Duffy v. State

(Defendant), DUFFY, Appellant Scott Wyoming, STATE (Plaintiff). Appellee

No. 87-160.

Supreme Wyoming. Court 21, 1990.

March Program,

Wyoming Public Defender Munker, Defender, State Leonard D. Public McClain, Counsel, Appellate and Martin J. appellant. Meyer, Atty. Gen., Joseph B. W. John Renneisen, Gen., Deputy Atty. and Thomas Callison, Intern, Legal appellee. E. however, CARDINE, C.J., THOMAS, appellate counsel had not Before MACY, JJ., included the issue brief. Conse- URBIGKIT GRANT, quently, ap- in accordance with usual Judge. District our pellate discipline, we declined to address

THOMAS, Justice. that Duffy that issue. We noted not was sepa- jeopardy implications The double of presenting foreclosed from a that his claim aiding abetting ag- and illegal by rate sentences for sentences a are motion under robbery conspiracy to gravated and for respect Rule With W.R.Cr.P. to issues burglary present the central issue commit properly presented, that were the court „as Questions are in this case. also raised no judgment found error in the and sen- imposed, nine the sentences to whether imposed. tence which had been twenty-nine days years, eleven months and Duffy accepted pursue the invitation to consecutively years twenty- to run to to ten 36, W.R.Cr.P., relief file under Rule and did twenty-nine and years, four eleven months a motion in the district court an to correct twenty-five days years, to constitute a deni- illegal The sentence. district court did not process appellant, of due because al sixty set the for hearing motion within Duffy, right is from to Scott foreclosed days, and it then was deemed denied credits, statutory good time essential earn Rule accordance with U.R.D.C. This parole, early an and amount to a viola- appeal is from the of that automatic denial separation powers doctrine as tion of the of motion. judicial and branch- between executive Duffy presents the same now issues question government. of A further is es urged were to the district court. 15, W.R.Cr.P., to posed as whether Rule appellee, accepted Duffy’s has infringed of the failure of the was because issues, statement of those is: it Duffy trial court to advise could of imposition “1. Did the district court’s so impose consecutive sentences that Duf- present case consecutive sentences fy’s plea guilty of nullified. hold was We violate of the the double clauses that there is no of the constitu- violation Constitu- States prohibitions against tional tions? instance, plea guilty of present “2. the sentence in the Does abrogated by the failure district process denying Ap- case violate due Duffy possibility advise court to interest, right to pellant liberty consecutive sentences. The record does good time? relating not demonstrate that the issues to “3. sentence Does the as structured constitutionality the sentences im- infringe pow- upon District Court ripe posed are for review at this time. The parole delegated ers to board Duffy’s by the mo- denial district court thereby infringe upon the constitutional- pursu- tion for correction of his sentences ly separation powers? mandated 36, W.R.Cr.P., ant to Rule is affirmed. guilty taken plea “4. Whether the Duffy previously appealed his conviction. 15, W.R.Cr.P., Rule violation of (Wyo.1986). Duffy v. proceedings whether void were appeal, Duffy initial counsel for In the illegal?” the sentence attempted urge error because of the merge proceedings, In the entered trial court’s refusal to sentenc- initial aiding and abetting pleas of ing aiding guilty offenses count of abetting robbery in violation of conspiring aggravated aggravated robbery and to com- 6-2-401, (June burglary. W.S.1977 mit Trial counsel had not 6-1-201 §§ court, Repl.),1 and to one count of presented that claim in the district committed, 6-1-201, (June felony accessory before Repl.) 1. Section W.S.1977 provides: the fact. "(a) knowingly person aids or A who abets in counsels, felony, the commission or who hires, encourages, procures commands holding pistol dow and in his hand. He commit in violation of 6-3- §§ burglary 6-1-304, (June grandmother 6-1-303 and W.S.1977 unlock the ordered the Repl.).2 The district court ruled that and, complied, front door when she he en- to ac- there was a sufficient factual basis tered the house and demanded that she cept Duffy’s pleas to both kept lead him she her to the safe where charges. Duffy, As we noted in 730 P.2d money. grandmother him took into presented by that factual basis the bedroom where he removed a .38 cali- prosecutor summation of the avail- pistol nightstand. Duffy ber from a had to be used at trial and Duf- able evidence told him of the location of that firearm. accuracy reci- fy’s admission of the of that grand- then insisted robber tation. The record demonstrated that Duf- valuables, mother show him her other fy, he in while was incarcerated Castle complied she with that demand. She took Colorado, Rock, robbery planned had of house, throughout showing him him grandmother. by telephone He did this his property whatever valuable he asked for. accomplices Wyoming. in Duf- calls to two property pil- robber collected the fy explained gain entry to them to into how waiting lowcase and returned to the ve- grandmother’s house and told them his successfully ap- hicle. Police officers they probably where would find her valu- prehended principals they both before plan ables. The entire was that the two carry plan help Duffy could out the conspirators burglarize the fellow would escape, and both of them confessed the home, grandmother’s which was located in officers, robbery investigating impli- County, Wyoming, they (cid:127)Fremont then cating Duffy in their statements. help Duffy would travel to Colorado to escape from incarceration. showing, On the basis of this factual judge guilty accepted plea. district partners in crime two went to Duffy then was sentenced a term of not grandmother’s home in accordance with the months, twenty-four years, less than eleven plan. waited outside in a car while the One twenty-nine days, twenty- nor more than gain other of broke a window the home to years, charge being five on the of an acces- entry. grandmother was awakened sory aggravated robbery, before the fact to breaking glass, the sound of the and she a consecutive term of not less than got up place and went to the she had where months, There, years, twenty-nine nine heard the eleven noise. she discovered the burglar reaching through days, years, conspir- the broken win- nor more than ten for 2. Section provides, Section provides: years ble "(c) Aggravated robbery puts "(i) “(ii) in the course of robbery simulated course of 6-3-402 punishment by "(a) "(ii) “(iii) Upon "(b) law for the by imprisonment Inflicts A Threatens another with or An Uses or exhibits a him in fear of immediate nor more than ^[******] ****** ^[******] 6-2-401, person 6-3-301, accessory [larceny] committing deadly weapon.” pertinent part: conviction, bodily injury upon person: punishment W.S.1977 W.S.1977 penalties guilty he: before the fact: committing for not less than five twenty-five is crime defined W.S. deadly weapon is a subject (June (June as are robbery of the felony punisha- the crime bodily injury. intentionally (25) another; to the same principal.” prescribed if in the years Repl.), Repl.), or a (5) if Section provides, Section provides, persons will commit a crime and one by imprisonment for not more than ten which is mit a crime if he “(a) sand dollars years, a fine of mit "(b) "The as the them does an overt act to effect the of the “(a) authority, occupied larceny A section, burglary A Except penalty 6-1-304, 6-1-303, person person agreement." penalty that structure * * * he enters or remains in a pertinent part: pertinent part: or a they for ($14,000.00), is provided W.S.1977 W.S.1977 for the most serious crime guilty guilty * * * agrees or one felony * * * more than fourteen thou- object is a conspiracy of with one therein. (1) in subsection burglary with intent to com- conspiracy (June (June or both.” of the felony punishable or more of them (1) (1) is the same or more of conspiracy if, building, objective or more to com- without Repl.), Repl.), (c) (10) respect legislature with to whether the con burglary. The court ordered acy to commit to be punished single these sentences were served as a that duct should be released from incarcera- after or as more than one. Lauthern v. tion Colorado. (Wyo.1989); 769 P.2d 350 Schultz v. (Wyo.1988); Birr v. primary Duffy’s initial and contention is (Wyo.1987). Ball v. United sentences imposition abetting robbery aiding aggravated Hunter, burglary Missouri v. to commit L.Ed.2d jeopardy twice because the placed him L.Ed.2d upon establish factu- evidence relied “ each of the plea for his al basis im- ‘Where sentences are consecutive charges phone calls was the same series trial, posed the role at a criminal Wyoming. He contends from Colorado to is limited [double clause] developed phone plan from these assuring ex- does not transaction”, “single in a calls resulted im- ceed its authorization grandmother’s burglary his house. posing multiple punishments for previ- addressing claims of double ” Birr, 1119, 744 same offense.’ P.2d at ously, consistently has held that 161, Ohio, quoting Brown 432 v. U.S. punished. should be each crime committed 165, 2221, 2225, 53 L.Ed.2d 187 97 S.Ct. majority agreed have with the clear We (1977).3 espouse philosophy of jurisdictions that the punishment crime and and eschew question determining the acceptable it is an result in proposition that intent, have statu we examined society there to be crime without our State, definitions, tory 774 P.2d Nowack v. punishment. have (Wyo.1989),4 561 and we also evaluat surrounding ed other circumstance espoused rule that have we they grow charged, whether out crimes resolving question of whether a or different evidence different transactions jeopar placed defendant has been twice separate of required to establish multiple dy virtue of convictions If conduct that es- look to intention of the fenses. Nowack.5 sentences is to State, (Wyo.1974), against jeopardy cert. protection While double Jackson v. 522 P.2d 1356 3. 637, 1055, designed, part, pre- L.Ed.2d denied 419 U.S. 95 S.Ct. 42 has been described as State, offense, (1974); 520 230 multiple punishments 652 Dorador v. P.2d vent for the same State, (1974); (Wyo.1972), Loddy respective jeopardy v. P.2d 194 double clauses of both 502 1134, 877, 414 S.Ct. 38 355, cert. denied U.S. 94 the United States Constitu- Tobin, (1974); Wyo. prevent multiple v. 31 for the L.Ed.2d 760 State tions convictions same Accord, Snow, States, 856, (1924). parte Ex 120 United U.S. 226 P. 681 offense. Ball v. 470 105 556, 274, (1887); 1668, People (1985); L.Ed. 658 v. U.S. 7 S.Ct. 30 S.Ct. State, 84 L.Ed.2d 740 Dorador 670, 746, Thomas, Ill.App.3d (Wyo.1974). 114 Ill. Dec. in- v. 163 520 P.2d 230 neither stance, however, (Ill.App.1987). protection 516 N.E.2d 901 does the afforded multiple clause inhibit double legislature single clear intended in a 5.When it is that the indictments for the same offense punish separately, guilty each act because proceeding. is found criminal If defendant charges to establish the represented different evidence is essential two counts consti- offense, may separate charges, multiple single must convictions tute a the court then vacate State, Eg., 877 jeopar- Baum v. 745 P.2d so that the double sustained. one the convictions State, Ball; State, (Wyo. (Wyo.1987); Tuggle dy Jerskey v. 733 P.2d 610 v. clause is not violated. State, Carter, (Wyo. 1987); Vigil P.2d 1217 (Wyo.1976). State v. 714 P.2d Cf. v. 563 546 173 State, 1977). 1986); (Wyo. P.2d (Wyo. v. 602 1212 Hamill P.2d 1344 State, 1979); (Wyo.1977). Vigil 1344 v. 563 P.2d States, 169, legislature See Ladner v. United 358 U.S. If it is that the intended alter also clear 209, (1958); offense, v. committing 199 Ciucci 79 S.Ct. 3 L.Ed.2d native means of 571, 839, Illinois, 2 though 78 S.Ct. even State 356 U.S. can be attained conviction 924, 983, S.Ct. required reh. 357 U.S. 78 L.Ed.2d denied different evidence would be demon (1958); Blockburger v. committing 2 L.Ed.2d 1375 strate the alternative means of State, Jerskey 52 S.Ct. 76 v. 546 P.2d 173 offense. Morgan, State, Ebeling U.S. (Wyo.1976); (Wyo. v. 237 Dycus P.2d 979 L.Ed. 306 v. (1915). State, 1974); (Wyo.1974); L.Ed. 1151 Boyd 35 S.Ct. v. 528 P.2d 287 offense, committing means of the same element of the offense is re- tablishes an separate may multiple not violations peated, we have held that crimes State structure though though might the other evi- were committed even even some evidence overlaps charges. or is identical. Baum v. support dence the several State, (Wyo.1987); Tuggle P.2d 877 v. Nowack, ap noted in we have As State, (Wyo.1987); P.2d 610 State concept proached this latter in Kallas v. Carter, (Wyo.1986); Hamill 714 P.2d (Wyo.1985), and later in (Wyo.1979). State, 724 Bueno-Hernandez v. P.2d “ ‘ * * * charged are the offenses [I]f (Wyo.1986), denied 480 cert. respect either with separate and distinct S.Ct. In Kal- * * * definition, or, statutory because las, upon we relied United States v. Bat they grow different transactions out of chelder, prove and different evidence is needed to that, holding L.Ed.2d 755 when each, inhibition then the constitutional the same conduct violates more than one applicable is not against double code, provision of the criminal the State and, long charged are so as the offenses may charge elect which violation to inconsistent, a defendant factually Batchelder, pursue. This is the rule of may judgment be found implication flowing clear from it sentence thereon be had as to each attempt punish options all ” charged.’ of the offenses Jackson v. concept would result in a violation of the 1974), (Wyo. jeopardy. 637, 42 cert. den. 419 U.S. example repeated As an violations of (1974), quoting L.Ed.2d 652 State statute, Hamill, the same this court held 124, Johnson, App. 112 Ohio 165 N.E.2d legislature protect that the intended to 814, (1960). 820 against pen- each victim identifiable sexual State, See also v. 601 P.2d 178 Goodman Consequently, though etration. .even a State, (Wyo.1979);Jerskey 546 P.2d 173 v. involved, continuing course of conduct was (Wyo.1976). explained in This rule was penetration each sexual a demonstrated Goodman, way in 601 P.2d at 185: case, separate Following crime. “ * * * Two or more distinct offenses Baum, 882, 745 P.2d at we said: may emanate from the same transaction “ * * 4 sequence, appellant performed In act, person or and the rule that a cannot upon fellatio the victim and then made put be twice in for the same reciprocate. the victim It would not be application offense has no where two reasonable for this court to determine separate are and distinct crimes commit these two distinct acts of fellatio by People ted one and the act. same v. only were criminal act. hold that one We Hairston, 1970, 348, 46 Ill.2d 263 N.E.2d proper handing the trial court was 972, 840, 847, cert. den. 402 91 separate down two sentences for counts 1658, 29 L.Ed.2d 136. Where two stat II III appellant for which was con- suppress utes are intended to different victed.” evils, acquittal on one or conviction Baum contended that avoidance of double prevent prosecution will not of the other. State, 1971, 28, sepa- Ark. demanded that Decker v. 251 471 the acts be 343, 344; Ahuna, 1970, by period S.W.2d v. a State rated substantial of time or * * 321, 704, space. response, 52 Haw. 474 P.2d 707 In the court stated: “ ‘ * * * “Where, different criminal acts respect With to those instances in which issue, supported by are at involved, different fac- ques- different statutes are though separated tual evidence even tion has been resolved a determination few.seconds, only by time a legislature one offense sepa- that the intended to define crimes, by definition cannot be ‘included’ in the punishable separately. rate Con- versely, properly when we have determined that the other. The defendants can be different, punished [all], intention was to under create con- or the ' ” Baum, tinuing same, or statutory provisons.” to describe alternative

