*1 instruction, correctly states the which That §Ann. 6-2-
law, upon Wyo. Stat. is based FREDERICK, Appellant Cody Lee 2005), 308(a) (LexisNexis apply it does and (Defendant), assault. third-degree sexual that, when all conclude We Wyoming, The STATE of together, are considered of the instructions (Plaintiff). Appellee preju he was show that appellant cannot No. 05-173. necessary principles Three basic and diced. (1) jury: imparted to the
of law were Wyoming. Supreme Court charged elements crime— Feb. 2007. beyond a proved to be sexual assault —had (2) doubt; of a victim consent reasonable defense; not a but age of sixteen is
(3) the victim is a reasonable belief facts is a defense. While or older sixteen presented to the concerning consent were sides, not turn on jury by the case did both Rather, upon question. the case turned appellant reason question whether the years ably victim was sixteen believed the Furthermore, a correct instruction old. been, could have consent is no defense been, given. all these have Under should circumstances, cannot conclude that the we by the mis-worded appellant prejudiced was fundamentally instruction but correct mis given. instruction was not so likely jury. leading that it confused the
CONCLUSION singular occurrence [¶ 17] Neither closing prosecutorial in rebuttal misconduct preju- argument, nor the instructional error appellant, a material diced right to a fair trial. he was not denied his [¶ 18] Affirmed.
Representing Appellant: Kenneth M. Ko- ski, Defender; State Public Donna D. Do- monkos, Counsel; Appellate and Marion Yoder, Senior Assistant Public Defender. Argument by Ms. Yoder. Representing Appellee: Crank, Patrick J. General; Attorney Rehurek, Paul S. Deputy General; Attorney Pauling, D. Michael Sen- Attorney General; ior Assistant and Daniel Fetsco, Attorney M. Assistant General. Ar- gument by Mr. Fetsco. *4 VOIGT, C.J., GOLDEN,
Before and HILL, KITE, JJ„ PARK, and and D.J. PARK, Judge. District Appellant, Cody [¶ 1] Lee Frederick (hereinafter “Frederick”), originally was charged with one count first-degree agreed assault. Frederick and the State plead guilty he would to a lesser third-degree sexual assault and the State probation would possible recommend de- ferral of the conviction. The district court rejected entered sen- years. tence of appeal, two to four In this challenges Frederick the district court’s re- jection plea agreement, order restitution, payment public de- fender fees. We affirm
[¶ 2] the sentence and remand portions judg- correction of those required payment ment and sentence that public restitution and defender fees. ISSUES following presented issues are appeal: imposition I. Whether of sentence was proper? by ordering
II. Did the trial court err
pay defendant to restitution? by entering
III. Did trial court err judgment requir- written and sentence ing payment public defender fees af-
orally waiving ter those fees? of a plea allows an individual accused FACTS Alford voluntarily, knowingly, and under- crime to 9, 2003, had Frederick On October [¶4] imposition of a standingly consent offering to drive the after drinking, and been unwilling if prison even he is sentence apartment. home, up at her ended
victim in participation the acts to admit his unable as to the no direct evidence There was constituting North the crime. Carolina Frederick; alcohol consumed amount of 27 L.Ed.2d Alford, 400 U.S. 91 S.Ct. however, accepted defense coun- the State (1970). to the court explained Counsel that it was excess representation sel’s necessary because Freder- that this attempted to kiss twelve beers. evening on the ick had had so much to drink Later, victim, him. Fred- rebuffed who question that he did not remember what at- forcefully grabbed the victim and erick happened. The State then offered had clothing. He eventu- her tempted to remove discussed, and Frederick previously facts the victim into ally dragging succeeded the evidence that the State agreed this was bedroom, her down and where he held her possible was a present. could Because there sexually her. assaulted § Wyo. Ann. 7-13- disposition under Stat. 14, 2004, an Information