Wright v. State

ROSE, Justice,

dissenting.

Is there, perhaps, some secluded place in the affairs of law enforcement, where, during the thrill of the chase (when the prospects of the kill seem to overwhelm all other and gentler instincts), the fever of the manhunt will momentarily subside in favor of one human being love and respect for his or her fellow man or woman?
Is there not some secret place in the heart of the hunter where even the law does not visit— a place where, during a fleeting pause, a voice will say, “It is not good to stalk any further”— where it will say, “This is not the quary I seek”— where it will say, “My obligation of love of my fellow human being denies to me the right of further pursuit”?
Is there not a place like that— Is there not a voice like that— Anywhere?

I join in the dissenting opinion of my brother Cardine, and add these dissenting thoughts of my own.

THE ABUSE-OF-DISCRETION ISSUE

“The current sentencing statutes in Wyoming vest broad discretionary authority in the district court judges, without substantial guidance or review from either the legislature or the Wyoming Supreme Court. A system which is charged with such consequential decision-making power, yet burdened with so little formal structure, produces inequitable treatment almost by design.” Roberts, The Changing Structure of Criminal Sentencing, 18 *1100Land and Water Law Review 591, 637 (1983).

In this ease, at the trial-court level, the district judge sentenced Grant Alan Wright to the state penitentiary for from two to four years, with these remarks:

“Well, Mr. Wright, the Court is impressed with your background and I’m very encouraged with the fact that you are doing well in school and we will take that of course into consideration. The crime of which you stand convicted is a very serious one even though it was for the delivery of a small amount. It was nonetheless a delivery and therefore under our statutes a felony. Considering all the factors in the case, the Court determines that you are not a fit subject for probation, but that because of all the circumstances, a minimum sentence is going to be imposed and that will be a period from two to four years in the Wyoming State Penitentiary.”

The presentence summary which was presented to the district judge by the department of probation and parole said:

“The Defendant [Wright] is a twenty year old male in sound physical and mental health. He comes from a very solid and close family background.
“He exhibits no serious drug or alcohol problem and appears to have used these substances sparingly. The Defendant denies selling drugs with the exception of the present offense, which appears to have some extenuating circumstances.
“The Subject has maintained regular employment and is currently furthering his education at Sheridan College, where he hopes to graduate from the welding program in 1983. He is an excellent student. “The Defendant has presented no problems with his family nor the community at large. His prior offenses are relatively minor and demonstrate no criminal inclinations. This is his first felony conviction.”

The presentence investigation went on to conclude:

“The Defendant appears to be a good risk for probation. Incarceration for this Defendant does not appear to be the appropriate route.” (Emphasis added.)

As I have noted above, in the sentencing hearing, the trial court said he considered “all the factors in this case” and, without saying what they were, found that Grant Wright was “not a fit subject for probation.”

In Sanchez v. State, Wyo., 592 P.2d 1130 (1979), we directed that the American Bar Association Standards for Criminal Justice, Probation, be given consideration where probation is contemplated as an alternative to incarceration. We also said that in non-capital cases and in those cases where the sentence was not life imprisonment,

“ * * * the only right which an applicant for probation possesses is that his petition should be considered by the court.” 592 P.2d at 1137.

In Daniel v. State, Wyo., 644 P.2d 172, 180 (1982), we said:

“We strongly recommend that the trial judges explain their reasons for denying probation and indicate the factors they considered in imposing sentence.”

While it might be argued that the trial judge, in the matter at bar, considered probation in compliance with Sanchez, he did not make known the factors which led him to refuse probation as required by Daniel. This leaves this court in a position where— even if it were conceded that we have retained the authority to examine the exercise of the trial court’s discretion — we would not have available to our inquiry a record of the factors which led to the judge’s denial of probation. This leaves us with a very meager record upon which to exercise our appellate obligation of review.

In Daniel v. State, supra, we quoted Justice Roberts of the Pennsylvania Supreme Court, when, in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140, 147 (1977), he wrote about the reason for requiring a record of purposes and factors in the sentencing process, and I would reiterate here that Justice Roberts’ reasons and the rule of Sanchez should be sufficient to cause all trial judges to furnish the record with this *1101information. It was not done here, however, and therefore we are at a loss to know why, when the defendant’s record was so clean and the probation report so affirmative, the trial judge sentenced Grant Wright to prison instead of placing him on probation.

This case was bound, one day, to come to haunt and threaten this court’s bizarre policy of saying that we retain the right to review the criminal sentence for abuse of discretion even though within statutory parameters, while we in fact refuse to interfere with a district court’s sentence no matter what kind of unbelievable abuse of sentencing discretion has been exercised.

Here we have a young man, 20 years old, with an exemplary home, school and societal record. He works hard at his job, is an honor student at Sheridan College, and his only prior violations of law are a speeding ticket and running a red light. He was charged and found guilty of an unlawful delivery of a controlled substance, marijuana, in violation of § 35-7-1031(a)(ii), W.S. 1977.

This statute provides in relevant part: “(a) Except as authorized by this act [§§ 35-7-1001 to 35-7-1055], it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. Any person who violates this subsection with respect to:
* * * * * *
“(h) Any other controlled substance classified in Schedule I, II or III, is guilty of a crime and upon conviction may be imprisoned for not more than ten (10) years, fined not more than ten thousand dollars ($10,000.00) or both * * * ff

The circumstances which surround Grant Wright’s apprehension and sentence to prison for two to four years are frightening. Justice Cardine, in his dissenting opinion, has described the transaction which led to Mr. Wright’s arrest, and I have little to add except to say that there is, when the State is given the benefit of all doubt, barely enough evidence to sustain a verdict of guilty when the evidence most favorable to the State is pitted against the defense of entrapment.