827 crimes, 882, separately able and as quoting P.2d v. Molito distinct 745 at State 1303, ni, App., 711 P.2d 1306 Hawaii when each shall have been committed Pia, 55 quoting State v. Hawaii times, persons at different or different (1973) 14, 19, (em 584-585 they may, when committed the same phasis original). time, person coupled same count, constituting altogether one but Carter, 714

In P.2d similar cases offense. such the several analysis pursued. was The court conclud many steps acts are considered as so supported the ed that evidence affair, delivery stages controlled sub conviction for in the same the offend- possession stance and the conviction er as for one be indicted combined to deliver controlled with intent sub law; act proof in violation stance, legislature intended that the acts mentioned stat- either of punished. separately each violation be Ac ute and set forth in the indictment will Bocian, cord v. 226 Neb. 413 State sustain a conviction/ (1987). distinguished We N.W.2d 893 there State, 525; “Byrne 12 v. v. Wis. Howard holding that prior cases a defendant could State, 403; 191 Ind. 131 N.E. State be convicted of one offense if the Jackson, 1166; v. Mo. S.W. evidence, delivery same of a controlled sub State, Ark. Grayson v. 123 S.W. stance, charge support used to 929; Bradley 19 Ann. Cas. v. possessed the defendant the controlled sub 738; Fla. Smith v. Fla. it and stance with intent to deliver then 854; McWilliams, 7 v. South. State These delivery. demonstrated the cases 99; Mackin, Mo.App. People categorized can be as those in which an 125; Gossett, Ill.App. People v. 93 Cal. violating the statute alternative method 246; Bishop’s Pac. New Crimi- by the legislature. Dy described 1, 436, Proc., many nal Vol. cases § (Wyo.1974); cus ed.) (10th Proc. cited in Crim. Wharton’s Jackson, P.2d 1356.6 Tobin, Wyo. 742.” State § in which lan those instances 367-68, P. guage purpose the statute indicate a case, In the ruled that court that Tobin legislative single a intent to structure of he illegally had because been sentenced specified by fense with alternative methods gambling had been convicted of both violated, may which the statute be in his permitting gambling to carried on be single of violation the statute is a offense. one neces- The court held that act house. rule, According general to the this is the sarily in the other. Exami- was embraced result even if the evidence demonstrates authority the and the nation of statutes the has that statute been violated both opinion and, cited in that establishes that ways the alternative in such an instance, purpose of each statute perceived court only one conviction can be sus evil, prohib- to be toward the same tained. directed “ gambling and iting gambling, and that both that, ‘The rule is well settled where a permitting gambling were intended to be statute either or more dis- makes of two committing same alternative means of acts, gen- tinct connected the same with W.C. See also subject eral offense. same §§ State, S.1920; punishment, kind of v. Ind. measure and indict- Howard instances, cases, language adopted tionally possible. conclu In been In those some has legislature pun indicating merger separate separate sion intended claim from that upholding jeopardy, would have resulted but rationale discloses that ishments separately, premised implied punish con absent a clear those decisions are on an con- intent to Merger legislative pur- violation. The decisions manifest clusion intent. stitutional legislature poses punishment that the did not intend because of double conclusion occurs and, restraint, punish separately. Boyd 528 P.2d absent constitutional legislature (Wyo.1974), cert. is free define offenses in its denied 102; duty P.2d wisdom. It then becomes the court 46 L.Ed.2d Dorador (Wyo.1974). to sustain the intent if that is constitu- (1921).7 that, N.E. 403 The result was even a accomplished window which was though separate evidence demonstrated burglary. course of a appellant transgressed that the had both Dorador, 520 P.2d cases provisions, only he could be sentenced for it, upon which follow Tobin was relied violation, though one even committed hold that the defendant could be convicted alternative. only charged one offense when with The rationale of Tobin was invoked in delivery pos- of a controlled substance and Loddy (Wyo.1972), session with intent to deliver the same sub- cert. denied 414 U.S. stance. alternative method of viola- L.Ed.2d 760 with result that the tion was articulated in the same statute defendant could be sentenced for way: “'* * * charged offense when with malicious de any person is unlawful for [I]t * * * telephone larceny struction of a line and deliver, possess with intent to reasoning pre the same line. The * * * is not ” deliver, a controlled substance.’ cise, sepa but the court did not hold that 35-347.31(a), W.S.1957, (Cum. Section merged rate offenses simply into one be Dorador, Supp.1973), quoted they part cause were of the same transac P.2d at 231. quoted extensively tion. The court from 24 The court legislature concluded that and, C.J.S. Criminal Law in the same sec intended that a violation of the statute quoted, following tion as that state would result one conviction even appears: ment though language provided for alterna- generally recognized “It is if ac- ways committing tive the offense. The plea cused enters a or is con- same evil was addressed. See also Dycus, indictment, victed on several counts of an 979; 287; Boyd, 529 P.2d Jack- separate and each count is for a son, Compare Carter, 522 P.2d 1356. offense, distinct sentence P.2d 1217. count, pronounced on each may pronounce Jerskey, the rationale of separate and Tobin dis- cumulative,

tinct Jerskey sentences which are invoked with the result that could consecutively. and are to run possession not be convicted of both This true, though even the several offenses intent to déliver a controlled substance and were committed in the course of a attempt to deliver the same controlled transaction, general or arose out of one substance. The evidence demonstrated set of circumstances.” C.J.S. Crimi- package containing that a seven bricks of 1567(3) (1961)(foot- nal Law at 424-28 § marijuana Jerskey. had been sent to omitted). bricks, permitted moved six of the and then Loddy is consistent with the conclusion package the legislature remaining that the with the one punish did not intend brick separately Jerskey. the to be delivered to telephone destruction of line court ruled stolen, any supported which was more than it that the same would evidence both punish separately breaking that, intend to charges police the of and had the not inter- conjunction 7. In Howard v. Ind. 131 N.E. 'and' where the statute has ‘or’ (1921), Supreme double, 404-05 the Court of Indiana and it will not be and it will be had addressed a similar statute and by proof any held: established at the trial of one of Procedure, Bishop's, them. New Criminal vol. punishable doing "A statute often makes the 1, § 436. another, thing speci- of one or sometimes thus "In the instant case we hold that the offense Then, fying things. a considerable number of permitting gambling merged of is in the of- by proper ordinary person and construction a house, keeping gambling all, fense of a and that who in one transaction does violates the allegation once, the in the affidavit that the defen- penalty. statute but and incurs one 'unlawfully knowingly permitted dant and equally by doing Yet he violates it one of the things. play William Hall and others unknown to at Therefore indictment such a count, games may allege, single money statute certain in a that the other articles of many surplusage proved defendant did as things of the forbidden value’ is and need not be chooses, pleader employing as the sustain conviction." Snow, case of In been in the re vened, package have deliv- would Consequently, There it L.Ed. all seven bricks. S.Ct. ered with [7 658]. charges possession cohabiting of with intent that the offense of separate was held attempt to violate the woman, and an deliver with more than one created instance, was that a lesser included statute could sustained.8 tion of whether that two consistent actual offense. strates of the United States S.Ct. single offense. The defendant could 97 S.Ct. said stituted burger v. United The rationale pears ter paid was delivered the same sales made “ subject of the first * * * at 180, 76 L.Ed. 306 not be delivery third for an additional separate offenses or 301-02, 52 person, only one from the sequential drug transactions con The sales with that of the counts, although made product punished separately from the not be sustained. of the Only were distinct of separate evidence demon offense. evidence different S.Ct. charged in the one Brown, of concerning the ques drug next sale, the court’s decision sentence could be at 181: offense, attempt, quantity, The Court there that Supreme which was the day. times. U.S. shortly continuing contended purchaser in Block separate But the cases is In that second It Court ap- af- 281, 286, the act March uous living sense of the and wife. The court said sisting having eases and fence “ selling they may follow mitted uno ictu.’ tutes offense of “ Each “The Narcotic ‘It ‘A aimed [now # at sale made qualifying requirements set forth. is, inherently, distinction offense, continuous a distinct bar, the forbidden duration; of of 18 U.S.C.A. several successive at an offence that can be dwelling 7 S.Ct. sjs an isolated act. engaging statute, textwriters between and was in the absence of either Act is a case offense, ^[*] and not an offense con- at each laid a continuous together its § does not drugs, 1822, 47, where there 514], character, down where n committed, other.” the business however 562]: c. was a but [120 sales consti- as husband n the statute create adjudged penalizes offense, 22 Stat. like the U.S. contin- closely was a in the sfc com- of- at in Blockbur- issue addressed second consummated, first sale had been separate could offenses ger was whether drug, how- payment for additional of crimi- act be sustained because closely following, was the initiation ever narcotics, conduct, amount- the sale of nal completed and distinct sale statutes. of two distinct ed to violation delivery. by its question The court answered petitioner contention on “The behalf because, case, each affirmative sales, having two been made that these required proof a fact statutes purchaser following same Later, in v. State the other did not. Ciucci other no substantial interval each Illinois, U.S. delivery drug time between of L.Ed.2d 924, 78 reh. denied 357 payment for first transaction and the (1958), the Su- sold, a quantity constitute the second conclud- preme of the United States Court continuing The single conten- offense. in what people, of four ed that the murder distinction tion is unsound. The between episode, single a criminal apparently was an here involved and the transactions The court character, separate offenses. created four continuous in its offense jeop- not violate the double settled, held that it did pointed out well (Wyo.1987). Had the P.2d 1117 Jerskey court in v. 546 P.2d analysis (Wyo.1976), pursued problem same examined the evidence conclude under the upon sup- Birr, relied that identical evidence was been the result would have articulated in statutory provisions, port violation of a the two the same. analysis in v. is similar to Birr and the prosecute continuing legisla- indict- as to a offense. If the ardy clause to four separate proceedings. expressed unambig- ture its intent ments has statute, language inquiry uous dissenting opinion urged prop A Schultz; Hunter. ends. in osition that the Fourteenth Amendment legislature provided any has not definitive subjecting hibits a state from a defendant and, statutory guidance in this instance jeopardy through multiple prose to double therefore, we resort to the usual rules of charges cutions when the arise out of a statutory legis- construction to discern the act, occurrence, single episode, or criminal Hunter; Compare lative intent. cases, Supreme transaction. later Harris, (7th Cir.1987); States 832 E.2d 88 that the Court has held same evidence Springfield, United States v. 829 F.2d 860 multiple not be used to sustain offenses Frank, (9th Cir.1987); State v. 416 N.W.2d separate proceedings if one was a lesser Department Nevada (Minn.App.1987); Illinois v. included offense of the other. Bowen, Prisons v. 103 Nev. Vitale, 447 U.S. 100 S.Ct. (1987) (applying express- statutes Oklahoma, Harris L.Ed.2d 228 ing legislative a clear intent without resort- 433 U.S. 97 S.Ct. 53 L.Ed.2d 1054 construction). ing statutory to rules of (1977); Brown, 432 U.S. 97 S.Ct. 2221. opinions The thrust of later is that a these In Goodman v. subjected multiple defendant cannot be (Wyo.1977), our examination of the rele- greater trials for those included and of vant statutes convinced the court that the though sup fenses even the offenses are charged elements of the 'were dif- offenses ported by different evidence. The rule of ferent and that each statute was intended these cases is that no different result case, separate to address a evil. In that we by trying obtained a lesser included of degree reversed a conviction for first mur- separately greater fense from offense der, killing but affirmed conviction for they togeth than if would ensue were tried battery unborn child assault and on a er. See Nowack. pregnant woman. The evidence showed premised were Ladner v. United Similarly, both convictions conduct, upon single gunshot the same single gunshot inju- which caused wound to the mother. case then was retried, ry police to two officers was not held to and Goodman was found separate manslaughter Upon appeal, result offenses because the of the mother. legislature court concluded that was not the intent of we concluded that the intended case, Congress. impose punishments In that separate the Court careful- for each ly offense, argument noted that if two shots had been fired that he Goodman’s officer, injuring each placed different had been twice for the Baum, Good- acceptable. offenses could be sustained. See same man, 877; 610; Tuggle, P.2d Car- 733 P.2d 601 P.2d 178. ter, 1217; Hamill, 1212; 602 P.2d Birr, question the court dealt with the 1344; Ladner; Ciucci; Vigil, P.2d felony of whether a conviction of murder Blockburger; Ebeling Morgan, felony, underlying aggravated rob- 59 L.Ed. bery, punished separately. could be To intent, question

