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Whitfield v. State10/26/1989
Tandem claims of abuse of discretion in imposing sentencing encompass the only issues in this appeal. Mark George Whitfield (Whitfield) first asserts that the trial judge refused to consider probation when imposing sentence, thereby committing an abuse of discretion. Whitfield also contends that the sentence imposed of not less than three nor more than five years constituted an abuse of discretion. Our review of the record convinces us that the trial judge appropriately considered, and rejected, probation as a sentencing option and, further, there was no abuse of discretion with respect to the term imposed. The judgment and sentence is affirmed.
Whitfield stated the issue in his Brief of Appellant in this way:
"Whether the trial court's refusal to consider probation and subsequent sentence to three to five years incarceration was an abuse of discretion."
The State of Wyoming submitted a counterstatement of the issue that is substantially identical to the articulation by Whitfield. Whitfield did not submit extensive argument in his brief with respect to the length of the sentence but, because he framed the issue in the way that he did and alluded to the length of the sentence in his argument, we do address the question of whether this sentence amounted to an abuse of discretion under the circumstances. Whitfield was charged with aggravated vehicular homicide in violation of §§ 31-5-233 and 6-2-106(b)(i), W.S. 1977. After waiving a preliminary examination, he initially entered a plea of not guilty in the district court. Whitfield filed a motion to suppress both the report of a blood alcohol test that was accomplished about an hour after the accident in question and some statements that he made to an investigating highway patrolman. After an adverse ruling on his motion to suppress, Whitfield changed his plea to guilty, and he was sentenced to a term of not less than three nor more than five years in the Wyoming State Penitentiary.
Section 31-5-233, W.S. 1977 (1988 Cum. Supp.), on April 2, 1988, the date of the offense, provided, in pertinent part:
"(a) It is unlawful for any person who is under the influence of intoxicating liquor, to a degree which renders him incapable of safely driving a motor vehicle, to drive or have actual physical control of any vehicle within this state.
"(b) Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving a vehicle while under the influence of intoxicating liquor, the amount of alcohol in the person's blood at the time alleged as shown by chemical analysis of the person's blood, urine, breath or other bodily substance shall give rise to the following presumptions:
"(iii) If there was at that time ten one-hundredths of one percent (0.10%) or more by weight of alcohol in the person's blood, it shall be presumed that the person was under the influence of intoxicating liquor, to a degree which renders him incapable of safely driving a motor vehicle; * * *."
Section 6-2-106, W.S. 1977 (June 1988 Repl.), provided, in pertinent part:
"(b) A person is guilty of aggravated homicide by vehicle and shall be punished by imprisonment in the penitentiary for not more than twenty (20) years, if:
"(i) While operating or driving a vehicle in violation of W.S. * * * 31-5-233 * * *, he causes the death of another person and the violation is the proximate cause of the death; * * *."
On April 2, 1988, Whitfield, then twenty-seven years old, began drinking at a bar in Torrington around 1:30 in the afternoon. He advised the probation officer that he had two beers an
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