Summary 2006 WY109

Summary of Decision issued August 31, 2006

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Case Name: Gorseth v. State

Citation: 2006 WY 109

Docket Number: 05-122

Appeal from the District Court of Natrona County, the Honorable W. Thomas Sullins, Judge

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jennifer K. Stone, Senior Assistant Attorney General.

Issue: Whether Appellant was denied a fair sentencing when probation and parole issued a presentence investigation report which was not neutral and did not comply with the rules of criminal procedure.

Holding: Appellant contends that the procedures followed in the sentencing portion of the proceedings in this case were improper and deprived him of due process of law.
Standard of Review: The Court will not disturb a sentencing decision absent a clear abuse of discretion. Due process provides a right to be sentenced only on accurate information. Victim information about other crimes or convictions unrelated to the particular crime for which sentence is about to be imposed is permissible. Evidence of prior criminal activity is highly relevant to the sentencing decision and may be considered by the court. Appellant contends there were five errors.
The California Probation Report: It is within the district court’s discretion to consider any reliable and accurate information that enlightens the sentencing court about the crime and criminal at hand.
Failure to Contact Family: There is no mandate in W.R.Cr.P.32 that information from the family of a defendant be compiled for the trial court’s consideration. The Court found no error in the failure of the probation agent to have solicited information from members of Appellant’s family.
Failure to Discuss Prison Alternatives: The initial presentence report did not discuss alternatives to prison likely because of Appellant’s criminal record and the seriousness of the crimes to which he had entered pleas of guilty. The district court directed the agent to add such information to the addendum to the report.
The Allegedly Inaccurate Statement: Appellant relied upon language in Bitz to support his contention that the district court was required to make a finding on the record that the probation agent’s statement that Appellant had not taken responsibility for that crime was inaccurate. The Court stated that it was apparent in the record that the district court made an independent conclusion about the degree to which Appellant took “responsibility” for his crimes and found no error in the sentencing process in this regard.
Failure of Probation Agent to Remain Neutral: The Court carefully examined the presentence report and the addendum and concluded that the probation agent presented the information in a “nonargumentative style” as required by Rule 32(a). The Rule does not specifically charge a probation agent with giving an opinion about the defendant, but apparently the district courts deem such information to be of value in the sentencing process because the forms used call for such evaluations and recommendations.

Affirmed.

J. Hill delivered the order for the court.

Link to the case: http://tinyurl.com/l5pvp .