When a court decides that determine the legislature language intended a violation of two stat the court looked to of each Blockburger utory provisions by pun applied act to be statute and test. once, purpose ished results The court then considered the though separate statute, even might identifying gravamen evidence each support multiple used offenses. the offense and the evil intended to be Schultz, 367; Birr, 1117; addressed, 744 P.2d place- and it also looked at the Garrett; Hunter. This rule is quite penalty like ment of the and the two statutes relating the rule provided to alternative means of to determine if both offenses con- violating separate provisions. the same statute or a penalty conclusion tained See Lauthem; in inquiry is fenses different separate also This statutes with Schultz. that in instance penalties presumption no different from other structures that the statutory in which is involved in the court legislature separate punishments intended Schultz, construction, the except see that Birr; each under statute. United States lenity require rule of does the resolution Woodward, 105, 611, v. 469 U.S. 105 S.Ct. any ambiguity in favor of the defendant. (1985). 83 L.Ed.2d 518 approach Ladner. Our is like that used congressional system the federal to discern principles applied these are When intent, legislative relevant his- although the case, to this the conclusion must be tory con- is more available the federal placed Duffy jeopardy by was not in double Wyoming, legisla- In we little text. have Any the two convictions. overt act Nowack; history tive of assistance. to be conspirators of the other was to sufficient Garrett; Ball; Hunter. Lauthem. conspiracy complete the crime of commit Schultz; burglary, the see v. Burke applied, Properly test of Block- (Wyo.1987). The armed rob legislative definition burger examines the bery conspiracy occurred after the violation Garrett; considering the without facts. separate The had been committed. convic States, 333, v. U.S. Albernaz United could be on the tions sustained basis of (1981); 1137, 101 S.Ct. 67 L.Ed.2d 275 finding separate supported evidence States, v. Whalen United Furthermore, charge. each stat two 63 L.Ed.2d 715 Iannelli S.Ct. provide utes do not an alternative means of States, 420 U.S. n. v. United offense, committing single prose 1284, 1293, n. (1975). attempt parse conspir cutor did not * “ * * multiple acy conspiracies. count into applicable rule that where Therefore, Tobin, espoused rules the same transaction act or constitutes Snow, P. 7 S.Ct. statutory provi- violation distinct of two While, apply. arguably, do not the convic sions, applied the test to be to determine tions could be affirmed as of different

whether there are two offenses or evidence, supported by different see fenses one, provision requires is whether each Schultz, justify the record does not a con proof of a fact which other does not.” they clusion that did not rest the same at Blockburger, 284 U.S. 52 S.Ct. on. presented by evidence. evidence 182. prosecutor provide the factual basis simply statutory This rule is a rule of con- pleas to the offenses for the two pree- struction and should not be afforded phone the several calls from Furthermore, minence rules. it over other subsequent accomplices actions his should not invoked when it to a leads be accomplices. This makes it neces legisla- conclusion that is inconsistent with sary the offenses are to determine whether Schultz; intent. tive Garrett.9 of their distinct virtue Legislative expressed intent first is Goodman, statutory definition. See statute, language it can of the P.2d 178. that, presumed when statutes con two Schultz, legislature held that the elements, we they intended tain different were to be a Ball; intended to address different offenses. Unit (9th from the separate offense substantive Stafford, ed 831 F.2d 1479 States Cir.1987). object conspiracy. of a statutory crime that language also will (Wyo. P.2d if indicate different evils were intended Garcia 1989), felony held and con- Defining be addressed. the of- we murder Garrett. 1987), (Wyo. 63 L.Ed.2d In Birr we instances, manipu- application Blockburger pointed out that of the In those legislative language to conform test is a reliable indication of lation of statutes provides if can be avoided focus- intent the statute violation intent gravamen ways. dissenting opin ing evil alternative We cited on the of the offense and the Whalen; Rehnquist Birr. to be addressed. Cf. ion of Justice Whalen v. intended spiracy aggravated robbery to commit interest that cannot be denied without due legislature sepa process. were intended to be argument premised This on the per that, rate offenses. That same rationale according rationale to Dorman v. tains here. Each of the offenses with (Wyo.1983),any good Duffy charged which contain elements applied time earned cannot be to reduce his not, that the other does which satisfies the minimum sentence. Blockburger gravamen test. The of con Dorman, legislature we held that the spiracy, and the evil intended to be ad had created good a limited interest in dressed statute is the time, conditioned any good on the fact that agreement poten of criminal minds and the time could not reduce a sentence below the public

tial agreements. threat to from such imposed by minimum the court. That deci- Per cival 745 P.2d 557 sion was based on the statutes and rules in States, (Wyo.1987); v. United Jeffers opinion quotes effect at the time. The 137, 2207, 168, 97 S.Ct. 53 L.Ed.2d reh. 7-13-402(a), W.S.1977, provided: § 880, 241, denied 434 U.S. 98 S.Ct. “The Board shall have power (1977); L.Ed.2d 164 Callanan v. United * * * grant parole any person im- States, 81 S.Ct. prisoned any institution under sen- L.Ed.2d reh. denied 365 U.S. by any tence ordered district court of Pinkerton state, sentence, other than a life v. United 66 S.Ct. who shall have served the minimum term 90 L.Ed. reh. denied 329 U.S. * * pronounced by the trial court (1946).10 91 L.Ed. 697 The court then provision noted the in § purpose aggravated robbery statute Regulations Ch. IV of the Rules and protect person is to property Parole Board that: the individual. Consequently, See Birr. “ ‘Section 1. Good time al gravamen robbery (cid:127)the is different from Definition. lowance is a reduction of the maximum conspiracy. that of These statutes are set sentence of an inmate as a result of his separate forth in sections of the criminal good, proper helpful attitude, con code, and each independent contains its ' duct and behavior the institution penalty provision. These all indicators and/or as a result of his adherence to the point conclusion, is, rules of the institution. Good time al legislature intended these offenses to granted lowance shall not be or award punished offenses. The re ed to an inmate so as to reduce the sult Duffy is that could be convicted of time served to less than the minimum offenses, charged each of the and the court ” added.)’ (Emphasis sentence. Dor impose could consecutive sentences for man, 665 P.2d at 513. those violating convictions without Duffy’s protection against constitutional affirmed, After Dorman’s sentence was jeopardy. statutory provision and the rule relied upon in that decision both were modified. In his argument, Duffy next con 7-13-402(a), (June Section W.S.1977 tends that the imposed illegal sentence Repl.), provides: one-day because the difference between the “(a) may grant minimum parole any sentence and the board maximum sen person tence in permit imprisoned each instance does him institution un- sentence, good sentence, to accumulate against except time der his maxi life or- support mum sentence. by any state, of this conten dered district court of this tion, that, provided person asserts since the State has served the mini- granted right time, him a good to earn pronounced he mum term by the trial court has protected been invested liberty time, with a good any, granted less if under 10. This case demonstrates that the Duffy making consensus of travel to Colorado and to aid planning criminal minds often involves the several substantive offenses. escape his from the institution in which he was instance, In this incarcerated. participants robbery planned also illegal separation 7- because it violates the of promulgated pursuant to W.S.

rules powers provision of the Constitu- 13-420.” Duffy that tion. contends the sentence relating adopted governor then rules The authority restricts the of the of Pa- Board the good time for inmates of allowance prior to release him role the service Wyo- Penitentiary and the Wyoming State imposed minimum by the sentence the dis- Center, in with ming Women’s accordance trict court. The decision of in the court 7-13-423, authority granted W.S. the § and Duffy, preceding P.2d the (now (1984 in Cum.Supp.) forth set explanation adjustment the in the stat- 7-13-420, (June Repl.). W.S.1977 § resolves ute rules this claim. the provided respect new rules good allowance: definition time argument, Duffy As a final asserts (a) time Definitions, ‘Good “Section illegal the that his sentence is because is of the maximum allowance’ a reduction in guilty plea accepted violation of in sentence an inmate the amount of this Rule W.R.Cr.P. essence (10) days for month per ten month each Duffy’s argument trial claim is that the on a as result of served sentence comply judge, order to with Rule attitude, proper helpful con- inmate’s and W.R.Cr.P., him advise that consecu must duct and behavior the institution imposed. perti tive sentences could be result of his/her adherence and/or 15, W.R.Cr.P., part, nent Rule states: rules of the institution.” “(c) ac- Advice to defendant. —Before cepting plea or conten- prior The restriction forth defini- nolo set dere, the defen- good “good allow- court must address the tion of time that time open inform personally dant court and granted shall not or awarded to ance be of, him and determine that he under- inmate so as to reduce time served stands, following: delet- less than minimum sentence” was “(1) ed. charge The nature of the to which offered, plea mandatory is mini- light statutory recent amend- law, penalty any, if provided mum rules, and modification of there ments penalty provided possible the maximum pre- appears now to be no restriction that ** law; Duffy’s maximum vents the reduction of the trial below his minimum sentence. The record demonstrates that sentence maximum Duffy he advised of both the Duffy argued has not that is entitled to offense, minimum for each good is sentence be released now if his time earned Duffy was and it shows that aware maximum deducted from his sentence. that he faced. At maximum sentence any he presented Neither has evidence that accepted his hearing in the court being presently indicate that he is would guilty, the court stated: pleas of any good to which denied time he would * * * rules. recall you entitled under the statute and the “THE Do COURT: circumstances, Duffy’s argu- you Court at an earlier Under those when were cognizable August, August particularly, claim present ment does not time of cer- ripe you It will be at which time were advised that for our review. your rights, him to seek that relief tain of constitutional appropriate for you pled guilty?’ can ‘not when he establish the combination good time added to time served Yes, I “MR. DUFFY: do. maxi- he has demonstrates that served remember, you I do “THE COURT: And mum term and is entitled release. the Infor- you that under Count I of told does demonstrate invasion record not mation, imprisoned not you could be liberty at this of a constitutional interest twenty-five than more than less five or justify time that would conclusion II, you impris- could be years, Count illegal. Duffy’s sentence is less years more than ten oned $10,000? year fined than presented by Duf- argument In the third Yes, I do claim “MR. DUFFY: understand.” fy, the is made his sentence County, Fremont It is clear that was advised of was extradited to prior judge, having for each offense initial been removed at maximum sentence trial acceptance guilty plea. assigned Duffy’s request, of his case to the Hopkinson judge who had tried the murder required compliance with We have strict State, Hopkinson v. cases. W.R.Cr.P., provisions Rule of (Wyo.), cert. denied validity plea to demonstrate the of a order (1984); Hopkinson v. 83 L.Ed.2d 157 questions post- and to avoid State, cert. denied (Wyo.), P.2d 43 464 664 State, v. Gist relief. 768 P.2d conviction S.Ct. State, (Wyo.1989). See Keller v. State, Hopkinson v. 632 P.2d (Wyo.1986); P.2d Crawford cert. denied (Wyo.1981), (Wyo.1985). P.2d While we have L.Ed.2d 463 required compliance provi- strict with the telephone involved contention call also 15, W.R.Cr.P., have sions of Rule we arrange a crime. from incarceration to requirements. See Carson added to those defender, appointed public The whose of Perci- (Wyo.1988); Lander, given, fice was 200 miles from was val. requirement There is no in Rule 15 light, in best a difficult time the succes the court a defendant of the advise judge.1 sor possibility imposition of consecutive only requires sentences. The rule that the judge Duffy The trial sentenced to a defendant be informed of the maximum twenty-five years maximum of a mini and each sentence for offense. trial court twenty-four years, mum of eleven months rule, complied Duffy’s plea with the and twenty-nine days aiding and and abet accepted. properly was ting robbery. conspiracy, Duffy For was sentenced to a consecutive maximum term product of our consideration of Duf- years years, of ten and a minimum nine fy’s claims is that he has not demonstrated twenty-nine days. eleven months and not, illegal sentence. Since he has day (actually effect of this one difference correctly district court dismissed his motion date) days sentencing two with November sentence, to correct and reduce and his designed options normally was to foreclose disposition by the trial court is affirmed. prison available to officials to control their URBIGKIT, Justice, dissenting. facility providing crowded the incentive good cooperative time for behavior. THE

I. NATURE OF APPEAL Duffy (Wyo.1986) I), J., (Duffy Urbigkit, dissenting. The Duffy, young Scott Lee man thirty-five years sentence maximum tyas imprisoned in burglary, placed Colorado for thirty-five years days mini less four ex-girlfriend and received calls from an mum. Lander, Wyoming. These calls were used plan robbery grand- of his widowed II. ISSUES PRESENTED ABOUT accomplish escape mother for funds to his I WHICH DISSENT people partici- At three Colorado. least pated July robbery 4th break-in and appeal, again I this second dissent Duffy’s grandmother. twenty- Within from the decision for several hours, ex-girlfriend talking four First, prosecu- reasons. this case allows order, police. In short all the criminal duplicate charges upon tors to and hoist participants were behind bars. punishment defendant more for a phone by Wyo-

As a result of the calls from criminal act than Colo- was intended Wyoming, charged Second, ming’s legislature. rado to this case not aiding abetting aggravated robbery “ripeness” pros- introduces to criminal ecutions, burglary. to commit He which until now has been used to record, belaboring hostility. subject pursued 1. Without the obvious in this That will not be young public presented female defender was then sub- not now within this W.R.Cr.P. 36 sec- jected "antipathy” outright appeal. sequence to trial court if not ond availability imposing judicial review the sentence shall not fix a limit the cases, analysis imprisonment definite term of but shall law but the administrative prong to establish maximum minimum term offered considers the two within the limits authorized for the stat- ripeness Hardship on the pronged test. maximum, ute violated. The individual, term shall prong, is not even second pro- Third, greater not be than the maximum mentioned. because our under- violated, vided law the statute standing determines intent the minimum term shall not or not the federal state double whether by provided less than the minimum violated, it jeopardy clauses have been violated, greater law the statute nor openly reappraise our prudent seems to for (90%) percent than ninety the maxi- analytic capacity legislative to in- discern of imposed. mum term Wyoming’s legislature to tent after had step in a complete to correct what was Wyo.Sess.Laws See ch. 6§ misunderstanding legislative in intent which to 7- states amendment W.S. “[t]he I, Duffy 730 P.2d 754.2 this to by apply 13-201 made act does not sentencing in criminal case which the

