Duffy v. State

DUFFY, Appellant Lee Scott

(Defendant), Wyoming, The STATE of (Plaintiff). Appellee No. 86-21. Supreme Wyoming. Court of

Dec.

sentencing statute separated when it maximum and minimum sentences single day and when it give failed to him credit for the spent time he in the Fremont county jail awaiting trial. He also con- tends that the court abused its discretion by basing its sentencing decision on ill will toward Finally, defense counsel. in an is- sue raised for the first time argu- at oral ment, appellant argues that the consecutive sentences illegal were because the two merged. crimes

FACTS following

The presented facts were prosecutor at the sentencing hearing, appellant and conceded their accuracy. At Munker, Defender, Leonard State Public 4, 1984, about 2:30 a.m. July appellant’s Gallivan, Director, Gerald M. Wyoming De- grandmother, Johnson, Ada was awakened Program, Laramie, fender Aid K. Leslie by the breaking glass sound of at her home (argued), Delk Appellate Counsel, Chey- in Lander. She went to the front door enne, Margaret Maurer, Legal Intern, and where she was confronted Richard Laramie, appellant (defendant). Sweaney who open forced her to the door McClintock, Atty. Gen., A.G. Gerald A. gunpoint. Sweaney made her take him Stack, Gen., Deputy Atty. John W. Ren- parts to various of the house where valu- neisen, Atty. Sr. Asst. (argued), Gen. and ables were empty pillowcase stored. an Saxby, Kevin Student (argued), Intern he collected a diamond wrist watch and Cheyenne, appellee (plaintiff). other jewelry, a .38 handgun, caliber and purse. her He then forced her out of the THOMAS, C.J., BROWN, Before and house, edge walked her to the of her prop- CARDINE, MACY, URBIGKIT and JJ. erty, and waiting fled to a car driven by CARDINE, Justice. accomplices, one of his Frey. Michele pleading guilty After to a two-count in- Appellant, Sweapey, Frey planned charging formation him aiding the crime telephone appel- over the while abetting aggravated robbery and con- serving lant was time for a Colorado bur- spiring to commit burglary, appellant glary Scott in halfway conviction house in Cas- Duffy was Rock, sentenced the district court tle Appellant Colorado. told Swea- to two consecutive terms in Wyoming ney how to enter the house and where to Penitentiary. His sentence on the look for the valuables. He also encour- aggravated robbery count aged was for not less Sweaney to take a firearm. After the months, years, than 24 and 29 burglary, Sweaney Frey were to travel years. more than 25 The help appellant Colorado and flee the conspiracy term for the count was not less state. years, months, than days; and 29 police plan by apprehend- foiled the years. Appellant was to ing Frey Sweaney soon after the crime.

begin serving his Wyoming first confessions, Based on their a criminal com- completed as soon as he a Colorado sen- plaint County was filed in Fremont on July tence serving which he was when he com- 6, 1984, charging appellant with one count mitted the crimes. aiding abetting aggravated robbery Appellant 6-l-201(a), (b)(i), maintains that (June district under W.S.1977 § Wyoming’s court violated replacement) indeterminate conspir- and one count of acy burglary 6-1-303, to commit under stay sentence. His in the County Fremont (June replacement). W.S.1977 jail against was credited his Colorado term. prosecutor April filed a detainer on 1985; and, June, early the Colorado au- INDETERMINATE SENTENCING appellant’s thorities allowed removal to the Appellant contends that the district County jail. Fremont 7-13-201, W.S.1977, court violated which § Appellant initially pled guilty, states: in case was set for trial December. He “When a convict is sentenced to the state however, changed plea guilty, his to at a penitentiary, life, otherwise than for hearing held on November 1985. At crime, imposing offense or the court right hearing pre- he waived his to a the sentence shall not fix a definite term and, investigation; pros- after the imprisonment, but shall establish a presented ecutor and defense counsel maximum and minimum term for which facts, relevant the district sentenced said convict shall in prison. be held said him to the consecutive terms outlined The maximum term longer shall not be explained above. The court its sentencing longest than the term fixed law for following rationale with statement: punishment of the offense of which you “I that I want to know have con- convicted, he was and the minimum term sidered all to of the factors be considered shall not be less than the shortest term in the American Bar Association Stan- punishment fixed law for the of the dards of Criminal Justice with reference offense of which he was convicted.” sentencing. They’re incorporated in reference, proceeding by each and According appellant, the trial court es- every I specifically one of them. find sentially imposed determinate sentences on mitigating applicable there are no factors both counts because there was a sin- to this Defendant. I find the offender gle day between the minimum and maxi- the leader enterprise; of the criminal the mum nothing sentences. But there is in victim was particularly vulnerable. The requires the statute which fixed victim cruelty was treated with for which of time between the minimum and maxi- this Defendant respon- should be held mum, and this court interfering would be sible. The offense involved threatened important with an legislative function if it violence. The Defendant is in need of undertook to period. establish such a We correctional treatment that can best be legislature doubt that the overlooked the provided by imposed. the sentence to be possibility obvious judge might that a im- He punished given deserves to be pose imposed the sentences here. Justice serious nature of the offense. There’s Brown, in a concurring opinion in Jahnke an undue risk if a lesser sentence were State, Wyo., 1010-1011 imposed, the offender continue would (1984), noted that such sentences would be offenses, being commit criminal it noted possible under the statute. He stated that felony. this is his sixth [Ap- and seventh judge in that case “could have sen- pellant, age prior felony had five con- tenced Richard to not less than [Jahnke] theft, burglary, victions for auto auto years, nineteen twenty- eleven months and burglary degree forgery.] and second days.” nine legislature The has not The punished Defendant should be response amended the in statute to Justice committing deter others from crime. He Brown’s observation. continues to commit crimes though even less restrictive sanctions have ap- been primary responsibility for criminal plied. And the isolation of this offender rests with which is necessary protection for the has the resources and mandate to create an public among things.” policy. effective corrections Unless and After judgment entered, appellant legislature changes 7-13-201, was until the prior W.S.1977, returned to Colorado to finish his imposed sentences like those prisoner this case will considered indeterminate only if, and to the extent that, legal. practice jurisdic- law and tion which imposed the sentence al- TIME SERVED low. give appel court did not (g) district For purposes all other than that for spent lant credit time he in the for the temporary custody provided jail awaiting County trial. Ac agreement exercised, Fremont in this pris- cording appellant, this decision oner shall be deemed to remain in the custody rule court violates the stated subject Jones jurisdic- State, (1979): Wyo., P.2d tion the sending escape and any state temporary custody be dealt judge trial to deny discretion “[A] the same escape manner as an grant pre-sen- credit for time served original place from the imprisonment custody pre-sen- tence where: in any or permitted other manner custody not tence is due to the defend- (Emphsis added.) law.” Section 7-15- (2) indigency, and ant’s the sum the V, Art. W.S.1977. spent pre-sentence custody plus in the sentence does not exceed the maxi- If appellant we were to hold as suggests, (Emphasis mum allowable sentence.” he would against receive credit his both added.) Wyoming Colorado and sentences for the spent awaiting Wyoming. trial in He problem The this argument is that would receive a benefit because he appellant being was not held the Fre- happened to Wyoming commit the crime County jail solely mont on the still prior while incarcerated for a Colorado charges. serving He was his Colorado sen- Clearly, offense. Agree- Interstate tence could not have been on released ment on Detainers is not intended to re- bond the district court. The Interstate committing ward criminal for his crimes Agreement provides: on Detainers prison. from court properly district “(d) custody The temporary referred appellant held that was not entitled to cred- agreement in this shall be for the against Wyoming it his sentences for the purpose permitting prosecution on the spent jail. County the Fremont charge charges or contained one or indictments, more untried informations ABUSE OF DISCRETION complaints or form which the basis of the State, Wyo., Martin 720 P.2d prosecution detainer or or detainers meaning we clarified the any on charge charges other or arising term “abuse of explained discretion.” We out of the same Except transaction. that a court can abuse if its discretion even his being attendance at court and while law; it does commit an error of there transported place from fore, the frequently cited statement presence his required, State, Wyo., Martinez v. 611 P.2d prisoner jail shall held in a suitable (1980), that facility regularly for persons used abuse of discretion has been said to awaiting prosecution. “[a]n mean error law committed “(e) practicable At the earliest time con- under court the circumstances” purpose sonant with agree- of this ment, prisoner seriously shall be returned to is misleading. When mislead- sending state. sentence is stricken from the Martinez definition, re-emerges. the traditional “(f) During test tempo- continuance of rary custody prisoner or while the “‘A court does not its abuse discretion being otherwise made available for trial unless it acts in manner which exceeds required by agreement, time be- the bounds of reason under the circum- ing served on the sentence shall In determining contin- stances. whether there ue to run discretion, but time shall be earned has been an abuse the ulti- Zanetti, Wyo., or not the court netti v. mate issue whether ” (1984). reasonably could conclude as it did.’ State, supra, 720 See Martin v. P.2d at are, however, independent “We under an State, (quoting Martinez v. su- from duty jur- to examine whether this court’s 838). pra, P.2d at invoked, properly isdiction has been even parties where the have not raised the imposed in The sentences this case jurisdictional Kurpjuweit issue.” the bounds of reason un were well within Development Northwestern Company, Appellant der the circumstances. had com Inc., Wyo., 708 P.2d prior serving felonies and mitted five Although appellant preserve failed to time for his most recent crime when he issue in either the district court or this planned robbery grand of his the armed court, theoretically we could conduct our Apparently prior prison stays his mother. investigation own to determine whether effect, had and the district no rehabilitative jurisdiction district court had to sentence correctly represent that he concluded appellant under both counts. continuing ag ed a threat to others. appellate court notices that the “[I]f burglary gravated robbery and which he illegal can, appeal sentence is it planned serious crimes that were involved conviction, order the trial court to particularly threatened violence to a vul reduce sentence to the maximum that mitigating nerable victim. There were no Wright, would be valid.” See 3 Federal factors. Practice and Procedure: 2d Criminal Appellant contends that district court (1982). at 415 imposed pun- sentences in order to severe case, however, In this we are not con- public ish the defender’s office. But the obviously illegal fronted an sentence quotes statements he from the record to simply Appellant’s which we can correct. support argument nothing his indicate merger argument complex is and would perfectly why appel- the kind. It is clear extensively. have to be researched This is lant received the most severe sentences exactly the kind of issue that defense coun- legally imposed that could have been —he bring sel should to the attention of the trial earned them. There was no abuse of dis- proper court and the at the times so cretion. explored thoroughly that it can be and ar- gued fairly adjudicated. Instead of MERGER conducting investigation our own court, argument At oral before this issue, merger we will invoke the appellant contended that he should have “general rule that a motion for correc- been only sentenced under one of the tion under Rule 36 [of sentence] [W.R. charges merger. because of the doctrine of sentencing should be made to the Cr.P.] This issue was not raised the district court in the first instance.” Price v. appellant’s court or mentioned brief to State, Wyo., (1986). 716 P.2d this court. appellant proper If makes a motion to cor- “Except appeals which involve issues illegal rect this claimed sentence under jurisdiction rights, or fundamental we 36, W.R.Cr.P., Rule if the motion is ordinarily will consider contentions denied, might then the properly issue more error unless the trial court has first been brought appeal. before this court on apprised given opportuni- thereof and JUDICIAL INTERVENTION ty alleged to rule error.” Den- Dennis, Wyo., nis v. dispute proposition do not We gives a that sentence which the same mini (i.e., mum and maximum “[Ujnder sentences three authority the settled this years years) to three inis fact a determi points we will not consider [those] * * illegal nate sentence and which Za- under an indeter- have not been briefed sentencing specifically mínate scheme. decided which authorized reduction generally proposition. cases stand this sentences reviewing court was in of effect. Under such Just two states —New Mexico and Tennes- authority, and because see—have held that a sentence with appellant “prior no pro- had criminal minimum and maximum is identical terms pensities,” the court reduced the minimum legisla- Mexico indeterminate. New years. sentence to five adopted ture has since a determinate sen- People Pacheco, Colo.App. 188, structure; tencing legisla- the Tennessee 581 P.2d 741 appealed the defendant legislation adopted ture specify- has since years his sentence of 34-38 for assault in required range between the mini- degree being the first excessive. A mum and maximum ques- sentences. The appellate statute authorized review of tion we confront here whether is a differ- court, alluding sentences. The after day, technically ence of one satisfies fact that this was a maximum statutory requirement held the justified cir- under the sentences, spirit so violates the cumstances and affirmed. of the indeterminate scheme that this court should act the face of Courts have tinkered with sentences to legislative concerning mandatory silence a comply make them with indeterminate sen- spread minimum and maximum between Thus, tencing upsetting statutes. after de- sentences. do learn from We New Mexico death, fendant’s sentence of the court dis- and Tennessee that will we leave judicial power punish cussed the for not matter to the as was done in years. explained less than 20 The court say day those states. We do not speci- a minimum where term year, same years, years. as one or five two statute, fied the court must set maxi- There ranges are different between sen- mum, life, up possibility to allow the tences, say only and we where parole and years ordered sentence of 20 greater maximum sentence is than the min- life, statutory Spillers the full range. imum, technically it is an indeterminate State, Nev. P.2d 22-23 sentence. will We discuss cases cited (1968), grounds, other overruled on Bean v. by the dissent which are said to be authori- State, 80, (1970). 86 465 Nev. P.2d 133 ty judicially for creating spread be- concerning was no There discussion a mini- tween minimum and maximum sentences. possi- mum spread that would allow for the states, In appellate several courts are parole. bility of given specific authority to reduce sentences In Superior Ard v. ex rel. Court appeal. no statutes contain 221, 102 Ariz. 427 County, Pima P.2d of grant such authority. of Su Illinois (1967), court, 913 the trial under a statute Court, preme under authority, such providing year sentence, imposed for a 10 a sentence, held complying that a while with Supreme life sentence. The Arizona Court sentencing letter of indeterminate set aside determinate life sentence as legislation, might spirit so violate its toas sentencing violative indeterminate sentence, justify continuing a different but specifies only statute. Where a statute a implied that, appropriate justification with term, impose minimum the court not sentencing judge, a sentence Id., maximum determinate sentence. 427 whose minimum and are maximum terms P.2d separated by day might upheld. one People Harper, 296, v. 50 Ill.2d 278 N.E.2d 111, Shequin, In re 131 300 In Vt. A.2d 771, (1972). 774 (1973), 536 the court found a sentence years degree 35-40 second murder not Scott, 344,