On June (LexisNexis 2005), pos- allows for which first-de- charging Frederick with was filed charge if the dismissal of the defendant sible assault, Wyo. in violation of Stat. gree sexual successfully completes probation, the court 2003). (LexisNexis 6-2-302(a)(i) On Ann. plea. The court then re- did enter *5 28, 2004, appeared for ar- Frederick June Department to the of Pro- ferred Frederick and entered a raignment in district court for an interview for the bation and Parole plea guilty. of not (PSR). Investigation Report Presentence 13, 2004, Frederick On December [¶ 6] 18, 2005, April ap- Frederick On [¶ 9] change plea. of The district appeared for a judge sentencing. pre- The who peared for rights of his and court advised Frederick plea accepted change over the of had sided by necessary inquiries required made the judicial appointment, and a different another acknowledged that 11. Frederick W.R.Cr.P. parties judge imposed sentence. The agree- rights; this he understood his statutes, Wyoming agreed that under Fred- court; binding and that on the ment was § eligible sentencing under 7- erick was withdrawn. plea could not be victim, previously who had sub- 13-301. The PSR, impact counsel informed the Frederick’s mitted a victim statement [¶ 7] agree- speak. parties present hearing had reached an at the but did not court that the accepted respon- precise terms of this indicated that he ment. The sibility, apology. the court unclear. Counsel informed and he made a brief are that: announced The district then [¶ 10] my agreement is that client submit The inappro- § under 7-13-301 was deferral count. And in ex- an to the Alford that it had re- priate. The court indicated that, he would receive a third change for court file the initial viewed the with disposition, assault degree sexual rejected proba- The court also and PSR. years five to seven sus- sentence would be severity charge” of the tion “because Honor, furthermore, Your if pended. And and because the court believed Freder- agreement, a supports the PSI acceptance of re- ick was not sincere agreed agree to that. state has imposed sponsibility apology. and The court than two nor more that: “The state would a sentence of not less prosecutor added years of incarceration. open pending than four option leave the The confusion about the result of the PSR.” 2005, 2,May Frederick’s coun- On fact that under agreement stems from the argued a motion for reconsideration sel statute, authority for sus- this there is no sentence, Frederick was a reasserting that pending a sentence. 7-13- good candidate for treatment probation. district at least for advised 301 or Frederick’s counsel motion, stating that An court denied the plea. an this was to be Alford physical bruising exercising evidence of confirmed the means judgment sound with re nonconsensual, a gard. victim’s version of forcible to what is under the circum assault; skepti- and the court continued to be doing arbitrarily stances and without so and acceptance responsibili- cal of Frederick’s capriciously.” Monjaras v. 2006 WY ty. impact The court also considered the ¶71, 8, 136 162, 164 (Wyo.2006). Under community. the crime on Frederick’s standard, inquiry is whether court’s choice is A impact reasonable. victim that he a [¶ 12] Frederick asserts had support statement is credible evidence to an binding plea agreement improperly that was ¶ Penner, rejected order restitution. by the district court 78 P.3d at and 1047(citation omitted). district court abused its discretion when it ordered and restitution reimbursement of
public defender fees. [¶ 15] There is a distinction be tween the standard of review of factual chal
STANDARD OF REVIEW
lenges to the amount of restitution ordered
guilty
challenges
authority
[¶ 13] When
of the court
plea agreement, any
entered as a result of a
Challenges
make
restitution award.
promises
by
made
the State must be fulfilled the factual basis of an
award
restitution
and whether a
has violated an
can be
if
waived
the defendant
enters into
alleged agreement
question
ais
that is re
plea agreement
object
and then fails to
Spencer
viewed de novo.
¶
Penner,
sentencing.