III. LITIGATIVE AND imposed prior court has sentence LEGISLATIVE HISTORY effective date of the act.” ninety The legislature percent made the My unchanged re- disaffinity remains requirement prospective only differential garding Duffy sentence was an legislative and avoided a reversal of change by effort the trial court sentence, Duffy case with such sentencing system, indeterminate judicial total That a mistake aberration. including good rights, time into a determi- prospectively by legisla- was corrected system. sentencing nate Some combina- necessarily not eliminate a ture does consti- my legislative I Duffy tion of dissent protection tutionally impermissible equal recognition judicial of the misunderstand- subject for to the violation the individual I ing Duffy of the clear intent of the law result.3 discriminatory change Wyo.Sess. by led to in the statute (1987). Laws ch. 7-13-201 W.S. inevitably § Battles must end and the Duf- (emphasis added) provides: sentencing I is fy issue determinate not

Except narrowly confined W.R. required presented where term of life is this law, except by provided by proceeding, or as W.S. as to the basic otherwise Cr.P. 7-13-101, equal person underlying when a is sentenced for constitutional issue the validi- felony, protection.4 Duffy the commission of a the court I determined written, my Duffy Duffy I not 4.Since dissent there sentence received "is 'indeter- 2. minate,' facially, definitionally functionally, misunderstanding of the seems to remain some * * spe- People practical good compared as that is used *.” ex rel. term art effects of time Sullivan, good Harris v. 74 N.Y.2d 546 N.Y.S.2d maxi- cial time. Good time reduces the provides by 545 N.E.2d earlier mum sentence benefit discretionary by pa- without action release good Special lowers the mini- role board. time I do find Dorman v. 665 P.2d from give authority countervailing mum sentence (Wyo.1983) authority since ac- parole as a matter of discretion for board years the Dorman sentence of ten to twelve consequent ceptance At earlier release. sentencing would fit within an indeterminate July, writing, by report for date of last status system ninety percent rule within the August September, percent of the 30.9 subsequently Duffy I enacted. is the first case time; good percent prisoners 17.7 received full of the found as decided after the enactment time; partial good percent statute, received and 51.4 good W.S. current time 7-13-420. I, J., good dissenting, no time credit. There were 14.4 Duffy Urbigkit, received 730 P.2d beyond percent prisoners sen- minimum accompanying appendix. The rules statute and consequently special tences and received no place were entire- in ly when Dorman was decided good since award would good time allocation its different from the modernized time difference with discretion vested provisions make no after the extended enacted parole until maxi- by passage Wyo. board for release date Laws battle resolved Sess. (1984) 7-13-423) requiring (previously W.S. mum sentence was reached service ch. 49 pro- by Special good present time effectuated the sentence flat time. rules. ty Duffy for of the determinate ability judicial sentences review administrative Co., statutory as a matter of law cases.” BHP Petroleum construction and Inc. v. left unresolved constitutional issues includ- Com’n., Wyoming Tax ing merger of the offenses first raised in (Wyo.1989). Even if we are argument. oral That double issue ripeness about to do with what we have side-stepped in I for considera- standing;6 surely, done to if going we are proceeding tion W.R.Cr.P. and is apply ripeness beyond doctrine re- presented now jeopardy- agency decision, view of we should eval- merger-duplicity questions. Obviously, ripeness along the lines which BHP uate other post-con- issues be followed Co., Petroleum Inc. proper. indicates petition viction-relief if filed Decem- before presented The rationale majority 11, 1990, including ber conduct of the trial presents only prong which evaluates question court and clear of ineffectiveness presented fitness of an issue judi- Shillinger, counsel. See Sword v. Co., Inc., cial review. See BHP Petroleum J., (Wyo.1989), Urbigkit, P.2d 1117 dissent- prong 1162. The second is neces- ing.5 sary ripeness by to evaluate balancing the judicial economy against interests

IV. RIPENESS hardship party of the if judicial review is presently presented The claim that some majority denied. While the presents no arguments present cognizable do not authority for holding Duffy’s de- claims that are ripe for our review seems sire to know how his sentence will be com- inappropriate. apply agency We now “ripe”, there puted yet is not obviously is doctrine to criminal law review. We have hardship on him which should be balanced before ripeness indicated doctrine of even “ripeness” under the traditional “[t]he doc- judicially is a created limitation of the avail- trine.7 only potential parole vides legislature release and significant. Consequent- no actual found to be time, conversely, reduced sentence. Good ly, re- logic, rather than funded in it relates to an duces the maximum sentence and establishes the alternate release date if no applied adjudicatory fiction for decision. parole rights are granted. Keiter, Essay Wyoming 6. See An Constitu Interpretation, tional XXI Land & Water L. Rev. only significant

5.The by plu- issue decided (1986). standing Federal concerns for rality Duffy (except decision of I trial court “controversy” are based on the "case” or re sentencing discretion) immediately re- quirement constitution, imposed by the federal by legislative versed enactment to correct Cohen, Hast 392 U.S. 88 S.Ct. judicial misunderstanding Wyoming of the (1968); Carr, L.Ed.2d 947 Baker v. 369 U.S. sentencing system. indeterminate Nowack v. 691, 703, (1962). 82 S.Ct. 7 L.Ed.2d 663 State, (Wyo.1989); 774 P.2d 561 Lauthern v. constitution has no such "case” or State, (Wyo.1989); 769 P.2d 350 Birr v. “controversy" requirement. Yet this court (Wyo.1987); Hunter, 744 P.2d 1117 Missouri v. adopting standing federal constitutional re 103 S.Ct. 74 L.Ed.2d 535 quirements exploration, justi without sufficient (1983); Blockburger v. United explanation. Armijo fication or (1932). 76 L.Ed. 306 If we (Wyo.1984); P.2d 864 Cremer v. State Bd. of "legislative ascribe to intent” some monolithic Control, (Wyo.1984); 675 P.2d 250 Alberts v. will, only “[wjhich explain it is fair that we (Wyo.1982); 642 P.2d 447 Washakie people legislators^] historical count as the County Herschler, School Dist. No. One v. How are their intentions to be discovered? (Wyo.), cert. denied 449 U.S. When these intentions differ somewhat from Bishop, Budd v. another, they one to how are to be combined in (Wyo.1975). The term has overall, a dis composite institutional intention?” turbing Ripeness conveys Dworkin, connotation. a con Empire R. Law's 315-16 cept olfactory intervention. Does it have to utility assuming legislative intent is not justify judicial smell to examination? honored Blockburger these historical events. actually does not any logical address intent with 7. To the persuasion; extent that the trial court determinant it differentiates sentencing finitely good stated events as different. something attacked the time stat- It announces that if ute, 7-13-420, way, pervasive is different W.S. another some some more way problem ripeness it is standing different. The thesis of the case does is created for way validity not foresee whether the special good difference is a future test of since composite thoughtfulness would be to the of the time—which becomes the issue in a determi- majority appears deter- discussion to mis- Difficulty is also encountered what, adaptation real mining Duffy understand the issue of I its addition to I, subsequent adop- this court now continued effect since the Duffy decision Duffy tion of the amendment. Originally, and not Duffy decides in II determinative legislature adopted an indeterminate actually dicta further are and what issues which, nature, sentencing process in its post-conviction Duffy left for the future III relief, gave probation to the executive corpus of certiorari discretion habeas or writ discussion, department. Duffy What the sentence did petitions. majority In initial legislatively to remove directed states: system sentencing and of indeterminate We hold that there is no violation of consequent involvement of the executive prohibitions against constitutional opportunities through parole of the convict- instance, plea jeopardy in this Special ed time good individual. does not abrogated the failure of date; parole create a it affects how the district court advise much parole discretion is available to the possibility sentences. The of consecutive Regular good executive. time reduces that record does not demonstrate that the is- good spread, special time discretion while relating constitutionality sues lowering spread by increases the the mini- ripe imposed are re- sentences and, consequence, only mum sentence as a view at this time. The denial provides right for the individual to be Duffy’s district court of motion for cor- parole right not a to be considered but pursuant rection of his sentences Rule released. 36, W.R.Cr.P., is affirmed. First, it should understood re- be that majority, again regard to maximum quiring regular good eligible time to those present and minimum sentences and the special good highly is routine and time is time, ninety percent good Duffy rule discretionary. likely, special good Most states: good time be accrued when time is will Duffy argued has not that he is entitled but, time, earned; good regular unlike can- good to be released now if his time not be withdrawn. In this ease where Duf- earned is deducted from his maximum fy given maximum sentence presented Neither any sentence. has he thirty-five years for minimum and both would that evidence that indicate he is sentence, assuming and that he maximum presently being any good denied time to both, e.g., good maximum of received which he would be entitled under the days per days time—ten month and fifteen statute and the rules. Under those cir- per special good time month—he be would cumstances, Duffy’s argument does not eligible parole review for board after present cognizable is ripe claim that for years nine of seventeen and incarceration appropriate our review. It will for be months, would released after twen- and be him he to seek relief when can es- ty-two time.8 years and four months flat good tablish that the combination of time thirty-five year Duffy added to the time served demonstrates statute for the percent maximum as a ten differential he has served the term sentence is, required entitled to The record would have the minimum to be release. half less or more years does not demonstrate invasion of a three and one months, liberty thirty-one years at than and six constitutional interest this time changed the flat time or justify that would a conclusion that Duf- would not have have, It fy’s illegal. maximum release date. would sentence happen Duffy parole Obviously, nant this will not invokes board dis- sentence— guaranteed cretion mechanically computed time facing exposure and not release and no be flat time maximum all, release time will ever most, years. thirty-five n. if not litigable Consequently, a mature as a hypothetical issue. Attempted escape helpful to is not infra. conjectural "opportunity" is the accruing good category time. either only subject actually can which be addressed in inquiry. however, during separation powers good time period which increased (now parole provisions have been considered from 7-13-423 W.S. 7- could W.S. seven years 13-420), and seven months to illegal four that the sentence was years and ten months. properly was not the defendant subject he to consecutive advised could be Duffy, age What all of means totaling years. A thirty-five sentences sentencing in if he twenty-two at support of the mo- comprehensive brief from confinement at was released Colorado filed, requested the relief tion was but date, the earliest December which hearing appeal denied without from occurred, would, by Duffy likely he presented in Duffy is now as invited I. rule, possibly eligible parole in 2004 be for dis- age forty age or released in 2009 at When extracted from the considerable forty-five! By application “ripe,” cussion of issues that are not now statute, parole for he could be considered principal present majority thrust of the age years about three earlier in 2001 at charges decision is to validate the dual thirty-seven. Obviously, all of this is sub aiding burglary to commit governor’s power ject to the of commuta abetting aggravated robbery capacity tion and the of the state to contin point of decision.9 expand prison system. ue to its At what released, age might he after about

