Summary 2009 WY 121

Summary of Decision issued October 6, 2009

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

Case Name: Sandoval v. State

Citation: 2009 WY 121

Docket Number: S-09-0023

Appeal from the District Court of Laramie County, the Honorable Edward L. Grant, Judge.

Representing Appellant Sandoval: Diane Lozano, State Public Defender, PDP; Tina Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.

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: Sandoval pled guilty to second degree murder in the beating death of his girlfriend’s one year old daughter. After the district court sentenced him to serve seventy years to life in prison, he appealed arguing that he was denied a fair sentencing when the prosecutor argued facts outside the record at the sentencing hearing and the district court failed to provide him with a full right of allocution.

Prosecutorial misconduct: The prosecutor committed misconduct when he mentioned that Sandoval and his father talked about him being famous because he was on TV and then chuckling about it. The conversation was not documented in the record and therefore, it was misconduct to refer to it at sentencing. In order to warrant reversal, Sandoval would have to demonstrate that he was prejudiced because the district court relied upon the improper information in passing sentence. Sandoval conceded there was no indication that the statement influenced the judge’s sentencing decision. The prosecutor stated that the State gave Sandoval a concession in the form of a second degree murder charge. Sandoval objected stating there was no plea agreement and that he was never charged with anything other than second degree murder. Sandoval could have been charged with felony murder in which case he would have faced first degree murder penalties. The prosecutor’s statement made sense and was accurate. Third, Sandoval claimed the prosecutor’s recitation of the details of the crime and the child’s injuries indicated it was a more prolonged attack than what was described at his change of plea hearing. The Court stated the prosecutor simply argued his interpretation of the evidence; he did not submit inappropriate “medical testimony.” The statements did not amount to misconduct.
Right of allocution: In the context of Rule 32 (c) and the constitutional right of allocution, the Court has stated that a defendant’s right is not violated when he has been given an adequate opportunity under the circumstances to speak on his own behalf. Here, defense counsel asked if the defendant could make a statement, and the court responded affirmatively and greeted the defendant. The district court complied with its responsibility.

Conclusion: The Court held that Mr. Sandoval received a fair sentencing hearing. The vast majority of the prosecutor’s argument was acceptable and based upon the evidence; consequently, Sandoval failed to show a violation of a clear and unequivocal error of law to establish plain error. Sandoval also made no showing of plain error to justify reversal as a result of one improper statement about the “chuckling incident” because he did not establish that he was prejudiced by the error. Finally, Sandoval was given an adequate opportunity to allocate on his own behalf.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/y9w5u5u .

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