Loper v. Shillinger
772 P.2d 552
Wyo.
1989
Check Treatment

*1 presents disturbing Campbell thought

that, regardless good whether he had a make, good

defense had a never

chance make As defense. stated in State,

Miller v. N.C. S.E.2d denied, cert. (1953):

97 L.Ed. 1360 prosecution likely

A criminal have ending

tragic for the accused defense compelled to

attorneys legal make

briсks factual straw. without counterpoint, Campbell properly could

restate that: prosecution

A likely criminal have a ending

tragic for the accused if the fac-

tual is not ordered and the straw sub-

stance of the bricks of defense is only sky.

blue

Consequently, I dissent in denial of consideration the majority

substantive appeal about the decision made post-conviction

the trial relief as

addressing the constitutional interest of

Campbell right for a defend Furthermore, emphatically

trial. reject

approval against of what was done him

appointed “appellate representation.”

Campbell opportu- even

nity for possible pathway to look be- Scyllia ‍‌​‌​‌‌​‌​​​‌‌​​​‌‌​​​‌‌‌‌​​​‌​‌​​​​‌‌​​​​‌‌‌​‌‌​‍Charybdis. tween See Texas — Bullock, -,

Monthly, Inc. v. (1989)(Scalia, L.Ed.2d 1

J., dissenting). LOPER, Petitioner, R.

Donald Munker, Leonard D. State Public Defend- SHILLINGER, Wy Duane Warden of the er, petitioner. oming Penitentiary Joseph B. Meyer, Attorney General of the State of Gen., Joseph Meyer, Atty. B. John W. Respondents. Wyoming, Renneisen, Deputy Atty. Gen., Karen A. Byrne, Gen., Atty. Asst. S.

No. 88-59. Paul Rehu- rek, (argued) Atty. respon- Asst. Gen. Supreme Wyoming. Court of dents. April CARDINE, C.J.,

Before THOMAS, URBIGKIT, MACY and GOLDEN, JJ. *2 in

CARDINE, presume concurrency To this situation Chief Justice. logiс ignores of the Su of us on a writ This matter is before preme as articulated in Zerbst presented The is whether certiorari. issue Kidwell, 872, 82 sentence, imposed legally on a defendant a (1938): L.Ed. 116 A.L.R. 808 parole, is for crimes committed while on intended to be a means of “Parole is concurrently re- presumed to run with the restoring good who are social offenders original reinstated mainder of the society; to to afford the unfortu- risks We answer this parole revocation. by clemency— opportunity another nate negative. in the guidance [pa- of the under and control parole on Loper Donald was Petitioner parole Unless а can Board. violator role] Penitentiary from the prison in required to some time be serve burgla- he a number of committed in addition to that an offense charged He was arrested and with ries. parole, only he not committed while a burglary. of Pursuant to four counts escapes punishment unexpired for the bargain ‍‌​‌​‌‌​‌​​​‌‌​​​‌‌​​​‌‌‌‌​​​‌​‌​​​​‌‌​​​​‌‌‌​‌‌​‍agreеment, pled guilty he plea sentence, portion original his but the of sentences of all four counts and received disciplinary power of the Board will be count, years ten with all five to each practically nullified.” 304 U.S. concurrently. After run four sentences to of penitentiary, his return to the the Board adopt a We see no.reason parole, his and informed Parole revoked rewarding effect of which would have the begin to Loper that he would serve his parole oppor- one uses release on as an who original sentence was sentences when his tunity to commit further crimes. completed. No error. legаlity of Petitioner does not contest the counts, nor burglary sentences for the his parole his legality he contest the of URBIGKIT, Justice,

