Andrew William Deeds , 2014 Wyo. LEXIS 141 ( 2014 )

IN THE SUPREME COURT, STATE OF WYOMING
2014 WY 124
APRIL TERM, A.D. 2014
October 3, 2014
ANDREW WILLIAM DEEDS,
Appellant
(Defendant),
v. S-13-0256
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Sheridan County
The Honorable John G. Fenn, Judge
Representing Appellant:
Office of the State Public Defender: Diane M. Lozano, State Public Defender;
Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant
Appellate Counsel. Argument by Mr. Alden.
Representing Appellee:
Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Darrell D.
Jackson, Faculty Director, David E. Singleton, Student Director, and Katie J.
Koski, Student Intern, of the Prosecution Assistance Program. Argument by Ms.
Koski.
Before BURKE, C.J., and HILL, KITE,* DAVIS, and FOX, JJ.
*Chief Justice at time of Oral Argument.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
FOX, Justice.
[¶1] Andrew Deeds was initially charged with seven counts of first-degree sexual
abuse of a minor, but entered guilty pleas to five counts of second-degree sexual abuse of
a minor. The district court sentenced him to five consecutive sentences of no less than
twelve years and no more than eighteen years, and ordered that Mr. Deeds be given credit
for 721 days of presentence confinement, without specifying how those days should be
applied to his sentence. On appeal, Mr. Deeds contends that the prosecutor breached the
plea agreement and committed prosecutorial misconduct when she referred to elements of
first-degree sexual abuse of a minor and presented unreliable allegations at the sentencing
hearing. We affirm on those issues. We remand to the district court to specify how Mr.
Deeds’ presentence confinement should be applied to his sentence, in compliance with
Wyoming Rule of Criminal Procedure 32(c)(2)(F).
ISSUES
[¶2] 1. Did the prosecutor breach the plea agreement when she referred at sentencing
to elements of a crime to which Mr. Deeds did not plead?
2. Did the prosecutor engage in misconduct that denied Mr. Deeds due process
when she referred to elements of the no-longer-charged offense at sentencing?
3. Did the prosecutor engage in misconduct that denied Mr. Deeds due process
when she presented undocumented information of bragging, for the first time, during the
sentencing hearing?
4. Was the sentence’s reference to credit for presentence confinement
sufficiently specific to comply with W.R.Cr.P. 32(c)(2)(F)?
FACTS
[¶3] Andrew Deeds was charged with seven counts of first-degree sexual abuse of a
minor. Wyo. Stat. Ann. § 6-2-314(a)(i) (LexisNexis 2013). The State and Mr. Deeds
agreed to a plea agreement to reduce the charges to five counts of second-degree sexual
abuse of a minor. Wyo. Stat. Ann. § 6-2-315(a)(ii) (LexisNexis 2013). They also agreed
that sentencing would be open to argument at the sentencing hearing. The plea
agreement, which was not reduced to writing, was presented by the prosecutor and agreed
to by Mr. Deeds’ counsel.
[PROSECUTOR]: This plea agreement anticipates an
amendment of the charge from first degree -- or sexual abuse
of a minor in the first degree to sexual abuse of a minor in the
second degree, five counts of that, which is a felony,
1
punishable for not more than 20 years, and a fine of not more
than $10,000, or both, for each count. So that’s basically
changing it from first to second and dropping two counts, and
I have the Second Amended Information for the Court.
THE COURT: Thank you.
....
THE COURT: All right. Thank you. Any further terms?
[PROSECUTOR]: No, Your Honor. We’d just argue
sentencing to the Court. That would be our plea agreement.
THE COURT: All right. Thank you. [Addressing defense
counsel], has she accurately set forth the terms of the plea
agreement?
[DEFENSE COUNSEL]: Yes, Your Honor, that’s correct.
[¶4] Before accepting Mr. Deeds’ guilty plea, the district court questioned him about
the factual basis for it. The district court asked Mr. Deeds whether he performed sexual
intercourse or digital penetration on the victim. Mr. Deeds replied that he had not, and
that the contact with the victim consisted of “just primarily -- just touching.”
