Jade Jewkes v. The State of Wyoming ( 2022 )

IN THE SUPREME COURT, STATE OF WYOMING
2022 WY 90APRIL TERM, A.D. 2022
July 18, 2022
JADE JEWKES,
Appellant
(Defendant),
v. S-21-0244
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Sublette County
The Honorable Marvin L. Tyler, Judge
Representing Appellant:
John H. Robinson and Marci Crank Bramlet, Robinson Welch Bramlet LLC,
Jackson and Casper, Wyoming; John P. LaBuda and Rives White, LaBuda and
White, Pinedale, Wyoming. Argument by Mr. Robinson and Mr. LaBuda.
Representing Appellee:
Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney
General; Joshua C. Eames, Senior Assistant Attorney General; Catherine M.
Mercer, Assistant Attorney General. Argument by Ms. Mercer.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
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.
GRAY, Justice.
[¶1] Jade Jewkes pled guilty to aggravated vehicular homicide and driving under the
influence. She was sentenced to the maximum term of fifteen to twenty years for
aggravated vehicular homicide and a concurrent six months for driving under the influence.
On appeal Ms. Jewkes contends that at sentencing the district court improperly relied upon
her refusals to take a breath test and to answer questions after the accident in violation of
her constitutional rights against self-incrimination and unreasonable searches and seizures.
She also argues that the district court weighed the expectations of the community in
sentencing her, in violation of her constitutional right to equal protection. We conclude
that the district court plainly erred when it considered Ms. Jewkes’ silence and community
expectations in sentencing her. We reverse and remand for a new sentencing hearing.
ISSUES
[¶2] The issues are: 1
1. Did the district court improperly punish Ms. Jewkes for
exercising her constitutional right against self-
incrimination?
2. Did the district court improperly punish Ms. Jewkes
based on community expectations?
3. Did the district court’s errors materially prejudice Ms.
Jewkes?
FACTS
[¶3] On January 1, 2021, in Sublette County, Wyoming, Ms. Jewkes drove her Jeep into
oncoming traffic and collided with a Ford F-250 driven by Shane Deal. Mr. Deal was
killed. Ms. Jewkes had a blood alcohol concentration of .22.
[¶4] Ms. Jewkes pled guilty to aggravated homicide by vehicle (Wyo. Stat. Ann. § 6-2-
106(b)(i)) and driving under the influence (Wyo. Stat. Ann. § 31-5-233(b)(i) and
(b)(iii)(A)). 2 The district court conducted a sentencing hearing. At the commencement of
the hearing, the district court listed the materials it considered in preparation for the
hearing, including the court file, the court’s notes, Ms. Jewkes’ statements to the court, the
1
Appellant, in her brief and oral argument, alleged that the district court made inappropriate statements on
a Microsoft Teams video call the morning after the sentencing. These remarks were overheard by the
prosecutor who joined the call early for a scheduled hearing. The prosecutor then relayed the remarks to
defense counsel. The record is not sufficient for us to consider this argument.
2
Neither party raised issues with the charges or merger of the convictions.
1
Information, the highway patrol officer’s affidavit supporting the Information, the
presentence investigation report, victim impact statements, restitution submissions, and
statements about Ms. Jewkes’ character. The district court then took evidence including
statements from victims, witnesses for the State, and witnesses in support of Ms. Jewkes. 3
After hearing the testimony and prior to giving Ms. Jewkes an opportunity to speak, the
district court announced it had “a few things to say”:
Ms. Jewkes, I have tried to tell you about all the things that I’ve
looked at, reviewed, considered and thought about in
preparation for this hearing. . . .
There were some other things, though, that I thought
were noteworthy. These come out of the Affidavit of Trooper
Kiel where you were first contacted after the accident by
Trooper Kiel and Trooper Johnson. You were – you admitted
to Trooper Johnson that you had consumed a large amount of
alcohol. He asked you to provide a breath sample and you
refused and you refused to answer any questions. Later you
were attended to by EMS staff and you were uncooperative
with them. You were taken to the hospital in Jackson where
Trooper Kiel attempted to interview you, but you refused
to answer questions. Your mother released your iPhone to
the trooper to be seized as evidence, but you refused to
provide your PIN number to the trooper.