does dissenting. argument is The of revocation. essence his respectfully I The dissent. issue any express of state- that the absence presented does not involve discretion contrary last ment to the in the court’s make sentences either the trial court to sentence, his judgment and last concurrent; what consecutive concurrently presumed to run should be nondesignation. presented is the effect original sentence. with the remainder his The of criminal law have been clear rules judicial presump- adopt He asks that we the time that years more than which is tion to the effect that a sentence en- present jurists of this court have been concerning revo- the effect silent activity. Generally, by gaged in ma- with presumed be to run concurrent cation rule, presumption exists for sen- jority a reinstated sentence. specifically unless tences be concurrent reject thesis adopt presump defined be consecutive. We decline court, we, appellate should now petitioner. The sentenc as the tion advanced sentencing by opining make the decision ing has discretion to determine judge rationally the trial сourt should have shall sentences be served consecu whether to be consecutive State, 660 these sentences concurrently. Eaton v. wanted tively or Here, designation not made though even was (Wyo.1983). P.2d 803 expressed compatible petitioner on or intent judge aware that was was Here, even Peti written sentеnce or mittimus. sentenced. parole at the time was might appellant Don- though believe that guilty that his tioner was advised (Loper) is not ill-served parole. Loper The ald R. in revocation could result committing sentences when specify that the four concur judge did not release, burglaries during parole it is con- concurrently with rent sentences would court should have cluded that trial of his the remainder and included the made that determination revoked. the event expressly decision in document will written Credit to this defendant off maximum option stated to authenticate the selected.1 sentence for time served. sentences, clear, to make proof- in draftsmanship Prosecutors Howard, you Mr. and I trust will take reading preparation judgments have a order, preparing care are four justified obligation to refute later years sentences five to ten each to run *3 judge claimed omission the in execution concurrently. of the order which omitted such a critical Nothing was said about the sentences duplicate factor as whether sentences are running proba consecutive to term of consecutively to concurrently. be served tion remain revocation which would to be duty particularly The specificity is im- Consequently, served. the concurrent nа pressed since there is the constitutional bargain ture plea sentence and was process fairness and due concern within Loper twice stated to it was and never liberty which a interest is enfolded.2 by question, indicated comment or other today post-entry cogitation Even we detail that the sentence turn wоuld out to prefer particular that this sentence should pending be consecutive to the then sen consecutive, have been stated to be it was placed tence for which he had been on not and not now should be reconstructed to parole. lenity surely ap The rule of has appropriateness by write our view aban- application here. Brock v. Sulli propriate long-standing presumption donment of the van, N.M. 733 P.2d 860 princi- concurrence retreat from the Also, legalism I would follow the and mor- ple lenity. respectfully from dissent by Supreme alism stated United appellate rewriting prose- court of what the Court in Daugherty, States v. effectively cutor did compose not or the 360, 363-64, 156, 157, 70 L.Ed. trial court did otherwise edit. (1926), where that court stated: As a of intent to make the sen- Sentences in criminal cases should re- consecutive, tences by which failed certainty decision fair veal with the intent of the sentence, non-inclusion in the order and misappre- exclude serious by record is obtuse as usual. In hensions those who must execute * * * plea, Loper was asked about the bar- them. then gain current, cuting or.” inquired, and sentence [Emphasis Attorney] That’s take “That is it; added.] is by that correct? [Prose- the trial court and correct, a five to Your Hon- ten con- quire the guage This аnd similar unfortunate causes [******] admonish use of all judgment meticulously precise the ‍‌​‌​‌‌​‌​​​‌‌​​​‌‌​​​‌‌‌‌​​​‌​‌​​​​‌‌​​​​‌‌‌​‌‌​‍trial courts to re- entries. Especial lan- sentencing,

