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Laws-info.com » Cases » Wyoming » Supreme Court of Wyoming » 1997 » 1997 WY 96, 941 P.2d 749, Smith v. State
1997 WY 96, 941 P.2d 749, Smith v. State
State: Wyoming
Court: Supreme Court
Docket No: 96-255,96-256
Case Date: 07/22/1997

Smith v. State
1997 WY 96
941 P.2d 749
Case Number: 96-255, 96-256
Decided: 07/22/1997
Supreme Court of Wyoming


Cite as: 1997 WY 96, 941 P.2d 749


Robert Scott SMITH, Appellant (Defendant),

v.

The STATE of Wyoming,

Appellee (Plaintiff). (Two Cases)

 

                            

 

Appeal from District Court, Natrona County, Dan R. Spangler, J.

 

John D. Fadala, Casper, for Appellant.

 William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Sr. Assistant Attorney General; Georgia L. Tibbetts, Sr. Assistant Attorney General, for Appellee.

 

       Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN and LEHMAN, JJ.

 

       Golden, Justice. 

 [1]           In this consolidated appeal, Appellant Robert Smith contends serious inaccuracies and omissions in his presentence investigation report require a new sentencing hearing before a different sentencing judge. We hold that the sentencing judge exercised his discretion appropriately, and we affirm the sentence of the district court.

 

ISSUES

 

 [2]           Smith's separate appeals present the same single issue with which the State agrees:

 

            Did the Trial Judge abuse his discretion by relying on improper information when sentencing the defendant?

 

FACTS

 

 [3]           In separate criminal actions, Smith was charged with several counts of possession and delivery of controlled substances. He entered into a plea agreement with the State, and on January 4, 1996, Smith pleaded guilty to two counts of felony possession of methamphetamine and one count of delivery of methamphetamine in exchange for sentences which were to run concurrently and were not to exceed twenty-four to thirty months in the Wyoming State Penitentiary.

 

   [4]       The court accepted the guilty pleas and ordered that a presentence investigation report be completed. One was prepared and submitted to the court on June 27, 1996. On July 16, 1996, Smith's counsel wrote to the trial judge concerning a number of inaccuracies and omissions in the presentence investigation report and requested that a new report be prepared. The judge accepted the corrections submitted by Smith's counsel. However, the State alluded to the incorrect, as well as non-verified, information in the report as aggravating factors for the court's consideration in Smith's sentencing.  Smith contended that his cooperation as an informant and his previous successful completion of probation and counseling made him a good probationary candidate. He requested that he be sentenced to three years of supervised probation and to complete the felony program at Community Alternatives of Casper.

 

 [5]           Smith was sentenced on July 18, 1996, to not less than eighteen months nor more than twenty-four months in prison for the felony convictions and to six months on the misdemeanor possession charge, which was ordered to be served concurrently. This appeal followed.

 

DISCUSSION

 

  [6]         The record shows, in thorough detail, that Smith itemized for the sentencing judge the many inaccuracies and omissions which were contained in the presentence investigation report. In this appeal, he requests that we set standards to ensure accurate presentence investigation reports; order that a new and accurate presentence investigation report be prepared in his case; and order that he be granted a new sentencing hearing before a different judge. He contends this remedy is necessary because the sentencing judge could not help but be influenced by the improper information which was prejudicial and inflammatory and must have relied upon it in passing sentence upon him.

 

[7]             Sentencing decisions are within the sound discretion of the sentencing court. DeSpain v. State, 865 P.2d 584, 589 (Wyo. 1993). A sentence will not be disturbed because of sentencing procedures unless the defendant can show an abuse of discretion, procedural conduct prejudicial to him, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play. Wayt v. State, 912 P.2d 1106, 1109 (Wyo. 1996); Hicklin v. State, 535 P.2d 743, 751 (Wyo. 1975).

 

  [8]         Smith's contention of prejudice is not supported by any evidence that the court relied on the erroneous information, and, in fact, is contradicted by the sentencing judge's accepting his corrections and then imposing a sentence less than that agreed to by Smith in his plea agreement. Wayt v. State, 912 P.2d at 1109 (appellant bears the burden of establishing this reliance). Nor do we find that sentencing Smith after learning of the report's severe deficiencies and without ordering a new report is improper and requires remanding for a new sentencing hearing. A sentencing judge's discretion permits him to order a new report or simply to accept corrections and proceed, as the judge did in this case.  See Mehring v. State, 860 P.2d 1101, 1117-18 (Wyo. 1993). As for Smith's request that we set standards to ensure accurate, nonargumentative presentence reports, our standard of judicial discretion accomplishes this objective while giving the sentencing judge the greatest amount of flexibility to exercise the appropriate action towards these kinds of transgressions by the State. In this case, Smith's counsel's careful verification of the report and diligent reporting to the sentencing judge resulted in a more favorable sentence to Smith than that received by plea agreement. There simply is no evidence that probation was denied because of the report's inaccurate contents, and a new sentencing hearing is not required. Mehring, 860 P.2d at 1117.       The sentence is affirmed.

 

Citationizer Summary of Documents Citing This Document


Cite Name Level
Wyoming Supreme Court Cases
 CiteNameLevel
 2000 WY 47, 999 P.2d 646, VAN RIPER v. STATECited
 2000 WY 50, 1 P.3d 1210, BROWER v. STATECited
 2000 WY 123, 7 P.3d 5, TRUSKY v. STATECited
 2001 WY 129, 36 P.3d 1133, LEE v. STATECited
 2003 WY 140, 78 P.3d 257, BITZ v. STATECited
 2003 WY 154, 79 P.3d 1021, JONES v. STATECited
 2005 WY 50, 110 P.3d 267, LLOYD L. COHEE V. THE STATE OF WYOMINGCited
 2005 WY 123, 120 P.3d 1006, RICHARD ALAN JANSSEN V. THE STATE OF WYOMINGCited
 2006 WY 26, 130 P.3d 869, DALE EVAN PEDEN V. THE STATE OF WYOMINGCited
 2006 WY 66, 135 P.3d 586, LEONARD LEE HIRSCH v. THE STATE OF WYOMINGCited
 2007 WY 156, 168 P.3d 468, MAX ALAN ROESCHLEIN V. STATE OF WYOMINGCited
 2008 WY 58, 185 P.3d 1, LADONNA J. CAROTHERS V. THE STATE OF WYOMINGCited
 2009 WY 3, 199 P.3d 521, JOSHUA KELLEY V. THE STATE OF WYOMINGDiscussed
 2009 WY 92, 211 P.3d 509, JESSE THOMAS v. THE STATE OF WYOMINGCited
Citationizer: Table of Authority
Cite Name Level
Wyoming Supreme Court Cases
 CiteNameLevel
 1975 WY 21, 535 P.2d 743, Hicklin v. StateCited
 1993 WY 123, 860 P.2d 1101, Mehring v. StateCited
 1993 WY 154, 865 P.2d 584, DeSpain v. StateCited
 1996 WY 29, 912 P.2d 1106, Wayt v. StateCited

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