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Wayt v. State3/11/1996
1991). Despite a motion for correction and colloquy at sentencing, the district court made no record of that correction.
Two aspects of the 1991 case instruct our deliberations in this matter: (1) the same district judge presided over both cases; and (2) Wayt's sentence in the first case was three to five years in the state penitentiary. Id. at 803.
III. DISCUSSION
A. FAILURE TO CORRECT PSI
W.R.Cr.P. 32(a)(3)(C) reads as follows:
If the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make:
(i) A finding as to the allegation; or
(ii) A determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to penal institutions.
The PSI shows Wayt's familiarity with juvenile courts, including at least two delinquency adjudications and a Boys' School placement for auto theft. The PSI also lists more than eleven adult offenses, including seven DUI convictions and thirty days of jail in Nebraska for "Fraud/Swindle, Property Damage." The wrongful disposition of property conviction was also listed, with no mention of subsequent appellate reversal.
Prior to sentencing, Wayt filed and served his objections to the PSI asserting, inter alia: (1) the Nebraska conviction was for property damage only; (2) his earlier wrongful disposition of property conviction had been overturned on appeal; and (3) he had pled guilty to an eighth DUI charge.
Wayt's counsel noted at sentencing that Wayt understood the district court to be "well aware" that the wrongful disposition of property conviction had been overturned. The district court made no mention of corrections prior to sentencing, stating only: "Mr. Wayt, the big problem I have with your case is that you have been in trouble with the law for nearly 25 years now."
Clearly, the PSI erred in failing to note that Wayt's wrongful disposition of property conviction had been overturned. Just as clearly, the district court erred in failing to make findings as to Wayt's proposed PSI corrections, as required by W.R.Cr.P. 32(a)(3)(C).
Having demonstrated procedural error, however, Wayt remains obliged to show prejudice under "circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play." Johnson v. State, 790 P.2d 231, 232 (Wyo. 1990) (quoted with approval in Mehring v. State, 860 P.2d 1101, 1115 (Wyo. 1993)). Further, it is his burden to "establish that the sentencing judge in fact rested the sentence on false or improper premises." Smallwood v. State, 771 P.2d 798, 802 (Wyo. 1989). Johnson and Smallwood, although decided prior to adoption of the current Wyoming Rules of Criminal Procedure, apply to review of due process challenges brought under the current W.R.Cr.P. 32. Mehring, 860 P.2d at 1115.
We do not approve of the district court's failure to comply with W.R.Cr.P. 32, but the sentence is well within the ten year maximum punishment for burglary and may not be set aside absent a clear abuse of discretion. Wyo. Stat. § 6-3-301(b) (1988); Betzle v. State, 847 P.2d 1010, 1024 (Wyo. 1993). Wayt has neither established abuse of discretion nor demonstrated prejudicial harm.
It is a matter of reco
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