Appellant Carl Kruzich appeals from the judgment and sentence of the district court placing him on probation for two years. He pled guilty to the crime of delivery of a controlled substance in violation of W.S. 35-7-1031 (June 1988 Repl.) and at sentencing, asked that he be treated as a first offender under W.S. 7-13-301 (June 1987 Repl.). The prosecutor would not agree to such treatment for Kruzich and the district court found that, as mandated in the statute, it could not employ that sentencing provision without the consent of the state. The district court imposed sentence. We have already addressed the issues raised by Kruzich in several recent cases and, based on those decisions, we will affirm the district court.
Kruzich poses these issues:
I. Wyoming statute § 7-13-301 violates the constitutional requirement of separation of powers by requiring prosecutorial consent to the trial court's decision as to sentencing.
II. The prosecutor's refusal to consent to sentencing under § 7-13-301, W.S. (1985), was an arbitrary abuse of discretion and therefore violated Article 1, § 2, and Article 1, § 7, of the Wyoming Constitution.
Kruzich was charged with one count of delivering a controlled substance, methamphetamine, and conspiracy to deliver that same substance. Both charges arose out of the same incident wherein Kruzich was called by a friend who asked him if he would obtain a gram of methamphetamine for someone else. He did so, and the someone else to whom he sold it was an undercover police agent. He was charged with delivery for the actual delivery and conspiracy for conspiring with his friend to deliver that substance.
After initially pleading not guilty, Kruzich entered into a plea bargain. In exchange for his plea of guilt to the delivery charge, the state dropped the conspiracy charge and agreed that Kruzich should be placed on probation rather than incarcerated. All parties understood that the actual sentence rested in the sound discretion of the trial court. When counsel for Kruzich asked that his client be treated under W.S. 7-13-301, the prosecutor responded that he could not agree to such treatment because of the nature of the crime, the nature of the substance concerned, and also because W.S. 35-7-1037 (June 1988 Repl.) provides that a district court may impose a sentence, much like that provided for in W.S. 7-13-301, on first time offenders found guilty of possession of a controlled substance. Here, Kruzich was found guilty of delivery of the controlled substance.
In Billis v. State, Nos. 88-250, etc., 800 P.2d 401, 412-427 (Wyo. Oct. 5, 1990), we thoroughly discussed the separation of powers issues and that section of the opinion *Page 491 is dispositive of Kruzich's first claim of error. The second issue is also disposed of in the same decision wherein we held that a prosecutor's discretionary decisions will not be interfered with by this court unless the exercise of such discretion is based upon suspect factors such as race, religion, or other arbitrary classification. Billis, at 435. Kruzich did not have the benefit of the cited opinion when he briefed this case, but there is nothing in the record to even suggest the existence of any suspect factor. Instead, Kruzich's claim of right to W.S.7-13-301 treatment was predicated upon the fact that at thirty-four years of age he had never been charged or convicted of any other crime or offense, other than moving traffic violations and that he had been steadily employed as a plumber all of his adult life.
There is no separation of powers violation, and we will not second guess such decisions of the prosecutor unless a suspect factor is called to our attention or is evident from the record.
Affirmed.
MACY, J., files a concurring opinion.
URBIGKIT, C.J., files a dissenting opinion.