In v. People Ill.App.2d 117 (1969), spirit to violate the intent of the inde appellant sought 253 N.E.2d 553 sentencing sentence, statute. reduction of an terminate Wood excessive 7-14 Stoneman, years time, 449, robbery. for armed At as v. 133 344 that mansee Vt. supra, decided, 26, when Harper, (1975), 33 ap- was a statute A.2d court likewise 760

proved years. history.” Among factors, And tive sentence of 6-7 In re we Parent, (1965), 475, impact 218 A.2d 717 must consider the 125 Vt. v. Daniel State, Wyo., (1982), improper held with 644 P.2d 172 sim- a sentence identical ilar concerning cases sentencing. minimum and terms. In Dan- State, upheld iel v. this sentence court, Michigan, has, one without Just years 19-20 imprisonment on a conviction statutory range authority, created the to be of involuntary manslaughter, 20 where imposed the minimum and maxi between years was the maximum not- allowed. We Michigan court first re mum terms. The ed in judge given Daniel that the trial is fused to hold sentences whose minimum Id., wide sentencing. discretion in quoting separated by one and maximum terms were State, 378, Wyo., Jones v. 380 day People to be determinate sentences. v. (1979). We said: 342, Lessard, 177 Mich.App. N.W.2d 208 “Wyoming system ahas of indeterminate (1970). reversed itself Later the court sentencing, which carries with it an im- 30 days sentences with overturned between plicit adoption philosophy indi- maximum, observing the minimum and sentencing. system vidual This of inde- although technically indeter sentencing terminate necessitates comply minate it failed “to granting of broad discretion to the trial purpose the clear intent and the indeter judge, who must choose from the sen- act,” minate sentence held “that tencing range alternatives and the provides sentence for a permissible (Footnote penalties.” omit- exceeding the maximum two-thirds of ted.) 644 P.2d at 178. comply improper failing with the inde rejected uniformity We notion People terminate sentence act.” v. Tan required because crimes ner, 683, 202, 387 Mich. 199 N.W.2d 204- vary: criminals (1972). judicially promul Under this “The circumstances of each crime are sentences, gated governing law the court background different. The con- of each appeals year reduced a 35-50 sentence person victed is different and his rehabili- years, People Duffy, to 33V2-50 67 Mich. Also, tative po- needs are different. App. N.W.2d and a tential productive of each convict to be a months, 23-24 month to 16-24 society Id., member of is different.” People Redwine, Mich.App. P.2d at 180. N.W.2d Sentences to be imposed for violation of numerous criminal 7-13-402(a), Under the version W.S. ordinarily statutes is a matter better left to effect, then in Daniel would have legislature. court, therefore, This de eligible been years. for 19 engage clines the judicial invitation in to perceived injustice of the sentence was legislation by adopting appropriate heightened by the fact that Daniel had spread between minimum and maximum degree been of first with convicted murder perceive spread sentences. We that if a originally charged (644 which he was P.2d between minimum sentences 173, 1) life, would, n. and sentenced to he appropriate, simple that is a matter for likelihood, in all have been released well legislature provide. the to years. before 19 In perceived responding inequities INTENT

LEGISLATIVE of discretionary sentencing, indeterminate legislative The recital history legislature of the impose not did determinate impressive, but it the sentencing underscores wisdom specify mandatory nor even Independent period of the rule in stated Produc minimum between and maximum Cobb, Rather, Marketing Corporation Wyo., ers years sentences. less than two that decided, affidavits after legislature Daniel was the “persons only changes: involved in the enactment of made 7-13-402(a) two was proper legisla- statute are not a source provide eligi- of amended inmates were serving for the ble after minimum ed States Constitution discernible from the disregarded record telephone sentence less time. Section 7-13-423 are if the added, authorizing calls made justify rules for defendant do not sen- tences for the same act. to be deducted from either the maximum or pro- The sentence or both. rules Recognizing court, the ap- its per month, up days vide for the after proach issue, on the second relegated months, six mini- first time off the consideration of the third issue to a suc- events, good mum sentence. all time is ceeding appeal to this court and subse- grace right. a matter of of quent resort judiciary, my the federal discussion these issues will Thus, not be ex- although legislature perceived except tended to the philosophic as concern potential combining difficulties of inde- delayed about a answer to the contended sentencing judicial terminate discre- duplicitous sentencing. This dissent will tion, only it chose these less restrictive focus determinate sentences which remedy Emphati- means to situation. Duffy Scott received. cally spread years it did not mandate a minimum and maxi- between the Sentencing Indeterminate Under Someday mum sentences. it choose to Wyoming History Statutes— apply do so. Until then this court must Historically, sentencing existing they statutes are written. indeterminate system of Wyo- Ch. S.L. Affirmed. ming replaced the determinate sen- tencing standard Ch. of Wyo- S.L. THOMAS, C.J., only. in concurs result ming 1876. JJ., MACY, URBIGKIT and each filed approach is re- separate dissenting opinions. flected in the in terminology utilized 2§§ URBIGKIT, Justice, dissenting. 3 of the act. Intent is clear that judicial effort to avoid the statute would deep-seated philosophic Honest and con- result in year, a minimum term one or a my flict the conclusions of brethren longer if greater term statutory involving the intrinsic status of democratic expressly pro- minimum sentence time was government separation powers, de- by law. vided fined Art. Constitu- tion, through oversight 2 If me “Sec. forcefully. causes to dissent other- most any person impris- wise be sentenced to decision case is constitutional- Penitentiary onment for a ly simple far broader than fact life, for definite other than long-term penitentiary confinement said sentence shall not that reason be Duffy resulting Scott from his telephone void, prisoner but so sentenced shall calls from facility a confinement in Castle subject be entitled to the benefit and Rock, Colorado. act, of this liabilities the same First, this court creates sen- determinate if manner same extent as tencing Wyo- in direct contravention of the required had in the been terms statutes, ming ig- indeterminate sentencing Section of this act. noring legislative intent and executive of “Sec. 3 The Governor of branch function. Wyoming authority shall have under Secondly, illegality the issue sentence regulations may such rules and as be disregarded by majority’s on reliance prescribed by the State Board of Pardons post-sentence procedures such relief as parole permit go large to a issue may by later be utilized the defendant. is, to any convict who or hereafter now be, Finally, prohibitions double-jeopardy may imprisoned in the State Peniten- 1, of Art. 11 Wyoming tiary of the a Constitu- under sentence other than a life § tion and Fifth may Amendment of the Unit- who have served the mini- 762 court, Wyoming by perspective the trial cal of the statute and pronounced term