[¶5] The district court then asked the prosecutor whether there were any additional
facts pertinent to the plea agreement. The prosecutor replied, “I guess for purposes of
second degree we don’t need to -- but she provided information about intrusion, and he,
at that time, confirmed that and confirmed that there were about ten times[.]” The district
court then asked Mr. Deeds, “You talked to law enforcement after this and admitted to
this conduct; is that correct?” Mr. Deeds replied, “Yes, sir.” The district court then
accepted the guilty pleas on all five amended charges.
[¶6] At the sentencing hearing, the district court reviewed the presentence investigation
report (PSI) with both parties and asked whether there were any requested amendments.
Mr. Deeds’ counsel requested three changes, which, after some discussion, were accepted
by the district court.
[¶7] The State called the victim’s mother for a victim impact statement. In her
statement to the court, she discussed taking the victim to the doctor where the victim
described “her uncle having an orgasm.” The mother also stated:
2
Not only has he not shown any remorse, I’ve also learned that
he brags in detail about what he’s done to my daughter. He
said such things as that his penis was too large ([mother] in
tears), and he would have raped her more, but it hurt her too
bad, and this is stuff he’s bragging about in jail. . . . Please
protect any future victims and please let my daughter know
that the system will protect her.
[¶8] Defense counsel and the State then presented their recommendations for
sentencing and the mitigating and aggravating factors. The State stressed that Mr. Deeds
had actually committed sexual intrusion despite the fact that the charges had been
amended to a lesser charge not requiring intrusion as an element. The prosecutor stated
that Mr. Deeds had originally admitted to intrusion and his denial of such action at the
change of plea hearing was evidence of his lack of responsibility. The prosecutor also
noted that Mr. Deeds was bragging about his criminal actions while in prison:
He’s talked about this a lot in jail. We’ve been contacted by
various people about his bragging about this, but the net result
from that to me is that he’s not sorry. He’s maybe sorry he
got caught, but he doesn’t -- when you’re bragging about it, it
doesn’t seem to be -- he’s not grasping that he victimized
somebody and this is probably going to affect her for the rest
of her life.
[¶9] With regard to sentencing, the prosecution also stated:
What I -- again, what I’ve done is I’ve given this Court
the ability to do -- to give the kind of treatment, which I think
is very lenient treatment for a grown man having intercourse
with a little girl for being sentenced to prison on one count,
and then get suspended sentences on the others, to sentencing
him to 20 years on each one consecutive; the Court has that
leeway, everywhere from zero to a hundred years. I think
somewhere more in the line of the middle of that would be
appropriate, at the very least.
[¶10] Mr. Deeds’ counsel then argued for reduced sentencing and increased treatment
opportunities. The district court expressed reservations about the State’s limited
treatment options when weighed against the potential for recidivism characteristic of
sexual abuse perpetrators.
3
[¶11] Before issuing its final judgment and sentence, the district court allowed Mr.
Deeds to make a statement. Mr. Deeds did not use the opportunity to indicate acceptance
of responsibility, instead rationalizing his behavior:
Then what were the conditions or circumstances in which it
or they became an involuntary problem. Another way to look
at it as such is that we resort to trying to solve this problem by
choosing to do something we’re accustomed to or familiar
with, in other words only because of the lack of apparent
remedies and/or coping mechanisms that have not been so
commonly introduced in our daily lives or habits.
[¶12] The district court sentenced Mr. Deeds to consecutive sentences of “not less than
12, nor more than 18 years in prison” on each of the five counts of second-degree sexual
abuse of a minor. In its final Judgment and Sentence, the district court explained that
“[p]robation was considered by the Court and deemed inappropriate given the charge
against Defendant[,]” and “[t]hat the risk of re-offense by Defendant is high.” The
district court ordered that Mr. Deeds “be given credit of seven hundred twenty-one (721)
days off of the minimum and maximum sentence for time served in the Sheridan County
Detention Center, Sheridan, Wyoming, for pre-sentence confinement.”
