I dissent.
The majority say that because plea bargaining is within the discretion of the prosecutor, the defendant has no interest in the existence of that discretion. Sometimes an expressed corollary is actually an illogical assumption. By necessity and operational propriety, the established principle determines that prosecutorial discretion includes choice or denial of plea bargaining. Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837,51 L.Ed.2d 30 (1977); Johnson v. Mabry, 707 F.2d 323 (8th Cir. 1982), rev'd on other grounds 467 U.S. 504, 104 S.Ct. 2543,81 L.Ed.2d 437 (1984). It does not follow that a defendant lacks a real interest in the availability of that discretion. Nor am I forced to conclude that either the legislature can constitutionally deny that discretion or the charged defendant lacks interest and consequent standing to make an equal-protection or due-process constitutional challenge to the legislative disembowelment of that discretion.
The reasoning of the majority can be stated as effectuating one of the classical legal fallacies:
Prosecutors have plea-bargaining discretion; they may exercise that discretion unfavorably to me; therefore, I have no opportunity interest in their retention of the discretion.
I suggest the following reasoning:
Prosecutors have plea-bargaining discretion; they may exercise that discretion favorably to me; therefore, I have a specific opportunity interest in their retention of the discretion.
The problem of the availability of plea bargaining is broader than constitutional tests of separation-of-powers legislation wherein the legislature may unintentionally *Page 604 ignore Art. 2 of the Wyoming Constitution. The availability of plea bargaining also touches upon the right to effective representation where that service is often most critical — in the discussion of the early-disposition plea-bargained settlement.
"* * * The plea bargain stage is a critical point in a criminal proceeding, at which an accused's sixth amendment right to competent counsel has attached." State v. Kraus, Iowa, 397 N.W.2d 671, 673 (1986).
The volume of critical review of plea bargaining is extensive in library critique, and was well recited by the majority and by Justice Douglas concurring in Santobello v. New York,404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971):
"* * * The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called `plea bargaining,' is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities. "Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned." 404 U.S. at 260-261, 92 S.Ct. at 498. "These `plea bargains' are important in the administration of justice both at the state and at the federal levels and, as The Chief Justice says, they serve an important role in the disposition of today's heavy calendars." 404 U.S. at 264, 92 S.Ct. at 499-500, Douglas, J., concurring.
Despite the pathway pursued by this court first in Gooden v.State, Wyo., 711 P.2d 405 (1985), and in this case, I do not concur with the supposition that an accused lacks standing to present the constitutional issues involved in the criminal proceeding under the separation-of-powers criteria of Art. 2 of the Wyoming Constitution. This view is related to that stated in dissent to Duffy v. State, Wyo., 730 P.2d 754 (1986). There, I contend that the judiciary invaded the proper provinces of the legislative and executive branches of government. Here, the legislature may have unconstitutionally intruded upon judicial functions by attempting to regulate the prosecutor's discretion in the performance of his assigned governmental responsibility in the criminal process.
I do not now presuppose what this court's decision should be were we to examine the plea-bargain prohibition enacted into §31-5-233(h), W.S. 1977 in light of constitutional constraints on legislative power. See Petition of Padget, Wyo., 678 P.2d 870 (1984). However, under the facts of this case, I would find the defendant to have standing, based on his conviction, to obtain this court's consideration of this constitutional issue, pursuant to our responsibilities under Art. 2, and Art. 5, §§ 1 and 2 of the Wyoming Constitution.
Rather than dismissing the appeal for lack of standing, I would consider the case on its merits, and would resolve the substantial issue of potential legislative incursion into the powers and responsibilities of the judicial branch of Wyoming government. *Page 605