Summary 2007 WY 107

Summary of Decision issued July 12, 2007

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Case Name: Capellen v. State

Citation: 2007 WY 107

Docket Number: 05-127

Appeal from the District Court of Fremont County, the Honorable Nancy J. Guthrie, Judge

Representing Appellant (Defendant): Ken M. Koski, State Public Defender, PDP; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Senior Assistant Appellate Counsel. Argument by Mr. Roden.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric A. Johnson, Faculty Director, Jonathan Haidsiak, Student Director and William L. Foster, Student Intern, of the Prosecution Assistance Program. Argument by Mr. Foster.

Issue: Whether the district court abused its discretion in relying upon evidence presented by the prosecution at Mr. Capellen’s sentencing hearing.

Facts/Discussion: Appellant pled guilty to one felony and four misdemeanor drug-related charges. The district court sentenced Appellant to eight to twelve years on the felony conviction and to time served during presentence incarceration on the misdemeanor convictions.
Standard of Review: The Court reviews a trial court’s sentencing decision under an abuse of discretion standard. The Court will not disturb a sentence unless Appellant can demonstrate an abuse of discretion, procedural conduct prejudicial to the appellant, and circumstances manifesting inherent unfairness and injustice or conduct which offends the public sense of fair play.
Errors At Sentencing: Appellant complained of errors at sentencing including: ownership of the backpack containing 24 grams of methamphetamine found on the backseat of his vehicle; items recovered from a search of his home and Agent Smith’s testimony that Appellant was a drug dealer and the basis for that opinion. The Court reviewed the record and stated that although precise words indicating ownership of the backpack were not used in the affidavit or the PSI, the implication was clear. The Court stated the prosecutor’s statement or the testimony should not have been a surprise. The evidence before the court was sufficient to support its conclusion that the backpack and its contents belonged to Appellant. The Court rejected Appellant’s contention that the district court may not consider the basis of dismissed charges. The Court stated the trial court has broad discretion to consider a wide range of information about the defendant and his crimes in imposing sentence. The Court found no indication from their review of the record that the district court improperly relied on the stricken information in its sentencing decision.
Procedural Development: The Court noted a procedural development appearing in the record. While the instant appeal was pending, Appellant filed a motion in district court under W.R.Cr.P. 35(b) for a reduction of his eight to twelve year sentence. The district court granted his motion resulting in a reduced sentence of four to twelve years. No appeal was taken from the order granting the sentence reduction. Neither the district court’s authority to reduce a sentence after an appeal was docketed nor was the validity of the sentence reduction presently before the Court. In light of the concurring opinions, additional comment was warranted. The Court noted their decisions in Moore and Jacobs offered insight regarding the proper interpretation and interplay of W.R.Cr.P. 35(b) and W.R.A.P. 6.01(b). One of the goals in adopting W.R.A.P. 6.01 was to provide for shared jurisdiction between the appellate court and the trial court. The position espoused in the concurring opinions, which deprives a district court of subject matter jurisdiction to reduce a sentence while an appeal is pending, is contrary to this goal and is problematic for both procedural and policy reasons. From a procedural standpoint, it is impossible to tell if an appellant is challenging his sentence when an appeal is docketed. An appellant is not required to identify his appellate issues until his brief is filed. Even then it would be difficult for a district court to determine whether it has jurisdiction to modify because there is no provision in the Rules of Criminal Procedure or Rules of Appellate Procedure mandating filing of the brief in the district court.
From a policy perspective, it seems obvious to the Court that a system that offers those convicted of crimes the opportunity for a sentence reduction increases the likelihood that those individuals will take appropriate action to earn a reduction. The result urged in the concurring opinions threatens that objective. The sentencing judge is in the best position to decide if a sentence modification is appropriate. There is no provision in the appellate rules that would allow the Court to consider a motion to reduce or modify a sentence. If the district court is deprived of subject matter jurisdiction when the appeal is docketed, and no procedure exists at the appellate level for sentence modification, much of the incentive for an individual to seek treatment evaporates. Such an approach is undesirable, will create confusion, and is at odds with W.R.Cr.P. 35 and the Court’s precedent interpreting W.R.A.P. 6.01.

Holding: The Court stated that in the context of sentencing, the district court may consider any information pertinent to its sentencing decision without offending due process so long as it is reliable and accurate and the defendant has been given an opportunity to respond to the information. Appellant was afforded a full opportunity at sentencing to dispute all of the information he challenged in the appeal. Accordingly, he was not deprived of a fair sentencing. The sentence was well below the statutory maximum. The Court did not find the district court abused its discretion in sentencing Appellant.

Affirmed.

J. Burke delivered the decision.

J. Golden, specially concurring with C.J. Voigt: J. Golden stated the Court could not disregard the sentence reduction order because if allowed to stand, it superseded the sentencing order before the Court on appeal. The Justice believes the district court lacked jurisdiction to grant Appellant’s motion for a sentence reduction, making the sentence reduction order void and therefore the Court was correct in considering the merits of the appeal. Along with affirming the original sentence, the Court should make clear the sentence reduction order is void and the original order of eight to twelve years controls.

C.J. Voigt specially concurring with J. Golden: C. J. Voigt stated the majority was wrong and by issuing its opinion, it has written out of W.R.A.P. 6.01(b) the language “all matters and proceedings not the subject of the appeal.” The subject of the appeal is the sentence imposed upon the Appellant. That fact deprived the district court jurisdiction over the sentence. Once a criminal sentence has been appealed, the district court loses jurisdiction of that sentence until the Court issues its mandate in the case. The Chief Justice posed the question: If the Court reverses the original judgment and sentence, what is the effect of the sentence reduction?

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