During their trip to Story — when all four were in the car: Wright, Jones and the two undercover agents — the officers were the ones who introduced the subject of drugs into the conversation. They then testified that they were addressing their particular inquiry to Wright’s companion, Jones, when Wright mentioned “during the conversation [with Jones]” that he had some marijuana in his car at Story, that it was his own and that he would “give ” (emphasis added) the undercover agent half of it. The agent took Wright home to Story, and, in gratitude for the ride, Wright handed the officer a small quantity of marijuana. He had not originally intended to deliver or sell it. It was his purpose to just give it to someone who had been kind to him. It was the agent who brought up the issue of money and then handed Wright $20.00.

Wright was not a marijuana dealer and was not even possessed of marijuana until the undercover agents talked him into going to Story to get some out of his car that night. He was not in the drug business, was not on the officer’s target list, and the officer’s subsequent investigation did not reveal that he had in any way been associated with drugs. In Janski v. State, Wyo., 538 P.2d 271, (1975), I said in my dissent at p. 282:

“This court has worried in other cases about criminal prosecutions that have been laid out by the police. Justice McClintock spoke for the court in LaFieur v. The State of Wyoming, Wyo., 533 P.2d 309, 312-313, decided April 1, 1975, when he said:
“ ‘Condemnation of prosecution of crimes which have been arranged by law enforcement officers is of long standing. Thus, in Saunders v. People, 38 Mich. 218, 222 (1878) Mr. Justice Marston said in his concurring opinion that courts “ * * * have not yet gone so far, and I trust never will, as to lend aid or encouragement to officers who *1102may, under a mistaken sense of duty, encourage and assist parties to commit crime, in order that they may arrest and have them punished for so doing.” “ ‘The cited federal decisions are equally strong in their condemnation of manufacturing cases, the summation on that appearing in United States v. Russell, supra note 8, 411 U.S. [428] at 434, 98 S.Ct. [1637] at 1644, [36 L.Ed.2d 366] where Mr. Justice Rehnquist, speaking for the majority, states:
“ ‘ “ * * * We are content to leave the matter where it was left by the Court in Sherman [cited infra]: ‘The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime.’ ” ’ ”

The two-pronged test for entrapment was set out by the United States Supreme Court in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), according to which the jury is directed to consider: (1) the conduct of the agent — i.e., whether the crime was the result of creative activity of the police; and (2) the conduct and predisposition of the accused to commit the crime.

Apparently the jury believed that Wright was predisposed to commit the crime even if the agents initiated the solicitation of marijuana. Considering the evidence in the light most favorable to the prosecution, I therefore would concede that the jury’s failure to find entrapment in this case does not amount to plain error even though that issue weighs guilt-ridden and delicately balanced upon the scales of justice.

But it is not — in this appeal — the trial and its outcome that troubles me. The damage that was done in that phase of the proceeding is beyond repair. I am concerned here about the sentencing of this young man to the Wyoming state penitentiary for two to four years for a mistake which, it could be argued, was induced by the State’s agents. I recoil in revulsion when I think what this experience is likely to do to his life. Only the most naive would pretend to be unaware of the cruel and evil things that befall young men when they are forced into penitentiary life and, no matter what scarring experiences await Grant Wright in the penitentiary, it will also be his lot to carry, throughout his life, the stigma of ex-convict.

The unjust result that has been reached in this litigation comes about as a result of this court’s abdication of its appellate obligations in the sentencing arena.

The majority take the position that we have retained authority to review sentencing discretion even when the sentence falls within the limitations set by statute. Justice Thomas says that as a matter of law we have abandoned the authority to examine the trial court’s sentencing discretion. Apodaca v. State, Wyo., 571 P.2d 603, 605 (1977). I hold that we have retained the authority — as a legal proposition —but have abandoned this authority as a factual proposition.

It was one thing for this court to — in point of fact — forsake our statutory obligation to review sentencing discretion when exercised within the parameters of the statute when Alvah R. Daniel, Jr. was before the courts. (See Daniel v. State, supra, 644 P.2d 172.) Daniel killed a woman, was charged with first degree murder, found guilty of involuntary manslaughter, and sentenced to from 19 to 20 years in the state penitentiary.

It is different than the situation with which we were confronted when we again said we retained but, in a factual sense, abdicated our appellate review prerogatives when we considered the sentencing complaints of Sharron Scheikofsky (Scheikofsky v. State, Wyo., 636 P.2d 1107 (1981)). Ms. Scheikofsky was charged with second degree murder of her husband and found guilty of manslaughter. She was sentenced to 10 to 15 years in prison.

Grant Wright’s problem is different than the problem that confronted this court when we refused to disturb the sentence in Jones v. State, Wyo., 602 P.2d 378 (1979), where the defendant was charged, tried and found guilty of arson. He had a previous *1103record of convictions for assault with intent to kill and auto theft.

Grant Wright is not like Daellenbach, in Daellenbach v. State, Wyo., 562 P.2d 679 (1977), where, after conviction for armed robbery, the question of our interfering with the sentencing judge’s discretion was again at hand.

This case is not like Smith v. State, Wyo., 564 P.2d 1194 (1977), where Smith was found guilty of second degree murder and complained that the sentence was too harsh and constituted an abuse of discretion. We said we would not disturb the trial judge’s sentence so long as it was within the statutory sentencing parameters.

Grant Wright’s case is to be distinguished from those set out above for many reasons, one of which is that these prior cases involved crimes of violence, while the crime with which Wright was charged is not. In many of the appeals mentioned, and other similar cases decided by this court, there was a background of criminality or alcoholism or other good and sufficient reasons why the defendant did not appear — at least to the sentencing judge — to be a good candidate for probation. In these circumstances, this court adopted the position that we would not interfere with the sentencing judge’s exercise of discretion so long as the sentence was within the statutory parameters and probation had been considered,1 even though we said we had retained the authority to exercise the prerogative of reviewing the possibility of abuse of discretion in the sentencing arena.

THIS COURT’S HISTORICAL POSITION ON SENTENCE REVIEW

There is much to be said for Justice Thomas’ position when, in his specially concurring opinion, he says that, even though we have articulated the abuse-of-discretion exception to the trial judge’s sentencing authority, we have really adopted the common-law rule which holds that there cannot be an abuse of discretion so long as the term of sentence falls within the confines of the statute.

