Summary 2009 WY 3

Summary of Decision issued January 14, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Kelley v. Wyoming

Citation: 2009 WY 3

Docket Number: S-08-0123

Appeal from the District Court of Albany County, the Honorable Jeffrey A. Donnell, Judge.

Representing Appellant Kelley: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Assistant Attorney General.

Facts/Discussion: Kelley pled guilty to burglary pursuant to a plea agreement that included full restitution. In return the State consented to Kelley being treated as a first offender and recommended probation. However, the district court entered an adjudication of guilt and sentenced Appellant to incarceration for three to five years which was suspended and he was placed on supervised probation for four years. Kelley contended that his constitutional right to equal protection of the laws was violated when the district court arbitrarily and capriciously did not grant him first-offender status under Wyo. Stat. Ann. § 7-13-301. In the alternative, he argued that the district court’s denial of first-offender status was an abuse of discretion.

The district court denied first-offender status for two reasons: to punish Appellant for a premeditated night-time burglary, and to deter Wyo. Tech students from further such acts. Kelley provided no cogent argument or authority in support of the theory that a judge abuses her discretion or violates the equal protection doctrine by considering as a sentencing factor the premeditated and invasive nature of the crime. Neither has the appellant shown that general deterrence is an inappropriate sentencing factor.
Kelley also argued that by refusing to grant first-offender status to a defendant convicted of a premeditated crime while being amenable to granting such status to a defendant convicted of an impetuous crime, the district court applied a criterion not found in the statute. The Court stated the law is clear that a sentencing court has broad discretion in considering many factors about both the defendant and the crime.

Conclusion: The district court did not abuse its discretion and did not violate the appellant’s right to equal protection of the laws by declining to grant him first-offender status.

Affirmed.

C.J. Voigt delivered the decision.

J. Hill, concurrence: J. Hill concurred in the result but concluded the district court improperly fashioned the sentence so as to send a message to out-of-state students who attend Wyo. Tech and who commit crimes in Laramie, that they are not likely to be considered eligible for probation.

Link: http://tinyurl.com/a2gy92 .

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