7,
nal based record, shall, parties inform the on the 11(e), provides: which governed by W.R.Cr.P. fact, personally the defendant this advise procedure. agreement Plea or, showing good open court on a (1) attorney for the In General. camera, cause, the court is not attorney or the for the defendant state and by agreement, the plea the afford bound acting pro may se when the defendant opportunity to then with- defendant the with a view toward engage in discussions plea, and advise the defendant draw the that, upon agreement the en- reaching an persists guilty in a that if the defendant plea guilty or nolo contende- tering of a plea disposi- the plea or of nolo contendere charged offense or to a lesser to a re may favorable to tion of the case be less offense, attorney for the state related by contemplated than that the defendant following: will do plea agreement. (A) prosecute other Agree not (5) Except Notification Court. of other or move for dismissal crimes shown, to the court good cause notification charges; agreement the existence of a shall
(B) recommendation, arraignment agree given be at the or at such or Make time, trial, may request, prior to as be fixed oppose the defendant’s other not to sentence, by the un- the court. particular with for a recommendation derstanding that such agreement nature of the be- binding upon not be request or shall and Frederick must be de- tween State court; or before this Court can resolve the termined (C) specific Agree that a sentence is questions proper procedures were of whether disposition of case. appropriate violated the followed whether State agreement. participate The court shall such discussions. change plea hearing, the At the
(2) specific inquiries of Fred- Agreement; Decision district court made Disclosure of If a has been erick. of Court. shall, parties,
reached Again, THE the Court is not COURT: record, require the disclosure of you by any plea agreement. Do bound *7 or, showing agreement open in court on a understand that? camera, cause, at the time the good Yes, THE DEFENDANT: sir. agreement If the is of the plea offered. is THE The Court would order a COURT: (e)(1)(A) in subdivision or type specified presentence investigation report ... (e)(1)(C), may reject accept or the court Yes, THE DEFENDANT: sir. may agreement, or defer its decision as the rejection until there acceptance or depending THE ... and on COURT: the opportunity has an to consider been ap- an report, that make a decision as to agreement is of presentenee report. If the propriate Regardless of that sentence. (e)(1)(B), type specified the in subdivision sentence, to you would not be allowed the that if the court shall advise defendant your plea. withdraw accept the recommenda- the court does Yes, THE DEFENDANT: sir. request, the defendant nevertheless tion or plea guilty, a Frederick then entered right plea. has no to withdraw inquiries: the district court made additional (3) Acceptance Agreement. If the you plea that THE COURT: Was the accepts agreement, plea court voluntary? entered that it will court shall inform the defendant Yes, sir. THE DEFENDANT: embody judgment and sentence any THE COURT: Was it the result of court recognized district had not that Fred- good erick would be a force or threats? candidate for deferral probation, arguments for or that did not No, THE DEFENDANT: sir. persuasive. seem to be question There is no THE COURT: Was it the result of recognition of Frederick’s the district promises? court agreement considered the only to be No, THE DEFENDANT: sir. nonbinding recommendation. Under these Notwithstanding exchange, [¶ this 20] circumstances, we parties conclude that the argues that he and the had a State binding but, did not agreement have a in- plea agreement either under W.R.Cr.P. stead, presented the district court with a 11(e)(1)(A) (C). argues Frederick then sentencing recommendation that the court agreement, because this was an and not rejected. The district court required was not recommendation, improp- the sentence was to plea inform Frederick that the could be given er opportunity because he was not an withdrawn, or to him allow to withdraw his plea rejected by to withdraw his when it was rejected when it the recommendation. the district court. argues [¶ 23] Frederick also although question charge is [U21] whether which the was presented assault, the court was with a recommenda entered was 11(e)(1)(B) tion court binding though under W.R.Cr.P. or a sentenced him as charge W.R.Cr.P.ll(e)(l)(C). first-degree under sexual assault. Frederick agreed only argues State had improperly to amend the Informa the district court en gaged tion to sexual assault sentencing the third “real-offense” in which (Lexis- degree (Wyo. § punished Stat. Ann. 6-2-304 the defendant is for his “actual” 2005)) crime Nexis instead of sexual assault in the instead of the for crime which the (§ 6-2-302) degree first conviction appropri and to consider sen was entered. The more tencing § under ate sentencing, 7-13-301. Since no other “offense-of-conviction” ac Frederick, alleged cording crimes were charges and no were occurs when the defen 11(e)(1)(A) dismissed, ap only W.R.Cr.P. dant is sentenced does not those crimes that ply. An agreement pursuant actually were plea. made admitted with the At the 11(e)(1)(C) court; binding sentencing hearing, W.R.Cr.P. on the the court noted that the rejects agreement, original charge and if it degree the court was “first sexual as must allow sault.” opportunity sentencing the defendant the The court said that plea. further, withdraw the A appropriate; recommendation un 7-13-301 was not 11(e)(1)(B) rejected probation der binding imposed W.R.Cr.P. is not also court, and the defendant sentence of not than does not have less two nor more than years plea. penitentiary to withdraw the four in the state because severity of “the charge,” the court’s unequivocally [¶ 22] The court stated impression insincerity as to the of Freder nonbinding awas recommendation and apology, impact ick’s of the crime on that Frederick would not be allowed to with- community. plea. draw his This could not have been denying In [¶24] Frederick’s motion to made clearer. Frederick stated that he *8 reconsider, expanded the court on its rea- objections understood. There were no or sons, stating: attempts to judge correct the when he stated Frederick, that binding the was not say, and Mr. as I I started to addition, file, could not be In withdrawn. when presen- reviewed the I reviewed the presented report. motion to reconsider arriving my tence Before at deci- sentence, sion, the he did not particularly significant claim that the sen- I it found that improper, tence was specifically and he con- investigating officer on found bruises recognize ceded “that we both that this legs. victim’s arms and That does not ability impose comport Court does have the your explanation pro- with imposed.” sentence that is Frederick’s coun- bation officer that this was a consensual explain sel then went perhaps on to event. is Frederick’s contention 25] telling you [¶ this is be- I am
The reason judge improperly consid sentencing relying that the rely on and I’m not I did not cause bruising as evidence the evidence of explanation of ered victim’s exclusively on the attack, that sen and that this was a forcible physical evidence circumstances. first-degree sexual imposed for tence was legs is some- arms and her bruises assault. sexual obvious, assault instead it is visible. It is and is thing that assault, § 6-2- First-degree sexual subject in- to much something that is not case, originally charged in this occurs as opinion, the officer’s And terpretation. when: with forcible consistent were those bruises (a)
sexual contact.