Likewise at the trial court is care essential where sentences for stated: imposed. crime 1980, Loper January 1. had certainty received was which included the near eight years burglаry tence of four to for auto would that he be revoked on earlier sentence and then in March 1982 an for additional of the virtue criminal conduct committed dur- escape years begin January to six of three to ing judge parole. The could have parole April 1985. Released on he ran current sentencе either concurrent or had then about served fifteen on the months any remaining to consecutive confinement from year escape present three to six sentence. The parole. Unfortunately, the revoked the sen- February four option. tence neither stated Under charges is concurrent sentenсes on each of five sentencing, many indeterminate other choices years. Following entry to ten sentence, of the current existed, including years a minimum of six parole his was revoked on the earlier months on nine the current offense as con- escape charge and sentence. At issue then parole. to time current to be served for revoked process whereby his credit for incarceration applied parole will first be to the revoked escape responsibility counsel Defense cannot remaining approximate twenty-one total completely neglect clarifying ques- to ask the fifty-seven months to months and then he will present tion the accused while is still in the commence of time for the recent service more Accuracy courtroom. has authors. conviction. trial court was of his The aware parole violation status when the last wheth- only appeal The issue February entered on sentence was 2, 1987, judge who failed to 27, 1987, April federal district er a and thereafter appear pa- sentences he were Loper called to before state whether was revoked ef- and his was to or concurrent with role board 6,1987, order, requiring may his incarcer- April preexisting fective federal sentence rеleased time had been ation for the defendant months later five after An administrative deci- from confinement. imprisoned, that the sentences were require him first followed to sion then judge de- district consecutive. The parole time commenc- before serve revoked his order as a “clarification scribed later entered ing serve the sentences any ambiguity eliminate ... 27, 1987. February intention.” Court’s facts, I these cannot presented by As here, com- the case involved crimes As majority the conclusions follow while the defendant was mitted *4 authority by cited the this case nor find new sentences and whether the offense persuasive. All of thеse cases State to be consecutive to incarceration time would be easily distinguished because cited can be designation was revocation. No or de- express in state statutes anchored provided and new offense sentences the history as long-standing from a state rived bargained. That court rec- had been are minority rule that sentences the within ognized: express- unless presumed to be consecutive adopted pre courts have a The federal concurrent. ly stated imposed sumption that federal sentences a jurisdictions exists there In concurrently, ab different times at any multiple presumption that statutory to the con express an statement sent will run by the court imposed sentences pre recognized the trary. Our circuit sentences concurrently, either when such sumption of concurrent sentences Su simultaneously or where a imposed are (10th 122 85 Cir. Hudspeth, F.2d bas v. imposed upon are or sentences 1941),in we “Absent clear which stated: serving already a is an offender who presumed it is language contrary, Moreover, there is prior where sentence. one imposed on more than that sentences presumption and the statutory no such time, or at different at the same offense sentencing is or the silent record of times, concurrently.” will run matter, most ambiguous regarding the 1431. Id. at presump- employ judicial jurisdictions to be served the sentences are tion that then noted that Con- The federal court practical effect of ei- concurrently. changed the rule gress in 1987 had judicial presump- statutory or ther ran statutory enactment that sentencеs the so-called to that of tion is similar consecutively imposed times at different earlier in the lenity” discussed “rule of multiple kept the concurrence rule but multiple determining of whether context same time. That the sentences regarded separate as will be violations rule of concur- applied then tribunal оffenses. time in effect at of rence which was Sentencing 76 at Campbell, Law § A. objective “some tencing, in the absence of (1978) (emphasis in and 249-50 demonstrating the defendant that evidence omitted). footnotes court’s intent sentenc- was aware Consequently, n. 4. ing.” Id. at 1432 concept sentencing criteria has This concurrently sentence ran offense detail recently been addressed which revoked confinement with the Appeals Court Tenth Circuit clarification decision reversed the 1428, (10th appellate 1429 816 F.2d Earley, v. banc, fives months the district court rehearing ordered Cir.1987), en where had been vacated.3 after the initial sentence was stated: the issue unambig- time, pronouncement oral when at the same case decided In another clearly record would Appeals shown in the uous also determined Tenth Circuit 556 Hollowell, (Iowa 1924) also 199 N.W.

