Yates v. State

MACY, Justice.

Appellant Grant Samuel Yates pled guilty to three counts of delivery of a controlled substance to a minor in violation of §§ 35-7-1031(a)(ii) and 35-7-1036, W.S. 1977, 1985 Cum.Supp., and one count of possession of a controlled substance with intent to deliver in violation of § 35-7-1031(a)(ii), W.S.1977, 1985 Cum.Supp. He was sentenced to concurrent terms of two to four years for three of the counts. His sentence for the remaining count was suspended, and he was placed on probation for a period of ten years to commence after his prison sentences.

On appeal, appellant raises the following issue:

“Whether the District Court committed reversible error and abused its discretion in sentencing Grant Samuel Yates to three terms of two to four years to run concurrently in the Wyoming State Penitentiary with imposition of sentence on Count III to be suspended for a period of ten years, Appellant to be placed on probation during that ten year period, said probation to be served consecutively to the sentence on the other three counts.”

We affirm.

*38We have repeated the standards governing review of sentencing decisions innumerable times. Most recently, in Martin v. State, Wyo., 720 P.2d 894 (1986), and Shepard v. State, Wyo., 720 P.2d 904 (1986), we reiterated and clarified those standards. We see no reason to do so again here. Our review is, therefore, limited to appellant’s claim that the trial court abused its discretion in sentencing him to a jail term. More specifically, appellant argues that because defendants in ten similar cases before the same court were placed on probation, he should also have received probation.

We have said that absolute uniformity in sentencing is not required:

“The circumstances of each crime are different. The background of each convicted person is different and his rehabilitative needs are different. Also, the potential of each convict to be a productive member of society is different. * * * ” Daniel v. State, Wyo., 644 P.2d 172, 180 (1982).

In the present case, the trial court found that the cases cited by appellant were distinguishable in that there the prosecutors recommended probation while here the prosecutor recommended incarceration. The trial court also considered the presen-tence investigation report which similarly recommended incarceration followed by probation. Finally, the court considered testimony indicating that appellant had been selling drugs to young people for nearly a year and evidence suggesting that appellant was unwilling to accept responsibility for his acts. On the basis of these factors, the court concluded that appellant was not a good probation risk and that incarceration for a time was necessary to deter appellant from future violations. Under these circumstances, we find no abuse of discretion in sentencing.

Appellant requests that, upon finding no abuse of discretion, we grant a writ of certiorari in accordance with Wright v. State, Wyo., 707 P.2d 153 (1985). As in Shepard v. State, appellant has failed to demonstrate that this is a rare and unusual case entitling him to such a writ. His request is, therefore, denied.

Affirmed.

THOMAS, C.J., filed a concurring opinion.

URBIGKIT, J., filed an opinion concurring in part and dissenting in part.