Any
inflicts sexual intru-
actor who
commits a sexual assault
sion on a victim
things that I con-
other
There are some
degree if:
in the first
As
arriving
your
at
sentence.
in
sidered
recall,
you
(i)
I
didn’t
you may
I advised
The actor causes submission
you
couple words that
you
through
application,
actual
believe
victim
acceptance
this con-
your
reasonably
told me about
calculated to cause submis-
that,
victim,
reflect
but
physical
record can’t
force or
viction. The
sion of the
today of
my
confinement;
recollection
I will describe
forcible
your appearance when
you
said
that.
[*]
[*]
[*]
s¡í
We
now.
your speech
mumbled
talked
Pine Bluffs.
tence on the
sion that
said.
don’t
charge and
community. I
You didn’t
I also considered
[*]
n all know
know
You looked
[*]
n
about
you were not sincere
your personality,
traits,
conviction and
community
look at
words.
Pine Bluffs is a
suspect
every public
down at the
but
me,
I don’t know
that this
impact my
it was
in which
crime [were]
I
way you are
in what
my
don’t
very
for[u]m
floor, you
particular
you
conclu-
you, I
know
small
live.
sen-
you
in
Third-degree sexual
The difference
charged
or second
ual contact under
ry to the victim.
flicting sexual
stances of W.S.
and without
or 6—
(a)
constituting
third
(iii)
[*]
An actor commits sexual assault
here,
[*]
2—303(a)(1)
The actor
[*]
degree:
degree
[*]
occurs when:
between the two
causing serious
sexual
6-2-302(a)(i)
intrusion on the victim
if,
through
subjects victim to sex-
assault, §
under circumstances
any of the circum-
assault
(vi)
6-2-304,
through
bodily inju-
in
without
charges
the first
(iv)
in-
as
in
not in-
third-degree sexual assault does
statute, Wyoming
I reviewed the
Statute
of sexual intrusion or
clude the elements
6-2-304,
degree
which defines third
sexual
bodily inju-
bodily injury. “Serious
serious
compared
I
that with the
assault. And
bodily injury
ry”
which creates
sub-
means
first
define and describe
statutes which
which causes miscar-
risk of death or
stantial
degree
assaults.
second
disfigurement
protracted
riage, severe
impairment of the function
loss or
you
how
were sur-
I can understand
organ. Wyo.
Ann.
bodily member or
Stat.
prised
my
sentence because
(LexisNexis 2005).
6-l-104(a)(x)
suggest
agreement seemed
you
be deferred. And then
would
The district court indicat
jail.
judge
you
who throws
up
end with
factors,
a number of
it considered
ed
response,
[Counsel’s]
So I can understand
bruising. A
undisputed
including
evidence
your response.
and I can understand
sentencing
given
court is
broad discretion
variety of factors
However,
may consider a wide
my
to be
belief
it continues
*9
Manes
offense,
and his crimes.
about the defendant
a
it was
that
this was
serious
¶
289,
70, 9,
State,
92 P.3d
nonconsensual,
v.
2004 WY
it was violent.
It occurred
will not be over
(Wyo.2004). The sentence
drinking.
I
con-
you had been
don’t
after
of discre-
there is a clear abuse
turned unless
sider that to be an excuse.
