*1 presented evidence would not have allowed stitutional purposes. The district court did not in declining err to find a search unconsti the court to reach the conclusion that officers used excessive force under cireum- tutional where the presented evidence stances. support a conclusion that officers used excessive force in the conduct of that search. A review of the record indicates Therefore, we affirm. that the district court had almost no evidence before it that would have it allowed to con
clude that force used officers
case was excessive under the circumstances. suppression hearing transcript shows that Officer Baedke was the witness.
Officer Baedke testified that he was trained
in the use of the TASER and that he had
or complex answer such medical questions. There was no testimony. medical
Officer Baedke testified that he did not at tempt pry Appellant's fingers open be
cause he did not know what in Appel lant's hand and because potential there was injury either to the Appel officers or to lant from attempt. such an There was no
testimony by any expert on law enforcement
procedures. testimony There was no
any expert on risks associated with TASER
deployment. There testimony was no the use of the TASER appropriate was not cireumstances,
these or that such use would unacceptably increased the risk to someone in this situation. There was no
competent evidence that would have allowed the district court to find that the use of the open
TASER 'to Appellant's hand in this situation, constituted excessive use of force.
CONCLUSION district court did not err when it Appellant's determined that initial contact police was consensual running and that Appellant's through name a warrant check
computer did not constitute a search for con *2 A. Salz Bruce Appellee:
Representing General; Terry L. Attorney Wyoming burg, General; D. Mi- Attorney Deputy Armitage, Attorney Assistant Pauling, Senior chael Attor- General; Pojman, Assistant M. Leda ney General. GOLDEN, C.J., VOIGT,
Before BURKE, HILL, KITE, JJ.
VOIGT, Justice. Chief his con appellant contends The equal protection right stitutional district court when the violated laws was him capriciously did not arbitrarily and Ann. Wyo. under Stat. status first-offender 2007). (LexisNexis Alternative § 7-13-801 court's denial ly, argues he dis an abuse of status was affirm. cretion. We
ISSUES sub- the issues appellant states
[T2] stantially as follows: arbitrarily appellant treated
1. Was was denied capriciously when he Wyo. of his case under disposition benefit of §Ann. 7-183-8017 Stat. status of first-offender
2. Did the denial clauses of equal protection violate Wyoming and the States Constitution United Constitution? discre- abuse its district court 3. Did the Ann. 7- Stat. application
tion its appellant? sentencing the address, how that we will The issue ever, our standard it is mandated because objection has been no when there of review commit below, the district court is whether sta denying first-offender plain error ted appellant. tus to
FACTS filed on Felony Information was A 5, 2007, Court of in the Cireuit
November ap- charging the County, Wyoming, Albany one burglary and count of pellant with one concealing or dis- receiving, Lozano, buying, count of Diane Appellant: Representing Kerin, Defender; Ap- posing in violation N. obtained property Tina State Public to a waived his the law. pellate Counsel. preliminary examination and his Instead, case was offender status.
bound over to district court for trial. adjudication At entered guilt and sen- arraignment, appellant pled guilty to bur- tenced to incarceration for a glary pursuant following plea agree- period years. of three to five That sentence verbally which was set forth on the suspended was and the placed *3 by prosecutor: record supervised probation on period for a of four years. [Prosecutor], THE COURT: I under- plea agreement. stand there is a Would $ WYO. STAT. ANN. 7-13-301 record, please? state that for the will,
MR. [PROSECUTOR]: Your Hon- Wyo. § Stat. Ann. pro 7-18-301 you. plea agreement or. Thank The vides in part relevant as follows: recommendation is the defendant will (a) person If a who previously has not I, plead guilty burglary. to Count The any felony convicted of charged State will dismiss Count No. II. The defen- with or is guilty pleads found guilty or agreed dant's to full restitution to both or any no contest except misdemeanor counts, Counts and II. And [Victim] has any second or subsequent violation of W.S. already given a impact victim statement any 31-5-2883 or provision law, similar or they requested wherein restitution any second or subsequent violation of W.S. $5,620. amount of And that includes a 6-2-501(a) (b) by or a household member $5,000 reward, which, blunt, quite to be by as defined W.S. against any 35-21-102 under the may may restitution statutes or other household member any or similar granted by not be the Court. That would law, provision any felony or except mur- be a matter for the if it went der, sexual assault in the first or second hearing. degree, aggravated battery assault and or agreed The defendant pay has arson in the first degree, or second amount, $5,620, words, full as in his he may, with the consent of the defen- has said he wants to full responsibility dant and the state and without entering a take for this situation. Simon Contractors has judgment guilt conviction, or defer fur- yet contacted our office. The amount ther proceedings place person on of their restitution will be determined be- (5) for a term not to exceed five fore their sentencing. [sic] years upon terms and conditions set State, this,
The court.... return for will consent being to the defendant treated as a first STANDARD OF REVIEW 7-13-301,