Justice Thomas points to our expression of this concept in Apodaca v. State, supra, 571 P.2d at 605, where we said:

“The sentence imposed herein is clearly within the statutory limits as set by the legislature, 20 years being the minimum penalty therefor. It being within such limits, the determination of this penalty was exclusively with the trial judge * * * >2

On the other hand, the majority say that we have not adopted the common-law rule and that we have historically said that we would modify the sentence where we found abuse of discretion even though the sentence was within the maximum or minimum directed by the penalty statute, citing Eaton v. State, Wyo., 660 P.2d 803 (1983); Taylor v. State, Wyo., 658 P.2d 1297 (1983); Daniel v. State, supra; Scheikofsky v. State, supra; Kenney v. State, Wyo., 605 P.2d 811 (1980); Sorenson v. State, Wyo., 604 P.2d 1031 (1979); Buck v. State, Wyo., 603 P.2d 878 (1979); Jones v. State, supra; Sanchez v. State, supra; Peterson v. State, Wyo., 586 P.2d 144 (1978); and Cavanagh v. State, Wyo., 505 P.2d 311 (1973).

I have in the past taken the position expressed by the majority while urging that we adopt standards which would, in their implementation, aid in deciding when a district court judge had or had not abused his or her discretion.

In Scheikofsky v. State, supra, 636 P.2d at 1116, in an opinion concurring in part and dissenting in part, I recognized the inconsistency in adopting the rule embraced by the majority in this appeal while actually not exercising the review of sentencing power that we professed to have and which we pretend to be utilizing. I said:

*1104“ * * * 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 then advocated the standards for review as suggested by the Supreme Court of Alaska in Ripley v. State, Alaska, 590 P.2d 48, 52 (1979), where that court said:

“ ‘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.’ [State v. Chaney, Alaska, 477 P.2d 441, 443-444 (1970).]

“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.”

In my specially concurring opinion in Daniel v. State, supra, 644 P.2d at 188, I said:

“Today’s trend in the law encourages appellate courts to take a more enlightened stance with regard to the sentencing of criminal offenders. Conceding that sentencing authority lies within the discretion of a trial court, this important aspect in the judicial process should not thereby be placed beyond the pale of appellate scrutiny. State v. Messer, Iowa, 306 N.W.2d 731 (1981); State v. Jones, La., 398 So.2d 1049 (1981); People v. Watkins, Colo. [200 Colo. 163], 613 P.2d 633 (1980); State v. Dillon, 100 Idaho 723, 604 P.2d 737 (1979). Sentencing inquiry and review should be guided by the reasonable standards adopted in State v. Chaney, Alaska, 477 P.2d 441, 443-44 (1970), which standards I set out in my concurring opinion in Scheikofsky v. State, supra.”

I find fault with the position in which this court finds itself as exemplified by the condition of the law of sentencing review as it is now to be applied to the case at bar.

First off, I cannot agree with Justice Thomas, for whom the common-law rule is comfortable, and I certainly cannot agree with the majority’s purported embracing of a sentencing procedure which says we will inquire into the trial court’s exercise of judicial discretion and which then adopts standards of review but, in their application to the facts of this case, finds that the district court’s sentencing of this young man to prison was not an abuse of discretion when tested against the adopted standards.

Even though I would not find it acceptable, it is one thing to say that this court will not disturb the sentence of those who have been convicted of rape, arson, murder and other violent crimes unless the sentence is beyond the boundaries of the statute. The effect of this appellate stance is to suggest to these types of convicted appellants, “You must take your chance with the discretion of the trial judge in the sentencing arena because he or she has seen you, observed you, has a feel for your credibility and your *1105trustworthiness or lack of it, where the appellate court, on the other hand, does not have these judgmental opportunities.”

It is, however, another thing for an appellate court to reaffirm its abdication of its appellate obligation of sentencing review in a fact situation such as that presented by the case at bar. Here the trial court has sentenced to the penitentiary a 20-year-old boy — a college honor student — who, because of this one mistake of nonviolence in which he was duped3 by agents employed by the State of Wyoming, must now spend a minimum of two years in the penitentiary with all of its frightening consequences.

THE MAJORITY OPINION

Ironically, the majority, in coming to the conclusion that the trial judge did not abuse his discretion in sentencing Grant Wright to the Wyoming state penitentiary, seem to adopt substantially the standard concepts that I urged in Scheikofsky. This is done by referring us to the Martinez v. State, Wyo., 611 P.2d 831, 838 (1980), abuse-of-discretion definition, where we said:

“A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. An abuse of discretion has been said to mean an error of law committed by the court under the circumstances.”

The majority go on to say:

“The search for ‘reasonableness’ and the recognition of the ‘circumstances’ involved are complex with reference to sentence imposition. It is generally recognized that sentence imposition involves consideration of two broad categories: (1) the crime and its circumstances, and (2) the character of the criminal.”4

Inexplicably inconsistent with its ultimate holding, the opinion proceeds with this observation:

“The character of the criminal could reasonably increase or decrease his sentence. His family background, education, intelligence, employment history, age, training, criminal and delinquency record, attitude, etc., well bear upon the accomplishment of the purpose of the sentence.”

The majority seem to adopt these standards for sentencing:

“Although sometimes denominated otherwise, it is generally recognized that a sentence is imposed for one or more of four purposes: (1) rehabilitation, (2) punishment (specific deterrence and retribution), (3) example to others (general deterrence), and (4) removal from society (incapacitation or protection of the public).”,

which are — as I have said — substantially those I suggested in Scheikofsky.5

The majority conclude the thought with the observation:

“These four sentencing purposes are in accord with Art. 1, § 15, Wyoming Constitution: ‘The penal code shall be framed on the humane principles of reformation and prevention-.’ ”

*1106Turning, then, to the case at hand, the majority come to the conclusion that when we have taken, the high purpose of the Constitution into account — “the humane principles of reformation and prevention”— and sprinkled this great concept with one or more of the sentencing purposes identified, we are unerringly led to the conclusion that this young man, given all the circumstances of his home, job, school and nonexistent criminal record — exemplary as his background is conceded to be6 — is a proper candidate for a two to four year prison sentence or, at least, for the district judge to send him there is not an abuse of discretion.