Further,
process requires
tion. Id. Due
that sentence
statements.
neither Frederick nor
only
imposed
objected
on accurate
be
information.
his counsel
to or contradicted the
challenge
Id. Frederick does not
the accura-
evidence of
bruising.
the victim’s
The dis-
evidence,
cy
only
of the
that it was a factor in
properly
trict court
upon
relied
the PSR and
sentencing.
impact
Victim
information about
its own articulated observations to formulate
convictions
other crimes or
unrelated to the
Manes,
sentencing
its
decision. As
we are
particular crime for which sentence is about
compelled
precedent
to follow
and conclude
imposed
permissible.
be
Id. W.R.Cr.P.
had a fair sentencing hearing.
Frederick
32(a) specifically permits information about There was no
evidence that the initial
the defendant’s characteristics to be consid- prejudiced
Frederick
terms of the sen-
imposing
ered
the district court before
imposed.
tence
Frederick has not shown
sentence.
Id.
any prejudice, and he is not entitled to a new
sentencing hearing.
re
[¶27]
told both the
porting law enforcement officer and the au
[¶ 29] Frederick also
contends
thor of the
that the sexual
PSR
contact was
sentencing procedure
violated W.R.Cr.P.
This
consensual.
was in direct conflict with
32; that
failing
his counsel was ineffective for
bruising
the evidence of
and could
a
indicate
object
stages;
at various
and that
acceptance
responsibility.
lack of
of full
plea agreement
violated the
be
district court had reservations about Freder
parties.
tween the
These can be discussed
acceptance
responsibility
ick’s
of
and re
First,
fairly briefly.
change
review the
misrepre
morse. The fact that Frederick
plea hearing
indicates that there was com
accept
sented the facts and did not
that he
pliance
applicable
with the
rules. Frederick
engaged in
had
serious criminal conduct with
rights
was advised of his
and the conse
significant
appropri
trauma to the victim are
quences
plea,
of a
and there was confirmation
in determining
ate factors
sentence. Doher
plea
voluntary.1
All require
was
39,
ty
¶ 35,
v.
2006 WY
131 P.3d
meticulously
ments of W.R.Cr.P. 32 were
.2006). (The
(Wyo
per
district court is
suggests
followed. Frederick
that at the
mitted to consider a defendant’s character
sentencing,
time of
the district court should
exercising
when
in imposing
its discretion
repeated
have
binding.
was not
sentence.)
specifically
The district court
said
defendant,
require
The rules do not
who
that the evidence was useful
it
because was
properly
change
has been
advised at the
credibility
relevant
to Frederick’s
and to
plea hearing,
rights again
to be advised of his
truly accepted responsibility.
whether he
sentencing.
language
the time
“[T]he
bruising
was also relevant because it was
11(b)
longer requires
of W.R.Cr.P.
no
used,
an
indication
the force
thus an indi
perfunctorily repeat
district court to
informa
cation of the extent of the criminal conduct
rights
consequences
tion on
which has
involved. The district court’s
in
statements
previously
conveyed during arraign
been
properly
dicate that the evidence was
consid
during
proceed
ment or
other on the record
they
ered and
fall short of
indication that
ings in
presence
of counsel.”
Follett
sentencing
the court was
Frederick for first-
47, 23,
degree sexual assault.
The district
court considered un-
disputed
reaching
evidence in
its
It
decision.
The contention that
trial
failing
object
considered both the PSR and Frederick’s
counsel was ineffective for
right
required
1. The district court advised Frederick of his
that a factual basis would be
jury
prove
oath,
to a
trial and to have the State
all
consequences
plea,
and of the
of a
includ-
doubt;
charges beyond
right
a reasonable
ing
rights.
the loss of certain civil
The district
attorney
provided by
to an
who could be
specifically
penal-
advised Frederick of the
State;
right
to confront and cross-examine
charge,
ties
amended
ensured that Fred-
witnesses, and to have his own witnesses in court
any drugs,
erick was not under the
influence
by
silent;
process;
right
service of
to remain
medication,
alcohol,
or
appeal.
and of the
an
The district
plea
voluntarily
precipitated by any
entered
and not
court also advised
Frederick that
would
force, threats,
promises.
rights,
result in a waiver
aof
trial and of these
*10
indicated,
“basically”
summary
report was
correct. As
equally
of in an
disposed
can be
of ineffec
between Frederick
reviewing a claim
the
manner. “When
counsel,
object to
paramount
de
the
would not
was that
State
tive assistance
State
whether,
light
of all the
7-13-301. The State
consideration under
termination
circumstances,
counsel’s acts
omis
fully
agree-
trial
of this
complied with the terms
profes
range
wide
sions were outside
ment.
v.
