As a criminal defense attorney, one of the most important and enigmatic questions I get is: what sentence do you think the judge would give me for this? Important because, of course, the person wants to know what will happen to them; they want to plan for their lives and understand what the next few years (or longer) might look like. Enigmatic because, well, state court judges in Wyoming have wide discretion to impose any sentence they feel like for most crimes.
Trial courts “are free, in the exercise of their sentencing discretion, to consider victim impact statements, PSI’s and other factors relating to the defendant and his crimes in imposing an appropriate sentence within the statutory range.” Garcia v. State, 2007 WY 48, ¶ 10, 153 P.3d 941, 944 (Wyo. 2007) (citing Smith v. State, 2005 WY 113, ¶ 37, 119 P.3d 411, 422 (Wyo. 2005)); Joreski v. State, 2012 WY 143, ¶ 13, 288 P.3d 413, 417 (Wyo. 2012). Trial courts are permitted to consider a defendant’s character when exercising their discretion to impose sentence. See Doherty v. State, 2006 WY 39, ¶ 35, 131 P.3d 963, 974 (Wyo. 2006). In evaluating character, the trial court may consider a broad range of reports and information. See Gorseth v. State, 2006 WY 109, ¶ 15, 141 P.3d 698, 703 (Wyo. 2006). A defendant’s cooperation with authorities and remorse for his actions are appropriate factors to be considered when imposing sentence. Dodge v. State, 951 P.2d 383, 386 (Wyo. 1997). 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. Duke v. State, 2009 WY 74, ¶ 15, 209 P.3d 563, 569 (Wyo. 2009). Still, a trial court’s discretion to impose a sentence is not unlimited.
First, a trial court’s imposition of a sentence must satisfy the Wyoming Constitution’s mandate that, “The penal code shall be framed on the humane principles of reformation and prevention.” Wyo. Const. art. 1, § 15; see also Wright v. State, 670 P.2d 1090, 1093 (Wyo. 1983); cf. Jahnke v. State, 692 P.2d 911, 930 (Wyo. 1984) (“The provision speaks to the penal code, not to sentencing, and we are unable to detect any intent on the part of the Constitutional Convention to so limit the discretion of sentencing judges in criminal cases.”). In adhering to this constitutional mandate when imposing a sentence, a trial court should consider “(1) the crime and its circumstances, and (2) the character of the criminal.” Wright, 670 P.2d at 1093. As to the crime, some circumstances surrounding the commission of a crime may be more aggravating or more mitigating than others—for example, as the Wright court illustrated, a person who breaks into a house to steal alcohol may merit a more severe sentence than a person who breaks into a house to steal food for his hungry child. See id. As to the criminal, “The character of the criminal could reasonably increase or decrease his sentence. His family background, education, intelligence, employment history, age, training, criminal and delinquency record, attitude, etc., well bear upon the accomplishment of the purpose of the sentence.” Id.
The trial court should focus its consideration of the crime and the character of the defendant through the prism of the purposes of criminal sentencing. See id. The Wyoming Supreme Court has long recognized that “a sentence is imposed for one or more of four purposes: (1) rehabilitation, (2) punishment (specific deterrence and retribution), (3) example to others (general deterrence), and (4) removal from society (incapacitation or protection of the public).” Hall v. State, 2018 WY 91, ¶ 11, 423 P.3d 329, 331–32 (Wyo. 2018) (quoting Cohee v. State, 2005 WY 50, ¶ 20, 110 P.3d 267, 274 (Wyo. 2005)).
Second, a trial court may not impose a sentence which is longer or shorter than the law provides or requires. See Apodaca v. State, 891 P.2d 83, 85 (Wyo. 1995). Relatedly, a trial court may not impose a punishment not authorized by the legislature. Id.