ever JEOPARDY, V. DOUBLE MULTIPLICI- confinement, twenty years in it should be TY, MERGER, AND LEGISLATIVE expected public he will continue to be INTENT charge way in one or another for the bal twenty-year ance of his life. Most firm Admittedly, A. the facts of this case sentences constitute a lifetime commitment my sympathy Duffy, add no but con- public responsibility surviving unless cern is with the direction of law. family can and All will come to the rescue. Apparently, Duffy had been involved with escape of this seems somewhat to the crite burglary some sort of incident with his Const, Wyo. ria of art. 15 which re § grandmother’s house before. When the quires principles the “humane of reforma occurred, July crime the Lander prevention.” tion and in I Duffy issue police immediately started to check out was not the incidental and illustrative func previous anyone in town who had contact time, good tion of it was the char essential Telephone charged him. with calls to Wyoming acter of indeterminate sentenc ex-girlfriend immediately mother his led ing as a which re decision was Frey. to Michele by judicial abrogation. scinded Board Cf. Allen, Pardons v. confession, Frey’s After Ms. the two L.Ed.2d 303 young accomplices jail shortly in male were Duffy All thereafter. contact with had I, merger In Duffy the issue of as an mother, through Frey, young been Ms. illegal furloughed to sentence was be con- age twenty-one. She recruited Richard sidered under W.R.Cr.P. 36. With mandate Sweaney they jointly Jeffery and recruited 1986, Duffy issued December followed Warner, acquired gloves who and essential- on March 1987 with a motion for cor- ly along Frey “went for the ride.” drove rected sentence and for sentence reduction Sweaney and broke into the house with a pursuant contending to W.R.Cr.P. 36 offenses, gun, threatened and handcuffed the merger had occurred in the two stolen impermissible elderly grandmother, gathered up that the sentence was under terrified noteworthy opportunity pleaded 9. Other issues include consideration out where the for consecu- existed, inadequate possibility advice of the of con- tive sentences would have Undoubtedly, Duffy as it did. sentencing required expect current sentences at as did not his sentence W.R.Cr.P. 15 and ineffectiveness of counsel. Ei- would be more severe than that of the actual Duffy incompetent perpetrator, Sweaney. every op- ther they or his counsel were Richard With they portunity did not understand what faced under available in trial and no benefit to the reached, plea bargain justification the circumstances of the obvious bent of the unless a was Otherwise, they trial court. would never have done is de for what was minimis. position Wyoming to the ear to and was returned to goods, and returned stolen preliminary he June where waived a divide their loot. hearing pleas and A entered of innocent. 5th, July charged Frey, arrested on was public representative office of abetting aiding ag with one count of and appointed represent was to him defender 6-2-401(a)(ii),(c)(ii). gravated robbery, W.S. and, by request, his the case was reas- 14, 1984, a plea she entered On November signed resulting designation other and, January charge to the on Judge Ninth Judicial District to hear the fifteen to received a sentence of ease. jail for twenty years with credit time on 15, 1985, motion, appeared in On October the minimum. After modification change plea to ten to court to his and was immedi- penal sentence was reduced ately aiding for years presently which serves in sentenced. The sentence twenty she abetting aggravated robbery and Wyoming Center. was Women’s years, eleven months twenty-four Warner, nineteen, age who Jeffery ob- (com- twenty-nine days twenty-five years offense, back to gloves tained for the came pared principal of the sentence burglary committed. car before the perpetrator given earlier ten to fifteen offense, day Also arrested within years Frey, and the co-actors fifteen to aiding charged he was likewise with twenty years reduced the sen- as before pleaded abetting aggravated robbery. He Warner, years, twenty to ten to tence August 1984, and was sen- guilty on years ten fifteen as reduced to five to January 1985 a term of ten tenced on additionally He years). ten sentenced years minimum to fifteen with credit on the years, to not less than nine eleven months Subsequent modification also re- sentence. twenty-nine days and more than no ten years. to ten duced his sentence five years conspiracy burglary to commit nineteen, age Sweaney, Richard offense, either of or which crime, perpetrator of the was also actual burglary, participants none of the actual charged robbery arrested and armed charged. ever These sentences were were 2—201(a)(ii). kidnapping, A W.S. 6— and consecutive to Colora- consecutive unsuccessfully merger argument was made provided no do credit confinement and, 22, 1985, he January defense pre-incarceration time as credit on for his plea charges guilty. changed his on both Consequently, sentence. 22, 1985, May On he was sentenced to ten sep- Sweaney, who total were: sentences years aggravated robbery to fifteen on the arately this heinous offense committed twenty years on the charge and fifteen to a aggravated by kidnapping, received maxi- charge terms concurrent kidnapping with twenty years of fifteen to mum sentence the presentence and credit awarded on con- maximum; Frey, who credit on the with against finement the maximum sentences. crime, organized a sen- and coordinated the subsequent A motion for sentence reduc- on twenty years to with credit tence of ten tion denied. minimum; Warner, willing par- 6, 1984, conjunction entry in with July ticipant On not involved in the of but complaints, house, credit on the Frey, Sweaney years Warner a five to with and ten minimum; aiding, only not county against Duffy, and complaint was filed partici- sentence than charging aiding him with and abet- Duffy, heavier robbery, pants aggravated on the but ting aggravated robbery conspir- and involving burglary for Frey charge acy Sweaney to commit a with and participants were none an for which he was the which burglary, Nothing a total sentence maximum thir- charged. hap- charged, participant ty-five thirty-five nearly years and a minimum pened Duffy year, when a to presentence days with no years he less four detainer was served Colorado where requested confinement credit.10 custody. Duffy remained in dis- 31, 1987, defender, 10. The anomalies were young public on October not there. to end jeopardy multiplicity11 including con- Without the actual Double and commission computation, cepts improbable situation do of the offense in the an inter- this invoke commonly esting as charge- a one-of-a-kindcase where cited number combinations authority provides extrapolated relevance. able offenses can little But the as well creating sepa- basic result two crimes out of as the contention that least four conduct, sentence-prone 780 P.2d rate Pena v. offenses could be (Wyo.1989), philosophy charged activity, e.g., the entire aiding invades for the one upon against protection jeop- double abetting and to commit and bur- ardy initially developed glary abetting and subse- aiding conspir- and and and quently invested into the constitu- acy robbery. to commit armed Since the tion of the United but also most complicated States by occurrence was further states, including Wyoming. Ingenuity of principal perpetrator’s plea of to kid- prosecutors multiply charges is doc- napping, aiding abetting and further by We have a umented this case. charge sequential to that occurrence could Duffy participated by transaction in which piled also be on. telephone ex-girlfriend calls to his rob My B. principal objection majori grandmother acquire his funds for his ty decision is in its inattention to the sub escape use to It is out of Colorado. duplicity, stantive characteristics double potential separate transaction that trial merger. agree and I do not charges following raise the present this court’s and continue decision questions: improvident previously to find direction 1. Conspiracy aiding to commit and Carter, initiated State v. commission; abetting in the (Wyo.1986) the lesser in continued 2. Conspiracy to commit and commis- cluded offense of Birr v. division offense; principal sion of the (Wyo.1987).12 My concern Aiding abetting 3. conspir- one and present comes from of this discussion ma acy (the charge to commit the other jority in attempting to reconcile the trans actually made); actional brought test bear Justice both; Aiding abetting 4. Tobin, Wyo. Blume State Conspiracy P. abrupt- to commit both. which continued until client, Thereafter, appellant. quently practical married her this hard to tell the difference in August according newspaper application. practice charg article Multiplicity is a material, during included within the ing file an ov- the commission of offense in several wife, ernight conjugal with his Swaim, visit counts. United F.2d States v. prison grounds only climbed the fence from (5th Cir.), cert. denied 474 U.S. captured day sprained to be the same with a Smith, 88 L.Ed.2d 66 381, State 245 Kan. charges apparent- ankle and cut hand. No were (1989). It is stated that the ly escape, filed but for the the incident will no Federal Rules of Criminal Procedure were draft doubt have good a direct effect attainment of both discourage practice. ed to United States v. special good time and time benefits for (E.D.Va. F.Supp. Corp., Allied Chemical sentence reduction. 1976). 7(c) advisory F.R.Cr.P. notes of marriage Whether or not related to the of a committee. See also F.R.Cr.P. 9. defender, public pervad felon to his this case is jeopardy, protec- Double as a constitutional by questions ed of ineffectiveness initial trial tion, deny'dual serves both to conviction and counsel, appellate subsequent counsel and in essentially prosecution successive the same for cluding challenge peremptory of the initial 519, Iones, 421 crime. Breed v. U.S. 95 S.Ct. judge, guilty plea two for offenses before the 1779, (1975). 44 L.Ed.2d 346 A claim of double judge scope successor and later confined of ini State, jeopardy Ashinsky is fundamental. v. 780 State, appeal. Murray tial v. See 776 P.2d 206 Comment, (Okl.Cr.1989); P.2d 201 Twice in State, (Wyo.1989); (Wyo. Kallas v. 776 P.2d 198 (1965). Jeopardy, "Merger” 75 Yale L.J. 262 State, 1989); (Wyo. and Amin v. 774 P.2d 597 again concept addressing major differs in as 1989). State, compared Whitney To be are v. involving and minor crime the lesser included State, (Wyo.1987) 745 P.2d 902 and Price v. 716 concept. Dictionary Law Black’s 891- (Wyo.1986) by P.2d 324 followed Cutbirth v. (5th 1979). 92 ed. 1988) (Wyo. Duffy I and what II. will now be is, however, 12. This case and not con- Birr Multiplicity jeopardy Blockburger-Carter interpreta- fined to a intent and double have been 11. defined, differently although usage analysis. it fre- tion

841 (Wyo.1988), reject but still P.2d 367 by of this court decision ly terminated Carter, change to the 1217 to 714 P.2d to which dual criminal character of conduct States, 284 U.S. Blockburger v. United only wordsmanship to are es assessments (1932) 180, pre- 299, L.Ed. 306 52 76 S.Ct. cape provided the limitations both separate intent test of legislative sumed Wyoming and United States Constitutions. Carter, Since for each incident.13 evidence White, 370, People Mich.App. 200 v. 41 1217, parade had a we have 245, aff'd, (1972), 212 326 390 Mich. N.W.2d multiplied penalties for a complications (1973); Ashinsky v. 222 780 N.W.2d accept come to single transaction. I have (Okl.Cr.1989).14 but sure- Wyoming, like most the fact considering cases in- the morass of states, adopted improvi- this has ly not all merger, multiplicity and double v. volving see Schultz 751 pathway, dent 14. The author Foltz, S.Ct. 2407, 485 which also tests cases, tive tool is Rule, history. (1988). LJ. at 299-300 omitted) states: rett v. United Browne) address sult is lish Law 444-57 naz Since the fourteenth ed understood” or his contention L.Ed.2d 715 Carter, I am disinclined stant 106 S.Ct. Pollock & F. cised al will supra teristic tion that 1 F. Pollock & F. maintenance of the 1137, "today history son, upon The double traitors recent birth. were David disembowelled for outlaw and opportunity and extended Clearly, Blockburger States, U.S. v. United also not attack in directed considerably Jannelli 85 1284, 832 F.2d 1401 are not double now invaded. Double n. hanged punished. 415 signs Doctrinal interpretation the throne of urge L.Ed.2d enjoyed the "sea of 433 980, 20, William Wallace and David of rule is more applied Mich. 43 L.Ed.2d 616 (1980). 75 Yale LJ. accept can be traced to of quartered Maitland, (1871). 87 v. United Morey 108 S.Ct. States, States, evidence (emphasis added and footnotes (2nd Comment, 764, punish L.Ed.2d 698 a similar Maitland, to withdraw from 558, Wallace was “drawn more self-restraint. multiplicity robbery exceptions” double (6th the author’s (1981) Whalen v. Unit century, courts have exer- sacrilege, ed. reh’g jeopardy concepts. It is how the 471 U.S. extension of 330 protection England, States, commonly supra, double as well as cumulatively Com., 1898). See also Alber rule has an extended 1278, Cir.1987), at 263-64. when Edward I senility.” denied divers fate. supra N.W.2d 314 and homicide and judicial jeopardy itself has (1975); Henry 420 U.S. n. 13. beheaded as 99 "are the charac- for History 108 Mass. 773, 333, the notorious comment that depredations. n. is under con- 473 U.S. intent. Gar revered L.Ed.2d 489 prosecutori- my cert. denied interpreta supporting II in 1176. Wharton’s barrier. discretion. Comment, People 105 S.Ct. 101 S.Ct. is not of 1432, Beam v. for See F. applica- 75 Yale 770, (1982), Wales in re Both Eng trea- than 927, (12 sat 95 I ” jeopardy proceeding. Broce, currently Broce, waiver rule can be pletely tutional the United 423 and 2098, 927 appeal, said in L.Ed.2d at 945. least for this stitution, Justice Blackmun Constitution. v. United Broce, L.Ed.2d case since the jeopardy is a matter of substance I do not er to does not bestow "The constitutional nal fragile guarantee be thus ing single US 2183], Ct 99 [101] spatial there was cuting continuing agreement fenses.” Essentially, double repeated by A U.S. " (1989). at -, Blackledge avoided] ‘The Double [54], guilty plea, 40 L.Ed.2d 628 pleading.” 488 488 U.S. at 488 U.S. 53 L albeit disinclined dissent: prosecute 61, protection provided in the at 949. waiver I would follow what Justice quoting Brown v units.’ Sanabria the second States, jeopardy. day-to-day administration of addressed for double nullified States Constitution in United States v. ignore the attribution of waiver most U.S. As On the face of clear 96 S.Ct. 109 S.Ct. at The issue was addressed in I find that the Menna v. Ed 2d present by jurisdictional crime into series In that context for our state however, we Justice Blackmun ” facts and the 563, See also a 91 F.2d by plea adaptation at for all its support Jeopardy that it otherwise pointed on the Government further related: Perry, -, L Ed 2d that ... -, US 241, 109 S.Ct. indictment was barred applied. Additionally, simple consideration, provision the mere (1974) exceptions apply there we do not have a 49, 52, 46 L.Ed.2d 195 417 U.S. for 97 S quotation from Short practical importance the two out Clause v United Ohio, commit several its limitations [can expedient a claim that the Broce double may be a S.Ct. at S.Ct. at 757, events are estab- reference to 87 L in Braverman v jeopardy forms of crimi- Ct L.Ed.2d at 947: against (4th S Ct 2170 [at is not such 21, indictments, 102 temporal lacks. Ed I am com- Broce, New States, 437 Blackmun any pow- Cir.1937) a consti- 768, 771, 94 US L.Ed.2d justice, (1975) “single initial under ^[2227] prose- divid- Broce York, con- 63 S of- at by multiplied rights guaranteed infected criminal only by the Unit accelerating Constitution, statutes and nurtured ed States but more immedi multiple charges, habit of ately by first reference Constitution. As should be made to the fundamental Ameri- Justice Scalia stated for the United States parte Lange, can case of Ex Wall. Supreme Court New Orleans Public 163, 171, (1873)(quot- 21 L.Ed. 872 Service, Inc. v. City Council New of — Olds, ing The Commonwealth v. 5 Littell Orleans, -, U.S. 137), court, comprehen- where that after a (1989) (quoting Co history sive review of the and essence of Virginia, hens v. 6 Wheat. “ protection against the constitutional double (1821)), 5 L.Ed. 257 have ‘[w]e jeopardy, repeated: right no more to decline the exercise “[Tjhat every person acquainted jurisdiction with the given, usurp which is than to ” history governments must know that given.' that which is not employed state trials have been as a for- There C. are multitude of cases which engine midable in the hands of a clomi- quite are similar factual circumstances nant prevent administration.... To burglary robbery. which involve My and law, mischief the ancient common and uneasiness about this case is the observa- Magna itself, provided well as Charta ble relinquish- ineffectiveness of counsel in acquittal that one or conviction should ing the armor of jeopardy by law; or, satisfy words, in other entry plea of a duplicated to these always the accused right should have the charges.15 Axiomatic as a result of this availing secured to him of himself of the decision, aiding abetting similarly can pleas acquit autrefois autrefois accommodate the criminal offense perpetuate rule, To convict. this wise so conspiracy, aiding abetting since necessary liberty favorable and conspiratorial in essence in conduct. This ours, in government citizen like so majority gloss adds but no real substance frequently subject changes in popular by taking aspect of the transaction and sentiment, feeling and design was the attaching conspiracy any par- to it without introducing into our Constitution the rhyme ticular separate- or reason and then question.” clause in ly applies aiding abetting to another That court then concluded: aspect of the same criminal event. This is duty There is no more sacred of a only done to create two crimes out of one. than, court properly it, a case before This recognized by observation was also unimpaired to maintain those securities the Vermont Perry, State v. personal rights for the of the individual (Vt.1989): A.2d ages which have received for the sanc- may same act sepa- constitute two “[T]he jurist statesman; tion of the crimes, and, they rate if are not so relat- in such cases no or narrow illiberal con- part, ed that one of them is a constituent given struction should be to the words of element, necessary other, so they fundamental law in which are transaction, that both are in fact one embodied. prosecution and conviction be had parte Parker, Lange, Ex for each offense.” L.Ed. State v. 369, 371, . (1963). 872 Vt. 189 A.2d 541-42 Additionally, by White, oath responsibility, See also State N.C. this court cannot jurisdic- robbery abstain from the S.E.2d 813 where and larce- tion which has been conferred to ny sustain could not be divided sepa- to create two Iished in this record and re-reference for fact take one act to create two offenses for dual See, reference, finding Stuntz, required. is not responsibility. country incarceration This sure- Procedure, Waiving Rights in Criminal ly adequate has an number of miscreants as 75 Va.L.Rev. 761 inadequately well as the number of unsolved or prosecuted crimes that it does not need to country It is no wonder this has all de- scratch to find two crimes for the same offense. grees greater percentage penal incarcera- than tions other civilized nation when we jeopardy to and dual rately punishable crimes and Vines v. double —conviction (D.C.App. 540 A.2d 1107 sentencing for one criminal event. 1988), robbery and armed with kidnapping question re- specific more here invokes the momentary and co-existence. confinement lationship burglary to the offense of robbery appeal extricating aggravated separate stat- require

