentences to (2000), Supreme in which the United States eighteen to twen to terms of was sentenced to the Sixth explained pursuant two Court last on each of the ty-four months Constitu to the United States Amendment counts, to run con two sentences with these tion, prior convic the fact of a than "[olther currently, to the sentences but consecutive tion, penalty for a increases the fact that charges. the first two on - Wyoming, U.S. v. 2010. Baker October petition certiorari was for a writ of 1. Mr. Baker's - (2010). -, 118, 178 L.Ed.2d 73 Supreme by Court the United States denied 272 beyond prescribed statutory State, citing

crime maxi ¶ 16, Doles v. 2002 WY 55 jury, mum submitted to a (Wyo.2002), State, must be P.3d and Eaton v. proved beyond a reasonable doubt." Mr. (Wyo.1983). P.2d Mr. Baker's imposition argues Baker that the of consecu third issue also lacks merit. penalty tive sentences increased the for his Finally, in [T15] Mr. Baker's fourth beyond prescribed statutory crimes maxi issue, he claims that his sentences violate his mum, therefore, Apprendi mandates that rights against being placed in jeopar double impose decision consecutive sentences dy they represent multiple because punish by jury, be made the district court. ments for the same offense. He contends We considered this same conten that he could not have been convicted on ¶ tion in 2006 WY Gould charges endangerment of child unless he was (Wyo.2006): P.3d charges also convicted on relating to the argument judicial imposition of manufacture of methamphetamine. He - consecutive sentences violates the Sixth therefore contends that the district court was soundly rejected Amendment has been required merge pur his convictions for other Supreme courts. The Hawaii Court poses of sentencing. "[Oljther jurisdictions, stated: including case, In previous [T 16] explained: we circuits, several federal aphoristically have Merger implicates of sentences a defen proposition dismissed that either dant's right constitutional to be free of Blakely Washington, [v. 542 U.S. 124 multiple punishments for the same offense. (2004)] S.Ct. 159 L.Ed.2d 408 or State, Bilderback v. 13 P.3d (Wyo. 253 Apprendi proscribes consecutive term sen 2000). right This component is one tencing, and this court does likewise." prohibition constitutional against double Kohapea, 267, [279,] State v. 111 Hawai'i jeopardy. Consequently, Id. analyt 440[, (Haw.2006), 141 P.3d 452] and cases ical necessary framework to resolve this cited therein. We follow suit and conclude issue is derived from the elements test set the district courts did improperly en by forth Supreme the United States Court appellants' hance the sentences under the in Blockburger States, v. United Sixth Amendment Ap- and the rationale of 299, 304, 180, 182, 76 L.Ed. 306 prendi Blakely simply by or imposing con (1932), subsequently adopted by this secutive separate their Bilderback, Court. 13 P.3d at 253. Pur crimes. test, suant to the elements two offenses We adhere ruling, reject to that Mr. are requires different when each proof of Baker's contention. an element the other does not. Id. Mr. [¶ 13] Baker's second issue ais ¶ Najera 2009 WY 214 P.3d variation on his first. again Ap- Based (Wyo.2009). 993-94 begin We therefore prendi, he claims he was improperly analysis this with pertinent a review of the prior denied notice that he charged was statutes, in order to determine whether a crime for which penalty could be en offenses are different requires because each hanced However, consecutive sentencing. proof of an element that the other does not. consecutive sentences are not enhanced sen I, [T17] On Count Mr. Baker was con- subject tences to the rationale of Apprendi. possession viected of of a controlled substance Gould, ¶¶ 20-24, 151 P.3d at 267-68. Mr. precursor with the intent engage to in a is, therefore, Baker's second issue meritless. laboratory operation, clandestine in violation [T1l4] Mr. Baker's third issue Wyo. 35-7-1059(a)(i), is a § Stat. Ann. which claim that the district court authority provides had no it is unlawful person to impose to However, consecutive sentences. knowingly intentionally or "Possess a List I "we long have said that the district court has or II precursor controlled substance with the discretion in determining whether engage the sen intent to in a laboratory clandestine tences will consecutively be served operation." or concur statute, Based on this jury - (Gould, rently." ¶ 24, 267-68, that, P.3d at was instructed guilty to find Mr. Baker charge, following day it must find the 1. From on or about the 1st