[¶13] Mr. Deeds timely filed this appeal.
DISCUSSION
I. Did the prosecutor breach the plea agreement when she referred at sentencing
to elements of a crime to which Mr. Deeds did not plead?
[¶14] We apply a de novo standard of review to determine whether the terms of the plea
agreement were breached. Noel v. State, 2014 WY 30, ¶ 17, 319 P.3d 134, 142 (Wyo.
2014); Spencer v. State, 2005 WY 105, ¶ 12, 118 P.3d 978, 982-83 (Wyo. 2005); Ford v.
State, 2003 WY 65, ¶ 8, 69 P.3d 407, 410 (Wyo. 2003).
A plea agreement is a contract between the defendant and the
State to which the general principles of contract law are
applied. When determining whether a breach of the plea
agreement has occurred we: (1) examine the nature of the
promise; and (2) evaluate the promise in light of the
defendant’s reasonable understanding of the promise at the
time the plea was entered. The prosecutor must explicitly
stand by the terms of any agreement; and if the State is unable
to carry out the terms, the correct remedy is withdrawal of the
plea. The State may not obtain the benefit of the agreement
4
and at the same time avoid its obligations without violating
either the principles of fairness or the principles of contract
law.
Frederick v. State, 2007 WY 27, ¶ 13, 151 P.3d 1136, 1141 (Wyo. 2007) (internal
citations and quotation marks omitted).
[¶15] Our analysis of plea agreements is guided by principles of contract law, and
therefore we must first consider the terms of the agreement between Mr. Deeds and the
State. Ford, 2003 WY 65, ¶ 11, 69 P.3d at 410. Here, the plea agreement was never
reduced to writing, and therefore this Court “look[s] to the recitation of the plea
agreement given at the change of plea hearing to determine the terms of the agreement.”
Id. at ¶ 12, 69 P.3d at 411.
[¶16] At the change of plea hearing, the State and Mr. Deeds agreed that the agreement
reduced Mr. Deeds’ charges from seven counts of first-degree sexual abuse of a minor to
five counts of second-degree sexual abuse of a minor.1
[¶17] This Court must also consider the plea agreement “in light of the defendant’s
reasonable understanding of the promise at the time the plea was entered.” Ford, 2003
WY 65, ¶ 11, 69 P.3d at 410. Here, while both parties agreed to the “charge bargain,”
they did not stipulate to any terms regarding sentencing. In fact, the State made it clear,
and both parties agreed, that sentencing would remain subject to argument at the
sentencing hearing.
[¶18] As further evidence of Mr. Deeds’ reasonable understanding of the agreement,
prior to entering his guilty plea under the terms of the plea agreement, the district court
judge engaged in the required allocution necessary for entry of a guilty plea. W.R.Cr.P.
11(b). The district court repeated the terms of the agreement and confirmed that Mr.
Deeds understood the agreement and knew the effect of modifying the charges. The
district court established a factual basis for the amended charges, and Mr. Deeds
knowingly and voluntarily entered into the terms of the plea agreement.
[¶19] There was a valid and enforceable plea agreement between Mr. Deeds and the
State. The agreement contained no limitation to what either Mr. Deeds or the State could
argue with respect to sentencing. Accordingly, we conclude that the contract was not
breached when the prosecutor referred to elements of first-degree sexual abuse of a minor
at the sentencing hearing.
1
First-degree sexual abuse of a minor requires the element of “sexual intrusion” and carries a sentencing
range of no less than twenty-five years nor more than fifty years imprisonment. Wyo. Stat. Ann. § 6-2-
314(a)(i), (c). Second-degree sexual abuse of a minor does not require intrusion and carries a maximum
of twenty years imprisonment. Wyo. Stat. Ann. § 6-2-315(a)(ii), (b).
5
II. Did the prosecutor engage in misconduct that denied Mr. Deeds due process
when she referred to elements of the no-longer-charged offense at sentencing?