(Emphasis added.) The court went on to discuss factors it considers in sentencing including
rehabilitation, deterrence, punishment, retribution, and the risk posed by the defendant to
the community. It then explained:
And so those are generally the factors that trial judges
will use under whatever label they may call them. I have an
additional factor, and it may be included in the view of some
of my colleagues something else, but I have a separate factor
that I do tend to rely on quite a bit and it’s because of the
nature of my work as a judge in the State of Wyoming. I’m a
judge in the Ninth Judicial District Court. There are three
counties that are in the Ninth Judicial District, Teton County,
Sublette County and Fremont County. I have pretty much all
the cases – criminal cases assigned to me in Sublette County
3
Many of Mr. Deal’s family members testified regarding Mr. Deal’s role in and contributions to their family
and the devastation they experience because of his death. The State and at least three of Mr. Deal’s family
members asked the court to sentence Ms. Jewkes to the maximum sentence.
2
because I’m the judge that is here. Sometimes I have a conflict
or whatever so another judge will be assigned a criminal case,
but for the most part almost all the criminal cases are ones
assigned to me. I’m also assigned cases in Fremont County on
a regular rotating basis, I get every third felony criminal case
in Fremont County assigned to me and so I have quite a
caseload in Fremont County. I’ve had a number of cases
assigned to me out of Teton County. I don’t know if I have
any pending right now, but over the years I’ve had many
criminal cases assigned to me and that’s just within the Ninth
Judicial District. I currently have cases – criminal cases
assigned to me in Lincoln County, in Uinta County, in
Sweetwater County. I’ve had them assigned to me as far away
as Campbell County, Gillette, so I’ve worked around the state
in my almost 13 years as a judge, and I’m just trying to
describe to you about this other factor that many other
judges don’t have because they don’t travel and accept
cases as frequently as I do in other counties in other places,
and that’s a factor involving kind of community values.
And I kind of picked up on this because I detected fairly early
on that there’s a difference in – between counties and
sometimes even between municipalities within counties or a
rural part of the county compared to a more populus [sic] part
of the county about what those citizens expect will happen
when people are committing certain kinds of crimes. And I can
tell you there’s a big difference on how someone, for example,
out of Teton County, a citizen out of Teton County would view
on someone committing a crime compared to what people in
Sublette County and even – I don’t mean to divide Sublette
County by the north/south thing, but even between Big
Piney/Marbleton and Pinedale I can detect a difference
sometimes in what people expect should happen depending on
the nature of the crime. And that’s certainly true in Fremont
County even between Riverton and Lander, the attitudes
about what should or the community expects to happen
when somebody commits a crime in Fremont County it
definitely is there. And so I try to consider that as a
separate factor and consider where I am and what the
citizens in our jurisdiction where this crime is when I’m
doing the sentencing expects me to do.
(Emphasis added.)
3
[¶5] The maximum sentence for aggravated homicide by vehicle is twenty years. Wyo.
Stat. Ann. § 6-2-106(b). The maximum sentence for driving under the influence is
graduated and increases if a defendant has prior driving under the influence convictions.
Ms. Jewkes’ maximum sentence was six months. 4 Wyo. Stat. Ann. § 31-5-233(e). The
district court sentenced Ms. Jewkes to a term of fifteen to twenty years on Count I
(aggravated vehicular homicide) and six months on Count III (driving under the influence),
to be served concurrently with Count I.
[¶6] Ms. Jewkes appeals, arguing that the district court violated her constitutional right
to a fair sentence when it “emphasized, and likely punished, her decision to exercise her
constitutional rights at the time of her arrest,” and when it “expressed that the severity of
the sentence depended upon the county in which it presided over her.” She also contends
that cumulative effect of these errors prejudiced her.
STANDARD OF REVIEW
[¶7] At sentencing Ms. Jewkes did not object to the district court’s comments.
Accordingly, our review is for plain error. See Town v. State, 2015 WY 78, ¶ 9, 351 P.3d
257, 260 (Wyo. 2015) (where defendant did not object to statements made at sentencing,
review is for plain error); Sandoval v. State, 2009 WY 121, ¶ 6, 217 P.3d 393, 395 (Wyo.
2009) (where defendant failed to object to sentencing procedures, review is for plain error).
This is true even when, as here, the appellant claims that her constitutional rights have been
violated. Ridinger v. State, 2021 WY 4, ¶ 32, 478 P.3d 1160, 1168 (Wyo. 2021) (reviewing
for plain error Mr. Ridinger’s claim that the prosecutor’s comments impinged on his right
to remain silent); Hartley v. State, 2020 WY 40, ¶¶ 9–10, 460 P.3d 716, 719 (Wyo. 2020)
(reviewing for plain error Mr. Hartley’s claim that the prosecutor’s closing argument
improperly commented on his constitutional right to remain silent because he did not object
at trial).