of this of Feb- ruary, through elements: on or about December, 2006; day 20th day of 1. From on or about the 1st Feb- County, Wyoming; Natrona day ruary, through on or about the 20th December, 2006; Defendant, Baker; David Dale knowingly willfully Did cause or County, Wyoming; 2. In Natrona child, [A.L.], permit a to wit: born [in] Defendant, Baker; David Dale 3. The - 1998; intentionally possessed Knowingly or dwelling To remain in a room or where precursor, List II controlled substance to the Defendant methamphet- knew that Todine; wit: Acetone and/or being amine was manufactured. engage 5. With the intent to a clandes readily apparent It [¥20] laboratory operation.2 tine endangerment crime of child includes at least II, one element not found in the other Baker con two crimi- [T18] On Count Mr. presence nal statutes: of a conspiracy engage victed of in a clandes child. equally plain laboratory possession that the crimes of operation, Wyo. tine in violation of 35-7-1059(a)(iv), precursor conspir- § controlled substance provides Stat. Ann. which acy engage in a any person laboratory it clandestine knowing is unlawful for operation ly intentionally "Conspire include at least one or with or aid an element not endangerment found in the child engage laboratory other to in a clandestine statute: en- statute, gaging, operation." intending engage, jury Based on this a clandes- guilty was instructed to find Mr. Baker laboratory operation. tine Mr. Baker is in- asserting correct charge, following of this it must find the that he could not have been endangerment convicted of child with- elements: being guilty out first engaging of in metham- day 1. From on or about the 1st of Feb- phetamine manufacturing. person may A be ruary, through on or about endangerment convicted of child even he is December, 2006; day 20th of actively manufacturing involvedin the of County, In Wyoming; Natrona drug. Under the in test set forth Block- Defendant, Baker; David Dale burger adopted by in this Court Bilder- Knowingly intentionally agreed or with back, the offenses are different because each persons; one or more other requires proof of an element the other them, they, That or one of would en- does not. The district court was not re- gage laboratory in a opera- clandestine quired merge the different crimes for sen- tion. tencing. VI, On Counts V and Mr. [T19] Baker Subpoena Denial of Motion for Duces Te- endangerment, was convicted of child in vio cum 6-4-405(a), Wyo. § lation of Stat. Ann. which provides person knowingly that "[Nlo shall Mr. argument [¶ 21] Baker's in willfully permit any cause or child to: Docket No. S-10-0280 does not merit de (1) room, ... dwelling Remain in a sought vehicle tailed discussion. He the e-mail cor person methamphetamine respondence only where the knows support complaint Wyoming he intended to file with the State being jury manufactured or sold." The guilty instructed to find Mr. Baker against Wyoming Bar Public Defender's endangerment, circumstances, child of it must find the fol Office. these Given the dis lowing observing elements: trict court was correct in completeness 2. We note for the sake of that the 3. The instructions on Counts V and VI were jury instructions also contained several clarifica- except naming identical for the of two different tions and elements, of these includ- children. explanations ing, definitions of example, "possession," laboratory operation," "clandestine and "List II precursors." controlled substance Baker the time of the in which Mr. in which stood venues" may be other "[tlhere sentencing hearing. The district instant to obtain the infor entitled Baker would be rejected that contention and did not his motion was "not sought, mation he but into account the fact that Counts III take ongoing his context of appropriate" to have been invalid and IV were determined criminal case. convictions. deci the district court's affirm We [T22] judgment and sen No. S-10-0229 and the amended [¶ 26] in both Docket sions 23, 2010, April upon remand entered on tence Docket No. S-10-0280. Baker to serve the district court sentenced BURKE, J., opinion eight years delivers concurrent terms of six to two VOIGT, J., Court; specially files I and ILI. his convictions on Counts Counts HILL, J., files a concurring opinion; per III were dismissed the direction and IV opinion. dissenting respect this Court. With to Counts V and VI, Baker was sentenced to two concurrent Justice, VOIGT, concurring. specially months, of 18 to 24 to be served terms reached via agree I with the result [¶ 23] consecutively to Counts and II. Baker's only majority opinion. separately I write January original sentence was repeat the concerns about the doctrine given at which time he was credit for Noj merger that are set forth days. time served of 312 105,¶ 17, P.3d era v. WY April Baker filed a [¶ 27] On C.J., specially concur (Wyo.2009)(Voigt, motion for reduction of sentence. The dis ring). progress report trict court asked for a from Corrections, Wyoming Department Justice, HILL, dissenting. report and such a was sent to the district majority I dissent because largely positive court. It was as to Baker's opinion fails to address issue which be (the system progress the Corrections ex readily apparent upon to the Court came ception being acquire that Baker had tried to appeal. of the record on close review cigarettes family, prod