This does not as those princi- conspiracy from commission of the impacted utes are the inchoate offenses merger or pal offense for double conspiracy aiding abetting. and and assessment. We have here two inchoate or basic issue that should have been resolved agglutinative offenses for which the identi- burglary, progressed is whether the which Conspiracy and cal evidence was used. robbery, charged separately into the can be aiding abetting and under law Duffy or should the maximum sentence for offenses, drawing are inchoate criminal re- have been limited to the one offense maxi- categorized sponsibility from offense. twenty-five years. mum of of a crime of Ño individual can A magnificent play on words defined conspiracy it to the intended unless relates legislative intent is invoked these thou- aiding and commission of a crime and abet- sands I we of cases. dissent because what ting only participant a re- denominates for conceptually logically do is and vacuous is sponsibility when the criminal act com- Burglary in this case in- indefensible. Aiding abetting conspir- mitted. and and entry a illegal volved with intent commit applied acy as here are character- felony. felony committed in this case izations of the same conduct directed to robbery. was It have aggravated would separate responsibility assess for the same exactly in this if been same case penalties criminal misconduct. The both charged had he com- been with offense designated are as cases the same of- mitted, abetting aiding aggravated and fense. W.S. 6-1-304 and 6-1-201. However, burglary. by charging down to cases,16authority Within the mass of can prosecutor dividing up burglary, every position except be found for taken no unitary in- what was otherwise a invoking conspir- case like one is found volving the same evidence of what occurred acy burglary aiding to commit the and and consequently achieving consecutive abetting aggravated the more serious rob- exceeding statutory máximums sentences bery product which the burglary. This our forefathers penalty. is what Using methodology occurrence, of this constitutionally they provided feared when prosecu- stage ingenuity we reach a prohibitions against jeopardy as be- double segments until into tion division cases or ing sentenced for one offense twice particularly almost limitless and so become twice tried for the same offense. Com- magnification by if the inchoate offenses of ment, Jeopardy, 75 Yale L.J. 262 conspiracy aiding abetting in- Twice are (1965).17 troduced. The broad issue fundamental charges through retically, 16. A search could be made Westlaw 14,346 aiding abetting all states elicits case entries. commit each offense participants in the commission other presently pending We have a case in this against Consequently, term that offense. the maximum court where the defense to a civil action might public for a be faced those officials officer, prosecutor probation they when by perjured total false statement could arrest charged wrongful are incarceration of an $39,000 years twenty-seven confinement and statement, by perjured immunity. individual (Wyo. fine. Howard v. Cf. for of civil The observation made denial relief is 1988). opportunities This would not include prosecution may ap- that criminal be the more prosecution for when state official federal interesting apply propriate Duffy It is answer. improper perjury mail and uses the commits principle II of amoeba division multi- purpose ingenious possibly what more charges possible ply and determine all criminal charges prosecutor might they find if chose as against complaints pros- that could be made against prosecutor crimi file claimed principal appro- most ecutor where the priately offenses Gamesmanship multiplied misconduct; 6-5-107, nal misconduct. W.S. official are fact; genie easily 6-5-202, charges accessory is a not be W.S. after the and W.S. 6-5-301, Additionally, perjury. at least theo- rebottled. 844 present does not Duffy law,

D. What as is where consecutive Case sentences separate charges conspiracy sues are provided, present were not does not principal excep offense. With the duplicate punishment same concerns within jurisdictions conspiracy tion of a few where Peo- jeopardy prohibition. See the double may still be considered a lesser included ple Ratcliffe, 808, v. Cal.App.3d 124 177 offense, rule, general accepted in (1981). Cal.Rptr. 627 cluding justification sequen in the idea of Likewise, sequentially and severable crimes, separable sep tial events as is that separate criminal events for crimes are not charges arate sentences can presented by justification this case as for a dichotomy conspiracy be achieved application statutory sentences. principal to commit and commission of the 429, Washington, State v. 132 Ariz. 646 States, offense. Pereira v. United 347 (1982); Lindsey, State v. P.2d 314 446 1, 358, (1954); U.S. 74 98 L.Ed. 435 S.Ct. Mendonca, (Fla.1984); State v. So.2d 1074 Finazzo, United States v. 704 F.2d 300 280, (1985); State v. 68 Haw. 711 P.2d 731 (6th Cir.), 1210, cert. denied 463 U.S. 103 Hill, 607, Kan.App.2d 10 706 P.2d 472 3543, (1983); State v. S.Ct. 77 L.Ed.2d 1392 (1985); Roudybush, State v. 834, 235 Kan. Johns, 369, (1981); 184 Conn. 439 A.2d 1049 Dubish, (1984); v. 686 P.2d 100 State 234 Carter, People v. 558, 415 Mich. 330 708, (1984); v. Kan. 675 P.2d 877 Wilson (1982); Carey, State v. N.W.2d 314 285 Com., (Ky.1985); Hunni 695 S.W.2d 854 509, (1974). Compare, N.C. 206 S.E.2d 222 cutt v. (Okl.Cr.1988), 755 P.2d 105 however, Garcia v. compared Choy, State v. Ah 780 Schultz, (Wyo.1989) 751 P.2d 367 with (Hawaii 1989). Birr, 1117, where in the latter case, separately chargeable conspiracy Separate victims of criminal conduct are charged was not instead of the lesser in Adams, People v. presented. also not 128 cluded offense aas constituent of the felo 25, Mich.App. (1983). 339 N.W.2d 687 ny murder. comparison robbery constituting

Aiding abetting multiple as an inchoate of multiple offenses with victims and exposure fense with identical for criminal v. burglary State as one offense punishment principal as the offense can Hodges, (Minn.1986). N.W.2d also separately be filed from present II does E. What terms creating without a double consti prosecution of double is of a non- tutional principle violation. This follows sequential transactionally event limited to from conspiracy being the nature of sever- one course of behavior. The crime was principal able from the aiding offense since by telephone committed calls made in ad- abetting identically prin treated as a any vance of criminal action. There was Herbert, cipal offense. United States v. burglary/robbery one victim (9th Cir.), cert. denied 698 F.2d 981 charges essentially crime. The filed invoke 821, U.S. 78 L.Ed.2d 95 a lesser aggravated included offense to the Valencia, United v. States 492 F.2d 1071 robbery. progressed The occurrence from (9th Cir.1974); Spearin, State v. 477 A.2d burglary initial an integrated event with (Me.1984); Carter, 314; 330 N.W.2d one interest of the criminal. That interest People Hamp, v. Mich.App. produced a leading course of events to a (1981). United N.W.2d 175 States Cf. robbery. pros- Two inchoate offenses were Mourad, (2nd Cir.), cert. de 729 F.2d 195 ecutorially created out of the same action 855, 105 nied 469 U.S. S.Ct. 83 L.Ed.2d given for which consecutive sentences were cert. denied 472 permitted exceed the maximum See also S.Ct. 86 L.Ed.2d 717 single charged offense. Garrett United reh’g denied presents S.Ct. 85 L.Ed.2d This case also dual crimes charged in a circumstance where a lesser Thomas, (1985) and States included concept implicated by (9th Cir.1989). F.2d burglary purpose occurrence for the