mum expression legislative intent.2 the clear such or in the absence of court, the mini- pronounced by the term Wyoming point consequently law on this by for the crime provided law adoption mum term in continued unaltered since its * * 1909, (Em- Duffy until the facts of the case for which he was convicted obviously aggravated judge the trial at sen- 84, added.) Wyo- Chapter S.L. of phasis time, tencing pursue causing him to circum- ming 1909. Wyoming vention of the statutes to avoid change in the law significant first application good-time al- 20, Wyoming in Ch. S.L. then occurred provisions lowance of those laws. 1947, change 1909 did not indeter- telephone As result of calls from a standard, minate-sentencing retained institution, penal Duffy Colorado received language present 7- identical § (a) awaiting no credit for confinement trial 13-201, W.S.1977. sentencing because of his continued serving prior of a sentence for a Colorado Wyoming was most law offense; (b) no credit for the further Colo- changed by Wyoming leg- significantly (c) required; years, 24 rado sentence 49, Wyoming by S.L. of islature 1984 Ch. months, days years (25-year to 25 1984, certainly not done in re- although offense) years, maximum on the and 9 State, Wyo., sponse to Jahnke months, years (10-year to 10 maxi- (1984). upon guilty pleas mum on a second offense Conversely, cryptic comment consecutively). This be served opinion unfair, Jahnke concurrence that the trial may system fair or it is a be but laws that is at issue. to not less than court could have sentenced hardly years maximum would have been Wyoming provi- Neither constitutional warning to the members sions, 1, including Wyo- Art. 15 of the going that court to abandon exist- ming Constitution: statutes,1 and, by legislation, ing penal “The code shall be framed on the adopt would then a determinative sentenc- principles humane of reformation and prevention,” contrary alternative to both the histori- 2. The 1. See House Bill vote after defeat Sentencing Study, June and Joint See also Select Correction time bill in October clear demonstration of thermore: tested House 52 to 11 with one excused. See also on final vote in the Minutes of Joint No. nal; sion as tary reasons for the inaction of the trywe legislation controlling legal principle." “ vering v. * * * 25, Congress, indicate that we walk on House Bill May heavy majorities tactics and Ch. an issue Judiciary Interim Committee Various to find in the absence of corrective 31, 1984, some members of the Hattock, 45, 1984, including but S.L. hotly 159, 1984, 25, Judiciary strategy might considerations they Senate, 309 U.S. debated would August legislative body 15, 1983, Digest Oversight passage a unanimous Senate House Interim 30 to 0 and 106, 121, in the quicksand 15 and 1984, of House Jour- Treasury Enrolled Act intent. Fur- judiciary, be sufficient suggested heavily October Committee, Committee parliamen prior as Minutes, 16, 60 S.Ct. passed good- when con- Hel ses- 21, See well as them proper tendency to trust to the courts to cor- approval to more than to indicate actments. “* * * struction of its have affirmative action to litical considerations ing corrective action. And in such strated the errors’ rect J., concurring. do when 444, no affirmative action in “ * * * ^[67] [17], 91 L.Ed. United Tribe, their Congress, S.Ct. [452], may done, why Congress may important States, [T]he And there are others, experience has Constitutional Choices own errors be the sheer * * * judicial 84 L.Ed. idea cannot 329 U.S. 91 L.Ed. 704 business. there duly adopted approval reh. denied 329 U.S. remaining misconstruction of its en- existence." repudiate * * *, 604, pressure 14, 22-23, many confirmed always work to forbid tak- of what the courts repudiation, * be a 125 A.L.R. 1368 (1946), Rutledge, silent and as ** reasons, laws. they ought their miscon- of other and Cleveland v. At times fail to take strong 67 S.Ct. 13 or demon- cases, accepted Among taking at 31. gives po- as Eighth “(a) to the United may grant nor the Amendment The parole, board a States Constitution: is, permission to leave the confines of the required, person

“Excessive bail shall not be nor institution in which the is con- imposed, fined, fines nor cruel and any person excessive imprisoned to any inflicted,” punishments unusual institution by under sentence ordered any district of this state than justifies judicial punitive this and extreme sentence, provided a life person is a violation of the the reaction which clear has contrary Wyoming served the pronounced by Constitution minimum term legislature.3 mandates of the good time, the trial court less if any, granted under promulgated pursu- rules does to What this court now is rewrite to ant W.S. 7-13-423. If a convict has practical both the intent effect of deadly made an assault 77-year-old result, weapon with a law. The real how- officer, ever, eviscerate, upon any option is to employee at of the or inmate of judge, district Ch. S.L. of Wyoming institution or attempted has to es- 1984: cape, or escaped assisted others to es- allowances; cape any institution, from

“7-13-423. Good he not gov- eligi- time power rules; promulgate parole. parole ernor’s to ble for filing granting a of rules. board shall fix terms and it conditions “(a) proper govern deems to governor, The after the conduct consultation of parolee parole parole with the state board of while effect. peniten- Wyoming wardens of the state special The terms and be conditions center, tiary and adopt the women’s shall they may prescribed each case or be regulations sys- rules and to establish general regulations rules and of the good special good tem time and board, person granted or both. No allowances peni- for inmates the state parole shall be released from an institu- tentiary and the women’s center. The agreement tion until signed he has may provide rules either for time to comply he will with the terms and be from deducted the maximum sentence conditions under which he been re- or for time to be deducted from the leased and abide the laws of the state. imposed minimum sentence by the sen- agreement The shall be retained court, tencing or both. probation office the records “(b) regulations The rules and adopted of his office.” governor provided by this sec- provided: Section 4 tion shall be filed in the office of the regulations adopted by “All rules and secretary of state but shall all times parole prior state board to effec- relating be considered rules inter- act, relating tive date of management Wyoming nal state special good time and time allowances penitentiary and the women’s center and adopted regulations are as the rules and private affecting rights not of inmates. governor and shall continue to be granting, grant, refusal withhold- revised, amended, effective until re- restoration pealed or pursuant nullified to law.” time allowances inmates shall be grace right a matter that of Governor, July 6, promul- inmates.” gated regulations good- continued 7-13-402(a): Section amended allowance, be reduced “7-13-402. Powers in the and duties board amount of ten month, parole generally. days per provisions by retaining protects rights 3. The Constitution should con- constitution "which fundamental provide greater protec- sidered and defined to independently of the United States Constitu rights tion to its citizens' Gilmore, individual than tion.” State v. 103 N.J. 511 A.2d them under afforded the federal constitution. Decisions should be based first the state point The to be made is that this inten- existed since 1909 with modest which have A, to promul- judiciary tional effort of the Appendix Rule avoid changes. See sentencing requirement not July Herschler 1984. indeterminate gated by Governor only abrogates intent of the rule established a new the Additionally, the allowance, providing special to reduced a differentiated minimum and good-time arrangement, exceed maximum but minimum not to from the month, right directly capability also the the with accrual affects of days per government through six-months confinement. executive branch of commence after B, implement Special penitentiary Time Allow- the Appendix Good wardens the See Penitentiary good-time statute, Rules. ance, parole State and denies to the Wyoming parole opportunity board the to handle deci- rule, ulti- of the statute and a result As (determinate) unitary sions. A sentence granting af- authority good time mate mean, cases, probably will in most that sentence is vested fecting the maximum parole time not exist the absence of will board, good time can be parole the governor. Legislative commutation the C, Appendix See and restored. revoked operation penal system intent for is frus- Awards, Special Time Good perversion trated this statute. Reform, July, 1984. of Board Charities affecting the special time Conversely, The judiciary effect of the invasion of the granted by the ward- sentence is minimum separation power in the Wyoming article en, revo- granted subject is and once vividly is illustrated by Constitution cation. present of the court. decision Article provides: 1§ special relationship time

The powers government The of this recog- time served also to be sentence state three are divided into distinct de- sen- Serving to reduce minimum nized. partments: legislative, The executive and tence, any does not assume allowance parole judicial, person or ap- and no collection early release unless board persons charged proves, granted any can exercise of since powers properly belonging to one of after the sentence has been time reason, special good departments these shall served.4 For this exercise jurisdiction powers properly belonging ef- expands parole board either others, special good- except as in this fectuated the warden’s constitution permitted.” expressly directed or time allowance. 4. analysis operation Shillinger from Warden Duane re- Statistical Information yet project special good prison- time is not sufficient to ulti- flects time awarded male The initial six months reveals mate effect. ers: inmates, per cent credit for about a 20 per ‘special’ good "Enclosed are the results of the whatsoever, credit status of no with a cent March, during allowances indicating analysis rough available through August, During 1986. this re- (not including penalty life inmates and death port period population total offender cases) mates, average reduction factor for all in- August highest reached 870 terms, affecting minimum population of 685 was ‘inhouse’ recorded on per probably cent less than 10 of the total sen- average August population dur- provided by Ju- tence time. Statistics Warden report period During was 838. special good Uphoff dith include time awarded (in-house) report period 731 inmates were re- prisoners: female awards, special good time viewed for in ac- cordance with State Statute 7-13-423. “7-1-84 to 6-30-85 24 inmates received 590 summary: "In days percent full 15.18 received time credits Average: days per 2.5 in- partial good percent received 28.59 [per mate month] credits "7-1-85 to 6-30-86 22 inmates received 849 percent no 54.72 received time cred- its.”

Average: days per in- 3.9 [per mate month]” legis- mean greater This decision intrudes into both the that the minimum would govern- and executive function of lative than the maximum parole so that board by authority unquestioned ment. It is supervision for any period totally would be legislature reason that the determines ex- purpose excluded. The of the law in estab- penalty of istence crimes the for viola- lishing a differential between the maximum tion, sentencing which includes the term and minimum was to afford credit to the State, process. Cook Wyo., See v. problem-free inmate for of his service sen- (1985); State, Wyo., v. P.2d Williams tence—a benefit to the institution —and au- 692 P.2d 233 This court is neither thority parole to the period board for a of justified empowered nor to rescind the suspension upon release. enactment which established indeterminate one-day sentences in this case aof sentencing repeal subsequent legislation between the minimum and differential establishing parole board’s function clearly the maximum statutory violate which is to ameliorate confinement time to construction and the intent the stat- of be served. Additionally, ute.5 that intent was rein- practical result should be examined. in passage forced 1984 with the of legisla- sentence, Duffy With a maximum can granting authority tion to effectuate the early good by be released accumulated good-time special-good-time and the factors time, time, special good gubernatorial sentencing application.6 in commutation, excluding relief from federal One is an final note: It axiom of the courts which find con- otherwise that separation powers of government, of in the rights by stitutional have been violated capability to control not punitive process. only budgeting but also the definition of If his does justify conduct those ben- punishment, of crimes and extent that efits, then question no is created. Assum- judicial legislative efforts to contravene in- contrary to the that he is a model judicial can tent cause diminished discretion prisoner, he that could accumulate time so by consequent amendatory legislation. parole grants good board a maximum 25-year time on his on the initial Case Law Precedent month, days per reducing the maximum range years of confinement efforts Judicial to characterize indeter- expire. his totally when sentence would sentencing minate statutes as determinate Conversely, regard sentencing prece- is not without historical in to the minimum time, sentencing special good Noteworthy and the dence sister states. is that delayed greater Wyoming commencement no to this date case date has dis- difficulty possible probably attainment would cussed rational standard for board, Characterizationally applicable explica- by act effectuation the 1971 tively direct applied comment of Justice Frankfurter in no as minimum was Hallock, Helvering supra act, n. 309 U.S. at granted passage as until resisted at 60 S.Ct. 450: strongly by judges trial and at least one member * * “* linguistic essay in Such an refinement appeared opposition of this who existing still embarrass intrica- would further legislative sessions in 1983 and 1984. See ingenuity, might cies. It demonstrate verbal 25, 1983, 1983; House Bill House Journal strengthen hardly it but could the rational 159, 1984, House House Bill Journal 1984. The foundations law.” response pervasive was a 1984 act over- crowding problems and institutional needs Actually, period was incentive, especially applied behavior applied change initially to the minimum. The long-term Reemphasized sentences. passage interest in occurred with of Ch. S.L. of sentencing repealed flexible the historical standards and some mini- Wyo- time first enacted Ch. S.L. of mization of uncontrolled discretion of the sen- ming 1883. tencing jurist was also indicated the text and penal sentencing provi- There are still institu- inmates in results of modification who tions received historical time under sions afforded the law. applied law as minimum time. After gorically rejecting the trial court sentence sentencing legis- derived determinate Supreme Montana Court stated: intent.7 lative * “ * * Legisla- conception of the [T]he in the concur- comment Only the dictum ture, as indicated the use the term State, supra, Jahnke lends cre- rence ‘indeterminate,’ the minimum standard. new dence to this should maximum terms fixed be so State, Carey v. Wyo., 715 P.2d See adjusted as to allow a substantial State, Wyo., 715 P.2d 232 (1986); Seeley v. during the time to intervene State, Wyo., v. Holmes P.2d 715 (1986); made, parole might application for be State, supra; Cook v. Williams (1986); 196 prison “ and the Governor board State, supra, 710 P.2d at v. 826: ‘It is for might its mer- determine commissioners whether to determine [a ” by inquiry touching the conduct of its adopted,’ quot- approach] should new in whether applicant, order to ascertain State, supra; Wright v. ing from Williams disposition to he has or not exhibited State, Wyo., 670 P.2d 1090, reh. denied v. reform, invoke and hence is entitled to State, v. Daniel (1983); Wyo., P.2d 153 707 lodged in them. discretionary power State, Peterson (1982); sought to being manifestly the end This (1978). Wyo., 586 P.2d mandatory upon accomplished, it is rejected sen- soundly states have Other every to the statute in the courts enforce imposed to those which were

