Castle v. State

THOMAS, Justice,

dissenting.

We have found Cassandra.1 The majority has concluded that it must invoke the rule in Cook v. State, Peterson v. State, 841 P.2d 1345 (Wyo.1992), to set aside Castle’s sentence for sexual assault, even though Castle did not seek or argue for such a result. I must dissent consistently with my position in Cook. There is even less justification in this case for the setting aside of the sentence for the predicate felony than there was in Cook.

Like Cook and Peterson, Castle entered his pleas of guilty pursuant to a plea bargain, by virtue of which he avoided the possibility of a capital sentence. Our rule is that a plea of guilty waives all non-jurisdictional defects. Duffy v. State, 837 P.2d 1047 (Wyo.1992); Davila v. State, 831 P.2d 204 (Wyo.1992), and cases cited. Again, like Cook and Peterson, Castle fails to demonstrate any jurisdictional defect. Castle chose to premise his appeal upon a violation of Wyo. Const, art. 1, § 15. Castle says in his Brief for Appellant at 3:

The desired result, should the appellant prevail, would be to have his sentence corrected such that one or more of the sentences would run concurrently. Appellant does not challenge the validity *1063of his guilty pleas or wish to have them overturned.

The majority has rejected the claim asserted by Castle, but it has, of its own motion, invoked the Cook proposition to strike the sentence on the sexual assault conviction, without the benefit of briefing or argument by either side. Castle has received far more than he requested.

Recent newspaper headlines proclaimed the fact that the United States is the most prone to violence of all of the industrialized nations. A failure to punish appropriately each and every act of criminal conduct does little to address this serious social problem. Even though imposition of separate punishments is of no help to a murdered child, the enforcement of all the penalties, or the failure to enforce them, does manifest the attitude of our society toward violent criminal conduct.

There is no need to reiterate here all of the concerns I expressed in my dissenting opinion in Cook. Perhaps it suffices to note that the denigration of the value of a young life may be more profound. Certainly, there is little value attached by this decision to the right of a little girl not to be cruelly assaulted and have the most delicate aspects of her physical integrity carefully protected by our rules of law. Like the robbery in Cook, the sexual assault in this case served simply as a predicate for invoking the first degree murder statute. The sexual assault did not become a lesser included offense of first degree murder, and I have no question that the legislature intended to punish the crimes separately.

I would affirm the trial court’s judgment and sentence without cavilling about any double punishment. Castle got a good deal in his plea bargain, and the law should require that he abide by it.

. See Cook v. State, Peterson v. State, 841 P.2d 1345 (Wyo.1992) (Thomas, J., dissenting).