Summary 2010 WY 30

Summary of Decision issued March 18, 2010

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Case Name: Noller v. State

Citation: 2010 WY 30

Docket Number: S-09-0129

Appeal from the District Court of Campbell County, Honorable Michael N. Deegan, Judge

Representing Appellant (Defenadant): Diane Lozano, State Public Defender, PDP; Tina Kerin, Appellate Counsel; Kirk A. Morgan, Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny L. Craig, Assistant Attorney General.

Date of Decision: March 18, 2010

Facts: Appellant pleaded guilty to one count of aggravated vehicular homicide and two counts of driving under the influence (DUI) with serious bodily injury. At his sentencing hearing, Appellant moved to strike portions of the pre-sentencing investigation report (PSI) on the grounds that they were inflammatory and argumentative. The district court denied the motion and sentenced Appellant to terms encompassing the maximum period of incarceration on each count.

Issues: Whether the district court abused its discretion when it denied appellant's motion to strike inflammatory and argumentative language from the PSI and considered such language during sentencing

Holdings: Trial courts have broad discretion when imposing sentence to consider a wide range of factors about the defendant and the crime. They are free, in the exercise of their sentencing discretion, to consider victim impact statements, PSIs and other factors relating to the defendant and his crimes in imposing an appropriate sentence within the statutory range. Trial courts are permitted to consider a defendant's character when exercising their discretion to impose sentence. In evaluating character, the trial court may consider a broad range of reports and information. A defendant's cooperation with authorities and remorse for his actions are appropriate factors to be considered when imposing sentence. A sentencing recommendation contained in a PSI is one of the factors that a court may properly consider in determining the appropriate sentence to impose. However, in the present action, the agent's comments went beyond the information W.R.Crim.P. Rule 32 required her to provide. Rather than acting as an agent of the sentencing court, as a neutral and independent participant in the sentencing process, the PSI preparer in this case took on the role of a legal advocate, with many of her comments being more appropriate for the prosecutor's argument to the sentencing court than for a PSI. It is not the function of probation and parole agents to act as legal advocates but to be neutral participants and provide the information specified in Rule 32(a)(2) for consideration by the sentencing court.

However, reading the agent's comments in the context of the entire PSI and a review of the district court's statements leading up to the imposition of sentence shows that no abuse of discretion occurred. The PSI was lengthy and detailed. It contained extensive information concerning Appellant's criminal history, including several previous arrests and/or convictions for alcohol related driving offenses. It also contained the complete affidavit of probable cause, which described in detail the circumstances of the collision and the victims' injuries. The PSI also included the written statements of the deceased victim's husband and his daughter, who was driving the vehicle and was seriously injured in the crash. The agent's comments concerning the impact on the victims basically repeated statements made by the victims. Additionally, at the sentencing hearing, the district court pointedly questioned the prosecutor and the agent about some of the information contained in the PSI, which resulted in some clarifications and some information being stricken from the report. The district court heard directly from the two victims whose written reports were contained in the PSI. The district court also considered defense counsel's comments on Appellant's behalf.

Thus, Appellant has not shown the district court relied on the agent's comments in imposing sentence. From a review of the entirety of the record, it appears the district court relied primarily on the information contained in the affidavit of probable cause, Appellant's criminal history and the victims' statements. Thus, the district court acted reasonably in denying the motion to strike.

Affirmed.

J. Kite delivered the opinion for the court.

C.J. Voigt specially concurred. The presentence investigation report submitted in this case clearly violated the dictates of W.R.Cr.P. 32(a)(2)(B). It is not a report; it is a diatribe based apparently upon the writer's personal animosity toward the appellant and sympathy for the victims. Were it not for the excellent job done by the district court both in "distinguishing the wheat from the chaff," and in setting forth the specific record facts upon which the sentence was based, I would vote to reverse the sentence and remand to the district court for preparation of a new presentence investigation report, prepared by a different agent.

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