Scheikofsky v. State

ROSE, Chief Justice,

dissenting in part and concurring in part.

I dissent from that portion of the opinion which holds that the self-defense instruction given in this case was adequate. My reason comes from my belief that the majority fail to adhere to the rules announced in Goodman v. State, Wyo., 573 P.2d 400 (1977), and the case law upon which we there relied. As to the portion of the opinion addressing the sentencing issue, I reluctantly concur for the reason that I am not, under the present state of the law, prepared to say that the trial judge abused his discretion in sentencing Sharron Scheikofsky. I am, however, bothered by the lack of desire on the part of this court to scrutinize and review sentencing questions according to abuse of discretion standards which I think we should establish. The law is, I submit, that appellate courts can and should review the propriety of sentences, and, in doing so, have a duty to set standards to guide trial judges in exercising their sentencing discretion. Thus, I feel constrained in this case to add comment concerning a proper appellate sentencing-review process.

The Self-defense Instruction

In Goodman v. State we established rules having to do with the criminal defendant’s right to have his theory of the case presented to the jury. Goodman had been found guilty of first-degree murder, but the jury was denied an instruction on the effect of defendant’s alleged intoxication, even though the defendant, and the State, had offered instructions on that issue. In reversing the defendant’s conviction, we held that the evidence of defendant’s consumption of alcohol on the day of the shooting warranted an instruction having to do with the effect of that intoxication on the issue of intent. Upon acknowledging the presence of sufficient competent evidence of defendant’s intoxication, we said:

“ * * * he then had an absolute right, in these circumstances, to have his theory affirmatively conveyed to the jury through instruction.” 573 P.2d at 408.

In reaching this conclusion we relied upon a number of prior decisions that had arrived at similar results.1 We also said in Goodman:

“ * * * General instructions on the matter of criminal-intent burden of proof and the necessity to prove all elements of the *1114crime beyond a reasonable doubt are insufficient to meet the due process requirements which dictate that the defendant will have his theory affirmatively presented to the jury by way of instruction." 573 P.2d at 408.

We therefore reaffirmed that the giving of a theory-of-the-case instruction is a fair trial due-process requirement,2 and that the instruction must be such as would properly apprise the jury of the defendant’s theory. 573 P.2d at 408.

In coming to the conclusions that I reach here, it is necessary to observe that, with one exception, all of the cases relied upon in Goodman involved a situation in which a theory-of-the-case instruction had been offered but refused by the trial court. The exception to that proposition is Benson v. State, Wyo., 571 P.2d 595 (1977). In Benson, no theory-of-the-case instruction had been offered and there we held that the trial court was not under a duty to instruct the jury on defendant’s theory of the case. 571 P.2d at 599-600. The instant case describes a situation in which theory-of-the-case instructions were offered and where one was given, but the instruction which the court gave to the jury was neither one of those offered, nor was it adequate for any purposes contemplated by Goodman. Thus, for me, this case presents the question which asks whether the self-defense instruction given by the court affirmatively instructed the jury on defendant’s theory of the case, as mandated by Goodman.

I should perhaps observe parenthetically that this dissent takes into account the fact that a portion of the Goodman test concerns the sufficiency of competent evidence to support a theory-of-the-case instruction, but that question is not at issue here. The record clearly reflects that the defense counsel, the prosecutor and the trial judge realized the need for an instruction on self-defense. I can only conclude that the evidence of self-defense was, in fact, adequate to raise the issue with which I am here concerned.

So the question becomes whether the given instruction sufficiently apprised the jury of the theory of self-defense under the facts of this case. In other words, whether the self-defense theory was affirmatively presented to the jury as required by Goodman. If it was not, then the defendant was deprived of his due-process rights. As referenced in the majority opinion, the self-defense instruction given to the jury read:

“A person is justified in the use of force to defend oneself against an aggressor’s imminent use of unlawful force to the extent it appears reasonable to that person under the circumstances then existing.”

