dissenting.
Appellant addressed two issues in this appeal: consideration of the unconstitutional nature of the sentence given under the United States and Wyoming Constitutions, *905and denial of appointed counsel as directly required by Wyoming statute if the proceeding is under the post-conviction-relief statute, or as required by the Wyoming Constitution if the proceeding is ancillary to conviction, by consideration of Rule 36, W.R.Cr.P. See Rule 6, W.R.Cr.P., and Art. 1, § 10, Wyoming Constitution.
Whether or not the post-conviction, statutory-relief criteria involving a person serving a felony sentence distinguishes an unconstitutional sentence from an unconstitutional conviction was not a subject defined in appellant’s brief or oral argument. Furthermore, this proceeding, uncounseled as the appellant then was, advanced from trial-court and attorney-general construction as a post-conviction-relief action.1
The majority determine an unbriefed and unpresented constitutional-statutory adaptation and construction concept, and do not address the presented issue of right to counsel which should be available in either proceeding under Wyoming statute and constitutional criteria or the constitutionality of the sentence given. See Long v. State, Wyo., 745 P.2d 547 (No. 86-304, decided November 18, 1987), and Alberts v. State, Wyo., 745 P.2d 898 (1987). See also the current United States Supreme Court decisions which, coincidentally, have been decided many years more recently than the death of the late United States Supreme Court Chief Justice Earl Warren noted in Alberts v. State, supra, Brown, C.J., dissenting. Evitts v. Lucey, 469 U.S. 387,105 S.Ct. 830, 83 L.Ed.2d 821, reh. denied 470 U.S. 1065, 105 S.Ct. 1783, 84 L.Ed.2d 841 (1985), and Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).
Substantively, I would expect that we make more work for both the state and federal judicial systems by this decision, but more persuasively I would believe that mutual analysis and briefing by counsel should preceed adjudicative constitutional review and statutory construction by this court on an issue as important as that presented by this opinion in dispositive issue decision.
. In supporting the motion to dismiss filed in the district court as then sustained and from which this appeal is taken, the office of the Attorney General argued:
"The imposition of a sentence with a minimum term greater than a potential good time release date is not cruel and unusual punishment.”
Then presented by appellant by brief and argument as a basis for reversal as his issues were:
"The sentence appellant received amounts to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and Article 1, § 14 of the Wyoming Constitution,"
and
"Appellant was denied due process by the failure of the district court to appoint an attorney to represent him in post-conviction relief.”
Appellee in its brief presented the novel and not previously considered thesis that post-conviction relief was not available with a guilty plea. This court then abstracts one portion of that thesis without the benefit of appellant’s consideration to derive a rule by construction to exclude questions of sentencing which would invade both the areas of tried cases and disposition by guilty plea.