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Kelley v. State

January 14, 2009

JOSHUA KELLEY, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Albany County The Honorable Jeffrey A. Donnell, Judge.

The opinion of the court was delivered by: Voigt, Chief Justice

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

VOIGT, C.J., delivers the opinion of the Court; HILL, J., files a specially concurring opinion.

[¶1] The appellant contends that his constitutional right to equal protection of the laws was violated when the district court arbitrarily and capriciously did not grant him first-offender status under Wyo. Stat. Ann. § 7-13-301 (LexisNexis 2007). Alternatively, he argues that the district court's denial of first-offender status was an abuse of discretion. We affirm.

ISSUES

[¶2] The appellant states the issues substantially as follows:

1. Was the appellant treated arbitrarily and capriciously when he was denied the benefit of disposition of his case under Wyo. Stat. Ann. § 7-13-301?

2. Did the denial of first-offender status violate the equal protection clauses of the United States Constitution and the Wyoming Constitution?

3. Did the district court abuse its discretion in its application of Wyo. Stat. Ann. § 7-13-301 in sentencing the appellant?

[¶3] The issue that we will address, however, because it is mandated by our standard of review when there has been no objection below, is whether the district court committed plain error in denying first-offender status to the appellant.

FACTS

[¶4] A Felony Information was filed on November 5, 2007, in the Circuit Court of Albany County, Wyoming, charging the appellant with one count of burglary and one count of buying, receiving, concealing or disposing of property obtained in violation of the law. The appellant waived his right to a preliminary examination and his case was bound over to district court for trial. At arraignment, the appellant pled guilty to burglary pursuant to the following plea agreement, which was set forth verbally on the record by the prosecutor:

THE COURT: Mr. [Prosecutor], I understand there is a plea agreement. Would you state that for the record, please?

MR. [PROSECUTOR]: I will, Your Honor. Thank you. The plea agreement and recommendation is the defendant will plead guilty to Count I, burglary. The State will dismiss Count No. II. The defendant's agreed to full restitution to both counts, Counts I and II. And [Victim] has already given a victim impact statement wherein they requested restitution in the amount of $5,620. And that includes a $5,000 reward, which, to be quite blunt, under the restitution statutes may or may not be granted by the Court. That would be a matter for the Court, if it went to hearing.

The defendant has agreed to pay that full amount, the $5,620, as in his words, he has said he wants to take full responsibility for this situation. Simon Contractors has not yet contacted our office. The amount of their ...


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