[¶8] To establish plain error, Ms. Jewkes must show that (1) the record clearly reflects
the alleged error; (2) the alleged error violates a clear and unequivocal rule of law; and (3)
she was denied a substantial right resulting in material prejudice. Ridinger, ¶ 33, 478 P.3d
at 1168 (citing Mraz v. State, 2016 WY 85 ¶ 55, 378 P.3d 280, 293 (Wyo. 2016)). The
first element of plain error is satisfied because the district court’s comments appear clearly
in the record. We address the second and third prongs below.
4
Ms. Jewkes had received a “deferral” and subsequent dismissal of a driving while under the influence
charge in 2012.
4
DISCUSSION
[¶9] Ms. Jewkes argues that the district court’s reliance on her refusals to take a breath
test and to answer questions after the accident was improper in violation of her
constitutional right against self-incrimination and that the district court’s decision to weigh
the expectations of the community in determining her sentence violated her constitutional
right to equal protection.
A. Ms. Jewkes’ Right to Remain Silent
[¶10] We turn first to Ms. Jewkes’ contention that the district court’s reliance on her
refusal to take a breath test infringed upon her rights against self-incrimination and against
warrantless searches. When a person drives under the influence and a death results, the
law does not clearly provide the driver with a right to refuse a breath test. Wyoming
Statutes provide:
If a person under arrest refuses upon the request of a peace
officer to submit to a chemical test designated by the agency
employing the peace officer as provided in subsection (a) of
this section, none shall be given except in cases where serious
bodily injury or death has resulted or upon issuance of a
search warrant.
Wyo. Stat. Ann. § 31-6-102(d) (LexisNexis 2021) (emphasis added). We have held that
the introduction of evidence that the defendant refused to take a blood alcohol test does not
violate the defendant’s state or federal constitutional rights against self-incrimination,
Smith v. State, 2009 WY 2, ¶¶ 29–30, 199 P.3d 1052, 1060 (Wyo. 2009), nor does it violate
the Fourth Amendment. See State v. Arellano, 413 P.3d 807, at *4–5 (Kan. Ct. App. 2018)
(unpublished table decision). Here, the district court’s consideration of Ms. Jewkes’ refusal
to submit to a breath test does not violate a clear and unequivocal rule of law.
[¶11] Next, Ms. Jewkes argues that the district court improperly punished her for
exercising her constitutional right to remain silent. The district court cited several points
it considered “noteworthy” in sentencing. First, when questioned by Trooper Johnson, Ms.
Jewkes “refused to answer any questions.” Later, at the hospital in Jackson, when “Trooper
Kiel attempted to interview [her, she] refused to answer questions.” Finally, after her
mother released her iPhone to the trooper, Ms. Jewkes “refused to provide [her] PIN
number to the trooper.”
[¶12] The United States Supreme Court has held that a defendant’s Fifth Amendment right
against self-incrimination “is fulfilled only when a criminal defendant is guaranteed the
right to remain silent unless he chooses to speak in the unfettered exercise of his own will,
and to suffer no penalty . . . for such silence.” Estelle v. Smith, 451 U.S. 454, 467–68,
5
101 S.Ct. 1866, 1875–76, 68 L.Ed.2d 359 (1981) (emphasis added) (citation and quotation
marks omitted). The Wyoming Constitution provides, “No person shall be compelled to
testify against himself in any criminal case[.]” Wyo. Const. art. 1, § 11. We have “clearly
and unequivocally held that pursuant to [these] constitutional provision[s], an individual’s
‘constitutional right to silence exists at all times—before arrest, at arrest, and after arrest;
before a Miranda warning and after it. The right is self-executing.’” Spinner v. State, 2003
WY 106, ¶ 18, 75 P.3d 1016, 1023 (Wyo. 2003) (quoting Tortolito v. State, 901 P.2d 387,
390–91 (Wyo. 1995)).
[¶13] In United States v. Cabrera, the Sixth Circuit Court of Appeals concluded that the
sentencing court plainly erred when it considered the defendant’s failure to testify. There,
the defendant was convicted for being a felon in possession of a firearm. United States v.
Cabrera, 811 F.3d 801, 804 (6th Cir. 2016). The defendant’s theory of the case was that
audio tapes of his purchase of the firearm had been altered. The defendant did not testify
at trial. Id. at 805–06. At sentencing the defendant faced imprisonment from fifty-one to
sixty-three months. Id. at 806–07. The district court imposed the maximum sentence,
explaining,
You never put yourself on the record either at the trial or
in support of your request for an expert to have these tapes
viewed. . . . I view that as an incredibly cynical attempt to game
the whole system here. . . . [A] sentence at the high end of your
range is necessary for that reason.
