Appeal from the District Court of Laramie County The Honorable Peter G. Arnold, Judge.
The opinion of the court was delivered by: Voigt, Chief Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1] The appellant was convicted by a jury of third-degree sexual assault. He complains on appeal that, in imposing sentence, the district court improperly punished him for exercising his right to a jury trial. Because the record reflects that such may have occurred, we affirm the conviction, but reverse the sentence and remand for a new sentencing hearing.
[¶2] Did the district court improperly punish the appellant for exercising his constitutional right to a jury trial?
[¶3] Because there was no objection below, we review this issue for plain error. To prove plain error, the appellant must prove (1) the record clearly reflects the alleged error; (2) a clear and unequivocal rule of law was violated; and (3) the violation adversely affected a substantial right of the appellant to his material prejudice. Pendleton v. State, 2008 WY 36, ¶ 8, 180 P.3d 212, 215 (Wyo. 2008).
[¶4]The appellant was charged with third-degree sexual assault for having sexual contact with a nine-year-old girl, in violation of Wyo. Stat. Ann. § 6-2-304(a)(ii) (LexisNexis 2003). He was bound over to district court, where he was arraigned on March 12, 2007. A jury trial was scheduled for June 19, 2007. After a scheduling conference, the matter was re-set for a change-of-plea hearing. Prior to the hearing date, however, the appellant filed a document entitled "Motion to Strike Re-Arraignment and Set Matter for Jury Trial." The appellant was convicted after a three-day jury trial that began September 4, 2007.
[¶5] The appellant appeared for sentencing on January 2, 2008. The maximum penalty for third-degree sexual assault under the statute then applicable was imprisonment for not more than fifteen years. Wyo. Stat. Ann. § 6-2-306(a)(iii) (LexisNexis 2003).*fn1 The appellant received a sentence of eight to ten years. He now contends that the district court imposed that sentence at least in part to punish him for going to trial, rather than pleading guilty. He bases that contention upon the highlighted portion of the following comments made by the district court in imposing the sentence:
I know that generally speaking when I arrive at a sentence for someone [who has] pled guilty, I take into account the acceptance of responsibility. I take into account the saving of the effort that the guilty plea represents to the state. I take into account the saving of anxiety of witnesses who would otherwise be expected to testify if a defendant does not plead guilty. I take those things into account when I arrive at a sentence for someone who pleads guilty.
I think the corollary to that benefit to someone who pleads guilty is someone who does not plead guilty, someone who does not accept responsibility, somebody who one disregards the impact of stepping up into this witness stand and appearing in a courtroom [full] of strangers, appearing in a courtroom in front of somebody the jury determined had victimized that child. I think it's appropriate for me to take all of those things into consideration.