Hirsch
sionally competent assistance.”
assessing the rea
When
¶ 15,
586,
State,
66,
593-594
135 P.3d
2006 WY
sentence, consideration
sonableness of a
(W
“strong pre
is a
yo.2006).
There
crime,
given to the
its attendant
must be
effectively represent
counsel
sumption” that
character of the de
circumstances and the
appropriate
made
stra
ed
defendant
¶ 15,
Monjaras,
at 165-
136 P.3d
fendant.
two-prong
Id. Under the
tegic decisions.
accepted
pled guilty and
166. Frederick
in Strickland v. Wash
articulated
standard
9,
of October
version of the events
State’s
2052,
668, 686, 104 S.Ct.
ington, 466 U.S.
presented
facts
to the district
2003. The
674,
(1984),
2064,
appellant
an
80 L.Ed.2d
acknowledged by
court and
Frederick
assistance of counsel
claiming ineffective
attorney amounted to a forc
presence of his
the record that coun
must demonstrate
imposes a
rape
the victim.
it
ible
When
and that
performance was deficient
sel’s
sentence,
court must consider all rele
Id. Frederick fails to
prejudice resulted.
Martinez,
665,
vant facts.
analysis
performance of
any
present
grounds by Vaughn v.
on other
overruled
consistently
“have
held
his counsel. We
(Wyo.1998). The court
was ineffective. circumstances, including ing the letters and Finally, Frederick contends that presented on of Frederick. statements behalf agreement be- prosecutor violated the imposed by disturb the sentence We will not point parties. tween the Frederick does the district court. any prose- statement or action of the except support cutor this contention Ordering of Discretion in Restitu- Abuse prosecutor obligation had an state that the tion and Public Defender Fees made in the somehow correct statements Frederick does not believe that the 33] PSR; however, [¶ only expresses properly ordered restitution. district author did not believe concern that PSR the victim had medi- The PSR indicated that appropriate largely due to deferral was expenses of thousand five hundred cal two the sex Frederick’s statement to her ($2,500). explained to dollars is no assertion of was consensual. There PSR; that the victim was mistak- the district court other error in the misstatement or (“a enly for the forensic examination indeed, billed Frederick’s counsel stated *11 kit”). owed; The said Determination of amount execu- sexual assault steps being “get to tion: were taken straightened get the bill redirected out” (a) part As sentencing process the requesting agency. to The district court the including prosecutions deferred “pay to restitution then ordered Frederick 7-13-301, any W.S. misdemeanor or fel- by expenses for incurred the victim” and case, ony prosecuting attorney shall should be directed to the restitution present any to the court claim for restitu- “agency which assisted her.” State or to the by any tion submitted victim. objection no to Frederick made restitution. (b) every In case which a claim for Judgment restitu- The and Sentence ordered submitted, restitution is the court shall fix victim in of two thousand tion to the the sum a reasonable amount as restitution owed to ($2,500) any “for items five hundred dollars pecuniary damage each victim actual for damage done as a result of returned resulting from the criminal defendant’s ac- offense”; judgment did not direct tivity, and shall include its determination agency restitution to the that ordered the pecuniary damage special as a find- examination. ing judgment in the of conviction or in the objection no to
[¶ 34] Since there was placing probation order the defendant on restitution, only can if the order be reversed determining under W.S. 7-13-301. In it, authority or if restitution, there was no for the order amount of the court shall con- plain of restitution error. constitutes Merki special finding, sider and include as a each (Wyo. son v. 1141-1142 P.2d reasonably pe- victim’s foreseeable actual 2000). argues that there is insuffi cuniary damage that will result in fu- damages; cient evidence that there is no ture as a result of the defendant’s criminal proof actually that the victim incurred these activity. A long-term physical health care expenses; and that the forensic examination pro- restitution order shall be entered as necessary was not because sexual intrusion is through vided in W.S. 7-9-113 7-9-115. not an element of as (c) The court shall order the defendant sault. pay part to all or of the restitution claimed specific or shall state on the record rea- Wyoming legislature has cre [¶35] why sons an order for restitution was not procedure a clear ated mandate and for the If entered. the court determines that the collection of restitution in criminal cases. ability pay defendant has no to and that no 69, 12, 115 Coleman v. probability reasonable exists the de- applicable 413-414 ability pay fendant will have an (Lexis- Wyo. statute is Stat. Ann 7-9-102 future, specific the court shall enter find- 2005). Nexis ings supporting in the record its determi- nation. pay upon conviction: Order (d) Any order for restitution under this any In punishment pre- addition to other by chapter judgment opera- constitutes a shall, by upon scribed law the court convic- tion of law on the date it is entered. To felony, tion for misdemeanor or order clerk, satisfy judgment, upon re- pay a defendant to restitution to each vic- quest attorney, of the victim or the district tim as determined under W.S. 7-9-103 and may issue execution in the same manner as specifically 7-9-114 unless the court finds in a civil action. ability pay the defendant has no (e) The court’s determination probability and that no reasonable exists amount restitution owed under this sec- ability that the defendant will have an tion not admissible as evidence in is pay. civil action. (f) procedure by given
[¶ 36] The
which restitution
The defendant shall be
credit
Wyo.