offender under Wyoming Statute ment, the district court and ordered a took responsibility. ing, the defendant be treated as a first offend- able to I deserve to attorneys explained of that." And so the State at his sentenc- stand er, and the State due will recommend first up In recognition fight in large part that at restitution pay presentence pay will, it. I'm going to take care to me that I withheld fact, $5,000 to his investigation recommend that offender, willingness reward. adjudication 698, plea agree- hearing, may as he "My but re- WY ing discretion, tends to the Gorseth v. a discretion. Smith v. 1138 ally (Wyo.1997). wide 7-18-801. Rawson v. are 50, 703 (Wyo.1995). variety ¶ 4, subject [17] (Wyo.2006); State, 110 P.3d This status under decision of whether of factors and cireumstances. Sentencing 2006 WY to review for an abuse of sentencing State, exercising Cohee v. 267, State, 109, 15, 941 P.2d decisions 269 900 P.2d discretion ex ¶ may its sentenc (Wyo.2005). State, 141 P.3d consider 749, gener grant 1136, 2005 750 port. report quoted That plea agreement bears the burden proving and the State's recommendation for first- sentencing court abused its discre treatment, offender included a recom- resting tion the sentence on "false or probation. mendation for The district improper premises." State, Peden v. 2006 26, ¶ 10, not, however, first- WY (Wyo.2006). 872 524 contends con- objection is made "However, no when that, an out- not been had he shows passage particular of a consideration cerning the automo attending the local student of-town to a necessarily confined factor, review school, had been instead tive technical error, as we Plain error. plain search first- resident, received he would local the record stated, occurs have often treatment, disparity is that this offender transgressed clearly shows equal constitutional a violation of law which rule of unequivocal clear and flavor get the full To the laws. right." protection of a substantial adversely affected sentencing ¶66, 31, 135 P.3d State, WY
Hirsch v. context of must be read passage above Manes v. (quoting (Wyo0.2006) court dur made comments additional (Wyo. 70, ¶ 9, WY hearing: ing the *4 2004)). you were is it what THE So COURT: you over break- were thinking here when DISCUSSION in middle the ing into businesses [18] presents mul night stealing extremely valuable property, ready getting none of which and I assume appeal, up, it packing tiple arguments This that accident. requirement was no it? And this plain error to sell get past him the a clear violated You thing. that spur-of-the-moment he show wasn't out, First, this, kept in consti it carried clearly planned law. rule of unequivocal You quite v. a while What? quotes Small for argument, he this stuff tutional that? just away from (quoting State walk you can think Freitas, Haw. Equal (1979)), "[the that proposition for the to look at I wanted What THE COURT: persons that all mandates Protection Clause appellant's ac- to happened [the was what alike, both treated shall be similarly situated I he had knew complicel, because in the liabili conferred privileges in the exactly here, remember I couldn't Small, held this Court In imposed." ties got And he's disposition was. that what not statute habitual criminal that the and is off felony convictions three applying principles equal protection violate pen. state ag not to involuntary manslaughter, to is interesting [Victim] that when It's at 429. Id. homicide. gravated vehicular they robbed, again, where do burglarized that the Nevertheless, contends town? All over reward fliers? post vio espoused Small principle general seem to Wyo Because those Tech. Huh-ubh. it in his case when by the district lated that victimize like to people be treatment him first-offender denied again and again and particular business similarly to others offered would have been what, Kelley, I you Mr. And I'll tell again. upon the argument is based That situated. people having I am sick of of it. am sick judge at sentenc following comments here and live town that don't come to ing: here and that do live people victimize ... THE COURT:. living. honest try to make an have on the table offender is is First interesting [Victim] that when It's great here treatment given first offender they again, where do robbed, burglarized And it your town? case. All over fliers? deal of consideration the reward post normally used thing that is the kind seem to those Wyo Tech. Because Huh-uh. they yourself like younger people to victimize that like for people spur- something impetuous, again and again and and do go out particular business they really of-the-moment, stupid, and what, Kelley, I you I'll tell again. And it or think about having people time to have the I am sick don't of it. am sick afterwards, prop- spray paint it back take here and live that don't to town come what That's not something like that. erty, live here and that do people victimize the this. you. planned You happened with living. try an honest to make your You and friend went out and executed separate makes a abuse of argu discretion it. storage You rented a locker to store the effect refusing property. the stolen stayed It there for a first-offender status to a defendant long time. nothing There was impetuous premeditated convicted of a crime, while be about this. every There was opportunity granting amenable to such status to a to, if world not right, make it at defendant convicted of "impetuous" crime, least make it easier. You didn't any do applied a criterion not things. those And at the day, end in Wyo. found 7-18-801. We it's time to message Wyo send the Tech argument just find this short of nonsense. you that when victimize people First, here like above, as mentioned the law is clear did, you you expect go that a sentencing court has broad discretion can home with a felony record, your convictionon and that's in considering many factors about both