Third, “[w]hen probation is an alternative to incarceration, the sentencing judge must consider it.” Wright, 670 P.2d at 1094 (emphasis in the original) (collecting cases). To this end, while a district court is not obligated to grant probation to a defendant, see Burk v. State, 848 P.2d 225, 236 (Wyo. 1993), “if [the district court] does not grant probation,” it must “include a statement in the written sentence expressly acknowledging it considered the application [for probation].” Martinez v. State, 2002 WY 10, ¶ 10, 39 P.3d 394, 396 (Wyo. 2002); see also Daniel v. State, 644 P.2d 172, 180 (Wyo. 1982).
Fourth, “[c]ourts 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). That means, courts cannot sentence a person because she chose to go to trial, she chose to hire an attorney, she invoked her right to remain silent, she filed a pretrial motion or series of motions, or that she otherwise took advantage of a constitutional right. See, e.g., Jewkes v. State, 2022 WY 90, ¶¶ 10-16, ___ P.3d ___, ___ (Wyo. 2022).
In the Guinn case, for example, the trial court stated that, when arriving at a sentence, it takes into account the benefits to the victims and others if a defendant pleads guilty or no contest whereas it also takes into account the impact of requiring a victim to testify before a “courtroom full of strangers.” The defendant in Guinn went to trial on the matter. The trial court relied on that trial decision to impose the sentence.
The Wyoming Supreme Court concluded, “[t]he district court violated the appellant’s constitutional right to a jury trial by considering at sentencing his exercise of that right.” It reversed and remanded the matter for a new sentencing hearing.
More recently, on July 18, 2022, in Jewkes, the Wyoming Supreme Court considered whether the trial court violated a defendant’s rights by taking into account other features of the defendant’s criminal case. The crime in Jewkes was aggravated vehicular homicide and DUI where the defendant crashed into an oncoming truck killing the driver. The defendant refused to submit to a breath test to determine her BAC and law enforcement had to secure a warrant to obtain a sample of her blood. The defendant further refused to answer questions about the crash and refused to provide the pin code to her cellphone.
The trial court stated, during the sentencing hearing in the case, that it took into account the defendant’s refusal to provide a breath sample, refusal to answer questions, and refusal to provide her cellphone pin code. The trial court further stated it relied on “the attitudes about what . . . the community expects to happen when somebody commits a crime” in the specific county in which the case occurs.
The Wyoming Supreme Court, once again, reversed and remanded for a new sentencing hearing because the United States and Wyoming Constitutions demand that a person’s right to remain silent cannot be grounds for punishment and because the “community expectation” consideration was unsupported by evidence or other reliable, documented information. You can read this new case here:
Fifth, a defendant’s right to due process requires that courts only consider “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.” Deeds v. State, 2014 WY 124, ¶ 23, 335 P.3d 473, 480 (Wyo. 2014). This means a trial court’s consideration of proper sentencing factors must be supported by “competent, credible evidence in the record to ensure that speculation and suspicion do not infect the sentencing process.” Jewkes, ¶ 24, ___ P.3d at ___ (quoting State v. Rivera, 265 A.3d 134, 142 (N.J. 2021)). A trial court may not rely on its own personal sentencing factors or criteria unsupported by any actual evidence. See, e.g., id. at ¶¶ 4, 22-25, ___ P.3d at ___.
Sentencing hearings are quasi-trials. The rules of evidence and other trial procedures are more relaxed or entirely inapplicable. Victims and their families may make statements expressing personal feelings or interests in the matter without fear of any cross-examination. Victims, their families, their attorneys or other representatives, and others may make statements about the crime or crimes that would not otherwise be admissible at trial or go beyond the scope of the present crime and discuss other matters altogether.
Prosecutors may dismissed charges, prior convictions, hearsay, or other disparaging information to the Court’s attention in recommending a sentence.
In most cases, where there is a plea deal in place, the Court remains free from the terms of the deal and could impose any sentence it wants — even a more punitive sentence.
The bottom line is there is no secret formula to criminal sentencing. Each judge has his or her own approach to every case. And there is no such thing as a sure thing.