Id. at 807, 810 (emphasis added). The Sixth Circuit held “[t]hat statement admits of only
one reasonable interpretation: [The] sentencing judge punished [the defendant] for not
testifying in support of his audio-tape tampering claim. That is an impermissible
sentencing factor” and constitutes plain error. Id. at 810. The Court stated:
In finding a plain error here, we emphasize that “[t]he
privilege against self-incrimination guaranteed by the Fifth
Amendment is a fundamental trial right of criminal
defendants.” McKinley v. City of Mansfield, 404 F.3d 418, 437
(6th Cir. 2005) (quoting United States v. Verdugo-Urquidez,
494 U.S. 259, 264, 110 S.Ct. 1056, [1060,] 108 L.Ed.2d 222(1990)). And “[t]o punish a person because he has done what
the law plainly allows him to do is a due process violation ‘of
the most basic sort.’” United States v. Goodwin, 457 U.S. 368,
372, 102 S.Ct. 2485, [2488,] 73 L.Ed.2d 74 (1982) (quoting
Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663,
[668,] 54 L.Ed.2d 604 (1978)). Just so here. By relying on
[the defendant’s] silence at trial as a sentencing factor, the
district judge . . . burdened a fundamental constitutional right.
6
Our conclusion that the district judge violated a bedrock
protection of the Fifth Amendment is not “subject to
reasonable dispute.” Puckett [v. United States,] 556 U.S.
[129,] 135, 129 S.Ct. 1423[, 1429, 173 L.Ed.2d 266 (2009)].
By purporting to sentence [the defendant] at the top of
his guidelines range because he “never put [him]self on the
record,” the district judge effectively punished [the defendant]
for exercising his Fifth Amendment right against self-
incrimination. That error was plain: it clearly and obviously
violated one of [his] fundamental constitutional rights.
Cabrera, 811 F.3d at 812.
[¶14] Here the district court, in listing the factors it considered in sentencing, stated that
Ms. Jewkes’ exercise of her right to silence was “noteworthy.” As in Cabrera, this leads
to the firm conclusion that Ms. Jewkes was penalized at least in part for exercising her right
against self-incrimination.
[¶15] The State contends that the district court did not punish Ms. Jewkes for exercising
her constitutional right to remain silent; rather, it considered cooperation with authorities
and remorse, which were appropriate sentencing factors. We have repeatedly recognized
that a “defendant’s cooperation with authorities and remorse for his actions are appropriate
factors to be considered when imposing” sentences. See, e.g., Deeds v. State, 2014 WY
124, ¶ 22, 335 P.3d 473, 479–80 (Wyo. 2014) (quoting Noller v. State, 2010 WY 30, ¶ 13,
226 P.3d 867, 871 (Wyo. 2010)); Kovach v. State, 2013 WY 46, ¶ 114, 299 P.3d 97, 128–
29 (Wyo. 2013). Conversely, it is fundamental that an individual’s exercise of a
constitutional right cannot be used as an aggravating factor in sentencing. See Cabrera,
811 F.3d at 804; McKinley v. City of Mansfield, 404 F.3d 418, 437 (6th Cir. 2005) (quoting
United States v. Verdugo-Urquidez, 494 U.S. 259, 264, 110 S.Ct. 1056, 1060, 108 L.Ed.2d
222 (1990)); Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 1429, 173
L.Ed.2d 266 (2009); Chaffin v. Stynchcombe, 412 U.S. 17, 24, 93 S.Ct. 1977, 1981, 36
L.Ed.2d 714 (1973) (“Under our constitutional system it would be impermissible for the
sentencing authority to mete out higher sentences . . . as punishment for those who
successfully exercised their right[s.]”).
[¶16] The district court’s remarks were not directed at remorse, or any other factor related
to cooperation. The district court sentenced Ms. Jewkes in part because she “refused to
answer questions” on the scene and later at the hospital, effectively punishing Ms. Jewkes
for exercising her Fifth Amendment right against self-incrimination. “Courts simply may
not punish defendants for the exercise of constitutional rights.” Guinn v. State, 2009 WY
15, ¶ 7, 201 P.3d 423, 424 (Wyo. 2009) (citations omitted). The district court’s reliance
7
on Ms. Jewkes’ exercise of her constitutional rights as an aggravating factor in sentencing
violated a clear and unequivocal rule of law.