[¶20] Mr. Deeds argues that the prosecutor committed prosecutorial misconduct denying
him due process when the State referred to the intrusion element of first-degree sexual
abuse of a minor during sentencing. He claims that use of this information penalized him
for a crime for which he was not convicted. We disagree with Mr. Deeds’ assertions, as
consideration of this information appropriately fell within the broad discretion of the
sentencing judge, and the intrusion element was clearly evidenced in the PSI and victim
impact testimony at sentencing.
[¶21] At his sentencing hearing, Mr. Deeds did not object to any of the information
referenced by the State that he now alleges was prosecutorial misconduct. Our review of
these allegations is therefore limited to plain error. Anderson v. State, 2014 WY 74, ¶ 40,
327 P.3d 89, 99 (Wyo. 2014) (citing Ortiz v. State, 2014 WY 60, ¶ 104, 326 P.3d 883,
903 (Wyo. 2014)). Plain error exists when “1) the record is clear about the incident
alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and
3) the party claiming the error was denied a substantial right resulting in material
prejudice.” Id. (quoting Schreibvogel v. State, 2010 WY 45, ¶ 19, 228 P.3d 874, 882
(Wyo. 2010)). The appellant bears the burden of proving plain error, and “[r]eversal as a
result of prosecutorial misconduct is not warranted unless a reasonable probability exists
that absent the error the defendant may have enjoyed a more favorable verdict.” Ortiz,
2014 WY 60, ¶ 104, 326 P.3d at 903.
[¶22] Sentencing judges are given broad discretion to consider a wide range of factors
about the defendant when imposing sentences. E.g., Joreski v. State, 2012 WY 143, ¶ 13,
288 P.3d 413, 416 (Wyo. 2012); Hackett v. State, 2010 WY 90, ¶ 14, 233 P.3d 988, 992
(Wyo. 2010).
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.
Noller v. State, 2010 WY 30, ¶ 13, 226 P.3d 867, 871 (Wyo. 2010) (internal citations
omitted).
6
[¶23] However, due process requires that a court consider only accurate information in
imposing a sentence. Magnus v. State, 2013 WY 13, ¶ 26, 293 P.3d 459, 468 (Wyo.
2013).
[A] sentencing decision cannot be based upon unreliable
information, undocumented information, or inaccurate
information. If a prosecutor brings undocumented or
inaccurate allegations to the district court’s attention during
sentencing, he engages in misconduct. Nevertheless, a
showing that inaccurate information was presented to the
court will not necessarily justify a reversal; the defendant
must demonstrate that the trial court relied upon the
statements in sentencing to prevail.
Id. (quoting Sandoval v. State, 2009 WY 121, ¶ 8, 217 P.3d 393, 395-96 (Wyo. 2009))
(citations and internal quotation marks omitted). In order to demonstrate a due process
violation in the context of sentencing, a defendant “must show a ‘manifest injustice from
the inclusion of the statements’ and he must ‘demonstrate that the trial court relied upon
the statements in sentencing’ him.” Doherty v. State, 2006 WY 39, ¶ 30, 131 P.3d 963,
972 (Wyo. 2006) (quoting Mehring v. State, 860 P.2d 1101, 1117 (Wyo. 1993)).
[¶24] The district court began the sentencing hearing by reviewing the PSI with both
parties, who had received the report prior to the hearing. W.R.Cr.P. 32(a)(3) (“The court
shall afford the defendant and the defendant’s counsel an opportunity to comment on the
report and, in the discretion of the court, to introduce testimony or other information
relating to any alleged factual inaccuracy contained in it.”).
[¶25] The PSI included an affidavit of probable cause which stated that “[o]n other
occasions, [Mr. Deeds] would put his ‘privates’ in [the victim’s] ‘privates’. . . . [Mr.
