*2 GOLDEN, hemorrhaging her brain VOIGT, C.J., neys and Before BURKE, son, HILL, KITE, year old JJ. who driver's two spine. The passenger the back seat of challenged Suburban, seriously injured. was also "merely He summarized apparent what was else where in and his mother flight-for-life the ratio were flown to Colorado for treatment. nale for the sentencing recommenda *3 Doherty tion." 39, ¶ 34, 2006 WY Mr. charged Noller was with one 131P.3d (Wyo.2006). aggravated count of vehicular homicide un 6-2-106(b)(i) (Lexis- Wyo. § der Ann. Stat. 2007) DISCUSSION
Nexis and causing two counts of seri teen to bodily injury ten hicular homicide charge, and terms of nine to ence, with the three terms mentative, biased and showed that properly had assumed the role of an advocate for the consecutively. Mr. and sentenced Mr. Noller to a court. The district court denied the motion ments influence under 233(h)(i) (LexisNexis 2007). Mr. Noller ulti ler moved to strike ering factual sentencing. mately pleaded guilty to all ous and the district court set years bodily injury who made prosecution twenty years STANDARDOF REVIEW At for his for prepared his while each count of information for Wyo. motion, while rather Noller portions Stat. Ann. driving he asserted com than simply gath hearing, timely appealed. under the influ the matter causing aggravated of the PSI. As three to be served term of the district were and under Mr. Nol- she § charges serious 81-5- argu eigh ve for tive of the serted that these comments were not reflec- erning PSIs. (Emphasis the PSI lowing fense counsel specifically objected to the fol their loved ones. ing thoughts and behaviors Writer's future treatment maintains passive defiance, there either unwilling or unable to entertain true empathy believe he felt morse actions. about 20% remorse and 80% self-pity .... He seemed much more concerned that gauging [18] was "no during during dispassionate, contemplated selfish, cowardly However, In moving original). the Defendant's some hope" victims, interview, even participation. he seemed to have responsibility report: for observation, to strike Defense counsel as- non-argumentative now, their families and him and voiced and self-defeat- this Writer did the rules hearing, de level of re- toward portions appears In this he still for his gov- any of Roeschlein v. sentencing decisions for abuse of discretion. (Wyo.2007). We review a district court's A sentence will 156, ¶ 17, writer:" terizing them cifically [¶ 9] Defense as "the following counsel also prose comments, of a romance objected charac spe not be disturbed of sentencing pro because This profound Writer noted sorrowfulness expressions hopelessness, cedures unless the defendant can show an sadness discretion, abuse of procedural prej conduct grief narrated [the deceased vic- him, udicial to cireumstances which manifest tim's husband daughter]. This Writer injustice, inherent unfairness and Court, or conduct would refer the again, onee to those which the public offends sense play. of fair statements before Id. An error only warrants reversal when it obviously [Husband] was still love with prejudicial appellant's and it affects an years his wife of 34 and misses her at a rights. substantial party Id. The who is comprehend. level few can But his and his appealing bears the burden to family's establish that mourning begin does not or end prejudicial. error was Id. This Court has with the death of the "love of his life" and declined to reverse partner," mother, sister, friend, where the "life etc. party objecting particular portions He, son, of a his son-in-law and other be- PSI failed to demonstrate family loved members have lived moment- court based its parts decision those to-moment since the wondering, hop- erash (v) impact of the summary A fate would the same praying
ing and the victim. offense on Un- [grandson]. [daughter] not befall them, for the trade-off fortunately all of Judgment and sentence. [W.R.Cr.P.] 32. multiple pain, extreme has been survival (a) investigation.- Presenience adjusting life procedures medical only limitations physical with (2) presen- Report.-The victim]. deceased memory of [the contain: shall tence com- reiterated counsel Defense (A) history and about Information facts, relating were ments, rather defendant, including characteristics repetitive of state- advocacy" and "straight any, if financial con- criminal prior victim of the deceased ments the husband *4 dition, affecting any the cireumstances already provided. had helpful may that be behavior defendant's objected spe also counsel Defense or in the correctional in sentence at the following comments cifically to the defendant; treatment of the agent's evaluation: close of the (B) in a no- information stated Verified is, are matter what sentences truth no containing an assess- nargumentative style justice in here, real there is no passed financial, social, psychological, of the ment expecta- real there is no matters and to, any impact upon, and cost and medical from the Defen- restitution financial tion of has against whom the offense individual that option is one only realistic dant. The attaching a victim im- committed and been society from the Defendant removes in 7-21- pact statement as W.S. in terms order and consecutive maximum in chooses to make one 103 if the victim society from his cruel rest of protect to writing. It is injurious and choices. behaviors (C) otherwise, orders Unless the court in this late for victims already [the too concerning and ex- the nature case]. and resources non-prison programs tent Referencing the original). (Emphasis defendant; and available for the that the court agent's recommendation (D) may information as be Such other all on counts pose the maximum sentences required by the court. consecutively, counsel ar defense be served denying Mr. motion to In Noller's beyond gued that the recommendation strike, Wyo. referenced improper.1 role and (LexisNexis 2007) and $Ann. 7-13-803 