B. Community Expectations
[¶17] Ms. Jewkes also argues that the district court violated her right to equal protection
when it improperly weighed the expectations of the citizens of the county in which the
crime was committed as a factor in sentencing. The district court explained that it relies
“quite a bit” on a “separate factor” that “many other judges don’t have.” The court
described that factor as “involving kind of community values . . . the attitudes about what
. . . the community expects to happen when somebody commits a crime [there].” Supra
¶ 4.
[¶18] The Fourteenth Amendment to the United States Constitution prohibits states from
denying “any person within [their] jurisdiction the equal protection of the laws.” U.S.
Const. amend. XIV, § 1. Wyoming’s equal protection guarantee can be found in Article 1,
Section 34 of the Wyoming Constitution, which provides, “[a]ll laws of a general nature
shall have a uniform application.” Wyo. Const. art. 1, § 34; see Washakie Cnty. Sch. Dist.
No. One v. Herschler, 606 P.2d 310, 332 (Wyo. 1980) (Article 1, Section 34 is “the
equivalent of the ‘equal protection’ words of the Fourteenth Amendment to the
Constitution of the United States.”). Equal protection requires that “all persons similarly
situated should be treated alike.” Bird v. Wyoming Bd. of Parole, 2016 WY 100, ¶ 6, 382
P.3d 56, 61 (Wyo. 2016) (quoting City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S.
432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985)).
[¶19] While equal protection may apply, we need not engage in an equal protection
analysis here. We find that the issue is more appropriately decided on due process grounds.
Due process requires fundamental fairness at sentencing. See, e.g., Brown v. State, 2015
WY 4, ¶ 49, 340 P.3d 1020, 1032 (Wyo. 2015); Despain v. State, 774 P.2d 77, 83 (Wyo.
1989); see also Lawson v. State, 2010 WY 145, ¶ 20, 242 P.3d 993, 1000 (Wyo. 2010)
(“The right to a fair trial, guaranteed to state criminal defendants by the Due Process Clause
of the Fourteenth Amendment, imposes on States certain duties consistent with their
sovereign obligation to ensure ‘that justice shall be done’ in all criminal prosecutions.”
(quoting Cone v. Bell, 556 U.S. 449, 451, 129 S.Ct. 1769, 1772, 173 L.Ed.2d 701 (2009)));
Beaugureau v. State, 2002 WY 160, ¶ 16, 56 P.3d 626, 634 (Wyo. 2002) (“Society wins
not only when the guilty are convicted but when criminal trials are fair; our system of the
administration of justice suffers when any accused is treated unfairly.” (citations omitted));
Rosales-Mireles v. United States, 585 U.S. ---, ---, 138 S.Ct. 1897, 1901, 201 L.Ed.2d 376(2018) (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 1779, 123
L.Ed.2d 508 (1993)).
[¶20] To ascertain whether the district court’s application of “community expectations”
plainly violated Ms. Jewkes’ due process rights, we turn to our precedent which “requires
8
. . . 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) (citing Sandoval, ¶ 8, 217 P.3d
at 395). “[A] sentencing decision cannot be based upon unreliable information,
undocumented information, or inaccurate information.” Deeds, ¶ 23, 335 P.3d at 480
(emphasis added) (quoting Magnus, ¶ 26, 293 P.3d at 468). “[D]ue process provides a
right to be sentenced only on accurate information.” Manes v. State, 2004 WY 70, ¶ 9, 92
P.3d 289, 292 (Wyo. 2004) (citing Mehring v. State, 860 P.2d 1101, 1117 (Wyo. 1993);
Clouse v. State, 776 P.2d 1011, 1014 (Wyo. 1989)).
[¶21] In Jackson v. State, 772 A.2d 273, 277–78 (Md. 2001), the sentencing court based
its sentence, at least in part, on the fact that the defendant was from Baltimore City. The
Jackson Court said, “The constitutional guarantee of due process of law forbids a court
from imposing a sentence based in any part on inappropriate considerations,” and it held
that “it is not permissible to base the severity of sentencing on where people live, have
lived, or where they were raised.” Id. at 278–79. The Jackson Court relied on United
States v. Diamond, 561 F.2d 557, 559 (4th Cir. 1977). In Diamond, the district judge, in
sentencing the defendants, relied on residence saying, “Now, I suppose that that is grounds
for appeal, but I will state it right for the record. If they want to live and have their being
in the State of New York, then let them have their source of a [criminal] livelihood in the
State of New York.” Id. The Fourth Circuit vacated the sentence concluding:
The inference that the district judge considered as a factor in
sentencing the fact that defendants who committed a crime
within the district in which he presided were nonresidents is
inescapable. We cannot permit a district judge who is an
officer of a national judicial system and who is enforcing a
national criminal code to be moved by such considerations of
parochialism in imposing sentences.