tences similar case, according spirit. to It is not to its in this case. provision purpose say parte was Ex leading early fixing case of the mini- prohibit The does not Collins, P. both will 51 Mont. mum and maximum so that date, present they expire a statute similar on the same because which involved things, approach may, an identi- in the nature of a sentence of Wyoming law and disap- the difference In cate- each other until term. cal minimum and maximum article, (and my Gaylord here I brush What I call it’ analogy Lester in his would The of C. general my in refer- Disproportionate over research notes Pony Sen- hand Farm: A Tale The them) interesting study (July-August ‘is an on the tencing, ence to and Comment 91 Case justices sensitivity 1986), thoughtful: thresholds of the individual philosphically " mean, they what Court. I no matter of the ‘So, Fred,' say, of these cases I 'since none (and contrary they do claim claim to the ones, we are at to overrule the earlier claims pun- contrary), unusual to the the cruel and a.) Legisla- interesting point in the law: this merely a reflection of their ishment clause is disproportion- tively punishments mandated no life or warmth of consciences. It has constitutionally prohib- are ate to the offense merely meaning of its own. It determinable punishments: but ited as cruel and unusual them; they like it tells us what are reflects b.) punishments imposed Disproportionate inside.’ legislatively mandated limits will within “ Fred,’ ‘No, subject, say, warming up to the I legis- by the Court because be interfered with call it is an obvious manifesta- 'what I would merely latively punishments are so- mandated pati- in a attitudes cloaked tion subliminal decisions; inter- the court will not cietal resulting para- objectivity, juridical in na of decisions; c.) however fere in societal dan- precedents with an occasional doxical punishment, imposition disproportionate of a Or, put simply gling it more ...’ modifier. though legislatively there- mandated and even "But, simply, put he I can it more decision, before is cruel and unusual fore a societal hat, ten-gallon puts the tooth- for his and, therefore, reaches punishment is unconstitution- pocket, stiffly pick door, walks to the in his vest prohibited.’ al and breaking me, has been horses all as if he thoughtfully, looking "Fred sits there day, leaves." worrying toothpick slowly mouth, around in his judge in this case in The comments of the trial trying I have to make sense of what it, course, said; regard Hopkinson he was sentenc- case as is no sense to but there give supposition light. ing Duffy that in credence upon certain unless it is looked " in a being way Hopkinson was resentenced my says. some chances?’ he 'What are ‘None,’ " being pun- public defender’s office was say. and the I Unfortunately, Duffy, who was foolish says, angrily, you ished. call “‘None? he ‘and prior judge enough to have removed justice?’ exclusion, no,’ detriment of the surprised motion received the ‘"Why, say, should I that he resulting sentence. suggest call it that. even that. wouldn’t (less pears. time) is not in accord This view minimum term of an * * spirit provision, *, and would indeterminate sentence it is obvi- effectually purpose defeat had ous that the effect of this sentence was Legislature. entirely any possibility view It is foreclose of considera- jury returning tion parole.” clear that the the ver- 278 N.E.2d at 774. here, question dict and the court Harper is approval cited with in People v. pronouncing judgment, ignored the Viser, 62 Ill.2d 343 N.E.2d * spirit purpose provision 152 P. at 41. Another explaining case the rationale be- subject in An- was also considered hind indeterminate People not., 29 A.L.R.2d 1344: Scott, Ill.App.2d 253 N.E.2d 553 (1969): subject support “The few cases “ * * * that, principle under an indeter- when there is a substantial law, minate sentence the sentence cannot spread between the minimum and the imprisonment, be for a definite term of maximum of a sentence the inmate in the specified must be for not less but than a institution can be directed toward aca- period of time and for not more than a training, demic or vocational and favor- specified period, prospective and there must be a able parole op- consideration periods, quite difference between such erates catalyst. so that as The existence a sentence of a fixing spread under such a law identi- substantial the mini- between mum cal minimum and maximum terms of im- and the maximum ensures the prisonment availability to supervi- is invalid.” the defendant of sion after principle incarceration. The Applicable Wyoming law8 is the sim- indeterminacy necessarily of sentence trial-judge ilar status of Illinois law where professionals leaves to the in the beha- proclivity to legislatively override the vioral sciences the determination of the adopted standard of indeterminate sentenc- optimum court, date for release. The ing has been considered in some fashion fixing maximum, determines the total appeal in more than score of cases. length possible incarceration.” 253 Factually comparable is People v. Har N.E.2d at 555-556. 296, per, (1972), 50 Ill.2d 278 N.E.2d 771 approval People Scott is cited with v. where a convicted robber was sentenced to Allen, 342, Ill.App.3d 431, 35 341 N.E.2d years a minimum of 20 and a maximum of (1976). 437 years day. 20 and one There Addressing greater likelihood that an said: “ * ** inmate will strive to become rehabilitated The clear intent provi- of [our] law-abiding under an indeterminate sion for indeterminate sentences is to sentencing oft-quoted scheme is the case of encourage prisoners by rehabilitation of Lillie, 174, People Ill.App.2d v. 223 holding out the possibility early re- (1967): N.E.2d 716 parole. lease on While the sentence [im- generally “Tt that true rehabilitation posed] may comply with the letter of the system is best achieved under a Act, Sentence and Parole we are of the gives great parole discretion au- opinion it does comply with its * * * * * * thorities.’ prisoners intent. Since are not eligible until they have served ^[******] sentencing (1983).

8. Determinate within the XVIII Land & Water L.Rev. 591 The apparently indeterminate only law has parental case involved homicide. The second attempted history been three times in court, presently case is the one before this occasion, Judge of the law. On the first District well as a third case which has now also reached (now Brown) gave Brown Justice a near identi- appeal. “opportunity” this court on The now cal maximum-minimum sentence to Russell expected authorized this court can be Roberts, Payne, appealed, which matter was not propagate expedited in an fashion. Changing Sentencing, Structure Criminal “ * * * hope earl[y] 384, Ala.App. (1930); release is a 125 So. 898 Illinois: great prisoner partic- People Westbrook, incentive to a 301, v. 411 Ill. ipate 494, in the educational (1952); and rehabilitation N.E.2d 29 A.L.R.2d 1341 Mas programs provided penal in modern insti- sachusettts: McDonald v. Common sentences, wealth, 322, tutions. (1899); Excessive 173 Mass. 53 N.E. 874 courts, imposed by Michigan: Cummins, 39, defeat the Re 138 Mich. parole system by (1904); effectiveness of the N.W. 1008 see People Duffy, also v. making mandatory 266, Mich.App. (1976); the incarceration of a 240 N.W.2d 771 prisoner long People Buchanan, 574, after effective rehabilita- Mich.App. v. accomplished.” tion (1973); has been 223 N.E.2d 212 N.W.2d 290 parte Montana: Ex Collins, at 718-719. supra; Jersey: New State v. Moore, 419, 21 N.J.Super. 91 A.2d 342 citing People Two of the cases Lillie are (1952); Parent, Vermont: In re 125 Vt. Harris, Ill.App.3d 351 N.E.2d 890 (1965), fact, 218 A.2d 717 “In the trial (1976), People Jacque, Ill.App.2d court set an identical maximum mini 266 N.E.2d 514 “ * * * term, mum acknowledged which is to be A true indeterminate sentence is contrary spirit and intent of the one with a sufficient difference between statute, and is error.” the minimum and maximum limit which prisoner opportunity will allow the Callahan, In In re Petition 348 Mich. parole. Because of its mini- excessive 81 N.W.2d 670-671 mum, years a sentence of four to five court stated: violating the terms a bail [for bond] “The power has exclusive effectively denies opportunity; it length imprisonment determine the of mitigates against philosophy the of the felony. power That subject is not to statutory provisions regard pa- with to judicial supervision, the function of the People Jacque, supra, role.” v. 266 being only court impose to sentence un- N.E.2d at 515. der and in accord with the statute. In re Doelle, 241, 251; 323 Citing Mich. 35 Jacque approval with is N.W.2d People v. Buxton, 429, People Harwood, 96, v. Ill.App.3d 28 286 Mich. 328 281 N.E.2d 703 (1975). 551, Buxton, In N.W. the court cases therein cited. In examined a so doing performs sentence for murder of the court not less than 100 a ministerial years years nor more than 101 function imprison- with discretion confined to the ment, permitted and modified the minimum term limits the to statute.” provide years for at imprisonment least 33 Ross, 448, See also Wash.App. State v. 20 comport in order to Jacque's with mandate (1978), 580 P.2d 1110 judge wherein the of “a sufficient difference” between the attempted impose to not the maximum minimum and maximum limits. minimum, sentence but also the and the law, “Under an indeterminate sentence Supreme agreed Court that under state law the court cannot fix the minimum and authority no was vested in the judge trial imprisonment terms of to ex- to set a minimum jurisdiction pire time, and, at the although same was vested in the Board of Prison Terms there authority is contrary, such and Paroles. identical minimum and maximum terms Court, Supreme The Arizona in Ard v. definite, constitute a determinate sen- ex Superior State rel. State Court of tence which comply do not with the law 221, 913, County, Pima 102 Ariz. * * *.” 24 1582, C.J.S. Criminal Law § (1967), 916 stated: p. 572. “ * * * statute sets forth the maxi- [The] 1993, See also 24B p. C.J.S. Criminal Law § mum term which the court fix in imposing an indeterminate sentence. [It]

Support for the rule stated pronouncement included does not authorize of a State, cases from Alabama: Jones v. 23 fixed or determinate sentence.”