Stat. governing and rule The statute 32(a)(2) and stated: part as follows: provide in relevant PSIs and concludes The court believes Investigation preceding § T-13-303. statutory the rule man- mandate and this suspension probation of sentence. or pre- in a certain items comprehend date (a) court, ... by the directed When may investigation report ... shall officer probation state factual, may necessarily be even be to the court writ- investigate and arguably in nature. editorial ing: court, upon the I think it is incumbent (i) offense; of the The cireumstances court, sentencing any court and this (ii) history The criminal social chaff, and I from the separate the wheat defendant; present conditions to do that certainly undertake would (iii) particular case. findings of a practicable, If physical and mental examination And, course, upon the the court relies defendant; repre- to what counsel as arguments of represents chaff (iv) and what sents wheat practicable, statements from If report. victim; any presentence challenge brief, them in the did not excep- PSI. Because he appellate takes In his them. we do not consider district other comments made tion to
871 considering the statuto Rule 32 does not require an evaluation or a recommendation, rule, ry provision we have said that a recommenda- part tion is a common of a PSI trial courts have broad discretion when im and is one of may properly factors the trial court posing range sentence to consider a wide con- Id., State, citing Mehring sider. v. 860 factors about the defendant and the crime. P.2d 1101, (Wyo.1998). State, 92, ¶ 10, 211 Thomas v. 2009 WY P.3d 509, free, (Wyo.2009). They are ¶ Gorseth, Similarly, 22, 141 P.3d discretion, exercise of their 705, at upheld we part sentence based in on statements, impact consider victim PSIs and a PSI to which objected the defendant had relating other factors to the defendant and probation that the agent ar in imposing his crimes gued in favor of the State because she recom sen statutory range. tence within the Garcia v. lengthy prison sentence, mended a asserted 10, 153 48, 941, ¶ he responsibility crimes, did not take for his (Wyo.2007), citing 2005 WY speculated might about what Smith happened 137, (Wyo.2005). 119 P.8d Tri to the if a party victims third had not come permitted al courts are to consider a defen rescue, neglected to their to contact the exercising dant's character when their dis family defendant's to obtain information impose Doherty, cretion to about him. We concluded ¶ *5 35, 131 character, evaluating at 974. In agent presented P.3d the the information in a non- may range argumentative trial court a broad style required consider as Rule 32(a). State, reports and information. v. Gorseth We stated: 109, ¶ 15, 698, (Wyo. 2006 141 P.3d WY 703 Although Rule specifically 32 does not 2006). A cooperation defendant's with au charge probation agent with giving an thorities and remorse for his actions are opinion (making about the defendant appropriate factors to be considered when giving recommendations), evaluation and State, imposing Dodge sentence. v. 951 P.2d apparent that the district courts deem 383, (Wyo.1997). A sentencing 386 recom such information to be of value the sentencing process because the form used mendation contained a PSI is one of the may properly factors that a court process consider that calls for such evaluations determining the sentence to recommendations. State,
pose.
74, 15,
Duke v.
2009
1
WY
209
Id. We concluded it was not an abuse of
563,
(Wyo0.2009).
discretion for the district court
to consider
such information in
applied
principles
We
[¶ 14]
123,
Janssen
2005WY
120P.3d 1006
58,
In
Carothers v.
¶ 24,
1,
(Wyo.2008),
185 P.3d
the defen
(Wyo.2005),
uphold
a district
court's sen
part
dant
tence
was based in
on a comment
moved to strike from the PSI remarks
quite
contained in
of a tone
the PSI that the defendant was
similar to those Mr. Noller
challenges.
"choosing
cautioning
preparers
While
violate the law." We said:
PSI
reports
to limit their
to the factors outlined
merely
comment
[The]
summarized what
82(a)(2),
upheld
we
apparent
was
elsewhere in the
1)
ruling denying
court's
the motion because:
agent's
the
rationale
the
sen-
showing
there was no
the court relied on the
tencing
recommendation.
The district
challenged
in imposing
the sen
not
accept
bound to
the
2)
tence;
basically repeated
the comments
or
agent.
the recommendation of the
The
impact
statements
contained
the victim
merely
district court
at
arrived
the same
portion
of the
and made in court
conelusion-a
conclusion which was more
3)
during
sentencing hearing;
adequately supported by
than
Mr. Jans-
imposed
fact that the district court
a shorter
history.
sen's uncontested eriminal
requested suggested
sentence
the State
Id., ¶ 18,
Janssen,
found in Mr. Noller's vehicle The district
court also that it took into account stated Mr. history
Noller's extensive of alcohol related
arrests and convictions and failed alcohol programs.
treatment
The court stated:
conjure up [any
I cannot
more] serious set
court relied on information con probable cause,
tained in the affidavit of Mr. history
Noller's criminal and the victims'
statements. We hold the district court acted
reasonably denying the motion to strike.
[¶ 24] Affirmed.
KITE, J., opinion delivers the
Court; VOIGT, C.J., a specially files
concurring opinion.
VOIGT, Justice, specially Chief concurring. presentence
[¶ 25] The re
port clearly submitted in this case violated 82(a)(@Q)(B).
the dictates of W.R.Cr.P. It is report;
not a apparent is a diatribe based
ly upon personal animosity the writer's to appellant
ward the sympathy for the majority
victims. While the touches fact,
upon I separately write to state that, forcefully
more were it not job
excellent done the district court both "distinguishing chaff," the wheat from the setting specific
and in forth the record facts based, which the sentence I would
vote to reverse the sentence and remand to preparation court for aof new