Robert Paul MARTIN, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
No. 86-29.
Supreme Court of Wyoming.
June 18, 1986.
720 P.2d 894
We equate the remedy provided to the buyer and seller of real estate in Bravo v. Buelow, supra, to our conclusion that each party should receive a pro-rata share of the revenue due under the contract. See also Masholie v. River Edge Estates, 129 N.J.E. 228, 19 A.2d 27 (1941), reh. denied 135 N.J.E. 193, 37 A.2d 861 (1944).6
In regard to the funds due from Collins to Williams, the amount is in the undisputed total of $29,491. The remaining issue is, what should occur with regard to the Williams tower and the cost incurred in its construction? It is our conclusion that by enforcing the contract the option is vested in Collins to either accept the tower and its cost or accept the funds earned by Williams for credit on the balances remaining due on the agreement for division of profits. Reasonable time should be afforded by the trial court upon remand for Collins to make the election.7
With a contract life remaining of six years, it surely would benefit both parties for the tower to be used if that use can accommodate an increased revenue to the venture. Likewise, then, at the termination of the period, the tower, as well as the other two towers (the Forest Service and the middle tower), will be joint-venture property in an undivided 50 percent interest rather than Williams owning one tower and a 50 percent interest in two other towers.
The decision of the trial court is affirmed except as remanded for entry of an order affording an accounting and option to Collins to acquire the newly constructed tower for the venture, as is herein provided.
Alternatively, should Collins elect to accept the Williams tower as an asset of the venture, in accord with the agreement for joint operation and control, then payment is due of one-half the costs of the tower of $12,320, or a total additional of $6,160. Consequently, upon the exercise of this election, the amount to be paid would be $26,551, with the Williams tower then constituting a venture asset within the control of Collins pursuant to the terms of the original agreement. By this computation, Williams is chargeable with all income and Collins has the right to elect whether the tower will constitute a venture asset by a payment of 50 percent of the cost incurred. The record before us does not demonstrate any appeal supersedeas bond. If delay by order or non-court arrangement occurred past the decree date in the enforcement of the decree, any accounting should accommodate the additional period involved.
A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Attorney General, Criminal Division; John Renneisen, Sr. Asst. Atty. Gen.; Nancy S. Tabor, Legal Intern, Cheyenne, for appellee.
Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.
BROWN, Justice.
Appellant Robert Paul Martin, Jr., was convicted in Park County of first degree sexual assault and sentenced to imprisonment for not less than eight years nor more than fifteen years. He urges a single issue on appeal:
“Whether the district court committed reversible error and abused its discretion in sentencing Paul Robert Martin, Jr., to a term of eight to fifteen years in the Wyoming Penitentiary for a violation of
§ 6-2-302(a)(i), W.S.1977 .”
We will affirm.
In the early morning of May 2, 1985, appellant invited Rita Smith, the victim, to come out of Cassie‘s Supper Club in Cody, Wyoming, and look at his dog. After exhibiting the dog, appellant grabbed the victim, dragged her to the southeast corner of Cassie‘s and forcibly threw her to the ground. Appellant thereupon partially removed the victim‘s pants and rearranged her other garments whilst she struggled to get free and otherwise resisted. Appellant then and there perpetrated a sexual assault on the victim, which untoward behavior is proscribed by
Appellant eventually entered a plea of nolo contendere. A presentence investigation was accomplished, together with a mental and physical examination. After these reports were reviewed and a hearing held, appellant was sentenced to not less than eight years nor more than fifteen years at the Wyoming Penitentiary.
“* * * We do not follow the commonlaw rule that a sentence is not subject to appellate review if it is within the limits set by the legislature.
“* * * * *
“As long ago as 1927, we indicated that we would modify a legal sentence if the trial court abused its discretion in imposing it. State v. Sorrentino, 36 Wyo. 111, 253 P. 14, 16 (1927). Since then, we have repeatedly set forth the fact that a sentence will be reviewed for abuse of discretion. Cavanagh v. State, Wyo., 505 P.2d 311 (1973); Peterson v. State, Wyo., 586 P.2d 144 (1978); Sanchez v. State, Wyo., 592 P.2d 1130 (1979); Jones v. State, Wyo., 602 P.2d 378 (1979); Buck v. State, Wyo., 603 P.2d 878 (1979); Sorenson v. State, Wyo., 604 P.2d 1031 (1979); Kenney v. State, Wyo., 605 P.2d 811 (1980); Scheikofsky v. State, Wyo., 636 P.2d 1107 (1981); Daniel v. State, Wyo., 644 P.2d 172 (1982); Taylor v. State, Wyo., 658 P.2d 1297 (1983); and Eaton v. State, Wyo., 660 P.2d 803 (1983).”
In Scheikofsky v. State, Wyo., 636 P.2d 1107, 1112-1113 (1981), we said:
“This court has stated its approach to sentence review many times. If a trial court‘s determination of the terms of imprisonment is within the statutory limits, it will not be disturbed absent a clear abuse of discretion. Hanson v. State, Wyo, 590 P.2d 832, 835 (1979); Jones v. State, Wyo., 602 P.2d 378, 380 (1979); Smith v. State, Wyo., 564 P.2d 1194, 1202 (1977); Daellenbach v. State, supra at 683 [Wyo., 562 P.2d 679 (1977)]. A sentence will not be disturbed because of sentencing procedures unless the defendant can show an abuse of discretion, procedural conduct prejudicial to him, and circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play. Hicklin v. State, Wyo., 535 P.2d 743, 751, 79 A.L.R.3d 1050 (1975). That is a nebulous standard, but it is as precise as we care to make it. We have an abiding reluctance to review a trial judge‘s determination of sentence. The determination is a burdensome decision which no trial judge could lightly make and which we will not lightly overturn.”