769 to persuasive subject pa- states with author the court termination Additional 114 ity O'Day People, Colorado: v. role after the minimum term. include service * * * (1946); 373, supply Colo. 166 P.2d 789 Florida: court must the maxi- [T]he Florida, Fla.App., 469 868 harmony theory v. So.2d Valdes mum the (1985), authority court without is, “The trial indeterminate sentence—that a maxi- time”; (with prevent Nebraska: gain allow for possibility mum will sentencing provi proportionate detailed parole. The court is not authorized 304, sion), Thomas, 209 307 v. Neb. State preclude possibility unless (1981); 189 Suggett, N.W.2d 128 State v. expressly granted “ 714, (1973), 204 Neb. N.W.2d 793 ‘When authority.” clear, Legislature it is the intent of Michigan, People Redwine, v. 73 Mich. it in duty courts construe (1976), App. 550 250 N.W.2d sentence A accordance with such intent. sensible prison of 23-24 months was found to placed construction will be it to effec violate that state’s indeterminate sentenc- legislation object tuate rather statute, ing system and and in Jones v. meaning than a literal would have State, (1930), 23 Ala.App. So. ” intent,’ legislative defeating effect of years day three and one was in violation of quoting Department from Keller v. State that state’s indeterminate stat- Roads, 853, 172 184 Neb. N.W.2d ute. (1969); Rubek, 141, 201 v. 189 Neb. State philosophy statutory construc (1972); Jersey: v. N.W.2d 255 New State comprehensively tion standard was con Janiec, N.J.Super. 95 A.2d “ Jersey Superior sidered New Court ‘Only Legislature may ordain Moore, N.J.Super. State punishment for crime and the sentenc A.2d impose a sentence incon * * * “Imposing minimum and maximum sistent therewith. “Under an inde oper- alike identically terms law, terminate sentence the court cannot against as a ates restriction the exercise fix the minimum and maximum term of powers parole delegated exclusively imprisonment expire the same ’ ” time,” Moore, 21 State Board. It withdraws quoting from Parole 419, 342, (1952); N.J.Super. 91 that the consideration and A.2d 345 from Board Callahan, People New authority York: v. 19 A.D.2d determine discretionary the to 889, 766, (1963), 244 N.Y.S.2d 767 cert. prisoner him- the has rehabilitated that 1130, 966, denied 376 11 U.S. 84 S.Ct. worthy to self and is of return normal (1964), term, L.Ed.2d 983 with an indefinite society the and in event association the court cannot “add as an incident misbehavior reincarcerate him. It of such its de sentence recommendation that that at the is tantamount direction prison fendant shall remain in defi expiration of the minimum sentence the time,” citing People nite of v. Tow regardless prisoner must released of er, 123, (1954); 308 N.Y. 123 N.E.2d 805 rehabilitation, a direction his state of Hassin, 705, People 48 N.Y. v. A.D.2d 368 is not akin to an encroach- (1975); Pennsylvania: S.2d 253 Commis the upon authority the State ment Marshall, Pa.Super. 275, 385 sioner v. 254 ques- Board determine such Parole (1978); State, A.2d 1017 Texas: Thomas v. tions, contrary to but also the modern (1979). Tex.Cr.App., 587 707 S.W.2d conception major purpose that the imposition punishment of a for criminal Nevada, State, 23, Spillers in v. 84 Nev. reformation, wrongs 18, 23, rather than the 436 P.2d overruled on other theory State, 80, old now discredited atone- grounds, Bean v. 86 465 Nev. 91 at 344. (1968), ment.” A.2d P.2d 133 determined that: “Through evolutionary changes adopted the the in “Nevada has indeterminate is, system concept sentence our of administration criminal sentences —that period imposed by justice power duty where maximum determin- 770 parole questions sentencing devolved required statute sentencing ad- justment. Parole Board. This State evolution- “ * * * ary development bespeaks an intent that recognize We tripar- that in our questions the determination of system tite government of. it is the func- supervision parolees

and the legislative were tion of the branch to define Board, prescribe vested the State Parole distinct crimes and punishment, and separate judiciary. questions that such If such are in- first judgment stance for the imposed permit- Legisla- sentence as here were ted, 410, ture alone.” In re quite conceivably Lynch, it 8 Cal.3d would tend to 217, Cal.Rptr. 921, legislative P.2d thwart intendment of the (1972). parole system prisoner and remove the supervision

from the of the Parole Board The indeterminate system in ef- during which he is released fect at the time of that case has since been upon parole and under surveillance until changed. expiration equivalent of time Only cases in New Mexico and Tennessee prison term.” 91 A.2d at 347. contrary stated a rule. Gledhill, N.J.Super.

See also Supreme Court, The New Mexico 113, (1974). 322 A.2d 471 Davisson, 653, State v. 28 N.M. 217 P. 240 “ * * * (1923), specifically rejected in imposing Thus the court Montana sen au- thority accepted discretionary tence fix as a could a maximum term at- and also tribute of the indeterminate sentence specify a shorter minimum. In the alter the minimum and the maximum native, could be it could establish the maximum the same. The New Mexico result was time for confinement without reference by ignoring achieved legislative-intent But, seen, a lesser time. as we have question employing theory literalist sought insofar as the order to sentence statutory interpretation by use of the respondent to a term of not less than regard words purpose “without for the in- months, nine it was without force and accomplished tended” to be legisla- added.) (Emphasis effect.” State v. pronouncement. tive Appeal to the United 124, 467, Bruley, 129 Vt. 274 A.2d Supreme States Court was dismissed for (1970). jurisdiction. want of Stoneman, 449, In Woodmansee v. 133 Vt. history of New Mexico 344 A.2d 26 seven-year a six- to developed law thereafter interesting if sufficiently sentence was not identical to be prophetic. Wyoming, Similar to unacceptable. Pacheco, People See also New Mexico indeterminate sentence stat 41 Colo.App. 581 P.2d 741 passed ute had been Owens v. Teat, N.C.App. State v. Swope, 60 N.M. 816, 819, 726, S.E.2d cert. denied 286 N.C. (1955), 954, cert. denied 350 U.S. 76 S.Ct. (1975), 213 S.E.2d 725 quoted the court 21 343, (1956), N.M.S.A.1953, 100 L.Ed. 830 Am.Jur.2d, 540, Criminal Law and stated: § 41-17-1. Amendments of a moderate na § “ ‘[Ujnder an indeterminate ture followed until sentencing the entire law, a sentence cannot be a definite statute was by redefined 1977 N.M. Laws imprisonment. term of It must be Note, Ch. 216. See Sentencing in Definite not specified less than period New Mexico: The 1977 Criminal Sentenc and not more specified than a Act, (1979). 9 N.M.L.Rev. 131 As the period. There must abe difference be- change result of the by afforded that stat tween periods, fixing a sentence amendments, ute and the 1980 the earlier identical minimum and maximum terms discretionary jurisdiction broad of the dis ” imprisonment is invalid.’ trict court severely was diminished and a State, See also 857, Dixon v. 260 Ark. 545 approach determinate adopted, with the (1977), S.W.2d 606 where an particular indeterminate area of discretion to diminish