from and all tobaceo prohibited Wyoming Department ucts are AND FACTS PROCEEDINGS facilities). July On Corrections ap in to The matters at issue these Baker asked the district court facilitate [T25] receipt file that peals followed on the heels of this Court's Baker's of his case so he prosecute in a disposition appeal of Baker's substantive could writ of certiorari to the 44, 223 6, Supreme Wyo P.3d The Baker v. 2010 WY United States Court. ¶ 542, case, (Wyo.2010). ming provided we Public Defender's Bak In that re Office 20, July and af er with all the records it had. On versed two of Baker's convictions The Baker filed a to firmed the remainder of his convictions. motion district reporter hearing. court for court to have a court at his matter was remanded to the district date, resentencing opinion. that On that same Baker filed a motion accordance with 7, 2010, hearing asking April A was held on to that his motion for reduction of sen hearing granted prosecutor had consider the sentence. At that tence be because court position, district took the as did the date, responded not to it. that same On he not prosecutor, that the district court did appear telephonically a motion to filed his authority Baker in date, have the to resentence hearing. Finally, on that same he filed objection light of the that he stood con to the limited amount materi circumstance Thus, Wyoming six. al received from the Public victed of four crimes rather than he petition reference to Defender's Office in aid of his the district court deleted imposed III the same writ of certiorari to the United States Su Counts and IV and III and 22, 2010, sentences as he had when Counts IV prosecu preme July Court. On urging attorney argued pleading tor filed a the district court were still valid. Baker's deny motion to reduce sentence. On required impose that the district court to to July Baker filed a renewed motion light a sentence of the new cireumstances requesting that the motion for reduction of 4. The district court directed the clerk of give granted prosecutor copies because the the district court to Baker sentence be timely responded that of documents he needed from had not to motion. the dis- file, S-10-0150, expense trict court's at no Case No. Baker asked this Court Bak- er. grant petition for writ review so as appeal of the sentence reinstate his After the district court [¶ 29] delivered by April court 2010. That on ruling, presented argu of its Baker Au petition was denied order entered on ment his motion for reduction of sentence. gust on the basis that this Court had Baker first asked to amend his motion to a required the district court to conduct "a illegal motion to correct an sentence under resentencing proceeding." full-blown On Au 35(a). W.R.Cr.P. The district court allowed gust requested copy Baker of his go argue Baker to forward and either or both new sentence and contended that he should a motion for sentence reduction and a motion pay not have to for it because he had never illegal to correct an argu sentence. Baker's one. received The clerk district court primarily ment was directed at the district charge answered that there was a for such probation, court's refusal to sentence him to copies paid in that had to be advance and convictions(s) given that at issue in this get informed Baker he should be able to felony convictions; case were: Baker's first copies attorney his from defense whom the relatively young because he was at the time Wyoming had been sent. Pub (he years of the crimes age); was about 38 lic Defender's Office asserted that it had not recognized and because Baker and took re copy received a of that sentence At either. sponsibility for the seriousness of his crimes hearing, public Chey from defender and was committed to his own rehabilitation. everything appel enne from stated his argued Baker also that his sentence should Baker, late file there had been sent to and a probation Apprendi have been under v. New public Casper defender from stated that ev Jersey, erything stage from his trial file had been (2000). agree L.Ed.2d 435 that Baker's appears sent to Baker as well. from the respect Apprendi contentions with to the transcript hearing of the into this matter case are mistaken. what copy Baker did not have was a By order August entered on original clerk's file. Public defenders do not 2010, the district court denied both Baker's usually photocopy make a of that file. Rath motion for reduction of sentence and his er, prepar district court's file is used motion to correct an sentence. ing appellate documents and then it is 35(a) [T31] W.R.Cr.P. invests the district returned to the court clerk. district discretionary authority. with broad At hearing, [¶ 28] the conclusion of that However, we have held that it is in the the district court ruled that: judicial economy interests of to correct an prosecutor 1. The get- would check into illegal sentence if it even first comes to our ting photographs some so that Baker in appeal. attention our examination of the complete had a record. State, 359, Leger (Wyo. See v. 855 P.2d 363 That thing there was no such as "a 1993); State, 1184, v. 823 P.2d Kahisdorf transcript" proceedings of the (Wyo.1991); 1190 and Price v. 716 Supreme Court and so the district 324, view, (Wyo.1986). my P.2d 328 In this provide court could no relief in that Court must review the cireumstances under