845 multiple to trials aggravated robbery. subjected To be for those commission duplication greater are compared the denied offenses even included Bartowsheski, 661 P.2d 235 cases, v. State supported by though offenses are v. Flynn, (Colo.1983); Conn.App. 14 State evidence. The rule of these different — denied 10, 1005, cert. 539 A.2d U.S. that no cases is different result is ob- -, 226, (1988); 217 102 L.Ed.2d 109 S.Ct. trying a lesser included tained State, (Fla.1982); Borges 415 1265 v. So.2d separately from greater offense than State, Strong v. 1097; Ah P.2d Choy, 780 if they together. ensue tried would were (Ind.1989); Carey, 538 N.E.2d 924 206 Unfortunately, majority nei decision important singularly 222 and the S.E.2d ther establishes what constitutes the lesser Hil Corbin v. and well considered case explains why nor included offense the bur 279, 71, lery, 74 N.Y.2d N.Y.S.2d 545 543 glary in this case fails to fit. The same — -, granted cert. 714, N.E.2d U.S. Birr, problem exists where (1989). See 110 107 349 S.Ct. L.Ed.2d Garcia, does not fit with 774 P.2d 623 and Mourad, 729 also F.2d 195. Schultz, Duncan v. 367. See in robbery bank cases are federal Ga.App. 183 358 S.E.2d 910 by including concept pro formative a v. (1987); (Mo. Reed 778 S.W.2d 313 of incidents of duplicitous charging hibits Tesack, 383 State v. App.1989) and S.E.2d United of criminal conduct. course (W.Va.1989). generally 54 on lesser Moore, 688 F.2d 433 (6th States v. Cir. Jeffries, 430 offense, State v. included Lawson, 1982); States v. F.2d 683 (Iowa 1988); Corbin, N.W.2d 728 74 Leek, v. (2nd Cir.1982); United States 688 71, 543 N.Y.2d 545 N.Y.S.2d N.E.2d (D.C.Cir.1981); United States 665 383 F.2d 714; Blair, Limitations on Constitutional (5th Cir.1981). Wright, v. F.2d 661 60 Doctrine, 21 Included Lesser Offense case, agrees majority In (1984); Ettinger, Am.Crim.L.Rev. 445 lesser cannot be included offenses used Approach In Search Reasoned punishment: create a second Offense, Lesser Included Brooklyn 50 cases, Supreme Court has later (1984).18 L.Rev. 191 held the same evidence not be we now do was decried Justice What multiple sepa- used offenses in to sustain Krulew special concurrence Jackson rate if in- proceedings one was lesser 440, 457, 69 itch v. United 336 U.S. Illinois v. offense of the other. cluded (1949): 716, 725, 93 790 S.Ct. L.Ed. Vitale, 447 U.S. 100 S.Ct. 65 is, course, strong temptation There v. (1980); Harris Okla- L.Ed.2d 228 rigid standards when it seems relax homa, 97 S.Ct. 53 Brown, way convictions of sustain (1977); 1054 L.Ed.2d prose- But statutes authorize evildoers. The thrust of these 2221]. [97 crimes for most later cution for substantive opinions that a defendant cannot Jersey, are explicit the two tests alternative issue of these double New 18. approve facing protection cases the court reaches to supplies where to the defendant criminal behavior into division of prosecution the same facts. Block- second whether the should look at the crimes is court burger provide test the element is considered charges presented used or evidence Jersey New court discerned that Illinois considering hap the evidence of what without pened. 2260, 2267, 410, 420, Vitale, analysis not clear that the same It is (1980) re-examined Block- 65 L.Ed.2d comparing prosecu used cases of successive burger produce test. the evidence Accord charg duplicate tion concurrent with those Thomas, Successive Prosecu- The Prohibition of form, has, ing. difference in essential This In (1986) the Same Search tions Offense: history which is sometimes stated as ancient Definition, L. and Com- 71 Iowa Rev. 323 test, State or the evidence v. Yos elements test kowitz, ment, Reinterpreting v. DeLuca: Double State A.2d 1 or the 116 N.J. Jeopardy Against Protection Successive Prosecu- alleged required compared to the test evidence (1988). tions, Rutgers L. See like- Rev. test, Comment, supra, 75 Yale L.J. evidence wise 256 Ga. 344 S.E.2d Hambrick Abbott, (citing King & Vandercomb (1796)) Eng.Rep. and com Leach pared (12 Browne) Morey, 108 Mass. Sea,” Sargasso the Hunter rule “in this dangers to the lib- evil-doing without integrity effectively gives great them a deal more erty of the individual allowing courts to de- that are inherent judicial process discretion A charges. disap- should for themselves. We rive the formulas can, implied example, particu- or construc- prove the doctrine of stress every entirety aspect and in closely in its look at one tive crime lar factor or I think there should history manifestation. And to reach and but- legislative any conspiracy straining uphold to no is also much be tress its conclusion. There prosecution for the sub- where speculation regarding conviction more room for pur- adequate is stantive offense legislature now that intent of the adding pose by served apply. test to courts have no mechanical get procedural chiefly to charge all, seems a significant of the decision of Most way to conviction. advantages to ease the topic is virtu- supreme state court on this * * * ally unreviewable. particularly Excluding case with its this that the practical problem A third is sentence, most penal the factor egregious prosecutorial rule increases discretion. position in mul- recognized posturing in for legislature proscribes a certain When the charge filings prosecutori- is crime tiplicity permits multi- act in several statutes and adequately extended leverage al where an gains ple punishment, prosecutor a normally Wyo- in is not a concern sentence plea great leverage in the bar- deal of and inde- ming the broad discretion within gaining process. If five convictions are provided by terminate sentence structure one, possible instead of it is much easier case, legislature. By trip the third prosecutor bargain to with a defen- Sea,” Carter, “Sargasso out into the by agreeing drop one or more of dant J., Birr, dissenting; Urbigkit, P.2d brought against the defen- the counts J., Urbigkit, dissenting, we plea bargaining plays dant. Because only misshapen state constitu- achieve law, important role in criminal it such by creating prac- adopted tional instrument possible prosecutors will is want in the problems tical which are reflected leverage help secure use this deals recent criminal cases address- thousands of Thus, advantageous to the State. more responsibility by ing multiplied criminal encourages prosecutors rule Hunter charges. severable bring charges they than intend more First, in we intent invoke gain in prosecute order to better practical factual each decision without bas- bargaining position. the intent. No coherent es to what was responsibili- proper context of the analysis provided as wit- framework for ty Supreme Court to of the United States by included of- nessed Birr as the lesser heritage, develop the law for future we fall felony in murder com- fense was added of Justice Jackson error to admonition sepa- pared to and Garcia where Schultz Krulewitch, S.Ct. adopted rately distinguishable offense was temptation to sustain conviction as a sentence, of the though justified for the dual even forego protecting con- goal in itself and to cases, particle it didn’t make a all three rights. stitutional except com- of difference for an editorial control of the time to ment since effective Hunter, Missouri v. spent for each of the individu- convicted even governor’s office vested in the als was terms, may States constitutional legislature neither the power within whose wavy bright purposes, line for its weave a trespass. nor the court can heritage I also consider the but justice delivery system Wyoming problem defined Sur- second by the United Su- circumscribed States Developments in North Carolina vey of preme voicing perspective its Law, 1986, 1286-87 Court 65 N.C.L.Rev. First, omitted) Constitution. it (1987) (footnotes in entan- the United States is that noted that Hunter is different. should be gling courts There, legislative ming found a implementation. state court constitutional To se- punishment intent cumulative guidance require cure effective is to con- Otherwise, totally absent here. we reach scholarship sug- sistent direction. Serious dressing supposition top an unclut- gests adequately we should more rely on presumed tered fact with a intent Block- interpret state court decisions to our state presumption or burger otherwise. constitution and not on the changeability of adaptations federal manifested confus- addressing pro- F. the constitutional ing denying rights. constitutional Wit- against jeopardy, tection need to we ness need be taken in the trend lines recognize that two constitutions are in- and variances volved. The federal double clause found those cases. Com- identically interpreted mencing parte need not be with our Lange, Ex jeopardy state double clause since the state we need Ebeling follow v. Morgan, adopted nearly century clause was later 625, 710, 237 U.S. 35 S.Ct. 59 L.Ed. 1151 than the United States Constitution.19 (1915); United States v. Universal C.I.T. 218, Corp., 227, Credit 344 U.S. 73 S.Ct. 97 meaning I in find Professor Keiter’s ob- (1952); States, L.Ed. 260 Gore v. United “[djuring Wyoming servation that Con- 386, 1280, 1405, 357 U.S. 78 2 S.Ct. L.Ed.2d stitutional Convention debates there were 858, 13, reh’g denied 358 U.S. 79 S.Ct. 3 only two references to United States Su- (1958); L.Ed.2d 92 Keiter, North preme Court decisions.” Carolina v. Essay An Pearce, 711, 2072, Wyoming Interpreta- on 395 U.S. 89 S.Ct. Constitutional 23 tion, 527, (1969); XXI Ohio, Land & Water L.Rev. 543 n. L.Ed.2d 656 Brown v. 432 (1986). 161, 88 2221, U.S. 97 S.Ct. 53 L.Ed.2d 187 (1977); States, 445 Whalen United U.S. recognizes: Professor Keiter also 684, 1432, (1980); 100 S.Ct. 63 L.Ed.2d 715 reasons, however, For several States, 333, Albernaz v. United 450 U.S. wisely begun state courts have to reex- 1137, (1981); 101 S.Ct. 67 L.Ed.2d 275 practice amine their incorporating fed- Hunter, 359, 673; 103 S.Ct. eral constitutional doctrine into their own * * * Broce, recently, most United States v. 488 jurisprudence. U.S. 102 L.Ed.2d 927 The historical circumstances surround- (1989)to ascertain how little we can estab- ing adoption of the United States Consti- permanent, lish as a consistent enforce- remotely tution are not similar to the right prohibiting ment this constitutional historical surrounding circumstances which, jeopardy history, predates in constitutions, adoption many states’ the United States Constitution at least particularly those like years probably 500 in had its initiation adopted long were after the colonial era Roman and law more than a mil- Grecian had ended. It therefore makes no sense lennium earlier. incorporate interpretation attribut- original able to the framers of the feder- Furthermore, we are even informed how al Constitution into a state’s own consti- thin the waiver veneer can be. See also the jurisprudence. Similarly, tutional recognition “that the ‘waiver’ rationale is a of an absence indication that a state’s ‘conceptual abstraction’ which obscures Supreme constitutional framers looked to underlying rather than illuminates precedent framing provision, Court clash of societal and interests.” individual there is no reason to assume that Su- Maryland, Benton v. 89 preme Court doctrine influenced them (1969), S.Ct. during their deliberations. Harlan, J., dissenting. also (footnotes omitted). Id. at 543 Tateo, 84 States v. U.S. S.Ct. abject I am not confined to reliance 12 L.Ed.2d where Justice Har- court, interpretative Wyo- opinion borrowed model for lan wrote the for the and its any person put jeopar- put 19. “Nor shall be twice be twice of life same offense to ** Const, Const, dy Wyo. limb; for the same offense." art. V. or U.S. amend. any person subject 11. shall § “[N]or for the (1932). the “same transaction Under predecessor, Ball v. United test,” one must determine “whether the L.Ed. charged parts of the offenses were same extensive, among the but The literature act, occurrence, episode or criminal thought and scholarly one can find reviews and, so, punish- multiple if transaction” at A Closer Look Pote, persuasion should the double ments be barred Jeopardy the Double Supreme Court and Johnson, jeopardy clause. (1988); Clause, 49 Ohio St. L.J. Thom- the Same as, Multiple Punishments for pros and cons of each test When Analysis Missouri After Offense: Johnson, it was noted were considered Quixote, Sargasso or Don Sea Hunter just “because we treat the double Knot, Wash.U.L.Q. and the Gordian by using issue in one case 262; supra, Comment, L.J. (1985); Yale not test mean Court will that] [does Procedure —Consecutive Note, Criminal appropriate apply the other test Felony For Murder Sentences Id. at 1144. The Court made cases.” Jeopardy Underlying Felony: Double purpose it clear its when said: Birr v. Legislative Intent? merely follow the collective [W]e (Wyo.1987), XXIII Land & Water prior of this Court’s decisions wisdom supra, Survey, 65 603 L.Rev. which allows this and elect the course N.C.L.Rev. 1121. necessary to utilize the tools to Court Representative cases can be found G. accomplish it. In tak- the task before courts have where the state abundance course, nothing ing this we do more against fracturing line a crimi- drawn the purposes the than elevate distinct many nal too crimes. One transaction into Jeopardy Double Doctrine the more attentive courts is illustrated each equal dignity and reverence [test] Hunnicutt, (empha- 755 P.2d 109-110 deserves. original): sis in Id. Based foregoing, we examine guarantee fifth amendment appellant’s situation to determine which against protects against jeopardy double purposes underlying test best serves punishments for the same multiple of prohibition double Pearce, North Carolina v. 395 against fense. multiple punishments 2076, 711, 2072, 717, 89 S.Ct. 23 offense. same prohibition. State, necessary to proof cer ment test,” each conviction violates L.Ed.2d ly 101 used two tests S.Ct. component 656 an 955, question t. (1969). Under additional fact offenses 67 L.Ed.2d 120 denied 1137, other.” Courts deciding charged 1140 ask multiple punish “same 449 U.S. have is “whether Johnson (Okla.Crim.App.1980), whether (1981), evidence requires general is not 1132, re v. ferent whether pends and distinct the “criminal (Okla.Crim.App.1987). are distinct two Weatherly v. * * * ¡fc same counts of one on whether elements or dissimilar appellant can be convicted of ^[*] transaction. The answer de offenses, consisting of dif question episode # one determines that 733 remains, however, involves ^[*] * * * P.2d if arising they “are ^[*] 1331, Offenses separate proof.” out ^[*] 1336 not ultimate denied, 1026, mere means to some other ob hearing 101 450 U.S. jective, they nor are offenses included 1734, (1981). Therefore, 68 L.Ed.2d offense, they merely some other nor are more one statute act can violate than pri of some different incidents facets proof requires if of an addi each statute Weatherly, 733 P.2d at mary offense.” not, tional fact that the other does State, (citing Clay v. P.2d 1336-37 punishments are multiple prohibited, (Okla.Crim.App.1979)). though each offense arise from even conclusion, interesting the court stated: Block episode. act or criminal the same burger prosecutor multiple cannot stack [A] this, charges L.Ed. in situations such as 52 S.Ct. McMickle, jury Ga.App. a choice —a situation 321 S.E.2d “offer[] apt jury which is to induce a doubtful aggravated merged assault into find the defendant of the less seri- attempted robbery. armed ap- The court ous offense rather than to continue the plied alternative tests for dual sentence debate as to his innocence. Cichos v. preclusion by analysis both an of the facts Indiana, 76, 81, (factual review) presented charges (1966) (Fortas, J., presented review). as a matter of (legal law certiorari). dissenting from dismissal of Hambrick v. 256 Ga. 344 S.E.2d Id. at 111. Carey, present- 206 S.E.2d 222 ed the felony included robbery armed Eppler, Other cases include State v. merged felony crime, into the murder (Minn.1985), but shop- N.W.2d 315 multi-item charge Hodges, lifting one remained a viable criminal offense and charge. additional burglarious entry 386 N.W.2d of one dwelling justifies only burglary convic- By statutory provision, the transaction persons present tion where the three were abrogated Florida, rule was expressly in house, incidentally did not but the statute retained the exclusion of affect his felony 238 month sentence for Borges, lesser included offense. 415 So.2d murder where no consecutive sentences principles 1265. These were then ad- Adams, given. Michigan were in Lindsey dressed 416 So.2d 339 N.W.2d at 689 deleted one of the two rev’d on (Fla.App.1982), other possession convictions for of a firearm dur- grounds, but otherwise on this affirmed ing felony. the commission of a Also look- issue, 1074 (Fla.App.1984) So.2d ing occurrence, at the facts of the convic- many ways episode “how criminal burning tion for dwelling both and arson may up be carved to sustain property of insured was reversed for the * * crimes and sentences V’ The court in People second concurrent sentence burglary, authenticated a sentence of rob- Kedziora, Mich.App. 336 N.W.2d bery See also imprisonment. and false (1983) by concluding the criminal could Lindsey, 446 So.2d 1074. Those decisions burning not be property insured Carawan were followed committing without arson. (Fla.1987), So.2d 161 which considered dual child, For the beating fatal of a the de aggravated battery convictions of and at- fendant was convicted and sentenced for tempted manslaughter. The Florida consti- murder, involuntary manslaughter, reck tutional clause of double is identi- homicide, less battery, neglect child Wyoming. recog- cal to that of The court Strong, criminal confinement in 538 N.E.2d power nized that the to define offenses and 924. The court only killing related that punishment legislature. was in the imposed one sentence could be for argument “The seems to us irresisti- killing the and reversed all convictions ex ble, and we do not doubt that the Consti- cept murder and criminal confinement. designed prevent much tution was to Corbin, exceptionally detailed case of punished being the criminal from twice 74 N.Y.2d 545 N.Y.S.2d 543 N.E.2d being for same offence as from twice prosecutions 714 considered successive for it.” tried driving while under the influence and vehic Indeed, prohibition against jeopardy applied ular homicide with double aimed as much at the evil deny prosecutions. to the successive Cf. multiple punishments single for of- Nowack (Wyo.1989). fenses as at the evil of retrial for the theft, A three count conviction of at- same offense. tempted entering theft and a vehicle with parte Lange, Id. Ex (quoting by ap- intent to commit theft reduced Note, A Definition of plication citing at 173 charge offense inclusion to one Carter v. Implementing 290 Punishment the Dou- Ga.App. 44, Tompkins Jeopardy Multiple-Punish- ble Clause’s S.E.2d 143 likewise necessarily Prohibition, Blockburger n. 90 Yale L.J. merit Al step analysis. first in the (1981)). court’s though Blockburger presump creates recognized: The court further intent, legislative it tion as to the actual however, same, recognize we At may presumption that be is not a blind power pun- define crimes and that the to applied regard relevant without to other derogation common ishments true It would be evidence of the intent. branch, inheres in the law * * apply Blockburger, absurd indeed *, subject constitutional imita- legis help which was meant determine however, presumed, that this It is tions. intent, way actually de lative in a legislative prerogative is exercised logic feats reason and dictate what punishing same offense under noted, As has been an exclu the intent. statutory provision, since more than one analysis sometimes Blockburger sive the same re- legislature can achieve contrary leads to a result to common greater economy merely in- sult * * * sense. creasing penalty for the under- We results find unreasonable Thus, reaching the lying offense. before by applying may sometimes be achieved possible constitutional question any no than Block- rule of construction other violation, necessary must first de- courts burger to determine intent behind legislature what intended to termine ambiguous penal As facially statute. precisely how. punish and noted, frequently our courts have Carawan, at 164. The court 515 So.2d cir- true intent be discerned statutory three main rules addressed accompa- cumstances documentation application: construction enactment, nying a law’s it’s evidence The first is that absent violation of purpose, particular evil it seeks specific, clear and right, constitutional protect it remedy, the fact that seeks to legislative intent precise statements of prob- particular remedy special class or penalties. regarding intended control * * * lem, relevant factors. or other Accordingly, applying after first that, second rule is absence test, the then must Blockburger clearly legislative in- discernible presumption created consider the so tent, by using begins the test may light any relevant that factors Blockburger v. established contrary legislative intent. a indicate 180, 299, 284 52 S.Ct. 76 U.S. (footnote Carawan, at omit- 515 So.2d (1932), determining L.Ed. 306 to assist ted). further “whére there disapproved. Ratcliffe, 124 Cal.App.3d App.2d case of ible bery and auto fendant bery, grand theft and auto theft. sentence. transaction objective Cal.Rptr. was convicted of People as constituents of an indivis applied theft foreclosed prior Cal.Rptr. continued the exami 627 Churchill, car theft to offenses of rob 312 burglary, (1967) 255 Cal. burglary Intent dual was rob sanke, State v. 1328, forth; with and not connection between the various acts set the same transaction.” ^{[2] [4]} (1945)). whether there is a and whether the acts 1331 23 Wash.2d Arndt, ^[3] whether the acts are consistent (1976) (quoting 87 Wash.2d repugnant 211, 213, readily perceivable to each may State v. Ko 374, 160 P.2d inhere in 553 P.2d other; objective nation of the egregiously intent and Conduct of an bad husband perpetrator applied imprison to be to false array and his of convictions were ad- kidnapping ment and Dubish, to establish a test to in dressed 675 P.2d where the intent, applies only from one a discrete event separate punishments arising whereas a transaction is a related series act, not to one transaction. An act is of acts." arising single from a criminal incorrectly decid- I think Hunter was inflicting aggravated convicted of man was based, view, aggrava- in sodomy, my misap- It is on a aggravated ed. kidnapping, making by a terrorist threat battery plication principles formulated ted Multiplicity was con- against his Supreme wife. in States Court earlier danger receiving more sidered as the designed to resolve double eases in offense re- one sentence for one than jeopardy questions than the one other view, recognized State and it was “[t]he presented and in The mis- here Hunter. separate split single into may not offense application is understandable because as wrongful parts. there is a Where acknowledged Supreme Court itself the basis generally will not furnish act it in v. United Albernaz prosecution.” for more than one criminal 1137, 1144-45, sequential geographi- 880. The Id. at (1981), its “decisional L.Ed.2d sepa- three cally separated justified events jeopardy] in area law the [double sodomy was rate convictions. The Sargasso could veritable Sea which Roudybush, reasons. set aside for other challenge intrepid judicial the most fail separate with the 686 P.2d 100 followed navigator.” majority Now of our examination, time different and severable has, following by slavishly Hunter Court marijuana, place different or different prece- misapplying some of the same Smith, applied. was the test on, dents there relied determined en- Taylor v. 710 P.2d 781 P.2d 666. Sargasso tangle itself in this Sea even (Alaska App.1985) revealed chil- by the Court being after forewarned non-support seg- not be drens’ crime could it which created and decided Hunter Stacking for convictions. mented Forewarned, upon based it. ma- Hunnicutt, again rejected in 755 P.2d alas, not, jority, is to be forearmed. pistols. selling four two 105 for offenses of concede, course, I are bound we Fox, Or.App. See State v. we by Hunter insofar as must decide attempted murder and where Jeopardy case under the Double attempted attempted merge with assault of the Fifth Amendment. We are clause felony only a sin- aggravated murder and and are free not bound to follow Hunter gle proper judgment of conviction was un- precedents our sub- to follow own jeopardy preclu- der the thesis of double ject we on the insofar as base decision sion. prohibition contained * * * of case law which beat Within waves North Carolina Constitution. upon adjudication, subject current expressed Justice Exum The concern thoughtful analysis perhaps the most view for reflects determined provided Justice Exum of the North years sixty-six Blume enunciated Justice Supreme Court his dissent Carolina ago Tobin, Wyo. P. Gardner, 444, 340 State v. 315 N.C. S.E.2d understanding the transactional where (1986) which, my perspective, responsibility was identified: criminal though even identifies the environment acts as several are considered so “[T]he specifically tell max- case does not whether affair, many steps stages in the same provided: imum consecutive sentences were and the offender be indicted I concede that under Missouri v. law; in and one combined act violation of Hunter, 359, 103 74 S.Ct. proof the acts mentioned the of either of Jeopardy the L.Ed.2d 535 Double in the indict- in the statute and set forth Fifth Amendment to the of the Clause will a conviction.” ment sustain pre- not United States Constitution does unjustified completely deny It to now punishing this defendant for both clude in by “finding” what was not that wisdom breaking entering and felonious or feloni- cases, and, following in the “reconstruct- which, assume, we larceny, ous of must ing” applica- what never existed. Without breaking entering or is an essential element, preciseness tion a of of long legislature our so characterization so as really reasoning, happened had in intended. what