And so what good does it do to say we retain appellate sentencing inquiry and to adopt standards which are flavored with constitutional protections, when these high-sounding concepts and purposes lead to such a result as is reached by the majority in Grant Wright’s appeal?

I must say that even though I have had philosophical differences with my court on prior occasions (and who is to say who was right and who was wrong?), the dissention to the position of the majority that I am experiencing in the case at bar far and away surpasses any divergence of view that I have previously known. When I wrote about sentencing standards in Scheikofsky, I hardly expected to see their likes adopted in a case which would sanction imprisonment for a boy of Wright’s age, family, school and social background, who had committed a first-time, nonviolent offense which, when placed upon the scale of criminal values, would tilt toward “minimal.”

The thing that is so philosophically frightening is that judges — men of high purpose and good will — can be presented with the same facts, see the same problem, adopt the same standards, and come to such different results.

Can it be that my brothers feel that first-offender Wright must go to prison because:

1. He needs rehabilitation (when he has no drug problem and has never been in trouble before)?
2. He needs to be punished in order to accomplish “specific deterrence” (would not something less have been adequate?) and retribution?7. (If payment in the form of punishment was necessary, could it not have been something less than the violent exposure of two to four years in prison?)
3. He must stand as an example to others? (Did his life have to be so viciously impacted in order to accomplish this purpose?)
4. He was such a miserable and dangerous influence that imprisonment was the only way that the public could be protected from his wiles and ways?

In application of the majority’s standards to the life of this boy, are we holding that the trial judge did not abuse his sentencing discretion? Or — -are we just pretending we retain the authority to make that decision— pretending we are adopting standards for its exercise — but, in reality, have adopted the common-law rule as suggested by Justice Thomas? What good purpose can the adoption of sentencing standards serve when they are utilized to underwrite the sentencing of the likes of Grant Wright to the Wyoming state penitentiary?

How can judges see things so differently? How can we be so far apart?

If this court is to utilize the standards adopted by the majority to approve the sending of Grant Wright to the penitentiary, then the standards are useless and we might just as well confess that we recognize no trial-court abuse of discretion in the sentencing process except in those situations where the sentence falls outside the *1107parameters established by the legislature. That is where Justice Thomas comes out and, for me, he is precariously close to being right if it comes about that the majority’s application of the facts of this case to its suggested standards is to have the effect of paving Grant Alan Wright’s way to prison.

In summary, I would say that the sentencing of Grant Wright to prison for two to four years was the first miscarriage of justice. The second is for this court to find no abuse of the trial court’s discretion through a decision which announces that we have in fact retained appellate sentencing-review jurisdiction and which embraces sensible guidelines for its exercise but, in the utilization of our prerogatives and standards, we find this defendant’s behavior to be so outrageous and unforgivable that he must go to prison.

If Grant Alan Wright is not the defendant to whose rescue this court should come, when and how can there ever be such a defendant?

THE RULE 36, W.R.Cr.P. RELIEF

Appellant Wright was convicted of delivery of one-half ounce of marijuana in violation of § 35-7-1031(a)(ii), supra.

As has been noted, before imposing sentence, the court said to appellant:

“Well, Mr. Wright, the Court is impressed with your background and I’m very encouraged with the fact that you áre doing well in school and we will take that of course into consideration. The crime of which you stand convicted is a very serious one even though it was for the delivery of a small amount. It was nonetheless a delivery and therefore under our statutes a felony. Considering all the factors in the case, the Court determines that you are not a fit subject for probation, but that because of all the circumstances, a minimum sentence is going to be imposed and that will be a period from two to four-years in the Wyoming State Penitentiary.”

The majority opinion observes:

“The court also specifically called appellant’s attention to his ‘right to petition the Court for a sentence reduction within 120 days.’ ”

Rule 36, W.R.Cr.P., provides:

“The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. The court may reduce the sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court having the effect of upholding the judgment of conviction. The court may also reduce a sentence upon revocation of a probation as provided by law.”

I do not know what the trial judge meant to say when he called the appellant’s attention to his “right to petition the Court for a sentence reduction within 120 days.”

Here is the full text of what he did say in that regard:

“I want to advise you of your right to appeal. Your counsel will tell you that you have to file a notice of appeal within ten days. You also have a right to petition the Court for a sentence reduction within 120 days from the time that you— either if you appeal within 120 days after the mandate comes down from the Supreme Court or if you choose to go immediately to the penitentiary for 120 days from the time of your initial incarceration and I’ll ask that counsel consult Mr. Wright as to whether or not he wishes to appeal and if he does make sure that you take the necessary steps to perfect the appeal.”

Are we to assume that the judge had sentenced Grant Wright to from two to four years in the state penitentiary just to scare him with the present intention that he would place him on probation once he had been incarcerated in Rawlins? The majority opinion indicates that

*1108“[w]e are aware of the fact that some trial judges have changed a rather severe penitentiary sentence to probation within the 120-day period [contemplated by Rule 36J * * * ”

I hasten to say that I was not aware of the practice. In this respect, I would observe that, without a specific provision in the rule for reduction of an incarceration sentence to probation, the district courts, in my judgment, lack jurisdiction to enter such an order.

Wyoming’s Rule 36 tracks Rule 35 of the Federal Rules of Criminal Procedure in all but one respect. The federal rule was amended in 1979 to permit a court to reduce a sentence by changing a sentence of incarceration to a grant of probation. The reason this was done was because the United States Supreme Court, in United States of America v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309 (1927), had held that, without the specific provision for reducing a sentence of incarceration to release on probation, the district court, under the Probation Act of March 4, 1925, was without jurisdiction to make such a reduction once the defendant had commenced to serve time.

