Carl Kruzich, age thirty-five, regularly employed at the same job for about eight years and a single homeowner, accepted an inquiry from a female friend to bring over "some speed" (methamphetamine), a controlled substance, "for [her] good friend." He did; it was a set up and he was arrested and charged with the felony of delivery of a controlled substance. Kruzich accepted a negotiated plea for probation as a sentence. His criminal record was clean and his circumstance otherwise justified W.S. 7-13-301 treatment in a probationary term conviction vacation. However, application of W.S. 7-13-301 was vetoed in this case by the prosecutor on the basis that a delivery of a controlled substance case did not justify the ameliorative probationary alternative even if simple possession might otherwise.
I dissent first from the judicial relinquishment of its constitutional responsibility under the separation of powers. Secondly, in the thinnest veneer of reason applied as exercised discretion but primarily because the social waste in making a person a societal non-participant felon will serve no justified reason here. See Billis v. State, 800 P.2d 401 (Wyo. 1990) (Nos. 88-250, 304, 310, 311, 312 and 89-4, 10/5/90), Urbigkit, Chief Justice, dissenting.
If Kruzich does not succeed in probation, he deserves what will follow. However, if this bad act is only an aberration within a circumstance which might similarly fit a significant minority if not a majority of college students, then the burden on his life within a citizen's call for responsibilities which should include jury duty and voting is surely not justified.
It cannot be said that the issue here is a diversion as a normal prosecutorial discretion — it was not. Pursuant to a plea bargain, he entered a plea and the plea was accepted. At that point, the power of prosecutorial vendetta should be called to a close. See State v. Dalglish, 86 N.J. 503, 432 A.2d 74 (1981) and State v. Leonardis, 73 N.J. 360, 375 A.2d 607 (1977) (Leonardis II), compared with People v. Tenorio, 3 Cal.3d 89, 89 Cal.Rptr. 249, 251, 473 P.2d 993, 995 (1970) (quoting Peoplev. Sidener, 58 Cal.2d 645, 654, 25 Cal.Rptr. 697, 703,375 P.2d 641, 647 (1962)) in statement, "`[c]onstitutional jurisdiction of the court to act cannot be turned on and off at the whimsy of either the district attorney or the Legislature.'"
After the sentence has been judicially adjudicated to apply the same constitutional standard, probation and parole as discretional responsibilities are executive functions *Page 492 and cannot constitutionally be vested in the judiciary. State v.Wagstaff, 164 Ariz. 485, 794 P.2d 118 (1990); State v. Berger, 164 Ariz. 426,793 P.2d 1093 (1990). The correlative rule of these Arizona cases continues a defined standard for separation of powers in that jurisdiction illogically rejected by the majority for application here despite our similar constitutional provisions. We are then required to substitute instead of a clear standard the merging and blending which then is, in reality, absolutely no standard at all. Cf. United States v. Noonan, 906 F.2d 952,955-56 (3rd Cir. 1990), which provides a valuable perspective of the reality of separation of powers. See also Schwartz,Curiouser and Curiouser: The Supreme Court's Separation ofPowers Wonderland, 65 Notre Dame L.Rev. 587 (1990).
If prosecutorial intervention is to be interjected into the criminal process, then the process should be stopped before entry of a plea in the fashion previously arranged in the other correlative Wyoming statute enacted in 1939 and now by current amendment interjected as an alternative character of disposition by inclusion as a different and separate no plea arrangement in the present W.S. 7-13-301. If the prosecution wants discretional participation, it should be applied before the plea is made.
Completely separate from constitutional and case law underpinnings which cannot be found to provide justification, the basic thrust of increasing prosecutorial leverage and resulting unnecessary damage to human lives is a quid pro quo that I simply will not accept. In this statistic power grab providing increased prosecutorial authority and control, unnecessary punitive retribution in loss of citizenship rights is damage to the fabric of society for everyone.
If this kind of tough posture towards miscreants is to be adopted, then out of the era of permissiveness and the generation of greed each person whoever delivered a controlled substance to an associate or friend, including present members of professional occupations, should be similarly disadvantaged. Unfortunately, so few of us might then be left to vote that a democratic society would have no chance of survival. Unfortunately, in the war on drugs, I see one standard for wage earners and a completely different attitude toward attendees at institutions of higher education. In neither case, however, should constitutional reformation and rehabilitation be disregarded. The goal should be to benefit and not to perpetrate mindless pervasive lifetime harm in no way related to any redeeming social virtue.