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Duffy v. State3/21/1990
The double jeopardy implications of separate sentences for aiding and abetting aggravated robbery and for conspiracy to commit burglary present the central issue in this case. Questions also are raised as to whether the sentences imposed, nine years, eleven months and twenty-nine days to ten years to run consecutively to twenty-four years, eleven months and twenty-nine days to twenty-five years, constitute a denial of due process because the appellant, Scott Duffy, is foreclosed from the right to earn statutory good time credits, essential for an early parole, and amount to a violation of the separation of powers doctrine as between the executive and judicial branches of government. A further question is posed as to whether Rule 15, W.R.Cr.P., was infringed because of the failure of the trial court to advise Duffy that it could impose consecutive sentences so that Duffy's plea of guilty was nullified. We hold that there is no violation of the constitutional prohibitions against double jeopardy in this instance, and the plea of guilty is not abrogated by the failure of the district court to advise Duffy of the possibility of consecutive sentences. The record does not demonstrate that the issues relating to the constitutionality of the sentences imposed are ripe for review at this time. The denial by the district court of Duffy's motion for correction of his sentences pursuant to Rule 36, W.R.Cr.P., is affirmed.
Duffy previously appealed his conviction. Duffy v. State, 730 P.2d 754 (Wyo. 1986). In the initial appeal, counsel for Duffy attempted to urge error because of the trial court's refusal to merge for sentencing the offenses of aiding and abetting aggravated robbery and conspiring to commit burglary. Trial counsel had not presented that claim in the district court, however, and the appellate counsel had not included the issue in the brief. Consequently, in accordance with our usual appellate discipline, we declined to address that issue. We noted that Duffy was not foreclosed from presenting a claim that his sentences are illegal by a motion under Rule 36, W.R.Cr.P. With respect to issues that were properly presented, the court found no error in the judgment and sentence which had been imposed.
Duffy accepted the invitation to pursue relief under Rule 36, W.R.Cr.P., and did file a motion in the district court to correct an illegal sentence. The district court did not set the motion for hearing within sixty days, and it then was deemed denied in accordance with Rule 301, U.R.D.C. This appeal is from the automatic denial of that motion.
Duffy now presents the same issues that were urged to the district court. The State, as appellee, has accepted Duffy's statement of those issues, which is:
"1. Did the district court's imposition of consecutive sentences in the present case violate the double jeopardy clauses of the United States and Wyoming Constitutions?
"2. Does the sentence in the present case violate due process by denying Appellant a liberty interest, the right to good time?
"3. Does the sentence as structured by the District Court infringe upon the powers delegated to the parole board and thereby infringe upon the constitutionally mandated separation of powers?
"4. Whether the guilty plea was taken in violation of Rule 15, W.R.Cr.P., and whether the proceedings were void and the sentence illegal?"
In the initial proceedings, Duffy entered pleas of guilty to one count of aiding and abetting aggravated robbery in violation of §§ 6-1-201 and 6-2-401, W.S. 1977 (June 1983 Repl.), and to one count of conspiracy to commit burglary in violation of §§ 6-3-301, 6-1-303 and 6-1-304, W.S. 1977
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