In United States v. Murray, supra, 275 U.S. at 357-358, 48 S.Ct. at 149, Chief Justice Taft, writing for the Court, said:

“What was lacking in these provisions [of the Probation Act] was an amelioration of the sentence by delaying actual execution or providing a suspension so that the stigma might be withheld and an opportunity for reform and repentance be granted before actual imprisonment should stain the life of the convict. This amelioration had been largely furnished by a power which trial courts, many of them, had exercised to suspend sentences. In some sections of the country it had been practiced for three-quarters of a century. By the decision in Ex parte United States, 242 U.S. 27 [37 S.Ct. 72, 61 L.Ed. 129] that remedy was denied. In that case, however, this court suggested legislation to permit probation. For eight years thereafter Congress was petitioned to enact it, and finally the Probation Act was passed.
“The great desideratum was the giving to young and new violators of law a chance to reform and to escape the contaminating influence of association with hardened or veteran criminals in the beginning of the imprisonment. Experience had shown that there was a real locus poenitentiae between the conviction and certainty of punishment, on the one hand, and the actual imprisonment and public disgrace of incarceration and evil association, on the other. If the case was a proper one, great good could be done in stopping punishment by putting the new criminal on probation. The avoidance of imprisonment at time of sentence was therefore the period to which the advocates of a Probation Act always directed their urgency. Probation was not sought to shorten the term. Probation is the attempted saving of a man who has taken one wrong step and whom the judge thinks to be a brand who can be plucked from the burning at the time of the imposition of the sentence. The beginning of the service of the sentence in a criminal case ends the power of the court even in the same term to change it. Ex parte Lange, 18 Wall. 163. 21 L.ed. 872. Such a limit for probation is a natural one to achieve its end.” (Emphasis added.)

The Court concluded:

“This Act has been before courts of first instance and circuit courts of appeals a number of times, but we have found only one reported case, in addition to the decisions by the district courts in the present cases, in which it has been held that probation may be granted after the service of the sentence has begun. That case is United States v. Chafina, 14 F.(2d) 622, a district court case. The other cases brought to our attention are not inconsistent with our ruling. Nix v. James, District Judge (C.C.A.9th) 7 F.(2d) 590; Kriebel v. United States (C.C.A.7th) 10 F.(2d) 762; Evans v. District Judge (C.C. A.6th) 12 F.(2d) 64; Ackerson v. United States (C.C.A.2d) 15 F.(2d) 268; Davis v. *1109United States (D.C.) 15 F.(2d) 697; United States v. Young (D.C.) 17 F.(2d) 129; United States v. Davis (D.C.) 19 F.(2d) 536.” 275 U.S. at 358, 48 S.Ct. at 149-50.

Wright, Federal Practice and Procedure: Criminal 2d § 586, p. 405, in discussing Federal Rule 35, says:

“ * * * As amended in 1979 [to add the sentence “Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision”] Rule 35(b) for the first time permits a court to reduce a sentence by changing a sentence of incarceration to a grant of probation.”

The advisory committee Note comments as follows:

“Rule 35 is amended in order to make it clear that a judge may, in his discretion, reduce a sentence of incarceration to probation. To the extent that this permits the judge to grant probation to a defendant who has already commenced service of a term of imprisonment, it represents a change in the law. See United States v. Murray, 275 U.S. 347 [48 S.Ct. 146, 72 L.Ed. 309] (1928) (Probation Act construed not to give power to district court to grant probation to convict after beginning of service of sentence, even in the same term of court) * * *.” (Emphasis added.)

Again, I say that I have no idea what the district judge’s intentions were with respect to the utilization of Rule 36 of the Wyoming Rules of Criminal Procedure in Grant Wright’s case. However, it is worthwhile calling the attention of all district courts to the difference between our Rule 36 and the Federal Rule 35. Our rule tracks the federal rule up to its last sentence. The federal case law, before the last sentence was added to the federal rule, was to the effect that, once the defendant had begun to serve his sentence, the district court lost jurisdiction to reduce the sentence to probation. Therefore, as applied to this case, if it were to be the intention of the district judge to send the defendant to the state penitentiary to start serving his sentence in order to “shock”8 him, with the further intention of, within the 120-day period contemplated by the rule, reducing the sentence to probation, I would think that, under Murray v. United States, supra, the district judge would be without such authority.

Who would complain? I would suspect that the Attorney General, the Governor and the state board of parole might have an interest in the matter.9

THE WRIT-OF-CERTIORARI ISSUE

“The writ of certiorari is a common-law writ, and under the power conferred * * by the Constitution * ⅜ * it must be held that the court has authority to issue it * * * subject to the conditions and limitations controlling the writ at common law.” (Emphasis added.) City of Sheridan v. Cadle, 24 Wyo. 293, 157 P. 892, 894-895 (1916).

Justice Thomas would review Grant Wright’s sentence in response to a petition for a writ of certiorari. I do not believe that the sentence of the district court is reviewable by that method.

A consideration of the traditional role of the writ of certiorari compels the conclusion that the writ is not available for the purpose of reviewing the imposition of a sentence by the trial judge. As has been noted, in City of Sheridan v. Cadle, supra, this court recognized its authority to issue the writ of certiorari, subject, however, to “the conditions and limitations controlling the writ at common law.” (Emphasis added.) 157 P. at 895. The common-law writ of certiorari is a remedy narrow in scope in that it extends only to questions affecting the jurisdiction of the subordinate tribunal. State ex rel. Nelson v. District Court of Fourth Judicial Dist., 107 Mont. 167, 81 P.2d 699 (1938). The writ is neither broad nor *1110flexible, since the court is limited to quashing or refusing to quash action taken by a court in excess of or without jurisdiction. State v. Davis, Mo.App., 488 S.W.2d 305 (1972). The writ is not available to correct errors made in the exercise of valid, existing jurisdiction or to determine the merits of a controversy. State v. Davis, supra, 488 S.W.2d at 308. Petition of Kelly, 146 Mont. 484, 408 P.2d 478 (1965). City of Sheridan v. Cadle, supra, 157 P. at 895. It follows that the common-law writ of certiorari is not the appropriate means for correcting a sentence which, although within statutory limits, is harsh and unjust under the circumstances of the case.