Deeds] advised that on about ten occasions, he put [h]is erect penis in [the victim’s]
vagina. Additionally, he advised that on about ten occasions he digitally penetrated [the
victim’s] vagina.” The PSI also contained a victim impact statement in which the mother
of the victim stated, “I sat in the Doctor appt. and listened as my young daughter
described what her uncle having a orgasim [sic] looked like and how much it hurt when
he would stick it in her and move her back and forth on him until ‘white stuff would
come out all over his belly.’”
[¶26] Though Mr. Deeds requested several changes to the PSI, he did not address any of
this information. “We specifically determine that filed reports and information are
evidence for the exercise of sentencing discretion, subject only to rights of the convicted
individual to deny, dispute or disprove.” Christy v. State, 731 P.2d 1204, 1207-08 (Wyo.
1987). Furthermore, “the district court may consider uncharged crimes and other
7
evidence from the PSI so long as the defendant is allowed the opportunity to deny,
dispute, or disprove such evidence[.]” Bitz v. State, 2003 WY 140, ¶ 23, 78 P.3d 257,
263 (Wyo. 2003); Smallwood v. State, 771 P.2d 798, 802 (Wyo. 1989) (“[T]he record
clearly shows that the information before the sentencing judge . . . had been disclosed to
appellant, and he was given opportunity to respond.”). Mr. Deeds was allowed that
opportunity and did not take it.
A criminal defendant has both the constitutionally
protected and rule-provided individual right of allocution, and
the further opportunity to deny or contest presentence
investigation data or to submit information in mitigation
before the sentence is rendered. Not only is this a right for
counsel to contest questioned information in the sentencing
process, but it is also a responsibility. In the absence of
denial or objection by defendant, the court can rely on
presentence reports, medical evaluation resulting from sex-
crime commitment, or other information, including trial
testimony, as available in the file and otherwise
uncontroverted, involving the events of the crime or relating
to the character of the defendant.
Christy, 731 P.2d at 1207 (citing Hicklin v. State, 535 P.2d 743 (Wyo. 1975)).
[¶27] The intrusion evidence was not presented for the first time at sentencing, but was
clearly included in the PSI, which included the probable cause affidavit and the victim
impact testimony provided by the victim’s mother. These multiple uncontested sources
in the PSI referring to intrusion are strong indicia of the reliability of such information.
Mr. Deeds made no attempt to prevent this evidence from entering the record available to
the sentencing judge, though he had the opportunity to do so. Accordingly, the inclusion
of such information during sentencing did not constitute a manifest injustice and Mr.
Deeds was not denied due process. The district court judge was entitled to presume the
accuracy of such information, and use that information in sentencing Mr. Deeds. We
conclude that with respect to any references to intrusion made by the prosecutor at
sentencing there was no transgression of a clear and unequivocal rule of law, and
therefore we find no plain error.
III. Did the prosecutor engage in misconduct that denied Mr. Deeds due process
when she presented undocumented information of bragging, for the first time,
during sentencing?
[¶28] Mr. Deeds also alleges prosecutorial misconduct that denied him due process
when the prosecutor presented information to the district court that Mr. Deeds was
bragging about his exploitation of the minor victim while in jail. This information was
8
first conveyed by the victim’s mother in her victim impact testimony given at the
sentencing hearing, and then relied upon by the prosecutor in her sentencing argument.
Mr. Deeds failed to object to the use of this information and therefore we review for plain
error. Anderson, 2014 WY 74, ¶ 40, 327 P.3d at 99.
[¶29] Our law is clear that a sentencing judge has broad discretion to consider a wide
range of factors about a defendant when imposing a sentence. E.g., Joreski, 2012 WY
143, ¶ 13, 288 P.3d at 416; Hackett, 2010 WY 90, ¶ 14, 233 P.3d at 992. Within this
broad discretion, “[a]ny victim impact statement submitted to the court . . . shall be
among the factors considered by the court in determining the sentence to be imposed
upon the defendant[.]” Wyo. Stat. Ann. § 7-21-103(b) (LexisNexis 2013). Though Wyo.