regard. which this sentence was whether explained why explicitly The district court a Baker raised it or not. In this transcript yet had not been made case, the source of our concern was called to (However, resentencing hearing. prosecutor the attention of the and the dis note by we take here such a tran- trict court defense That counsel. concern made, seript subsequently has been was not whether or not a "full-blown" sen and it is tencing hearing included the record for should be held. Baker did appeals.) these not contend that a "full-blown" 276 Rather, he asserted

hearing legal right. be held. advantage should taken of some See 17, 24- Stynchcombe, v. 412 U.S. required to take court was the district Chaffin 1977, 1981-1988, 98 36 L.Ed.2d at S.Ct. the cireumstance into account (1978); Kentucky, 714 Colten v. U.S. convicted of four hearing he stood remand 407 prosecutor 1953, 1959-62, 104, 114-20, rather than six. felonies 92 32 S.Ct. (1972); Pearce, 395 at the district L.Ed.2d 584 U.S. position championed the 2079; offending at see also Wasman v. only conviec- 89 S.Ct. could remove States, 559, 566, in no 468 U.S. 104 S.Ct. but he could United the sentence tions from (1984) (plurality light 82 L.Ed.2d 424 way reconsider its sentence Rather, opinion). presumption envi of Baker's convictions cireumstance that two "only in sioned in Pearce arises cases appeal. United had been overturned Pupo, 874 States v. Pimienta-Redondo which a reasonable likelihood of vindictive (1st Cir.1989) Goodwin, cir ness exists." United States v. 12-16 the federal F.2d 2485, 2488, very a 457 102 S.Ct. 73 appeals dealt with similar U.S. cuit court of (1982). presumption L.Ed.2d 74 Once this issue: blossoms, prosecution proffer must evi II. PROCESS DUE it; elsewise, dence to overcome vindictive A established, ness is deemed and the due Pearce, Relying upon North Carolina process requires invalidation of the clause 2072,23 L.Ed.2d 656 895 U.S. 89 S.Ct. Pearce, challenged action. 395 U.S. at (1969), they de- appellants claim were 89 S.Ct. at 2081. process by law nied due prox than chronal follows more of their sentences on court's enhancement imity required bring play; Pearce into Pearce, II. In the Court addressed Count presumption apply does not indiscrimi process emerge concerns which due nately to all instances of detrimental action defendant, having obtained rever- when treading upon close the heels of a defen appeal, of a conviction on is subse- sal legal right. dant's of, exercise some See for, guilty quently retried and found Goodwin, at at 2494 U.S. S.Ct. offense, given same a stiffer sentence (involving felony addition of count after judge. Recognizing the same trial jury defendant asked for a on misdemean- potential a defen- inherent for abuse-that charge); Hayes, or Bordenkircher v. might penalized exercising ap- be dant 357,363, 663,667,54 U.S. 98 S.Ct. L.Ed.2d peal rights-the Court concluded: (1978) (discussing imposition of sen law, then, requires process Due trial, tence after defendant stood unsue- against a that vindictiveness defendant cessfully, plead rather than to lesser of successfully having attacked his first fense); 26-27, Chaffin, 412 atU.S. play no in the sen- conviction must (involving at 1982-88 reconviction and re- tence he after a new trial. And receives jury sentencing by after new trial ob may since the fear of such vindictiveness tained); Colten, 407 U.S. at 92 S.Ct. at unconstitutionally deter defendant's (discussing imposition of sentence af right appeal collat- exercise of the ter election of de novo defendant's "see- conviction, erally attack his first due system proved ond" trial in two-tier una process requires also that a defendant Wasman, vailing); see also apprehension of be freed of such retal- 566, 104 at 8221. As such S.Ct. cases fatory part motivation on the of the sen- betoken, chary the Court has been of ex tencing judge. where, tending precinets given Pearce to (footnote 725, 395 at at 2080 U.S. 89 S.Ct. cireumstances, totality the the likeli omitted). tiny. of actual hood vindictiveness This important principle Pearce that the case, suggest, we derives from that line. proportion. not be blown out of Pearce B flatly prohibit resentencing, or does employed presump We have the Pearce sentence, after the even enhancement of appeal against ap- "'a reasonable accused has taken an or otherwise tion ensure