In his special concurrence, Justice Thomas holds that a petition for a writ of certio-rari is the appropriate means by which Grant Wright should seek review of his sentence, since it is his view — contrary to the position of the majority and contrary to the position which I hold — that appellate review is not available where the sentence falls within the statutory parameters and that therefore justice cannot be accomplished, given the extraordinary circumstances of this case.

I would hold that under the applicable rules which concern certiorari (and even though my deepest convictions say that Grant Wright should not go to prison) this court does not possess the authority to review the sentence by certiorari, since an exclusive, adequate and complete appellate-review procedure is available for that purpose, the utilization of which would not result in a failure of justice. Call v. Town of Afton, 73 Wyo. 271, 278 P.2d 270 (1954), discussed infra.

The power of this court to engage in appellate review and to issue writs of cer-tiorari is conferred by Art. 5 of the Wyoming Constitution, the relevant sections of which provide:

Ҥ 2. Supreme court generally; appellate jurisdiction.
“The supreme court shall have general appellate jurisdiction, co-extensive with the state, in both civil and criminal causes, and shall have a general superintending control over all inferior courts, under such rules and regulations as may be prescribed by law.”
Ҥ 3. Same; original jurisdiction.
“The supreme court shall have original jurisdiction in quo warranto and mandamus as to all state officers, and in habeas corpus. The supreme court shall also have power to issue writs of mandamus, review, prohibition, habeas corpus, certio-rari, and other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction.”

Under Art. 5, § 3, the availability of all of the identified writs, including certiorari, is limited to situations where it is

“ * * * necessary and proper to the complete exercise of its appellate and reviso-ry jurisdiction." (Emphasis added.)

In other words, a writ of certiorari should not issue unless that writ is necessary to aid the court in the exercise of its appellate and revisory jurisdiction. For me, it then follows that the writ is not intended to replace the appellate process where that process is in place — as it is when the district court’s sentencing discretion is in issue. We have said the writ will not be granted where other adequate remedies are open to the petitioner, in City of Sheridan v. Cadle, supra, and Call v. Town of Afton, supra.

At 14 Am.Jur.2d, Certiorari § 11, p. 787, the text says:

“Under the prevailing practice, a writ of certiorari will not issue if there is another adequate remedy, such as an appeal or writ of error, an action at law or in equity, or intervention with the right of appeal secured. It is only in cases of unusual hardship and in the furtherance of justice that the use of a writ of certio-rari is permitted to supplement the method of review expressly provided by statute.”

We said in Call v. Town of Afton, supra, 278 P.2d at 273:

“ * * * We have two statutory methods of reviewing judgments of the district court, one by proceeding in error and one by direct appeal. Counsel for petitioners *1111asks us to disregard them despite the ordinary rule that the writ of certiorari will not ordinarily issue in those cases in which there is a plain, speedy and adequate remedy by appeal. 14 C.J.S., Cer-tiorari, § 39, p. 185,10 Am.Jur. 531, § 7.”

We then took note of the fact that the legislature had abolished the writ of certio-rari (in civil cases),10 but observed that the writ was provided for in the Constitution and that

“ * * * [pjerhaps neither the statute nor the Constitution should be entirely disregarded,”

and that effect might be given to both the Constitution and the statute

“ * * * by keeping the provisions of the Constitution within its proper limits.” (Emphasis added.)

When we said “within its proper limits,” the court meant, in my opinion at least, within the limits of the common law. City of Sheridan v. Cadle, supra.

Where certiorari is authorized by the statute and/or constitution but there is no provision for its utilization in a particular type of proceeding, the common-law writ is available and the rules pertaining thereto apply. 14 Am.Jur.2d, Certiorari § 6, Availability and use of common-law writ, p. 782. The encyclopedia cites Morris v. Apodaca, 66 N.M. 421, 349 P.2d 335, 336 (1960), where it is said:

“We have no constitutional or statutory definition of ‘certiorari’ as it applies to this type of proceeding, although, generally, by the constitution and statute, the district and supreme courts are authorized to issue writs of certiorari. Therefore, it would follow that what is known as the common law writ of certiorari would apply. This being true, it can generally be stated that certiorari will lie in two classes of cases, (1) whenever it is shown that the inferior court or tribunal has exceeded its jurisdiction; (2) whenever it is shown that the inferior court or tribunal has proceeded illegally, and no appeal is allowed or other mode provided for reviewing its proceedings. , 10 AmJur. 527, Certiorari, § 5.”

The class of cases in which the common-law writ of certiorari will lie is set out at 14 Am.Jur.2d, Certiorari § 6, pp. 782-783, as follows:

“Availability and use of common-law writ.
“Though generally the courts are authorized by the constitution and statute to issue writs of certiorari, where there is no constitutional or statutory provision for certiorari as to a particular type of proceeding, what is known as the common-law writ of certiorari would be available. “Primarily there are two classes of cases in which a common-law writ of certiorari will lie: (1) wherever it is shown that the inferior court or tribunal has exceeded its jurisdiction; (2) wherever it is shown that the inferior court or tribunal has proceeded illegally and no appeal is allowed or other mode provided for reviewing its proceedings. The petitioner must generally establish either that the proceedings are infected with some fatal irregularity rendering them absolutely void, that the jurisdiction of the cause did not belong to the tribunal which assumed it but to a different tribunal, or that the cause is one not within the limits of judicial power. In other words, the inquiry contemplated is in reference to the power of the court, not the irregularity or correctness of its action. Certiorari does not lie in any case unless petitioner can satisfy the court that there is involved a question of jurisdiction of the inferior court or tribunal which is raised originally by his petition, that he has no other adequate remedy, or that review by certiorari is necessary to avoid great injury or unusual *1112hardship which would result from the delay involved in pursuing another remedy.”