771 (1984); 317, 421 primarily Sparks, now vested State v. 102 actual served N.M. (1985). 694 P.2d 1382 penitentiary virtue warden operation pursuant to N.M.S. The other state which followed the mi- 131, A.1978 33-2-34. See 9 N.M.L.Rev. rule nority now advanced this § court supra. Tennessee. State ex rel. v. Brinkley Wright, 26, 193 Tenn. 241 S.W.2d 859 By virtue of the discontinuance of the (1951); State, Hensley 551, 166 v. Tenn. 64 standard, sentencing indeterminate (1933); State, S.W.2d v. Landers longer efficacy Davisson case no 648, (1928). Tenn. 11 S.W.2d 968 The det- in New Mexico law. erminate construction of an indeterminate case itself was first reconsidered sentencing status likewise accept- not Cooksie, 429, Swope 285 P.2d legislature, v. N.M. able to Tennessee and the 793, changed law has since been so Supreme and the Court that a sen- tencing differential between the maximum resolved: matter was raised “Since this not required. and minimum is T.C.A.1982 Re- in the lower not Court same will be 7A, placement Yol. 40-2107. See State § passed here.” See also v. Owens Tenn.Cr.App., 631 Duffel, v. S.W.2d 445 Swope, supra. (1981); and Mays, State v. Tenn.Cr.App., Other New Mexico cases did not discuss (1984); 677 S.W.2d Tennessee Criminal determinate as the result indeterminate Sentencing 1982, Reform Act T.C.A. sentencing analyzed. structure was seq. 40-35-101 et Cox, French v. 74 N.M. Consequently, Wyoming will have no au- (1964): thority presently existing from case law in “ * * * [Ujnder the indeterminate sen- any jurisdiction support posi- which will law, prisoner only tence can his claim adopted precedentially. only tion now Not satisfied, being debt to as the state as of present supported by not is the decision right, upon expiration of the maximum authority prior Wyoming, decisional sentence, his fixed less such minority but not even now rule provided by conduct time as be previously followed in New Mexico and statute. The minimum less Tennessee. good time, merely when, fixes a date change desired in this matter is grace right, matter of and not prerogative legislature and not of prisoner may permitted to serve the prescribes legislature When the court. peni- balance of his sentence outside the for the an indeterminate sentence convic- tentiary, under such circumstances crime, power court has no tion of the trial conditions as the authorities judg- to substitute its own discretion provide.” legislature. ment for that of the See State, Maestas, supra, 692 P.2d 233. also See State v. 63 N.M. 313 Williams noteworthy P.2d 337 It is em certainty said with summary, it can be phasized in Mexico “it is New cases that present decision is the of this for the act determine what legislative contrary intent to clear regarded they shall be as criminal and how significant prece- purpose without punished”, Peters, shall State v. 78 N.M. law, authority Wyoming also dential but (1967); Hovey, P.2d 382 State v. regard interpre- alone in now stands (1975); N.M. 534 P.2d 777 indeterminate statutes tation of Sinyard, 100 sentencing jurisdiction N.M. in of any this na- P.2d cert. denied N.M. tion.9 penitentiary majority opinion, The if time no matter what it lin- is true is to be invested in states, guistically provides by a new confinement. The is then invited to contention logic year, years, judicial misinterpretation, case citation that the court's one two correct true, years, inevitably society day. or five If as is the same as one and dates, that will occur man- probably similarly then a one second should serve. None not in form that will be affidavit, Illegal Correction Sentence Under by together with copy a there- W.R.Cr.P. Rule of, copy which by shall forwarded the attorney general of clerk court of appeal justified No is seen in this basis Wyoming by the state of or certified question legali- disregarding of the registered mail. The clerk shall docket constitutionality consecu- ty and of the two petition upon receipt his thereof and by tive the same transaction sentences for bring promptly the same to the attention succeeding proceed- leaving the for a issue proceeding of court. No under this W.R.Cr.P., pro- under Rule which act shall be commenced more than five vides: (5) years after the conviction and sen- may illegal sen- “The court correct an accused, tence of the petition- unless the any may tence at time and correct a alleges showing delay er facts that the in imposed illegal sentence manner neglect.” due to his own provided within for the the time herein reduction of sentence. The court If this court had wanted additional briefs days reduce the sentence within 120 af- question sentencing on the of double under imposed, ter the sentence or within invoking different statutes the constitution- days receipt by the a man- after court of al of jeopardy, rebriefing issue double judg- upon date issued affirmance of the highly prefer- this time would been have appeal, ment or or within dismissal appeal able so this would have deter- entry of order or after sentencing mined the defendant’s status. judgment Supreme having Court court, If case this reaches the federal upholding judgment the effect of of surely preferable it would be that a conclu- conviction. The also reduce a by sion would have been reached this court. probation revocation of a By delay judicial processes this in the we law.”, provided as by simply people involve more at additional proceeding a new instituted under public clearly cost in order to determine a 7-14-101, W.S.1977: § implicated and statutory constitutional is- “Any person imprisoned peniten- in the sue of construction. tiary proceedings who asserts that in the which in his resulted conviction there Duplicitous rights was a substantial denial of his Sentencing Jeopardy —Double under the constitution of the United Duffy, States midsummer Scott Wyoming, or of the state of both, may young unsavory man with a proceedings institute under most criminal by history, act 7-14-101 to was incarcerated of [§§ 7-14-108]. proceeding by filing half-way shall be at its commenced Colorado Castle Rock house. immediately prior July, the clerk of the early court which the Some place petition telephone friend, conviction took ex-girl verified he made to an calls laws, perceived Furthermore, judiciary. tencing Wyoming judiciary as desirable the trial now will opinion misapprehends anticipate history be condemned to will concept, availability potential difference in repeat Wyoming system elimination of the withdrawal time, from nearly years. eighty topic existent error, rules, present and is in under nothing has dissent to do with reduction 7-13-402(a), analysis 49, amended Ch. by appellate sentences courts. It relates Wyoming S.L. of sentences that were violation of both the Parenthetically, I would observe that none of spirit and the text of the historical majority opinion the cases cited pass encom- “History philosophy teaching law. one-day or one-second time differential. by example.” Dionysius. As Justice Holmes State, supra. Paraphrased generally, Daniel v. if stated, page history “A is worth a volume history hap- we do not learn of what logic." analysis present For an excellent Tennessee, pened in New Mexico problems, Spader, Megatrends see in Criminal professed by alone manifested the rule the ma- Theory, Justice 13 American Journal jority repealed legislature, as then when Crim.Law 157 the courts “determinated" sen- indeterminate

773 Frey, acquaintance, crime; Richard burglary Michelle or an 6. commit a would pro- Sweaney, home, with information about their Street, Ada Johnson’s 1000 N. 5th burglary of his spective of the house Lander, Wyoming; Johnson, Lander, Wy- grandmother, Ada in 4, 1984, July 7. Frey and Michele purpose get His oming. was for them Sweaney overtly and Richard acted money return to Colorado and secure his objective effect agreement, person, In company release. with a third constituting “such facts a violation of proceeded in en- those two their criminal 6-3-301(a), 6-1-303 Sections and W.C.C. a deavor to break-in at the residence and 1982, [sic], and so did contrary Johnson, physical robbery of Mrs. with bru- form the statute in such case made tality physical and extreme threat of harm. against provided, the peace and discovered, cap- The triumvirate were soon dignity of the State of Wyoming.” in implicated Duffy tured confession in charge The issue of invalid double for original enterprise. Good cause for a prior one not raised plea crime was nor heavy clearly justified sentence was Duffy plea guilty, specifically an addressed before raising issue this court ex- cept by argument comment at oral the determinate sentence and the consecu- when imposed rebriefing of crimi- by tive sentence for his act invitation for was extended public nal conduct. defender.

The information stated: purpose obvious the double charge to make available in I

“COUNT years excess 25 established Defendant, permitted as the “1. SCOTT LEE DUF- FY; aggravated robbery. 4, 1984; July

2. on about is a series of Invoked seven consistent County, Wyoming, 3. in Fremont imply contrary cases which a re away; 4. took and carried Carter, in only, sult discussed State v. handgun, property; jewelry, 5. (1986), J., Wyo., Urbigkit, 714 P.2d 1217 property; State, dissenting; Jerskey Wyo., v. 546 (1976); another, Dycus Wyo., P.2d Johnson; Wyoming, 173 v. 6. of Ada (1974); State, Boyd Wyo., 529 P.2d 979 v. owner; deprive 7. with the intent to (1974), 528 cert. 423 P.2d 287 denied U.S. in 8. and the course thereof intentional- (1975); 96 S.Ct. L.Ed.2d 102 ly put Ada in Johnson fear of immediate State, Wyo., 522 Jackson v. P.2d injury; bodily (1974); State, Wyo., Dorador v. deadly weapon; 9. the exhibition of a State, (1974); Loddy Wyo., P.2d firearm; cert. denied 414 U.S. charged 10. defendant (1974); S.Ct. L.Ed.2d 760 and State in above crime that he aided abetted Tobin, Wyo. 226 P. 681 in others the commission of crime as said 6-l-201(a)(b)(i) proscribed by Sections The federal case law earlier reviewed 6-2-401(a)(ii), 1982. W.C.C. great- in the [sic] discussion dissent Carter is ly extended number and exist there “COUNT II similar of state number decisions. Defendant, “1. The LEE SCOTT DUF- The inclination for me to evaluate FY; very law these many afforded cases is 4, 1984; July 2. on about resisted reflection that comment County, Wyoming; 3. in Fremont dissenting opinion may little serve as agreed Frey with Michele and Rich- which, succeeding hearings authority in Sweaney; ard court, of this un- decision will be held them; 36, W.R.Cr.P., 7-14-101, one or both of der Rule W.S. 774 (b)

1977, by succeeding ultimately proceed- “Special good or time allowance” is a reduction of ings in States District the minimum the United Court. sentence of an (15) inmate the amount of fifteen Personally, I continue to would follow per month for each month served on a in the Wyoming stare decisis transactional- special except time can teachings rule of Justice Blume State v. begin only after an inmate has served six Tobin, supra, the six cases and that fol (6) Special months of a sentence. lowed, Blockburger but review v. Unit time is earned as the result of an inmate’s 180, States, 52 ed 284 S.Ct. 76 U.S. especially proper helpful attitude, con- L.Ed. 306 federal rules will duct and behavior in institution and/or See be left for the future. United States as a result of his or her conscientious and (8th Rich, Cir.1986); v. 795 F.2d 680 Unit especially exemplary adherence to the rules (8th Bass, 794 F.2d ed v. 1305 States Cir. of the institution. 1986); Rosenthal, v. United States 793 (c) “Board” mean shall Board of Parole. Cir.1986); 1214, 1245(11th F.2d Brimmage (d) (9th “Institution” shall mean Sumner, Cir.1986); v. 1014 793 F.2d Farm, Penitentiary, State Honor Wyo- Harrington, United States v. 761 F.2d ming Women’s Center. Cir.1985); (11th 1482 United States v. Bankston, (5th Cir.1979). 528 603 F.2d See Section 3. Procedure Determine Alaska, Dunlop, also 721 State v. P.2d 604 Whether or not Time Good Should be (1986); Pearson, People Cal.3d v. Granted. Cal.Rptr. (1986); P.2d 595 Peo (a) alleged When an inmate is to have an

ple Colo., (1986); v. Crespin, P.2d 688 attitude, conduct, and/or behavior which is State, Nev., Talancon v. good, proper not helpful and/or and/or not (1986); Hurst, 82 N.C.App. State 346 to have adhered to the rules of the institu- (1986); Fisher, S.E.2d 8 Or.App. State tion, he shall a specifi- be furnished written 721 P.2d 854 time, place cation of the and manner in attitude,

which he has evidence such con- duct and/or and/or in behavior which he APPENDIX A failed to adhere the rules of the given institution. He shall also be a notice GOOD TIME ALLOWANCE FOR IN- hearing that a concerning will be held MATES OF THE WYOMING STATE allegation(s) requests if he one within for- PENITENTIARY, FARM, HONOR ty-eight (48) If the hours. inmate does not AND WYOMING WOMEN’S CEN- request hearing, a the warden shall review TER allegation evidence relative and de- Authority. Governor, Section 1. termine falsity the truth or allega- pursuant 7-13-423, to Section W.S.1977 true, tion. If found to be a determination (1984 Cum.Supp.) promul- authorized to number of months for which gate governing system good rules granted allowance shall not be allowance inmates of awarded shall be made. determination the Wyoming Penitentiary, Honor in writing shall be and must include the Farm, Wyoming Women’s Center. basis for it and the number of months for Section 2. Definitions. time allowance shall not be granted or awarded. (a)“Good time allowance” is a reduction of the maximum sentence of an (b) inmate requested If hearing forty- within (10) days per amount (48) of ten month for eight hours, hearing shall be afford- each month served on a sentence as the ed working days within five (Saturdays, proper result of the helpful inmate’s Sundays, included) Holidays attitude, conduct and behavior the insti- officer of the who institution was not in- tution incident, and/or as a result of his or her volved in the occurrence or activi- ty adherence to the rules of giving allegation, the institution. rise provided, rules, forth in except Section of these that if all officers of the institution were so that the Warden shall recommend the with- involved, hearing the shall be afforded good drawal of revocation of time allow- hearing, member of the Board. At the Board, ance and the extent thereof to the inmate shall be allowed to hear the evi- notify writing and he shall inmate against him, dence confront and cross ex- may recommendation. The inmate sub- against him, amine the witnesses and to mit to the Board objection a written present evidence and witnesses his own therefor, recommendation with the reasons behalf. If the warden conducts the hear- (10) days within ten of the date of the ing, summary he shall make a written and warden’s recommendation. determination. If the warden does not con- (c)At regular meeting, its next hearing personally, hearing duct the Board will review the recommendation and summary officer shall make a written objection, any, together if with the written proceedings and evidence shall summary and determination in the institu- make a recommendation to the warden inmate, may, tional file of the its upon a the warden review which shall discretion, event, receive evidence from the in- make a determination. In either material, mate and others. Based on this summary warden shall make a written his the Board shall determine falsity determination of the truth or whether or not allegations good of the of months to withdraw or revoke number time allowance good already granted which time allowance shall not be or awarded and the extent granted thereof, and, further, or awarded. If the warden is in- the Board shall cause incident, volved in the occurrence or activi- writing inmate to be notified in of such ty giving allegation, may rise to the he determination.

designate another officer of the institution Section 5. Restoration Good Time or a involved member of the Board to Allowance. required make the and to make the review falsity determination of the truth or (a) may grant The Board or award to an allegation, and the number of months for good inmate a time allowance which has time shall not allowance granted not been awarded or to him be- granted or awarded. affecting cause a determination him has (c) rules, been made, made under Section 3 of these along All determinations so with the and which has been summaries and recommendations withdrawn revoked hearing officers or of the warden under Section of these rules. This shall reported shall to the Board at its next be done the Board after evaluation of regular meeting. background, the inmate’s institutional his- attitude, tory, conduct and behavior.

