Martin v. State

THOMAS, Chief Justice,

specially concurring.

I concur in the disposition of this case in accordance with the opinion of the majority. As of this time, however, I have discovered no reason to recede from the comments set forth in my concurring opinion in the case of Wright v. State, Wyo., 670 P.2d 1090 (1983), reh’g denied, cert, granted, 707 P.2d 153 (1985). I still am persuaded that this is an instance in which what we do speaks more definitively than what we say, and we have not found an abuse of discretion yet.

It now appears that we have two tests to consider in connection with appeals addressed only to the sentence imposed. In addition to abuse of discretion we also have espoused the proportionality test which some believe was articulated in Solem v. Helm, 463 U.S. 277 , 103 S.Ct. 3001 , 77 L.Ed.2d 637 (1983). One should undertake impossible tasks very carefully. Viewed in this light the majority position in Solem v. Helm, supra, certainly would have been an intriguing addition to Cervantes novel, Don Quixote. I believe there is a good deal of soundness in the dissenting opinion in So-lem v. Helm, supra, but perhaps the most significant language is found in footnote 16 of the majority opinion which reads:

“Contrary to the dissent’s suggestions, post, [103 S.Ct.] at 3017, 3022, we do not adopt or imply approval of a general rule of appellate review on sentences. Absent specific authority, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence; rather, in applying the Eighth Amendment the appellate court decides only whether the sentence under review is within constitutional limits. In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate.” Solem v. Helm, supra, at 3009-3010 n.16.

I do not perceive the majority opinion in this case as honoring that style of limitation. I fear that the majority has adopted the parroting of the proportionality test which appears in every brief in which the question of a proper sentence is raised by a convicted criminal. I return to my point that caution should be exercised. In Solem v. Helm, supra, at 3011 , the majority said:

“In sum, a court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.”

An application of these factors depends upon the utilization of empirical data which is not, so far as I can tell, available in Wyoming. Furthermore, the task of making that data available in my judgment is insurmountable in view of the steadfast position of the Wyoming state legislature that computer technology should not be available to the judicial branch of government for managing information. Any attempt by this court to utilize the objective criteria in the second and third factors identified by the Supreme Court is doomed to be an exercise in futility and frustration, not only on the part of this court, but for the appellants.

I am satisfied that the development of the critical information is much more likely to occur in the context of a petition for a writ of certiorari as approved in Wright v. *899 State, Wyo., 707 P.2d 153 (1985). I still believe that wisdom on the part of this court would lie in insisting that such issues be presented in that way, rather than committing relatively scarce resources to a plethora of appellate review of sentences imposed by our trial judges even in those cases in which the defendant entered a plea of guilty. It does not seem to me to be appropriate to entertain appeals in every instance in which a dissatisfied convict chooses to appeal his sentence either for his own amusement, or perhaps with the relatively slim hope that, like Jerry Buckley Helm, he will manage “to be in the outhouse when the lightning strikes.”