277 original). vindictiveness, in Absent enhanced vindictiveness," Longval 7 3 prehension of see " despite any sentences are constitutional "inci- (1st Meachum, 286, F.2d 237 v. 693 Cir. they might dental deterrent effect have on the denied, 1098, 1982), 460 103S.Ct. cert. U.S. 29, right appeal." Chaffin, 412 U.S. at 93 1799, (1983), 76 L.Ed.2d 364 and we as may presage S.Ct. at 1984. This focus well the apprehension" demise of "reasonable as the suitability arguendo the of that standa sume judging process benchmark for due claims of presumption The was devised as rd.FN3 Wasman, retaliatory sentencing, see 468 U.S. at proxy a for actual evidence of vindictive (Stevens, concurring), 574, S.Ct. at J., 104 3225 bridge but that is a which need not be crossed complex because are "[mJotives motivation today. Goodwin, prove." 457 and difficult to U.S. 378, at 102 at 2488. But the blade Here, S.Ct. exemplar. This case is a fair edges: wielding it in too uninhibit has two adjustment district court's of defendants' may legiti a ed a manner serve to "block remand, evaluated, fairly on response mate to criminal conduct." Id. signal retaliatory does not animus. In sentencing judge's motivation Where the deed, authority reshape a sentence fairly question, cannot be called into there garner when multicount convictions mixed indulge conjecture, in is no need to affirmed, appeal-some reviews on some risks, presump run the which the Pearce integral component reversed-looms as an necessarily proof tion entails. Absent of judge's of the trial sentencing broad discr improper motive-or some sound rea Wasman, etion."FN4See 468 U.S. at 563- suspect son to the existence one-no 64, Society 104 S.Ct. at 8220-21. has a apprehension of reasonable vindictiveness strong ensuring interest in in our Wasman, can flourish. 468 U.S. at See jurisprudence, criminal punishment "will (where 569, pre 104 S.Ct. at 3223 Pearce merely suit not the offense but the individ sumption inapplicable, af defendant must 564, ual defendant." Id. at 104 at S.Ct. vindictiveness). firmatively prove actual court, tailoring 3220. The district a Accordingly, resentencing, it is rea sentencing package, protects this interest sonably judge reshaped clear that by considering a "breadth of information." impost merely bringing orig as a means of charged Id. The per offenses establish a sentencing inal intentions to fruition after range punishment missible and the intervened, development some new had designs then the ultimate employing presump need for the Pearce plan by considering the accused's actual See, eg., tion never arises. United States during enterprise, conduct the criminal as (4th 136, Cir.1988); Gray, 852 F.2d 188 life, health, habits, well as his and back Bentley, United States v. 850 F.2d ground. myriad of other factors un (7th denied, Cir.), 328-29 cert. 488 U.S. derlying original multiple in a (1988); 109 S.Ct. 102 L.Ed.2d 587 necessarily count are not case altered Shue, States v. 825 F.2d 1116 United successfully appeals when a defendant his (7th denied, Cir.), cert 108 appel conviction on one count. After an (1987); L.Ed.2d S.Ct. 376 United unwraps package late court and re (5th Colunga, States v. 812 F.2d charges one or moves more from its con Cir.), denied, cert. U.S. S.Ct. fines, herself, sentencing judge, is in (1987). 165, 98 L.Ed.2d 120 Stated dif position the best to assess the effect of the terms, ferent there must be some evidence package's withdrawal and to redefine the actual, apparent, or at least vindictive indeed, (if, shape size and redefinition process motivation before due violation appropriate). light seems Seen can be claimed. realities, retrofitting these a sentence after part a conviction is sustained in and vacat suggest FN3. Recent decisions that Pearce like- sensible, altogether ed in seems ly prohibits only enhanced sentences when moti- Wasman, vated actual See vindictiveness. fully legitimate response to criminal con by ("'due process 468 U.S. at duct. does not in sense forbid enhanced sentences charges, only but enhancement motivated "guideline newly-mandated actual vindictiveness toward the defendant FN4. The sentenc- having guaranteed rights") (emphasis exercised ing" courts, which has overtaken the federal see 278 361, States, only on remand extended 488 U.S. sentence generally v. United Mistretta (1989); 647, United L.Ed.2d714 102 109S.Ct. portions, empower and did not district court to Cir.1988), (1st legal punishments previously imposed), Twomey, F.2d 1132 845 alier States v. 1169, district courts' discretion significantly denied, the cabins 109 S.Ct. 103 cert. 489 U.S. (1989); Henry, 227 States v. 709 L.Ed.2d United not structuring sentences, but does entirely in event, guidelines Cir.1983) (en banc) any (5th the were eliminate i. F.2d 306 (similar). applicable the case. in To the extent these decisions are in reject today's opinion, we them. consistent way, a defendant when Put another resentencing, judge did allude to her FN6. At the indictment, multicount guilty on a found Pimienta-Redondo, Regarding original intentions. that the district strong likelihood there is a she stated: the disposition a which court will craft .... state, Redondo, Let me Mr. that you counts form the various sentences on original the sentence which was when I thought long years it a total term of 10 I of and on plan. When the conviction of an overall hard, and I still think that was a fair sentence component the counts one or more of circumstances, your your prior given individual vacated, dictates that the common sense conviction, [the] nature of the offense. efficacy the