Section 4. Withdrawal or Revocation Good Time Allowance Has Been Which (b) The matter of restoration of Granted or Awarded. allowance shall be considered (a) In granting addition to not or award- Board when recommended the institu- ing good time allowance to an under inmate warden, tion’s or at the time of interview of rules, Section 3 of these the inmate for under the Parole already granted allowance which has been Board rules. or awarded be withdrawn revoked Appeal. Section 6. by the Board from an inmate whose atti- tude, conduct and/or behavior has not been (a) (30) thirty days following Within good, proper helpful, and/or and/or who Board’s failure to award or its action re- has not adhered to the rules of the institu- allowance, moving the Gover- tion. approve disapprove nor shall such ac-

(b) Any procedure wishing tions of the Board. inmate for withdrawal or rev- objections ocation of time allowance which has communicate his to Board action granted been and awarded shall be that set under the rules to above the Governor (10) days do of the date must so within ten WYOMING STATE PENITENTIARY Board’s action. CHAPTER XLIII Special time Awards. Section Good SPECIAL TIME GOOD ALLOWANCE (a) Special good time be awarded to (15) days any inmate not to exceed fifteen Penitentiary, July month after an per every month inmate granted privilege to award completed serving months of his six special good in- time allowances to those minimum sentence. serving mates who are not a life (6) six who have served months of their (b) may The wardens institutions of the penitentiary, sentence in the criteria, any pertinent including consider consistently and adhere pris- who with the not limited to: but regulations, maintaining on’s rules and (i) Merit card or institutional classifica- conduct, good attitude, and demeanor while maximum, (e.g., segregation, tion level doing so. medium, minimum, (etc.). word release Special good time allowances are those (ii) completion Successful of continua- good given Warden, time awards assigned of or duties. tion work sentence, deducted from the minimum attitude, willingness to Conduct, (iii) especially proper inmates for and “... duties. assigned or work do attitude, helpful conduct and behavior (iv) programs Participation in which the institution and/or as a result or of his inmate’s instrumental rehabilita- are especially her conscientious exemplary tion. adherence to the of rules the institution”— (v) personal affairs, Management of quoted as from the Governor’s time along getting with staff such as policy procedure. inmates, avoiding unnecessary fellow Therefore, provided you adhere to confrontations, taking care indebt- regulations prison rules and edness. attitude, exceptional maintain conduct and (vi) of institu- documented violation you may eligible special earn rules. tional deductions, (15) per time toup days fifteen (vii) hygiene. Personal habits month, your from minimum sentence. (c) special Awards of time are to be “Special Section 1: Good Definition at made the sole discretion of the warden Time Award" as outlined are not subject above and Policy Per the Governor’s and Procedure: as in loss the case with time allow- “Special good time allowance is a reduction ances. minimum sentence an inmate (d) The wardens of the may institutions (15) days per amount of fifteen month adopt such operating internal rules and for each month served on a ex- procedures necessary as implement are cept special good begin only time can these administratively. rules The institu- (6) after an inmate served six months tions’ may provisions rules include Special good of a sentence. time is earned awarding special good monthly, time quar- as the especially prop- result of an inmate’s terly, semiannually, annually at attitude, helpful er and conduct and behav- warden’s discretion. ior in the institution and/or as a result his or especially her conscientious and ex- Adopted day July, this 6th emplary adherence to the rules of insti- Laramie, County City Cheyenne, tution.” Wyoming. Therefore, may grant /s/ ED HERSCHLER the Warden fifteen (15) special ED days per HERSCHLER month al- (not days GOVERNOR lowance per year) to exceed Section Eligibility Inmate to Receive 4: Special from the minimum sentence. Time to be deducted Good Awards Only behavior and strict adherence quality A. An actually inmate must have regulations will earn the to the rules (6) served six months of his minimum special good time allowances. penitentiary sentence in the before Special Section 2: Good Time Allowances special good grant- can awards by the Awarded Warden Com- ed the Warden. pared with Good Time Awarded begin serving B. who Inmates consecu- Board the Parole (6) tive sentences must have served six may grant up A. The Warden to fifteen months of minimum sentences of (15) special good time which is the consecutive sentence before becom- deducted the minimum sentence. ing eligible special good to receive grant B. board ten awards. days per month which is deducted from C. “good Inmates must remain in stand- the maximum sentence. ing” exemplary and exhibit adherence C. The Warden withhold regulations rules and in order to award, good time but the Warden must eligible become special to good receive parole make recommendations awards; and, time regarding good board time which is sentence; from the maximum D. may

deducted special Inmates receive good no awards, time partial good given, special good D. Once time time award, or the cannot fifteen days awards be revoked full depending upon allowance—all Warden. in- mate’s cumulative status within the in- parole E. The act may board rec- stitution. revoke, ommendations to withhold or good restore the time which influences Section 5: Granting Special Good Time the maximum sentence. Awards Basically, special good F. time employees The may administration use length award determines the variety progress indicators as a means thereby influ- to special good decide whether time appear- ences dates board may activity be awarded. Inmate and in- ances. progress mate will determine the extent of good G. time from deducted special good Special good time awards. maximum sentence determines may time upon, awards be based but not “good time release” date and the following: limited to the amount of time that inmate an will A. Merit card status: parole.

serve on “A” Obligation Section 3: Administrative to card may merit 0 to days earn Special Award Good Time “B” may merit card earn 0 to 10 days Please Warden understand that the is not “C” card may merit 0 to days earn obligated grant good special to time “D” may card merit earn days anyone. prison awards to Warden “E” may merit card earn obligated administration are to ensure that level, B. In addition the merit card special given good time awards when are progress progress or lack given deservingly to those who have following may areas determine wheth- your earned such award. For informa- special good er or not time awards will tion, Wyoming State Statute 7-13-423 granted or withheld: granting, states that “... refusal Assignment 1. grant, withholding good Classification level: restoration of segregation, special disciplinary time or time allowances to restricted maximum, grace segregation, inmates be a shall matter of and not me- dium, minimum, right may inmates.” and work release designees Warden and/or his has sub- stantiated that the inmate is not a de- for consideration of be further basis serving special candidate to receive good time awards. special good time awards. completion 2. of and con- Successful assignments. tinuation of reports The Warden will receive B. counselors, officers, conduct, security 3. Overall attitude and will- ingness assigned supervisors, all perform activities. work instructors and employees significantly involved Participation programs daily the inmate in his activities. significance in are considered to be of designees The Warden and his will re- terms of the inmate’s skill and beha- reports, reports view the discuss the vioral needs. inmates, and then make with individual Management personal affairs: decision as the amount of Learning to live and work with fellow (if any) that inmate has each inmates, employees, and the communi- earned. acts, ty; avoiding illegal fight- such as use, vandalism; ing, drug improving instances, many C. the inmate will be skills; living managing personal basic advised the classification and disci- (avoiding indebtedness); funds plinary committees of recommenda- recognizing obligations, responsibility special good tions to withhold time al- duty specific impor- shall all be of lowances. tance as are con- allowances D. The Warden spe- also convene sidered. cial time review committees so as 6. Documented violation of institu- to review progress inmate placed tional rules: Inmates earning eligibility status. capacity whereby they cannot earn E. Inmates will be well advised any specific time for time awards recommendation regarding the with- periods rule when violations have been holding special good awards, time documented and substantiated. and he will be advised the Warden 7. hygiene: Personal habits and De- designee and/or his why good time has meanor, conduct, attitude, willingness been withheld. recognize accept responsibility, F. Inmates will further be advised as to others, cleanliness, consideration of what actions necessary are begin grooming, hygiene and overall will be earning special good time awards. further considered as basis award- Section 7: Time Periods During Which withholding good or time allow- Special Good Time Awards Have ances. Been Withheld Warden, managers, NOTE: The unit (6) A. The first six period month counselors, supervisors, security per- minimum during which in- sonnel, instructors, employ- and other ineligible mates are special to earn ees who work with the on a inmate good time, will not be used in retroac- daily basis will review an inmate’s tive special manner for time monthly progress. The Warden will awards. render the final decision as to the ex- B. Any period during special good special tent time credits. which good time awards have been withheld NOTE: time may Good allowance will not be used in a retroactive man- withheld, partially granted, fully special ner for good time awards. granted depending upon the inmate’s progress and behavioral status. 8: Special Section Revocation Good Section 6: Withholding Time Awards Notification of Special Good Time Awards 7-13-423, Per State Statute the Warden A.The may special Warden withhold special good not revoke time once special good awards at time once the time has been awarded. adjustment

tence office, to the Records 9: Documentation Records Section agencies inmate as nec- essary. special good A. The Warden will submit Section 11: Grievance Issues Related to penitentiary credits to the records ninety day after Regarding the Warden’s Decisions

office the first (i.e., September 1, Special Good Time Awards about 1984) every days thereafter. A. Because State Statute 7-13-423 Special good time special good B. credits will be doc- states that time awards granting “grace” umented with reasons for the right are matter not a inmate, of the award as well as reasons the Warden will not accept withholding grievances award. appeal special good Warden’s time awards C. Inmate records maintained withholding special good and/or Records will office reflect the follow- time awards. ing: B. accepted Grievances will be when credits; Monthly special good grievance specifically identifies sentence; Adjusted prison fault ap- administration’s schedule; hearing 3. Parole board plication and use of the special withholding 4. Reasons for time law as Leg- intended good time credits. islature and/or Governor. Governor, D. The the Board of Chari- Reform, ties and and the board C APPENDIX copy special good will receive a of all time credits. BOARD OF STATE OF WYOMING REFORM CHARITIES AND Section 10: Inmate notification of PENITENTIARY WYOMING STATE time awards A. Each month inmates receive a Section: notification, upon request, verbal rela- Special Good Time Awards Subject: special good tive to time credits. July, 1984 Date: September 1, B. On or near each 180 thereafter inmates will AUTHORITY advising report receive a written 9-3-706, 25-1-104, rewritten as [now § following: Wyoming Statutes, states that W.S.1977] Monthly good award; 1. time shall, “The Board of and Charities Reform good 2. Total time re- credits for the powers besides such may be con- port period; ferred law, it in accordance with the Adjusted sentence; 3. general supervision have and control of all schedule; hearing 4. Parole charitable, such reformatory penal and in- withholding good 5. Reasons for time may stitutions as be sup- established and awards; and ported by ”; 9-3-707, the State ... Length good 6. of time 25-1-105, rewritten as [now W.S.1977] time awards will be withheld. states power that “The Board shall have general direct the management all state Inmates, C. disci- classification and institutions ...” plinary hearings, may also notified be regarding good of recommendations PURPOSE time status. policy procedure To “Special

