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Duffy v. State3/21/1990
er than ninety percent (90%) of the maximum term imposed.
See Wyo. Sess. Laws ch. 157, § 6 (1987), which states " he amendment to W.S. 7-13-201 made by this act does not apply to any criminal case in which the sentencing court has imposed a sentence prior to the effective date of the act."
The legislature made the ninety percent differential requirement prospective only and avoided a legislative reversal of the Duffy sentence, the only case with such total aberration. That a judicial mistake was corrected prospectively by the legislature does not necessarily eliminate a constitutionally impermissible equal protection violation for the individual subject to the discriminatory result.
Battles must inevitably end and the Duffy I issue of determinate sentencing is not presented in this narrowly confined W.R. Cr.P. 36 proceeding, except as to the basic underlying constitutional issue of equal protection. Duffy I determined the validity for Duffy of the determinate sentences as a matter of statutory construction and left unresolved constitutional issues including merger of the offenses first raised in oral argument. That double jeopardy issue was side-stepped in Duffy I for consideration by a W.R.Cr.P. 36 proceeding and is now presented for the double jeopardy-merger-duplicity questions. Obviously, other issues may be followed by a post-conviction-relief petition if filed before December 11, 1990, including conduct of the trial court and clear question of ineffectiveness of counsel. See Sword v. Shillinger, 782 P.2d 1117 (Wyo. 1989), Urbigkit, J., dissenting.
IV. RIPENESS
The claim that some presently presented arguments do not present cognizable claims that are ripe for our review seems inappropriate. We now apply an agency doctrine to criminal law review. We have before indicated " he doctrine of ripeness is a judicially created limitation of the availability of judicial review in administrative law cases." BHP Petroleum Co., Inc. v. State, Wyoming Tax Com'n., 766 P.2d 1162, 1164 (Wyo. 1989). Even if we are about to do with ripeness what we have done to standing; surely, if we are going to apply the ripeness doctrine beyond review of an agency decision, we should evaluate ripeness along the lines which BHP Petroleum Co., Inc. indicates is proper. The rationale presented by the majority presents only that prong which evaluates the fitness of an issue presented for judicial review. See BHP Petroleum Co., Inc., 766 P.2d 1162. The second prong is necessary to evaluate ripeness by balancing the interests of judicial economy against the hardship of the party if judicial review is denied. While the majority presents no authority for the holding that Duffy's desire to know how his sentence will be computed is not yet "ripe", there is obviously a hardship on him which should be balanced even under the traditional "ripeness" doctrine.
Difficulty is also encountered in determining what, in addition to the adaptation of the decision in Duffy I, this court now decides in Duffy II is determinative and not dicta and what further issues are actually left for the future Duffy III post-conviction relief, habeas corpus or writ of certiorari petitions. In initial discussion, the majority states:
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
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