concurring in part and dissenting in part.
This appeal presents the question of whether the Wyoming Supreme Court will assume its constitutional responsibility to rationally consider the proportionality and severity of a multi-layered sentence. In this case, that consideration is derived from successive sentences which are undoubtedly the most severe, for this character of transactional occurrence, that has ever been entered by a court of this state. This appeal demonstrates that trial to a court, rather than before a jury, is not necessarily providential when severity of sentence issues develop.
Sexual abuse of a child for whom appellant was babysitting during the period of April 14, 1990 to April 29, 1990 resulted in a combined sentence, to be served consecutively, of thirty years to life; seven years to ten years; four years to five years; and four years to five years. The total sentence creates a minimum confinement of forty-five years to a maximum confinement of life plus twenty years.
By all criteria, this was intended to be a life sentence, consecutively created. It is not disputed that the offenses charged were serious and a severe sentence was justified, but the result went beyond any rational degree of equivalent uniformity when considering Wyoming sentencing severity. See, e.g., Rivera v. State, 840 P.2d 933 (Wyo.1992) (holding merger of a sexual assault offense and an offense of taking immodest, immoral or indecent liberties may occur when facts established at trial prove that defendant committed only a single criminal act). Proportionality in sentencing, making punishment fit the crime, remains a relevant subject for state appellate courts’ independent scrutiny. Compare Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) and People v. Bullock, 440 Mich. 15, 485 N.W.2d 866 (1992) with Harmelin v. Michigan, — U.S.-, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). See Saldana v. State, 846 P.2d 604 (Wyo.1993), Urbigkit, J., dissenting.
I am also uncomfortable with the level of hearsay and ex parte opinion testimony utilized for conviction. It was simply cumulative when considered in light of the totality of the properly admitted evidence which was strongly inculpatory. The fact that strong evidence of guilt existed is not, in my opinion, an excuse to add questionable evidence to augment the pile. See W.R.E. 403 (stating rule that although relevant, cumulative evidence may be excluded).
*1026Evidence of guilt was great and the decision to convict justified without the barrage of secondhand testimony paraded before the trial court as primary evidence of guilt. Some day, courts, even the courts of this state, are going to have to step back and re-establish the tradition of conviction determined by validated and real evidence instead of hearsay repeated and disguised with forensic opinions of trial-directed experts.
I concur in affirming the conviction. The trial proceedings and quantity of evidence sufficiently demonstrated guilt; however, I dissent to the severity of sentence which is beyond fairness and uniformity, even when considering the seriousness of the criminal acts committed by appellant on the defenseless victim. If trial witness perjury, including specifically those witnesses who by occupation have been previously sworn to support, obey and defend the constitution, not deny it, as public officials, was accommodated with the same life sentence severity, where the very integrity of the adjudicative system is at stake, the relative severity in this case would make somewhat more sense. Under the dual criteria of due process and equal protection, authenticated by the Wyoming Constitution in its first article, we should expect this court to recognize a responsibility to the entire system and require severity in punishment for such things as perjury, a crime which decimates the intrinsic structure of the justice delivery system while, at the same time, providing a rationality of reasonable equality for the many cases of recognized guilt but non-uniform sentencing application.
Consequently, I would affirm the conviction and submit the case for re-sentencing on some proportionality basis equivalent to a general standard. It is recognized that the trial court has a continuing opportunity to accord further consideration, but this court has an initial responsibility in application of its oath of office under the Wyoming Constitution to the appeal presently presented.