D. The Good establish Time Allowance” which shall serve to report following page form on the will define the conditions of im- plementation good management special monthly be used to document good time which shall convey time allowances and to the sen- be awarded especially

conscientious and exemplary Warden of Wyoming State adherence to the rules of the institution.” Penitentia- ry- B. INMATE ELIGIBILITY TO RECEIVE POLICY “SPECIAL GOOD TIME” AWARDS policy It shall Wyoming State 1. An inmate must have actually served Penitentiary implement manage (6) six months of his minimum sen- special good program time award as autho- tence in the penitentiary spe- before 7-13-423, rized Section good cial time granted awards can be (1984 Supplement) Statutes 1977 and as by the Warden. directed Wyoming. Governor of begin serving 2. Inmates who consecu- Further, penitentiary special good time (6) tive sentences must have served six program implemented award shall be months of the minimum sentence of good policy accordance with the time the consecutive sentence before the procedure (refer signed by the Governor special Warden can good award time attached). awards. 3. Inmates must in “good remain stand- PROCEDURE ing” in all areas of interaction within following subject categories will be prison prison programs in or- specific procedural guide- addressed with der special good to receive time lines: awards. time”; “special good A. Definition of Inmates special good receive no award, partial time eligibility special good B. Inmate to receive time award, awards; time fifteen day full time depending upon award—all Granting special good awards; C. time inmate’s cumulative status within withholding D. Notification of spe- institution. awards; cial time periods during E. special Time C. GRANTING “SPECIAL GOOD TIME” withheld; time has been AWARDS special good F. Revocation of Special good awards awards; upon, to, based but not limited records; G. Documentation and following: H. Inmate notification of a. Merit card status: awards. = A merit card days 0-15 = B merit days card 0-10 A.DEFINITION OF “SPECIAL GOOD = days C merit card 0-5 TIME” AWARD = D merit card apply The definition which will = E good merit card time awards is as follows: b. In to addition the merit “Special good card level time allowance is a reduc- progress or lack of progress in tion of the minimum sentence of an in- following may areas determine wheth- (15) days mate in the amount of fifteen special good er or not time per awards will month for each month served granted be or withheld: sentence, except good special time begin only can an after inmate has 1. Classification assignment Level: served six Spe- months of a sentence. disciplinary segregation, to restricted good cial time is earned as the result of segregation, maximum, me- an especially proper helpful dium, inmate’s minimum, and release, and may work attitude, conduct and in in- behavior further be basis for consideration of stitution and/or as a result special good awards; of his or her time good time allowance will be completion

2. Successful and every office reported to the Records may assignments continuation of be (6) months, necessary depend- or as six allowance; special good time sentence status. ing the inmate’s conduct, attitude, 3. Overall D.NOTIFICATION OF WITHHOLD- willingness perform assigned to activi- ING “SPECIAL GOOD ties; TIME” AWARDS programs 4. in Participation significance are considered be 1. may The Warden special withhold terms of inmate’s skill and beha- good time any awards time once the needs; vioral designees Warden and/or his has sub- Management personal

5. stantiated that the inmate is not affairs: a de- serving learning special to live and candidate receive work with fellow inmates, good time employees, and awards. the communi- illegal acts, ty; avoiding fight- such as instances, In most the classification use, ing, vandalism; drug improving committee disciplinary committee skills; living managing personal basic withholding recommend spe- will indebtedness); (avoiding funds good providing cial time while doc- recognizing obligations, responsibility umented reasons for such recommen- duty specific impor- all shall be of dation. good tance as time allowances are may 3. The Warden convene additional awarded; review committees so as to in- review 6. Documented institu- violation of progress good earning mate time tional rules: inmates placed eligibility status. capacity whereby they earn cannot special 4. Because good time awards good time for specific awards designed are motivate inmate to periods rule when violations have been socially behavior, acceptable use substantiated; documented and inmate, might he order that better hygiene: Personal habits and de- behavior, understand his actions

meanor, conduct, attitude, willingness participant be an will active all com- recognize and accept responsibility, regarding good mittees and reviews others., cleanliness, consideration of time awards. grooming, hygiene and overall will be DURING E. TIME PERIODS WHICH further considered as award- basis for HAS SPECIAL GOOD TIME BEEN withholding good time allowr WITHHELD anees. period withholding good Once NOTE: Good time allowance ends, period time awards withheld, partially granted, fully withholding cannot be used to col- granted depending upon the inmate’s words, time. lect progress and behavioral status. time awards are not retroactive to

2.Beginning July be- inmates past period. eligible came to receive A period July time awards. trial F. REVOCATION OF “SPECIAL GOOD 1, 1984, September 1, 1984, will TIME” AWARDS period first serve as the special good Once time awards have been During awards. awards given awarded awards will not be granted will accordance subject to revocation. approved regula- written and rules and AND G. DOCUMENTATION RECORDS tions. The will then submit Warden the written to the recommendations good The Warden written 1. will submit Beginning September records office. time award information Records “Special

4.The attached Good Time All- office, ninety at the end of the first report woance” form will be used to period every day and monthly good document time allow- thereafter, good reflecting special time convey and to ances the sentence ad- withholding good time awards and justments office, to the Records awards. inmate, agencies and as neces- sary. Special good 2. time allowances will be reasons

documented with granting as as of the award well OF STATE WYOMING BOARD OF withholding the reasons for award. CHARITIES AND REFORM records, 3. Inmate maintained the WYOMING STATE PENITENTIARY office, Records reflect: will Section: 535A awards, Monthly a. Subject: Special Good Time Awards for sentence, Adjusted b. minimum Community Corrections Placement hearing c. Parole Board schedule. January, Date: penitentiary pris- 4. The will receive all on farm time recommendations so AUTHORITY consistent,

as to maintain accurate adjustments. minimum sentence 25-1-104, 9-3-706 rewritten as [now § quarterly report 5. A of all time Wyoming Statutes, states that W.S.1977] activities will be submitted to the fol- “The Board shall, of Charities and Reform lowing: powers besides such other be con- Governor ferred law, it in accordance with the general supervision have and Board of Charities and Reform control of all charitable, such reformatory penal in- Parole Board stitutions as sup- be established and Judges upon request District Court ported by ...”; 9-3-707, the State reports Additional will be submitted 25-1-105, rewritten as [now W.S.1977] upon request. states that power “The Board shall have report 6. The annual further will reflect general management direct the of all state period good activity. all fiscal time institutions ...” H. INMATE NOTIFICATION OF “SPE-

CIAL TIME” GOOD AWARDS PURPOSE my Inmates receive a verbal notifica- To policy establish procedure special tion each month relative the shall serve to define the conditions of im- awarded; time that was allowance plementation management September 1, 1984,

2. After inmates good time awards for assigned inmates writing, will be advised once each residential and nonresidential community days, following: as to the programs. corrections award, Monthly good a. time credits, b. Total time POLICY Adjusted c. It shall policy Wyoming State schedule, hearing d. Parole Board Penitentiary implement manage withholding good e. Reasons for special good program time award as autho- awards, 7-13-423, rized Section Length

f. of time (1984 Supplement) Statutes 1977 and as time awards will be withheld. Wyoming. directed the Governor of Inmates, discipli- special good at classification and par- Further awards nary hearings, may ticipants community also be notified of pro- corrections regarding good grams implemented managed recommendations shall be status. in accordance with Board of Charities and punishment of the offense of which _ 200(A)10, Policy convicted, Reform Adult Communi- he was and the minimum term ty Corrections. shall be less than the shortest term by punishment fixed law for the PROCEDURE offense which he was convicted.” good special 1. “Wyoming’s time and turn, 7-13-402(a), W.S.1977, pro- § good apply time law continues to pertinent part: vides in offenders from the state correctional may grant parole, is, “The board a serving they facilities are their when permission to leave the confines of the sentences in residential/nonresidential person institution in which the is con- community programs.” corrections fined, any imprisoned person in good “Wyoming’s special time and institution under sentence by ordered good apply does not to of- law any district court of this state other than directly fenders who were sentenced to sentence, provided a person life the community program corrections pronounced served minimum term a judge.” district time, the trial court less if any, community pro- “The director granted promulgated pursu- under rules gram will make recommendations ant to W.S. 7-13-423.” special the Warden who will award the

good time.” Finally, 7-13-423(a), W.S.1977, pro- vides: MACY,Justice, dissenting. governor, “The after consultation with majority conclude “there the state board of and the ward-

nothing in requires any [§ 7-13-201] the Wyoming penitentiary ens of state period fixed of time between the minimum center, shall adopt and the women’s rules sentences; therefore, and maximum” regulations system a to establish imposed sentence this case is “indeter- time and time allow- legal.” minate I agree. do not penitentia- for ances inmates of the state “Indeterminate sentence” is defined as: ry and the women’s center. The * rules * * which, “A sentencpng] form of in- may provide either for time to be fixing rigidly stead of duration from the maximum sentence deducted imprisonment, declares that it shall be for time to be deducted from the for a ‘not less many than’ so imposed minimum sentence the sen- years years, “nor than” many more so * * * court, tencing or both.” length being the exact the term fixed, within the limits as- pari These statutes are in materia and afterwards * * signed *, by the court by an execu- should construed in such manner as to ** tive Dic- authority Black’s Law give To effect all of them. hold that a (5th tionary 1979) (emphasis at 1223 ed. imposing minimum term added). less day one than the maximum term is contemplated by “indeterminate” 7-§ statutory Wyoming’s scheme is consist- 13-201, W.S.1977, is to render 7-13- §§ 7-13-201, ent with this definition. Section W.S.1977, 402(a) 7-13-423(a), meaning- W.S.1977, provides as follows: less. “When a convict sentenced to the state life,

penitentiary, otherwise than for crime, imposing offense or the court not fix sentence shall a definite term imprisonment, but shall establish maximum and minimum term for which prison.

said held in convict shall be said longer The maximum term shall not be longest than the term fixed law

Case Details

Case Name: Duffy v. State

Court Name: Wyoming Supreme Court

Date Published: Dec 5, 1986

Citation: 730 P.2d 754

Docket Number: 86-21

Court Abbreviation: Wyo.