In observing that Wisconsin has a constitutional provision like ours, the opinion in Call v. Town of Afton, supra, 278 P.2d at 273-274, then went on to quote Wardsworth v. Sibley, 38 Wis. 484, 486, where the Wisconsin Supreme Court said:

“ ‘The constitution refers to the writ as it was used and applied in practice when the constitution was adopted, and did not intend to give it a scope or object different from its original and appropriate function. * * * But we think it would be contrary to all practice and all precedent to make it a substitute for a writ of error or appeal, to bring up for review the final judgments of courts of record proceeding according to the course of the common law.’ The court also stated: ‘The general rule as laid down in the books is, that a common law certiorari will not issue where a party has another adequate remedy; and it is certainly a novel application of such a writ to make it perform the office of a writ of error to bring up for review a final judgment of a court of record.' It seems that the state of Massachusetts has a statute similar to our constitutional provision above mentioned. Inhabitants of Mendon v. County Commissioners of Worcester, 2 Allen, Mass., 463. In Re Cooke, 15 Pick., Mass., 234, 237, the court discussed the common-law rules relating to certiorari. The court stated in part: ‘The question is, what is the legal and proper remedy or process, for the purpose of correcting any error in the proceedings, after final judgment rendered, or the final decision of the cause; and it seems to be well settled, by the English authorities, that after final judgment in a court of record, proceeding according to the course of the common law, the only remedy is by writ of error. But where the court below is not a court of record, or does not proceed according to the course of the common law, no writ of error will lie, and the proper remedy is by certiorari.’ ”

This court, in Call v. Town of Afton, supra, 278 P.2d at 274, then went on to reject the concept which says that even though there is an adequate appellate remedy,

“ * * * ‘An exception has frequently been made * * * when necessary to prevent a failure of justice.’ [Quoting from Rapid Ry. Co. v. Michigan Public Utilities Commission, 225 Mich. 425,196 N.W. 518, 519. (See 14 C.J.S., Certiorari, § 37, pp. 181, 182].”

Justice Blume, in formulating our rejection, says:

“ * * * t0 carry that rule to its logical conclusion would seem to mean that every time we should dismiss an appeal because of non-compliance with the statutory rules relating to petition in error or direct appeal, or because of non-compliance with the rules of this court, we might nevertheless, in our discretion, issue a writ of certiorari in the same case, since injustice in the broad sense might result in such cases by the dismissal. That would, of course, upset and to a large extent nullify our statutory provisions on appeal and the decisions of this court relating thereto.” 278 P.2d at 274.

The Justice, speaking for the court, then approves the rule which holds:

“ ‘ * * * [I]n a proper case a party entitled to appeal or to pursue some other remedy, who has lost the right through inadvertence, accident, or mistake, may have a remedy by certiorari, provided there is a showing of probable merits and freedom from fault.’ [Quoting from 14 C.J.S., Certiorari, § 40, p. 189] (See also 10 Am.Jur. 531, 532, § 7).” (Emphasis added) 278 P.2d at 275,

and resigns the court to deciding the case before it

“ * * * uncjer ⅛6 So-called rule last stated and the rule that ordinarily a writ of certiorari is not granted if there is another plain, speedy and adequate remedy, and in the light of the fact that no question of jurisdiction or excess thereof is involved herein.” 278 P.2d at 275.

*1113The scope of the appellate jurisdiction of this court is set out in Art. 5, § 2 of the Wyoming Constitution, supra. That section limits the scope of the “general appellate jurisdiction” conferred upon this court to that authorized “under such rules and regulations as may be prescribed by law.” The legislature by statute and this court Jay rule have spoken extensively in this area, detailing those situations in which the appellate jurisdiction may be exercised and prescribing the manner in which one must proceed. This body of law delineates the scope of appellate review in this state, and if certiorari is to be invoked, it must be under the rules identified by the common law,11 one of which is that certiorari will not be granted where there is otherwise an adequate remedy by way of appeal. Call v. Town of Afton, supra. Rule 1.04 of the Wyoming Rules of Appellate Procedure provides to criminal defendants a plain, speedy and adequate remedy by way of appeal for the correction of errors made by the court of first instance in arriving at a judgment:

“A judgment rendered or final order made by a district court may be reversed in whole or in part, vacated or modified by the Supreme Court for errors appearing on the record.”

In application of these propositions to the case at bar, I agree with the majority of the justices when they hold that this court has retained the power of appellate review under circumstances such as those with which we are here concerned. At p. 1092 of the majority opinion, Chief Justice Rooney, writing for the court, says:

“As long ago as 1927, we indicated that we would modify a legal sentence if the trial court abused its discretion in imposing it. State v. Sorrentino, 36 Wyo. 111, 253 P. 14,16 (1927). Since then, we have repeatedly set forth the fact that a sentence will be reviewed for abuse of discretion. Cavanagh v. State, Wyo., 505 P.2d 311 (1973); Peterson v. State, Wyo., 586 P.2d 144 (1978); Sanchez v. State, Wyo., 592 P.2d 1130 (1979); Jones v. State, Wyo., 602 P.2d 378 (1979); Buck v. State, Wyo., 603 P.2d 878 (1979); Sorenson v. State, Wyo., 604 P.2d 1031 (1979); Kenney v. State, Wyo., 605 P.2d 811 (1980); Scheikofsky v. State, Wyo., 636 P.2d 1107 (1981); Daniel r. State, Wyo., 644 P.2d 172 (1982); Taylor v. State, Wyo., 658 P.2d 1297 (1983); and Eaton v. State, Wyo., 660 P.2d 803 (1983).