The majority hold that this instruction adequately presented appellant’s theory of self-defense to the jury. For me, this conclusion is erroneous. Especially is this true when it is remembered that the question, according to Goodman, is whether, under the facts of the case at bar, the self-defense theory was or was not affirmatively presented to the jury. I am unable to conclude that the given instruction met this test. The instruction fails to refer to the appellant or to the circumstances of the case, which, the defendant theorizes, gives rise to the self-defense claim. Instead, the instruction is simply a cold, unrelated statement of the law of self-defense absent any association with the facts of this case.

The word “affirmative ” connotes an assertion that something is true as represented. The American Heritage Dictionary of the English Language (1978). Taken together, the defendant’s offered instructions affirmatively set out her theory of the case. It is the rule under Goodman that if offered instructions are not given, then the trial court must give a theory-of-the-case instruction if the evidence supports it. 573 P.2d at 408. In this case, I am unable to conclude that the given instruction met the *1115requirements of Goodman. The instruction may have adequately stated the law of self-defense, but it did not discharge the judicial system’s obligation to insure that defendant would receive a fair trial. This is so because it did not affirmatively present appellant’s theory of the case to the jury.

For the reasons given, I would have reversed and remanded.

Review of Appellant’s Sentence

Appellant also challenged the 10- to 15-year sentence imposed upon her by the trial judge. In response, the majority opinion relies upon this court’s time-honored principle which says that if a sentence falls within the statutory limits, it will not be disturbed absent a clear abuse of discretion. Jones v. State, Wyo., 602 P.2d 378, 380 (1979). Ergo, since the appellant’s sentence fell within the statutory limits, it was automatically upheld. In view of the fact that we have never adopted sentencing standards, the end result is that there is no possibility for this court to find an abuse of discretion where the trial judge’s sentence is within statutory parameters.

It may be that our previous opinions concerning review of criminal sentences point to the upholding of appellant’s sentence in this case; however, my doubts about our historical position in this area of the law arise because I believe that we have adopted an erroneous pattern of nonreview with respect to sentencing issues. I was worried about this when I authored the Jones opinion and said:

“The law in Wyoming is that the sentencing judge is given wide discretion in determining the length and conditions of the term of imprisonment to be imposed upon conviction and that such determination, if within the statutory limits, will not be disturbed absent a clear abuse of discretion. Smith v. State, Wyo., 564 P.2d 1194, 1202 (1977); and Daellenbach v. State, Wyo., 562 P.2d 679, 683 (1977). We are aware of a modern tendency of some reviewing courts to more carefully circumscribe the discretion of trial judges or juries in determining prison sentences. E. g., Black v. State, Alaska, 569 P.2d 804, 805 (1977), in which the Supreme Court of Alaska approved the American Bar Association’s recommendation that a maximum prison term exceed five years only in cases involving particularly serious offenses or especially dangerous offenders; and Rogers v. Britton, 476 F.Supp. 1036, 26 Cr.L.Rptr. 2048 (E.D.Ark.1979), in which a federal district court held unconstitutional a state sentence of life imprisonment for rape given by a jury without sentencing standards.” 602 P.2d at 380-381.

I am unable to discern the real reason for our reluctance to review sentencing issues. It may be. that the majority of the court are worried about an influx of sentence appeals, or that we are admittedly not as familiar with factors which are ground into the sentencing process as is the trial judge. I cannot point to specific reasons, but I am convinced that this is a poor and outdated policy. It was said in a recent article on sentencing disparity:

“A primary objection of those who oppose appellate review is that it would lead to a flood of sentence appeals. This has not been found to be the case in those states in which it has been authorized. Sentence review may have the effect of lowering the number of appeals brought upon the basis of minor procedural defect, since the real reason for bringing many of these appeals is to seek correction of what is perceived to be an excessive sentence.” Morgan, Disparity and the Sentencing Process in Wyoming District Courts: Recommendations for Change, 11 Land & Water L.Rev. 525, 548 (1976).

This same article notes that Wyoming still remains one of those states in which nonre-view of sentence at the appellate level is the rule.

For me, our tradition of nonreview of the sentencing process is tantamount to a breach of our duty to the citizens of Wyoming. We represent the highest judicial appellate authority in the state, and we must assume that society and the citizens of *1116Wyoming demand that the sentencing of convicted offenders meet the purposes that incarceration is designed to serve. The sentencing process is bound by the strictures of Art. 1, § 15, of the Wyoming Constitution, which provides:

“The penal code shall be framed on the humane principles of reformation and prevention.”