the going today. what we are to do defendant and the supra crime. See T7. Second, appellant's you position reason going are not would re place prison, your friend, statutory "may" like word you because short, word "shall." any record, don't appellant's have inter because pretation require would made some effort to show some re- morse, judge, any if crime accept statute, covered responsibility. But *5 just consented, and where am the grant done with it. State has Time and time to and first-offender again. prosecutor's time status. Enough enough, Kelly deci [sic]. This is sion, and not first offender stuff. This sentencing judge's clearly distinct, are felony, was middle-of-the-night and burglary, neither may impose entry its property. upon will You the other in you knew what application State, of the doing. your choices, were You statute. made See Billis v. and 401, 800 P.2d (Wyo.1990); 434-35 Wright, consequences there are sorry to that. I'm 670P.2d at 1095. didn't think more about it at the time. Clearly, [T10] the district court denied CONCLUSION
first-offender status to appellant for two punish appellant reasons: pre for a [¶ 12] The district court did not abuse its night-time meditated burglary, and to deter discretion and did not appellant's violate the Wyo. Tech students from further such acts. right equal protection by of the laws de appellant provided has cogent argu no clining grant first-offender presented and has no authority, status under 7-183-301. support theory of the that judge abuses his [¶ 13] We affirm. or her discretion equal or violates the protec tion doctrine considering as a HILL, Justice, specially concurring. premeditated factor the and invasive nature of the crime. Neither has the agree [T 14] with the majority that Kel- general shown that deterrence-the deter ley adequately has not demonstrated that his rence of an inappropriate others-is sentenc substantial to be sentenced for Ais ¶ Cohee, 50, factor. 20, See 2005 WY 110 crime was adversely affected 274; State, Wright P.3d at 1090, v. 670 P.2d process in the of imposing sentence. (Wyo.1988). Furthermore, 1093 appel Furthermore, agree that presented lant below, no evidence and does did not abuse its broad discretion in imposing suggest even to this that the sentence it ultimately impose, despite district court's comments burglaries by about plea agreement and the unequivo- State's Wyo. Tech factually students were incorrect. cal plea recommendation of that agreement:
[T11]l For the part, appellant's most Sentencing normally decisions are within the discretion of the trial court. Hamill v. contentions that the district court's denial of State, 1856, 948 (Wyo.1997). arbitrary P.2d status was either 1858 "A and capricious or an abuse of discretion are sub sentence will not be disturbed because of sumed in arguments. constitutional He sentencing procedures unless the defen- 526 judgment and instruction with discretion, pro an abuse show
dant can reflect adjusted to be him, shall and sentence prejudicial conduct cedural a term of the sentence un inherent the execution manifest which cireumstances (which incidentally years which four conduct two to injustice, or and fairness attacked) suspended, has not Wright play." fair sense public offends for four 749, (Wyo. probation State, placed 450 on P.2d is to be 941 and he v. Smith condi- with the usual in accordance years, reversal 1997). warrants "An error cases, it affects in similar imposed prejudicial probation when it tions of party rights. The on to commence appellant's substantial the term of to es the burden 21, bears appealing January 1983. who is prejudicial." tablish Justice, concur- CARDINE, specially 484, State, 489-40 P.2d 895 v. Candelaria ROSE, Justice, joins. whom ring, with omitted) (citations [overruled (Wyo.1995) opinion in the I concur State, v. Allen grounds part on other grant- review after upon holds that which ]; see (Wyo.2002) 48, 551 2002WY justice a failure of there was ing certiorari 152, Hamblin, P.2d v. Robinson also pro- granted should be and that (Wyo.1996). on us matter before bation. Were ¶ 23, 58, 2008 WY Carothers the sentence also hold I would appeal, Lee v. (quoting P.3d of discretion for an abuse reviewable ¶ 10, State, 2001WY case, record upon the based (Wyo.2001)). court, find an by the articulated facts agree However, I am unable probation to abuse of discretion by the district employed language appellant. are to those who court, was directed which result, I con- I concur who are Wyo Tech at students *6 fash- improperly court that the district clude can be condoned. Wyoming, places outside sentence, part, so as at least Kelley's ioned (2006). § 1997at Law C.J.S. Criminal students message to out-of-state to send factor to have improper it an I consider Tech, commit Wyo and who attend who this cireumstances under the considered likely to Laramie, they are not crimes say that. case, need I think we probation. eligible for considered aside, majority's think the As an State, 670 P.2d Wright v. on the case reliance ill-advised. (Wyo.1983) is history in this long Wright case had was, as it splintered the final decision. our initial step from
was to back Wright v. we held: WY6 probation the denial We conclude MARTINEZ, DeMasio James departure was a Wright Alan to Grant (Defendant), Appellant which practice judge's own the trial valid any articulable supported
was not majority Although a in the record. reason Wyoming, The STATE sentence that the concluded (Plaintiff). Appellee demonstrate does not in isolation analyzed discretion, ma- a different a clear abuse No. S-08-0025. the denial equally satisfied jority is Wyoming. Supreme Court Wright Alan to Grant failure of a substantial manifests instance 28, 2009. Jan. it must be corrected. justice, and of this The decision district court remanded
case is to be