judge be free to review should re-thought I have re- Now, I have that. today, original light of the of what remains thought your given allocution to me it also after today, years. and I have left a term of 10 I have sentencing plan, reconstruct the and to circumstances, your considered have consid- remand, applica upon within architecture aggrava- of the and the ered the nature offense limits, statutory if ble constitutional you past ting circumstance that in the commit- type necessary ted this same of offense. appears in order to ensure Regarding Pupo, judge said at resentenc- erime punishment still fits both ing: Bentley, at 328 criminal. 850 F.2d See Pimienta, in the case Mr. I must And as ("whenever appeal undoes a reversal express that I understand that the Court is not plan into sentencing plan, or even calls sentence, increasing always the Court question, court should be invit the district intended this defendant for the offense commit- period years ted serve the that I have the defendant on all ed to resentence conviction, prior imposed, that he has a rational, co counts in order to achieve taking background, into account his individual remaining light of the herent structure conviction, prior his and the nature of this of- Diaz, convictions"); States v. 834 United single count this is a fair fense I believe on this II) (trial and a reasonable sentence. (2d Cir.1987)(Diaz F.2d judge change on remand to could Granted, preferable it would have been intention), denied, carry original cert. out judge sentencing had articulated her 57, 102 L.Ed.2d 35 488 U.S. 109 S.Ct. Still, plan this omission was not earlier. Diaz, (1988); United States v. 778 F.2d constitutionally dispositive. (court (2d Cir.1985) (Diaz I) ap 88-89 place cart Defendants before the peals remanded for on affirmed by arguing accepting horse sentencing plan counts lower court's when judge's explanation ap would create an be thwarted successful would otherwise pearance likely to chill of vindictiveness counts); appeal of other States v. United appeal the incentive to convictions. The (8d Busic, Cir.), cert. 639 F.2d Supreme Court has ruled that unless vin denied, (proven reasonably pre dictiveness Diag (1981)(like ).FN5 L.Ed.2d 422 II Not sumed) sentence, underlies an enhanced withstanding sparseness of the record "chilling without consti such effect" is original sentencing hearing, it seems significance. Chaffin, 412 tutional See plain following order of this court's 29-35, 98 S.Ct. at 1984-1987. U.S. remand, judge "simply used Moreover, way the record in no contradicts way implement original [her] different original there sen the thesis Bentley, intention." 850 F.2d at 328.FN6 tencing judge's plan. The announcement intentions, though original sentencing which-though FN5. There is some caselaw perhaps distinguishable in terms of the breadth fact, supra note articulated after see appeal emanating of the mandate from the first plausibility. all the hallmarks of bore may proposition be read to stand for the assert support, example, presen- finds Lewis, by appellants. ed United See States investigation reports presented at (9th Cir.1988) (authority tence F.2d to alter sentencing hearing. think it sufficiently the first We remand were within significant reports especially integument these of the district original court's the interdicted conduct as a characterized sentencing plan that Pupo neither nor Pi- unitary an evaluation offense and set forth mienta-Redondo could have had rea- count, not for