Stat. Ann. § 7-21-103(b) gives broad discretion to the sentencing judge to consider any
victim impact statements, due process precludes the district court from basing a
sentencing decision on “unreliable information, undocumented information, or inaccurate
information.” Schaeffer v. State, 2012 WY 9, ¶ 53, 268 P.3d 1045, 1062 (Wyo. 2012)
(quoting Hubbard v. State, 2008 WY 12, ¶ 24, 175 P.3d 625, 630 (Wyo. 2008)); Manes,
2004 WY 70, ¶ 13, 92 P.3d at 293; DeLoge, 2002 WY 155, ¶ 13, 55 P.3d at 1239. “To
demonstrate a violation of this right, [the defendant] must show a ‘manifest injustice from
the inclusion of the statements’ and he must ‘demonstrate that the trial court relied upon
the statements in sentencing’ him.” Doherty, 2006 WY 39, ¶ 30, 131 P.3d at 972
(quoting Mehring, 860 P.2d at 1117).
[¶30] Although Wyoming’s hearsay rule, W.R.E. 802, does not apply to sentencing,
Johnson v. State, 790 P.2d 231, 235 (Wyo. 1990), due process nevertheless requires some
assurance that the information relied upon is accurate. Peden v. State, 2006 WY 26, ¶ 12,
129 P.3d 869, 872-73 (Wyo. 2006) (“It is also worth noting that the rules of evidence do
not apply in this context and that [a]s it pertains to hearsay information, due process
requires that the information used have some minimal indicium of reliability beyond
mere allegation.”) (internal citations and quotation marks omitted)). With this in mind,
we must consider whether the bragging information presented during the sentencing
hearing is sufficiently reliable.
[¶31] In Magnus, the appellant challenged the introduction of a memorandum filed by
the State to support its recommendation for maximum sentencing. Magnus, 2013 WY
13, ¶ 10, 293 P.3d at 463-64. Mr. Magnus argued there was prosecutorial misconduct
because the memorandum’s allegations were undocumented and evidence of the
allegations was never presented at trial, nor was he ever charged with the crimes. Id. at
¶ 27, 293 P.3d at 468. In resolving this issue, we first acknowledged that a sentencing
court may,
go beyond the record to consider the defendant’s past conduct
and activities including evidence of crimes for which charges
were filed but no conviction resulted. The scope of the
9
inquiry may include the factual basis of dismissed charges as
well as hearsay reports implicating the defendant in other
crimes if such reports are deemed sufficiently reliable.
Id. at ¶ 28, 293 P.3d at 468-69 (quoting Capellen v. State, 2007 WY 107, ¶ 16, 161 P.3d
1076, 1080 (Wyo. 2007)) (internal quotation marks omitted).
[¶32] We concluded that the allegations in the memorandum were sufficiently reliable
because they were based on reliable documentation, notably specific banking account
numbers, and time periods. Id. at ¶ 29, 293 P.3d at 469.
[¶33] In Peden, we considered a challenge to the reliability of an officer’s testimony at
the sentencing hearing that was not contained in the PSI.2 The testimony involved taped
phone calls made by a confidential informant during a 2001 investigation into drug
trafficking in Campbell County, Wyoming. Id. at ¶ 4, 129 P.3d at 870. The officer
identified the appellant in a series of phone calls that culminated in a $2,500 drug
transaction between the informant and appellant. Id. Mr. Peden claimed that there was
“no identification” of his voice because the officer never listened to the tapes, the voice
recording was never tested, the tapes were not played at the sentencing hearing, and the
informant did not testify at the sentencing hearing. Id. at ¶ 11, 129 P.3d at 872. After
considering the entire record, we found the testimony sufficiently reliable because the
officer had significant contact with the informant throughout the course of the 2001
investigation and it was reasonable for him to trust that the informant knew the appellant
was the other party to the transaction. Additionally, we found several objective facts
corroborating the officer’s testimony such as identification of the appellant’s familial
relatives in the transcript of the tapes, and the fact that appellant had pled guilty to a
felony drug charge in South Dakota that was also a part of the 2001 investigation. Id. at
¶ 13, 129 P.3d at 873.