Id.[¶22] The State contends that the rationale set forth in Jackson and Diamond is
inapplicable here because Ms. Jewkes’ residence was not a factor in her sentence. We do
not perceive a substantive distinction between using the defendant’s residence as opposed
to the expectations of the community where the crime occurred, but that is not the focus of
our concern.
[¶23] The State also responds that the district court’s comments refer to community
protection not community expectations. We disagree. While safety of the community is a
proper consideration for district courts in imposing sentences, Croy v. State, 2014 WY 111,
¶ 8, 334 P.3d 564, 567–68 (Wyo. 2014), the district court did not address community safety.
It made clear that it considered as its own “separate factor” what “the community expects
to happen when somebody commits a crime [there].”
9
[¶24] Our precedent is clear, a sentence cannot be based on unreliable information,
undocumented information, or inaccurate information. Deeds, ¶ 23, 335 P.3d at 480
(quoting Magnus, ¶ 26, 293 P.3d at 468). Sentencing factors “‘must be supported by
competent, credible evidence in the record’ to ensure that ‘[s]peculation and suspicion [do]
not infect the sentencing process.’” State v. Rivera, 265 A.3d 134, 142 (N.J. 2021) (quoting
State v. Case, 103 A.3d 237, 245 (N.J. 2014)). “[W]hen the sentencing court ‘fails to
provide a qualitative analysis of the relevant sentencing factors on the record’ or ‘considers
an aggravating factor that is inappropriate to a particular defendant or to the offense at
issue’ the reviewing court ‘may remand for resentencing.’” Id. (quoting State v. Fuentes,
85 A.3d 923, 930 (N.J. 2014)).
[¶25] The district court relied on its unsupported view of what the community expects in
sentencing Ms. Jewkes. We find that the district court’s sentence, based at least in part on
its subjective view of community expectations, violated Ms. Jewkes’ right to due process.
C. Material Prejudice
[¶26] There is no question that constitutional errors occurred in this case. The record
clearly reflects that the district court—by factoring Ms. Jewkes’ exercise of her
constitutional right to remain silent and an unsupported view of community expectations
into its sentencing decision—violated clear and unequivocal rules of law. The pivotal
remaining issue is whether Ms. Jewkes was prejudiced by the errors.
[¶27] “[T]he public legitimacy of our justice system relies on procedures that are ‘neutral,
accurate, consistent, trustworthy, and fair,’ and that ‘provide opportunities for error
correction.’” Rosales-Mireles, 585 U.S. at ---, 138 S.Ct. at 1908 (quoting Josh Bowers &
Paul Robinson, Perceptions of Fairness and Justice: The Shared Aims and Occasional
Conflicts of Legitimacy and Moral Credibility, 47 Wake Forest L. Rev. 211, 215–16
(2012)).
[¶28] When evaluating prejudice, we consider whether the errors undermine the fairness
and integrity of judicial proceedings. “We reverse a conviction only when the accumulated
effect of the errors ‘constitutes prejudice and the conduct of the trial is other than fair and
impartial.’” Black v. State, 2017 WY 135, ¶ 46, 405 P.3d 1045, 1060 (Wyo. 2017) (quoting
Watts v. State, 2016 WY 40, ¶ 23, 370 P.3d 104, 112 (Wyo. 2016)).
[¶29] Arguably, either of these constitutional errors standing alone prejudiced Ms.
Jewkes, but when combined, there is no doubt Ms. Jewkes suffered prejudice. See
Schmunk v. State, 714 P.2d 724, 726 (Wyo. 1986) (“Without question cumulative error
may assemble in such proportion that reversal is required.” (citations omitted)).
10
[¶30] The district court’s reliance on Ms. Jewkes’ exercise of her right to remain silent
and its view of community expectations were factored into her sentence. We cannot know
what Ms. Jewkes’ sentence would have been had the district court not incorporated
constitutionally prohibited factors into its sentencing decision. The application of not one,
but two, constitutionally prohibited aggravating factors in sentencing undermines the
fairness and integrity of judicial proceedings and is plain error.
CONCLUSION
[¶31] We reverse and remand for a new sentencing hearing.
11