This similar was considered 163 Rau, 129 22 Polsgrove, Ky. the recent case State v. 231 S.W.2d Com. (1987) resulting (1929). N.H. 523 A.2d 98 with 126 holding concur- presented as valid Likewise here au probation required rence term and cases thority disposi- from states with a subsequent term of con- offense in absence long-standing or a tive statute trolling run at statement ‍‌​‌​‌‌​‌​​​‌‌​​​‌‌​​​‌‌‌‌​​​‌​‌​​​​‌‌​​​​‌‌‌​‌‌​‍intent would separate sentence thesis for offenses as the same time. policy. state established ex rel. sentencing “Where is silent Young Authority, v. Ohio Adult Parole commences, probationary when the term (1970). 24 Ohio St.2d 263 N.E.2d 399 strong presumption there is a that the constituting these states the rather defined term the date is im- starts on minority, express required an is statement posed concurrently and runs with adap to make sentences concurrent. That period imprisonmеnt imposed contrary majority tation is or the normal remaining count counts.3 express required rule that statement likewise, make sentences See consecutive. If a court does not intend Maxwell, King v. 173 Ohio St.

result, probationary then N.E.2d cert. denied precisely explicitly probation state L.Ed.2d 106 Nebraska commencе.” rule, the minority *5 Harpster follows v. (quoting Id. 523 A.2d at 101 United States Benson, 776, 216 Neb. 345 N.W.2d 335 Adair, 1150, (9th v. 681 F.2d 1151 Cir. (1984). statute, controlling Delaware has a 1982)). Department Corrections, Semick v. 477 That probation case was different in that (Del.Supr.1984), A.2d 707 does as West Vir attempted revocation was after subse ginia, Adams v. Circuit Court Ran quent jail-time offense been had dolph County, (W.Va.1984) 317 S.E.2d 808 fully Right original served. to amend the Tennessee, Stаte ex York v. ‍‌​‌​‌‌​‌​​​‌‌​​​‌‌​​​‌‌‌‌​​​‌​‌​​​​‌‌​​​​‌‌‌​‌‌​‍rel. Rus did not continue. United sell, 515, (1944). 180 Tenn. 176 S.W.2d 820 Rodriguez, (9th States v. 682 F.2d 827 Cir. New York follows a modified concurrence 1982); Adair, F.2d 681 at 1151. also See only, concept Browne York v. New principle probation and incarcera Parole, 116, 10 Bd. N.Y.2d 218 N.Y.S.2d tion can be served at the same time. (1961). 176 492 N.E.2d States, Burns v. United 53 (1932). S.Ct. has no concurrence or 77 266 consecu- L.Ed. prior tive statute no histo- relating The rules sen concurrent ry of adopting minority rule. The basic tences should not be confused with the thesis which follow is that the trial court nothing cases where pa is done about clear make what the sentence en- role until revocation after the service of and, so, tered is in failure to dо the histori- confinement for the later criminal sen lenity cal rule applied. should be Obvi- completed. tences has been v. Zerbst Kid ously, parties the benefit of all served well, 304 58 U.S. S.Ct. 82 L.Ed. explicit decision and written authentication. (1938). These line of do cases In the absence of that defined intent as raise the inquiry concurrent sеntence since judgment commitment, inscribed “service of the inter would follow violation, rupted by parole full term general sentence has not rule completed.” been or more two Zerbst, at 873 place tences to the same of confinement (emphasis original). See Hunley concurrently, spe- absence conflicting judgment Villano,

control over a com- (10th United States v. 816 F.2d 1448 subject mitment order as 1987). whether the Cir. sentences were concurrent or consecutive. Annotation, Sentences judgment provisions in the Different cific Concurrent, 57 A.L.R.2d already defendant contrary, and where sentence, and a second serving former I would reverse. that the time is not state does expiration of the to commence

former, will run concur- the sentences provid- of a statute

rently, in the absence rule.

ing for a different