“In Scheikofsky v. State, supra, 636 P.2d 1107 at 1112-1113, we said:

“ ‘This court has stated its approach to sentence review many times. If a trial court’s determination of the terms of imprisonment is within the statutory limits, it will not be disturbed absent a clear abuse of discretion.’ Hanson v. State, Wyo., 590 P.2d 832, 835 (1979); Jones v. State, Wyo., 602 P.2d 378, 380 (1979); Smith v. State, Wyo., 564 P.2d 1194, 1202 (1977); Daellenbach v. State, supra, at 683 [562 P.2d 679 (1977)]. A sentence will not be disturbed because of sentencing procedures unless the defendant can show an abuse of discretion, procedural conduct prejudicial to him, and circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play. Hicklin v. State, Wyo., 535 P.2d 743, 751, 79 A.L.R.3d 1050 (1975). That is a nebulous standard, but it is as precise as we care to make it. We have an abiding reluctance to review a trial judge’s determination of sentence. The determination is a burdensome decision which no trial judge could lightly make and which we will not lightly overturn.”

The opinions from this court cited by the majority stand for the proposition that a legal sentence may be modified if the trial court abused its discretion in imposing it. Until today, however, this court had never adopted standards by which we could determine whether a sentence within statutory limits constituted an abuse of the trial judge’s discretion. As a result of our failure to adopt such standards, there was small possibility that this court would upset *1114a legal sentence, and, as Justice Thomas points out, we have, “as a matter of practice,” followed the common-law rule when reviewing sentences.

With the development of standards against which to review trial judges’ sentences for abuse of discretion, we are now free to abandon the common-law position— even if that is the rule of this court on the subject as Justice Thomas contends. In so doing, we would be following the lead of the highest courts of numerous other states12 that have recognized their appellate obligation to insure that sentencing fairly conforms to the lawful purposes of incarceration. This leads to the conclusion that there is a speedy and adequate review procedure available to Grant Wright which would preclude his utilizing certiorari.

SUMMARY

In dissent, I would hold that the majority is in error when it refuses to hold that the district court abused its discretion. I would warn that the district courts of Wyoming may well be divested of jurisdiction to reduce a sentence of incarceration to probation after the defendant has commenced serving time. I would comment upon Justice Thomas’ willingness to review the district judge's sentence of Grant Wright by observing that this is not the office of the writ.

Finally, it would be my hope that the Governor, in his executive capacity, will not be as unfeeling in his response to the pleas of this young man as the judicial branch of the government has been.

. In Sanchez v. State, supra, 592 P.2d 1130, we reversed the trial court for the reason that the judge had refused to consider probation in the sentencing process and thus had abused his discretion.

. See Martínez v. State, Wyo., 611 P.2d 831 (1980); Hicklin v. State, Wyo., 535 P.2d 743, 79 A.L.R.3d 1050 (1975); Bentley v. State, 502 P.2d 203 (1972).

. I use the verb “duped” advisedly. Webster’s New Collegiate Dictionary says that “duped” means “deceived” or “cheated.” Rodale’s Synonym Finder says of the verb “dupe”:

“Take advantage of the credulity of a person, make a dupe of, trick, cheat, hoodwink, delude, deceive, fool, befool, humbug, hoax, gull, bamboozle, beguile, outreach, overreach, outwit, take in, cully, cozen, chouse, circumvent, impose upon, make a fall guy of, victimize, mislead, defraud, swindle, play false, betray, steal a march on, put something over on, palm off on, throw dust in the eyes, bait, bilk, diddle, flimflam, best, gudgeon.”

. The authority cited is:

“Re philosophy of sentencing see e.g. Bums and Mattina, Sentencing, The National Judicial College (1978); Campbell, Law of Sentencing, The Lawyers Co-operative Publishing Co. (1978); Killinger and Cromwell, Corrections and Administration, West Publishing Co. (1976); Rich, Sutton, Clear and Saks, Sentencing by Mathematics, The National Center for State Courts (1982).”

.Justice Thomas, in advocating the writ-of-cer-tiorari approach to appellate sentence review would adopt the American Bar Association’s suggested objectives of appellate review of sentences. See his specially concurring opinion, at p. 1098.

. See p. 1100 of this dissent for the language of the presentence summary which was submitted to the district judge by the probation and parole department.

. “Retribution” is defined in Black’s Law Dictionary, 5th Ed., as follows:

“Something given or demanded in payment. In criminal law, it is punishment based on the theory which bears its name and based strictly on the fact that every crime demands payment in the form of punishment.”

. See n. 4 of the majority opinion.

. See the Governor and the state board of parole’s petition for a writ of prohibition in Her-schler v. District Court, No. 83-181, filed September 27, 1983 and our order in those proceedings dated October 6, 1983.

. Section 3-5323, W.C.S.1945 read:

“Writs of error and certiorari abolished.— Writs of error and certiorari to reverse, vacate or modify judgments or final orders in civil cases are abolished; but court shall have the same power to compel transcripts of the proceedings containing the judgment or final order sought to be reversed, to be furnished, completed or perfected as they heretofore had under writs of error and cer-tiorari.”

. City of Sheridan v. Cadle, supra.

. See: Ripley v. State, Alaska, 590 P.2d 48 (1979); State v. Adair, 99 Idaho 703, 587 P.2d 1238 (1978); State v. Erickson, Minn., 313 N.W.2d 16 (1981); State v. Mude, Mo., 448 S.W.2d 879, cert. denied 398 U.S. 938 (1970); State v. Johnson, 67 N.J.Super. 414, 170 A.2d 830 (1961); Montalto v. State, 51 Ohio App. 6, 199 N.E. 198 (1935); Commonwealth v. Warner, 227 Pa.Super. 291, 324 A.2d 361 (1974); State v. Fortes, 114 R.I. 161, 330 A.2d 404 (1975); State v. Tuttle, 21 Wis.2d 147, 124 N.W.2d 9 (1963); Annot., 89 A.L.R. 295, Reduction by appellate court of punishment imposed by trial court; Comment, Criminal Procedure— Appealability of a Criminal Sentence—Sentence Modified on Appeal, 16 Rutgers Law Rev. 186 (1961).