Summary 2009 WY 74

Summary of Decision issued June 3, 2009

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

Case Name: Duke v. State

Citation: 2009 WY 74

Docket Number: S-07-0298, S-08-0132

Appeal from the District Court of Carbon County, the Honorable Wade E. Waldrip, Judge.

Representing Appellant Duke: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Erica M. Alden, Senior Assistant Appellate Cousnel.

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

Facts/Discussion: Duke pled guilty to third-degree sexual assault pursuant to a plea agreement.

Violation of plea agreement: The Court found no indication that the prosecutor undermined the plea agreement by exercising influence over the probation agent who wrote the PSI. The record does not show any communication between the prosecutor and the probation agent regarding the sentence recommendation nor is there any evidence that the prosecutor attempted to influence the recommendation in any way.
Voluntariness of guilty plea: Duke contended that his guilty plea was not voluntary because he was not informed by the court of an affirmative defense. Duke cited no authority requiring a trial court to inform a criminal defendant of potential defenses to the charged crimes. Nor did he point to authority requiring a defendant be permitted to withdraw a guilty plea if the court failed to advise the defendant of available affirmative defenses. Decisions from other jurisdictions suggest that Duke is incorrect as a matter of law.
Prosecutorial misconduct: The PSI included an Idaho offense of “attempted rape” which defense counsel, at the sentencing hearing, made note was reduced to a misdemeanor offense. During the State’s sentencing argument, the prosecutor made reference to Duke’s criminal history without making any reference to the level of the offense. Duke failed to demonstrate that a clear and unequivocal rule of law was violated.
Alleged violation of W.R.Cr.P. 32: The Rule requires that at least 10 days before imposing sentence unless the minimum period is waived by the defendant, the court shall provide the defendants and counsel with a copy of the PSI. But the record showed that the defendant and counsel responded they had received the report and that it arrived in a timely manner.
Addicted Offender Accountability Act: Duke contended the district court erred by imposing a sentence of imprisonment. The plain text of Wyo. Stat. Ann. § 7-13-1303 does not limit the discretion of the trial courts to make sentencing decisions. The language of the statute includes the word “may” which is permissive. Nothing in the statutory text suggests that the legislature intended any other interpretation.

Conclusion: The Court found no support for Duke’s allegation that the PSI agent was more of a surrogate for the prosecutor than an independent voice. Duke failed to establish the violation of a clear and unequivocal rule of law. The State’s reference to Duke’s criminal history during the sentencing hearing was not sufficient to demonstrate that a clear and unequivocal rule of law was violated. The record showed that Duke waived the timeliness of the PSI. The language of § 7-13-1303 is permissive and does not limit the discretion of trial courts to make sentencing decisions.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/o4y9mg .

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