each but rather for the apprehension sonable punish- harsher offense." "instant ment was meted out in retaliation for disadvantage, Nor is this case where a claiming appeal. Under the cireum- adequately explicable not reference to case, stances of this a presumption of vin- judge's sentencing plan, has inured to dictiveness is unwarranted. Quite contrary defendants' detriment. simple A highlights prac illustration arguments seems true: in favor of tical approach strongly value of this allowing the trial court to discretion wield suggests why it must be correct. Assume where, here, strongest retrofitting are as judge originally had con does not serve to work a net increase in Pupo spend cluded that years should six Seq, aggregate punishment. the accused's jail for his drug-related this enter Gray, e.g., ("resentencing 852 F.2d at 138 prise, and had him years' sentenced to six will not be considered vindictive the ulti imprisonment on I Count and a term of mate sentence for one or more counts does probation on Count II. If pre the Pearce given exceed for all counts sen sumption applied, Pupo then would not trial") tenced at the conclusion of the first spend day behind bars after reversal of (footnote omitted); Bentley, 850 F.2d at his Count conviction.FN7Such a result can 328; Cataldo, United States v. 832 F.2d scarcely judge's origi be said to mirror the (5th denied, Cir.1987), 874-75 cert. intentions, sentencing nal to honor the so U.S. 108 S.Ct. 99 L.Ed.2d 892 cietal condign punishment, interest or to (1988); Hagler, United States v. 709 F.2d necessary be a concomitant treating (9th demied, Cir.), cert. fairly. process defendant Neither the due (1983); 78 L.Ed.2d 260 clause nor Pearce cireumseribes the dis Busic, 12; 689 F.2d at 951 n. United sentencing trict court's discretion so se Norton, (8th States 657 F.2d verely, outcome, or mandates so bizarre an Cir.1981) curiam) (total (per time de actually where the likelihood of vindictive sentence). creased under second demonstrably ness is small. Pupo's exemplifies situation the lack of cognizable prejudice. He faces the same suggest FN7. It is no answer to that district prospect incarcerative after the resentenc- judges guard against appellate disruption should (twelve ing years to serve on the affirmed sentencing packages by making all sentences count) (six concurrently. availability original sentencing as after the run of consecu- tive, deferred, sentences, suspended and/or years counts, to serve on each of two use, judicious historically impor- their have been strung together consecutively). There has tant accoutrements of the district courts' broad suggestion 12-year been no that his sen- sentencing authority. statutory tence exceeds the maximum for see, Campbell, Also Arthur Law W. Sen count, remaining retrofitting or that (Harsher 8:2, tencing, § at 236-837 him sentence otherwise caused some conviction) (3rd 2004). after invalid ed. detriment, say, further postponing the like- In Jones v. 2008 WY ly parole rendering good-time date of ¶¶ 12-13, (Wyo.2008), 79 P.3d 1025-26 credits less attainable. In real-world spoke length general this Court about the terms, the sentence was not "enhanced" at principles apply that we believe in all sen Consequently, all. no reason existed to tencing proceedings: weight giving judge's refrain from to the explanation. generalizations ap- The same While the focus of our review is for an ply to Pimienta-Redondo. discretion, frequently it impor- abuse of record, then, reasonably