In defining an abuse of discretion, we have said that:
“A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. An abuse of discretion has been said to mean an error of law committed by the court under the circumstances. * * *” Martinez v. State, Wyo., 611 P.2d 831, 838 (1980).
However, in a recent case involving standards under which a sentence is reviewed we employed language that could be construed to modify the standards set out in Wright and Scheikofsky, supra. In Holmes v. State, Wyo., 715 P.2d 196, 197 (1986), we said:
“The rule is clear in this jurisdiction that there is no error in the imposition of a sentence by a trial court so long as the sentence is within the statutory limit authorized by the legislature. * * *”
We will continue to follow the rule stated in Wright, Scheikofsky and cases cited therein, that sentences within the statutory limit authorized by the legislature are reviewable for an abuse of discretion. We wish to clarify, however, past statements we have made which might be construed to say that such sentences are not subject to review.
Ambiguity springs from the definition of abuse of discretion stated in Martinez v. State, supra, which indicates that an “error of law” is the equivalent of abuse of discretion. Equivocation again surfaced in Holmes, supra, when we said, “* * * [T]here is no error in the imposition of a
Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Byerly v. Madsen, 41 Wash.App. 495, 704 P.2d 1236 (1985).
Where a trial court imposes a sentence in excess of the statutory limit it has not exercised its discretion since it has no authority to so act. In that circumstance there is an error of law and an illegal sentence, which would require this court to remand for resentencing, but abuse of discretion is not involved. Where a trial court imposes a sentence authorized by the legislature it has exercised its discretion. In that situation the sentence is subject to review for an abuse of the trial court‘s discretion.
We have usually alluded to abuse of discretion in general terms and have not made an exhaustive list of circumstances constituting abuse of discretion, nor do we care to. Each case must be determined on its peculiar facts. Other jurisdictions have described circumstances requiring remand for further sentencing procedures. See United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); McGee v. United States, 462 F.2d 243 (2d Cir.1972); United States v. Malcolm, 432 F.2d 809 (2d Cir.1970).
In United States v. Malcolm, supra, the sentencing court failed to consider mitigating circumstances. In United States v. Tucker, supra, the record contained unconstitutional convictions. In McGee v. United States, supra, there was a simultaneous sentence and conviction upon a more serious count of the indictment, which was later invalidated. In Townsend v. Burke, supra, a sentence was imposed based on misinformation of constitutional magnitude.
The United States Supreme Court has held that a sentence must be proportionate to the cause in order to be proper under the Eighth Amendment to the United States Constitution. Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). See, Oakley v. State, Wyo., 715 P.2d 1374 (1986), in which we dealt with the defendant‘s claim that his sentence violated both the Eighth Amendment under the Supreme Court‘s proportionality analysis adopted in Solem v. Helm, supra, and
The sentence imposed by the court in this case was not disproportionate to the magnitude of the crime, nor did the court abuse its discretion in imposing a sentence of not less than eight years nor more than fifteen years.
According to the presentence investigation report appellant is no stranger to running afoul of the law. In the ten and one-half years before the present sexual assault appellant was convicted of sundry crimes ranging from speeding to sexual assault, statutory rape and robbery, together with a dozen other relatively minor crimes.
The district court had the benefit of a comprehensive presentence report, an evaluation from the state hospital and the testimony of three witnesses at the sentencing hearing. The record reflects that the negative aspects of appellant‘s background far outweighed the positive. In this case the district court had an abundance of information before him. It is clear that the court reviewed and considered all the evidence, including the presentence reports and oral testimony. He also stated his reasons for imposing the sentence.
Affirmed.
THOMAS, Chief Justice, specially concurring.
I concur in the disposition of this case in accordance with the opinion of the majority. As of this time, however, I have discovered no reason to recede from the comments set forth in my concurring opinion in the case of Wright v. State, Wyo., 670 P.2d 1090 (1983), reh‘g denied, cert. granted, 707 P.2d 153 (1985). I still am persuaded that this is an instance in which what we do speaks more definitively than what we say, and we have not found an abuse of discretion yet.
It now appears that we have two tests to consider in connection with appeals addressed only to the sentence imposed. In addition to abuse of discretion we also have espoused the proportionality test which some believe was articulated in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). One should undertake impossible tasks very carefully. Viewed in this light the majority position in Solem v. Helm, supra, certainly would have been an intriguing addition to Cervantes novel, Don Quixote. I believe there is a good deal of soundness in the dissenting opinion in Solem v. Helm, supra, but perhaps the most significant language is found in footnote 16 of the majority opinion which reads:
“Contrary to the dissent‘s suggestions, post, [103 S.Ct.] at 3017, 3022, we do not adopt or imply approval of a general rule of appellate review on sentences. Absent specific authority, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence; rather, in applying the Eighth Amendment the appellate court decides only whether the sentence under review is within constitutional limits. In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate.” Solem v. Helm, supra, at 3009-3010 n.16.
I do not perceive the majority opinion in this case as honoring that style of limitation. I fear that the majority has adopted the parroting of the proportionality test which appears in every brief in which the question of a proper sentence is raised by a convicted criminal. I return to my point that caution should be exercised. In Solem v. Helm, supra, at 3011, the majority said:
“In sum, a court‘s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.”
An application of these factors depends upon the utilization of empirical data which is not, so far as I can tell, available in Wyoming. Furthermore, the task of making that data available in my judgment is insurmountable in view of the steadfast position of the Wyoming state legislature that computer technology should not be available to the judicial branch of government for managing information. Any attempt by this court to utilize the objective criteria in the second and third factors identified by the Supreme Court is doomed to be an exercise in futility and frustration, not only on the part of this court, but for the appellants.
I am satisfied that the development of the critical information is much more likely to occur in the context of a petition for a writ of certiorari as approved in