853 history limit It Wyoming’s early charged criminal law is obvious that the offenses charge prosecution for one ed the to one in the two informations are one and one course events where there was same, in and fact here constitute one State, P.2d 173 Jerskey victim. v. transaction; that, undisput- under facts State, P.2d 979 (Wyo.1976); Dycus v. ed, necessary in, one is element and State, (Wyo.1974); Boyd v. other, part of the and an or acquittal 871, 96 (Wyo.1974), cert. denied 423 U.S. of one prosecution conviction bars the 46 L.Ed.2d Jackson the other. State, (Wyo.1974); 522 P.2d 1286 Dora v. Particularizing a difference in Cook (Wyo.1974); 520 P.2d 230 dor prosecutions, involvement successive al- (Wyo.1972), Loddy v. 502 P.2d 194 though prem- the case remained aas basic denied cert. jeopar- ise in constitutional law for double L.Ed.2d dy. Acceptance ques of the differentiated principle similarly addressed prosecution driving un tions successive Supreme in Washington Court of elicited felony der the influence and homicide Arndt, (quoting P.2d at 1334 Com. see, Nowack, 561; however, in Stores, Inc., Colonial S.W.2d Corbin, 543 N.E.2d not take me does (Ky.1961)): contrary persuasion. do I find to a Neither where People tage minority position. Birr, 744 P.2d Land bigkit, ting dual 340 S.E.2d Rephrased based though the crimes proceedings act, defendant subsequent “Stated felony punishment. 296-97 just ^[*] & Water one the court J., dissenting. ruling use of lesser in another continues to be murder dual intent, Cook, such 701; ^[*] (1926) has been charge can be based are case early L.Rev. 603. act, intent, adopted 236 Mich. and one Lauthern, ^[*] entirely (quoting 8 R.C.L. law, (Wyo.1989); form, terms involved Note, included sentence tried on we find stated Cf. n : wrong volition, if different.” very from supra, there was one Lauthern v. Finally, offense for n volition, persuasive restricted Gardner, P.2d 350. our thereon, permit charge XXIII N.W. ^[*] heri- 143): two Ur no 6-2-401, larceny fy II that the burglary to be identical robbery we have the same factor can be ceny robbery. This lack of intent to double aggravated strengthened transaction produce extremely statute will offense; We have no actual evidence here in Duf- disproportionate results or “Doubts in and struction will be burglary, with force against a scope so robbery where legislature intended where the same W.S. 6-3-302. in case impose punishments totally into punished in applied or resolved with force or construction that would elements, construction of a against turning multiple punishment. injury applied harsh or compared ambiguity while burglary gravity offenses.” addition to force or favor of incongruous aggravating achieve involved each injury injury, lenity initial as penal case, up W.S. con- lar- as statutory pun- the connective offense general that, rule is where in, provided years ishment less than five necessary is a element of, twenty-five years. Wyo- part another, nor more than constitutes both are transaction, acquittal ming, death sentences are almost in fact on life or prosecu- where ordered confinement of one should bar the cases conviction change twenty-five years.21 Any for the tion other. exceeds equal significance judicially prosecuto- court should records of to have 21. notice offense of result, legis- meeting ranges of the interim rial within similar amounts. As a sessions judiciary primary pur- punishment for which a lative committee with the the offenses twenty-five years pose adaptation-of provided is the newer criminal excess of murder, is now code, 6-2-101, life; (1983); Wyo. Wyo. Sess. Laws death or second ch. 171 W.S. murder, 6-2-104, realistically degree twenty years to Laws ch. W.S. Sess. to relate legislature jeopardy right responsibility the double from by should be made for actual commission of more than one judicial ingenuity. by prosecutorial and

offense, the I would find double application Jersey of the New II VI. WHAT DOES DUFFY Yoskowitz, N.J. A.2d State STAND FOR? (1989) application of an alternative the indeterminate An indiscriminate elements on the evidence test to have most lacking certainty whether net is created narrowly determinably achieved consist to catch whales or minnows. woven If essentially ent validated result. See double justice delivery the function of Moore, likewise N.M. State recognize is to jeopardy intent case law P.2d 109 N.M. cert. denied to right legislature establish of conduct, prohibited criminal that ration- to consistency applied must be ality VII. CONCLUSION Blockburger as elements and evidence principle, disagree In I majority with the trials. well as concurrent and successive presumptive concept applied because a is to ways to detri- There are two increase the produce an absurd result. In historical be ment to assessed conviction of for concern, because, legit- I differ with the to The is statuto- criminal conduct. first imate and liberal creation new crimes administratively in- rily, judicially, or by enactment, past legislative the recent time. The second crease confinement multiplication pros- for we now add offense up into divide the criminal behavior legisla- completely ecution to eliminate punishable separately crimes. The first punishment principle tive of similar for legitimate society’s is a exercise deci- any- identical offenses. attitude consti- sion. second attacks basic thing goes principle criminal law long its tutional interest with followed unacceptable.22 leg- administration is history prohibit- accommodative ancient prosecution islature statute and not the ing jeopardy. Unfortunately, by duplicate charges should establish the is disregarded constitutional interest punishment maximum for criminal conduct. today when the mindlessness intermix- return society, As a we should basic approach, es both. decision and first understanding of our fundamental constitu- legisla- discretion are examined case, pre- concepts. tional In this it is the judiciary. Operationally, ture and the jeopardy. clusion of double accomplishes prov- the second “answer” II, Consequently, again I dis- prosecution en delegation to the as the sent. result to be achieved. In the real world justice sys- delivery

within the criminal

tem, leverage. this called

Among the of inconsistent multitude

pathways segregate chosen violated harm, life; kidnapping physical with W.S. 6-2- A for alarm is that in the face of reason life; signs again negation twenty years “one can't avoid once sexual assault parallel thinking perhaps there is a sad 6-2-306, degree, fifty years. first W.S. five to post-Civil period] between War and now: [the punishment, aggravated next level of rob- events, time, Is the curve of to retrace bery, aggravated burglary, W.S. 6-2-401 and 6-3-301, Civil that which followed the War?" comprise the sentences W.S. ****** reaching twenty-five year Clear- maximum. If we do stand at the threshold of time ly, ingenuity prosecutors savage struggle usher in a new and “will acceptance the courts are more effective than destroy- its between freedom’s believers and legislature trying prescience was the ers," depend the ultimate outcome well rational, realistic, develop yet sentencing sys- response judiciaries on the of the states. history interpreta- A tem. intent Brennan, Amendment, 25 The Fourteenth Trial events, developed even tion can from actual (footnotes (1989) quoting omitted and the minimal records maintained within the Amendment, The Fourteenth Centennial Vol- legislative processes. ume, 1970)). (B. Schwartz ed. notes intercepted package, authorities re-

Notes

The court notes * * * stated, Simply intent. concluding legisla- that the is basis for compares the Blockburger test elements that contrary a result ture intended * * * question. crimes in of the test, a con- by Blockburger achieved third that courts re- rule is must requires the third flict resort to arises lenity all in favor of toward solve doubts applicable prob- rule of to this construction the accused. lem, In this lenity.” at 168. rule Id. “ Lenity described as ‘a fun- Id. at 165. lenity regard, requirement consti- Florida’s construction, statutory rule of damental coequal tuted rule construction i.e., shall con- that criminal statutes be provisions both related Blockburger with strictly the person in favor of strued provide guidelines for purpose since both ” imposed.’ to be against penalty whom ambiguous statutes. construction (quoting Id. at 166 Palmer considering past precedent, the court After 1, (Fla.1983)). The court rec- So.2d then attempted manslaughter then found ognized: battery the same aggravated address outset, predicated upon single At the we conclude that evil which was underlying means act.20 case was remanded preeminence of intent Carawan, original) holding (emphasis 170 n. said “our 20. The Florida court in So.2d manslaughter ag to vacate either the delivery whether punishment gravated battery provided. conviction. could See likewise be (Fla.App. Meadows v. 534 So.2d 1233 Kentucky Com., court in Gilbert v. 1988) Smith, 381, 245 Kan. State (Ky.1982), 637 S.W.2d 632 cert. denied 459 (1989), aggravated battery 103 S.Ct. 74 L.Ed.2d 998 degree and first murder. (1983) considered convictions of attempted kidnapping, In Flynn, degree 539 A.2d interference first endanger wanton ment and police degree with a officer first robbery was found to be a of one fe male rape victim and po- lesser included offense of and the kidnapping assault and, robbery lice of another consequently, officer more than female. Possession and use pistol of a one conviction was not an offended the constitutional offense separate from prohibition degree robbery and, first against jeopardy. How- with the ever, robbery event of close in the third count conviction in the distance case time, required brief in endangerment reversal of wan reckless did not. tuted a son occurrence. The be principle. within the California murder constituted two offenses in the ar included with those two offenses and test Cal.3d conviction was deleted. The same decision ed on al (1969), (1960), Cal.2d therefore expanded, of the lesser included offense course of criminal conduct is divisible and The test for California cases is process issue not raised on initial determined 5 L.Ed.2d 700 appellate actor, cert. denied 400 U.S. cert. denied 365 U.S. jurisdictional gives In the case of Neal v. followed which is at least a Cal.Rptr. Cal.Rptr. review rise to more than one act the intent and (1961), in People arson, however, decision. The arson statutory habeas dual where the de appeal, 357 P.2d 839 part, scheme to attempted whether objectives corpus Bauer, 91 consti albeit when means or to define two crimes stated: with the elements of armed robbery. The provided the same result in Washington, rule for Washington in determination of ping of been shooting occurred after the robbery had ments of each viction of ton 854, a sequential application statutory quential event. An earlier shot was denied as a basis for assault as too intertwined 646 P.2d 314 where the shot was fired after necessary to demonstrate the statutory ele Aggravated assault aid the “[TJhere robbery (Ky.1984). endangerment completed. one victim. In court, intent to define a robbery may many had been be committed such as Polk v. and assault where the and armed permitted completed Wilson,

[1] attempted Com., factors title of the of the 695 S.W.2d 679 S.W.2d dual con different as a se- robbery kidnap crime proof will act;

Case Details

Case Name: Duffy v. State

Court Name: Wyoming Supreme Court

Date Published: Mar 21, 1990

Citation: 789 P.2d 821

Docket Number: 87-160

Court Abbreviation: Wyo.