On this we tant the record be clear have not the respect findings to the of the district slightest judge's reason to doubt ex- decision, planation. The sentences after in its in order function, a sen- forming the intermediate review can be meaningful appellate ABA for Crimi- Standards may impose an enhanced achieved. tencing court (8rd 1994), Sentencing, ed. nal Justice: by treating other current of- sentence eriminal guidance: part this as of an offender's provide fenses history aggravating factors the or as Sentencing more 18-6.5 Standard offense. most serious than one offense (a) sentencing impose (f) court should A multiple of total When sentences appropriate to the offense a sanction consecu- are to be served confinement should not consider other conviction and impose tively, sentencing court should a not the defendant was of which offenses a that do not exceed total prior to were dismissed charged, which reasonably gravity related to the term guilt, or of which the determination of the offenses. acquitted. defendant sentencing In who is (g) offender (b) sentencing In an offender convict- sentence, subject prior a a to service of offenses, sentencing a multiple ed of into ac- sentencing court should take impose a ordinarily should consoli- court part prior count the unexecuted appropriately of sentences dated set set of shaping sentence a consolidated current into account the offender's takes sentences. history. offenses and criminal A manual from the National resource (c) sentencing an for of- In offender College provides Judicial these additional episode, of an fenses that were suggestions: (i) sentencing in- a court should not Imposition Outline for of Sentence severity or the of the sentence crease sentence, imposing important In it is merely change type the of sanction as necessary you address all of the of counts or a result of the number assuring issues. For ease single charges episode, made from a done, you may following to use the wish and outline: where, (i) separate the offenses are Explain 1. Basis for Decision: the sentencing, a merged not sentenc- considered, you information that have ing imposition of court should consider e.g., presentence report, testimony at type and level of severi- sanctions of trial, testimony hearing. at ty that take into account the connec- 2. Nature of the Include Offense: separate tions offenses between statutory punishment range. and, imposing sanctions of total Factors: 3. Enumerate statuto- confinement, ordinarily desig- should ry aggravating mitigating and factors concurrently. nate them to be served you detailing find the evidence (d) for an sentencing In an offender supports each. If the are which factors graded by money amount of offense statutory, findings articulate the involved, sentencing property or which evidence form the basis for ordinarily appro- should determine decision. priate by treating the offense sentence Impact: Victim Address single determining as a offense and its harm the victim. gravity by cumulating the amounts of money property separate of- or 5. Nature of the Offender: Detail fenses. background your ap- offender's (e) sentencing an offender for mul- praisal given your of the offender obser- (c) (d), during vation of the offender the trial tiple offenses not within (and guided by sentencing hearing the offend- court should be testimony applicable). Appropri- presumptive derived er's remorse, credibility, ate include appropriate reference to the sentence details health, attitude, tendencies, industry, current offense. for the most serious character, habits, general moral in- guidance agency per- from the Under White, Penny Sentencing J. Guide for cluding drug Inappro- and alcohol use. 48-44, Judges, State Trial lifestyle The National priate details include certain (1998). College Judicial choices, race, gender, ethnicity, and deci- to demand trial. sion Applying [¶ 33] the above-cited authori here, I ties conclude that the district court Announcement An- Sentence: simply editing erred in out the two convic term, range, appropri- nounce the tions that we appeal. reversed Baker's ate, your and the manner of service. If resentencing While a "full-blown hearing" involves that the sentence conditions of- required, although was not the extent of satisfy, fender must detail individ- them hearing certainly such was most within the ually. requires follow-up If the sentence court, broad discretion of the district a mini appearance, announce the date. requirement mal was that the district court Imposing Multiple Sentences Of- re-weigh imposed in light sentences fenses our decision to reverse two of Baker's six felony convictions. The district court de an offender is convictedof When more discretion, clined to exercise its attributing to offense, you only than one must not this Court's mandate on prohibi reversal a appropriate determine sentence for tion that he could language do so. Such offense, you each but also must deter- opinion, included our fairly nor can it mine whether the sentences should run Thus, be drawn from it. I deem the sen concurrently consecutively. State law tence "illegal" to be contemplated as generally you establishes what must find 35(a), necessary W.R.Cr.P. and it is impose consecutively. this Court remand the case to the district Therefore, when faced with an offender court so that such a sentencing proceeding as offenses, multiple determining after fully may more described above conduct be each, appropriate you sentence for ed. whether, should determine under denying [¶ 34] district court's order cireumstances, you impose should a con- Baker's motion to an correct current or consecutive sentence. reversed, should be and this matter should Generally, impose consecutive sen- be remanded to the district court with di tences, you finding must make some resentencing rections that Baker's be con aggravating cireumstance light ducted crimes which he was legislature has established. is recom- convicted. you specify mended that the exact statu-

tory consecutive, reasons that a rather concurrent,

than a sentence has been

imposed for all the reasons illustrated

above.

Case Details

Case Name: Baker v. State

Court Name: Wyoming Supreme Court

Date Published: Aug 25, 2011

Citation: 260 P.3d 268

Docket Number: S-10-0229, S-10-0230

Court Abbreviation: Wyo.