[¶34] In contrast to Magnus and Peden, here there is no reliable documentation
supporting the bragging allegations other than the hearsay testimony of the mother.
Without any further support, the allegations of Mr. Deeds’ bragging are not sufficiently
reliable to satisfy due process.
[¶35] The lack of reliability is compounded by the fact that Mr. Deeds was given no
notice of the information. Our review of the record indicates that the bragging
information was never presented in the mother’s earlier written victim impact statement
which was attached to the PSI. Instead, it was presented for the first time in the oral
victim impact statement given by the victim’s mother during the sentencing hearing.
2
While the information was not included in the PSI, the prosecutor had discussed the nature of the
testimony with the appellant’s trial counsel prior to the sentencing hearing. Peden, 2006 WY 26, ¶ 4, 129
P.3d at 870 n.1
10
[¶36] Because the bragging information was undocumented in the record leading up to
sentencing, and was presented for the first time during sentencing without adequate
notice and little opportunity to challenge, the inclusion of this information in sentencing
constitutes a manifest injustice. Doherty, 2006 WY 39, ¶ 30, 131 P.3d at 972.
[¶37] Nevertheless, the second prong necessary for proving a due process violation in
sentencing requires that Mr. Deeds show that the trial court relied upon the bragging
information in sentencing him. Id. Neither the record nor the final Judgment and
Sentence contain any indication that the district court relied on the bragging evidence as a
factual basis for its final judgment or sentence. The bragging information might have
been relevant to whether Mr. Deeds accepted responsibility for his actions; however,
there was ample support on that factor from other sources. The probation/parole agent
noted in the PSI, “[b]ecause of [Mr. Deeds’] failure to take full responsibility, the victim
continues to be re-victimized by family members,” and “[Mr. Deeds’] lack of
responsibility is also concerning.” Furthermore, when given the opportunity to make his
own statement at the sentencing hearing, Mr. Deeds presented only obtuse
rationalizations of his behavior.
[¶38] Mr. Deeds pled guilty to five counts of second-degree sexual abuse of a minor,
and he was sentenced within the statutorily recommended range for those violations.
Considering these uncontested facts supporting the statutorily permissible sentencing
range imposed on Mr. Deeds, and in the absence of any indication of reliance upon the
bragging information by the sentencing court, we find no due process violation and no
transgression of a clear and unequivocal rule of law. Accordingly, we affirm on this
issue.
IV. Was the sentence’s reference to credit for presentence confinement sufficiently
specific to comply with W.R.Cr.P. 32(c)(2)(F)?
[¶39] Mr. Deeds’ final argument requires interpretation of W.R.Cr.P. 32(c)(2)(F), a
question of law which we review de novo. Weidt v. State, 2013 WY 143, ¶ 21, 312 P.3d
1035, 1040 (Wyo. 2013); Kelly v. Kilts, 2010 WY 151, ¶ 9, 243 P.3d 947, 950 (Wyo.
2010) (citing Busch v. Horton Automatics, Inc., 2008 WY 140, ¶ 13, 196 P.3d 787, 790
(Wyo. 2008)).
[¶40] Rule 32(c)(2)(F) requires that final sentences must “[s]tate the extent to which
credit for presentence confinement is to be given for each sentenced offense.” Mr.
Deeds’ Judgment and Sentence, issued in writing, and signed by the district court judge,
stated “that Defendant be given credit of seven hundred twenty-one (721) days off the
minimum and maximum sentence for time served in the Sheridan County Detention
Center, Sheridan, Wyoming, for pre-sentence confinement.” This statement does not
clearly state whether Mr. Deeds’ presentence confinement credit should be applied to one
11
or all of his sentenced offenses, and therefore we remand for clarification from the
district court in this regard. See Milladge v. State, 900 P.2d 1156, 1157 (Wyo. 1995)
(remanded for failure to follow sentencing rule).
CONCLUSION
[¶41] We affirm on all issues, but remand to the district court to specify how the
presentence confinement should be applied.
12