against
obligation
pay-
is ordered is set forth
Ann.
his restitution
for
Stat.
(LexisNexis 2005).
§ 7-9-103
ments made to the victim
the defen-
injuries arising
... as a direct result of the sexual assault.”
out of
dant’s insurer
any person
who suffers
or event.
Since
victim
same facts
pecuniary damage,
agency
is a victim for
(Lexis-
§Ann
7-9-101
Wyo. Stat.
[¶37]
purposes of restitution.
2005)
pertinent terms:
defines the
Nexis
*12
(iii)
damage”
all dam-
“Pecuniary
means
argues that there
Frederick
against
recover
a victim could
ages which
pay
is no evidence that the victim had to
arising
in a
action
out of
civil
the defendant
examination,
any
costs of the foi-ensic
so
event,
damages
including
or
the same facts
beyond
statutory authority.
order was
not include
It does
wrongful death.
for
already
have
that restitution is to
We
ruled
damages
pain,
damages and
for
punitive
paid
agency,
argument
this
fails.
be
to the
so
anguish
of con-
suffering,
and loss
mental
impact
The victim
statement and the com
sortium.
prosecutor,
ments of the
to which there were
(iv)
partial
full or
means
“Restitution”
objections,
hospital
no
establish
damage to a victim.
pecuniary
payment of
expenses
they
and that
would
billed for these
(v)
person
a
who has
means
“Victim”
investigating law
paid
be
enforcement
damage as a result of a
pecuniary
suffered
impact
agency. We have held that a victim
An
criminal activities.
insurer
defendant’s
statement,
incorporated
into the
such as
any
pecuniary
of a victim’s
paid
part
which
case,
upon
evidence
PSR
this
credible
regarded as the victim
damages
be
shall
may impose
which a court
a restitution
right
subroga-
if
insurer has no
only the
¶
Penner,
7,
amount.
verse GOLDEN, Justice, dissenting. plea. erick be allowed to withdraw his respectfully compelled I I am to discuss one addi dissent. After read- majority ing transcript change opinion discusses of the hear- tional item. ing, parties agreed of reimbursement for a sexual as I believe that the on a the issue Wyo. specific part plea bargain. pursuant examination sentence as sault medical (LexisNexis 2005). 2—309(j) presenting plea agreement When Stat. Ann. 6— court, that, majority pur the case for the district defense counsel stated as The remands judgment part agreement, pose correcting Frederick “would re- and sentence billing specific no pronounce court’s oral correct the mistake. Since the district to reflect identified, for the sexual as that reimbursement payee ment loss the district court’s paid to should be medical examination sault pre regarding decision reimbursement was agency that assisted state or either the requiring mature. district court’s order this is in error. The victim. I believe the victim for the Frederick to reimburse pronouncement oral as to ambiguity of the cost of the medical examination should sim ; reflects payment should be directed where ply be reversed. the issue of reimbursement. the confusion on precisely not know who The district court did there was no
should reimbursed because be cost of the examination had evidence that the paid, prose whom. All the been let alone say cutor was able to was that the victim had erroneously the medical ex been billed for attempting that she was amination and