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Duffy v. State3/21/1990
ic charge in one way or another for the balance of his life. Most twenty-year firm sentences constitute a lifetime commitment for public responsibility unless surviving family can and will come to the rescue. All of this seems somewhat to escape the criteria of Wyo. Const. art. 1, § 15 which requires the "humane principles of reformation and prevention." The issue in Duffy I was not the incidental and illustrative function of good time, it was the essential character of Wyoming indeterminate sentencing as a legislative decision which was rescinded by judicial abrogation. Cf. Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987).
In Duffy I, the issue of merger as an illegal sentence was furloughed to be considered under W.R.Cr.P. 36. With mandate issued in December 1986, Duffy followed on March 23, 1987 with a motion for corrected sentence and for sentence reduction pursuant to W.R.Cr.P. 36 contending that merger had occurred in the two offenses, that the sentence was impermissible under the separation of powers and the good time provisions of W.S. 7-13-423 (now W.S. 7-13-420), and that the sentence was illegal in that the defendant was not properly advised he could be subject to consecutive sentences totaling thirty-five years. A comprehensive brief in support of the motion was filed, but the relief requested was denied without hearing from which appeal is now presented as invited in Duffy I. When extracted from the considerable discussion of issues that are not now "ripe," the principal thrust of the present majority decision is to validate the dual charges of conspiracy to commit burglary and aiding and abetting aggravated robbery as the point of decision.
V. DOUBLE JEOPARDY, MULTIPLICITY, MERGER, AND LEGISLATIVE INTENT
A. Admittedly, the facts of this case add no sympathy for Duffy, but my concern is with the direction of Wyoming law. Apparently, Duffy had been involved with some sort of burglary incident with his grandmother's house before. When the July 4, 1984 crime occurred, the Lander police immediately started to check out anyone in town who had previous contact with him. Telephone calls charged to the mother of his ex-girlfriend immediately led to Michele Frey.
After Ms. Frey's confession, the two young male accomplices were in jail shortly thereafter. All contact with Duffy had been through Ms. Frey, a young mother, age twenty-one. She recruited Richard Sweaney and they jointly recruited Jeffery Warner, who acquired gloves and essentially "went along for the ride." Frey drove and Sweaney broke into the house with a stolen gun, threatened and handcuffed the terrified elderly grandmother, gathered up the stolen goods, and returned to the car to divide their loot.
Frey, arrested on July 5th, was charged with one count of aiding and abetting aggravated robbery, W.S. 6-2-401(a)(ii), (c)(ii). On November 14, 1984, she entered a plea of guilty to the charge and, on January 22, 1985, received a sentence of fifteen to twenty years with credit for time in jail on the minimum. After a modification motion, the penal sentence was reduced to ten to twenty years which she presently serves in the Wyoming Women's Center.
Jeffery Warner, age nineteen, who obtained gloves for the offense, came back to the car before the burglary was committed. Also arrested within a day of the offense, he was likewise charged with aiding and abetting aggravated robbery. He pleaded guilty on August 14, 1984, and was sentenced on January 23, 1985 to a term of ten to fifteen years with credit on the minimum sentence. Subsequent modification also reduced his sentence to five to ten years.
Richard Sweaney, age nin
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