Many states have called for appellate review of sentences in response to these demands.3 There is no more delicate and crucial process in the criminal-justice system than the sentencing of individual offenders where life and freedom is in the balance. To be sure, sentencing is a function which is carried out carefully and cautiously by the trial judges of Wyoming, but it is, nevertheless, a function that should be subject to appellate scrutiny for abuse of discretion according to some test which is more specific than whether or not the particular sentence falls within the minimum and maximum sentencing parameters established by the legislature. This court carefully inquires into the trial process in order to insure that the constitutional rights of the accused are made available, but we then refuse to become involved in the most crucial aspect of the proceeding, namely, that part where the individual is subjected to a possible loss of liberty and even life.

I would, therefore, strongly urge that this court adopt standards of appellate review for cases which involve sentencing challenges.

A starting place for our consideration is to be found in Ripley v. State, Alaska, 590 P.2d 48 (1979), where the Alaska Supreme Court said:

“Our role in reviewing sentences imposed by the trial courts is to insure that sentences effectuate the purposes of the Alaska Constitution. In State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970), we elaborated on the goals of sentence review:
“[I]t is our duty to examine the proceedings below to review for excessiveness or leniency the sentence imposed by the trial court, in light of the nature of the crime, the defendant’s character, and the need for protecting the public. We are also obliged to consider the manner in which the sentence was imposed, including the sufficiency and accuracy of the information upon which it was based.
******
“When a sentence is appealed, we will make our own examination of the record and will modify the sentence if we are convinced that the sentencing court was clearly mistaken in imposing the sanction it did.
“In implementing these provisions, the court has recognized the following goals of criminal sanctions: (1) rehabilitation of the convicted offender into a non-criminal member of society; (2) isolation of the offender from society to prevent criminal conduct during the period of confinement; (3) deterrence of the other members of the community who might have tendencies toward criminal conduct similar to those of the offender; (4) deterrence of the offender himself after release; (5) community condemnation of the individual offender, or in other words, the affirmation of societal norms for the purpose of maintaining respect for the norms themselves.
“To make a reasoned sentence decision, the sentencing judge must determine the priority and relationship of these objectives in any particular case. This court recognizes that the trial court retains primary responsibility for sentencing * * 590 P.2d at 52.

According to the standards established by the Alaska Supreme Court, the appellate tribunal not only looks at the purposes of sentencing but also at the particular facts of the case in order to determine the propriety of the sentence.4 I can hear the hue *1117and cry to the effect that such a review policy will result in this court’s assumption of the powers and discretion of the trial court. In my judgment, this would not be the result. In actuality, the function of standards for judicial review of sentences would be to provide a safeguard for insuring that individual sentences meet the goals they are designed to meet and to provide guidance for the trial courts in carrying out this most arduous task.

As I indicated earlier, I am not prepared in this case to say whether or not the trial judge abused his discretion in sentencing Sharron Schiekofsky. I say this because we now have no sentencing standards against which to test the trial court’s discretion.

I am, therefore, forced to concur in the sentencing aspect of the majority opinion, with the hope that standards will soon be established which will provide more guidance than the minimum and maximum limitations provided by the legislature.

. Benson v. State, Wyo., 571 P.2d 595 (1977); Thomas v. State, Wyo., 562 P.2d 1287 (1977); Blakely v. State, Wyo., 474 P.2d 127 (1970); State v. Hickenbottom, 63 Wyo. 41, 178 P.2d 119 (1947).

. This position was announced in Blakely v. State, supra, 474 P.2d at 129:

“In order to meet the basic requirements of due process, it was necessary for the court in Blakely’s trial to instruct on defendant’s theory of the case * *

. Some of them are: Alaska, Arizona, Colorado, Hawaii, Montana, and Oregon.

. For other cases recognizing the power of appellate courts to review sentences, see: State v. *1117Bustamante, 11 Ariz.App. 129, 462 P.2d 822 (1969); People v. Malacara, Colo., 606 P.2d 1300(1980); State v. Fuchs, 100 Idaho 341, 597 P.2d 227 (1979).