Appeal from the District Court of Laramie County, The Honorable Edward L. Grant, Judge.
The opinion of the court was delivered by: Kite, Justice
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1] Alan Sandoval pled guilty to second degree murder in the beating death of his girlfriend's one year old daughter. After the district court sentenced him to serve seventy years to life in prison, he appealed. Mr. Sandoval argues that he was denied a fair sentencing when the prosecutor argued facts outside the record at the sentencing hearing and the district court failed to provide him a full right of allocution. We conclude that the vast majority of the prosecutor's statements were appropriate and the one inappropriate statement did not prejudice Mr. Sandoval. Additionally, he was afforded a sufficient opportunity of allocution.
[¶3] Mr. Sandoval presents a general issue on appeal:
I. Was Mr. Sandoval's right to a fair sentencing violated?
The State's statement of the issue is similar.
[¶4] On April 17, 2008, Mr. Sandoval killed his girlfriend's one year old daughter, AM. He confessed the homicide to law enforcement officers and his confession was recounted in the affidavit of probable cause that accompanied the felony information charging him with second degree murder.*fn1 Although Mr. Sandoval initially pleaded not guilty to the charge, he later changed his plea to guilty. His guilty plea was "cold," meaning it was not made pursuant to any agreement with the State. At his change of plea hearing, Mr. Sandoval recounted the events of April 17th and the district court incorporated the probable cause affidavit into the factual basis for the plea.
[¶5] At the sentencing hearing, defense counsel argued that Mr. Sandoval had killed the child in a short outburst of anger and he had taken responsibility for his crime by pleading guilty. He also made an impassioned plea for mercy, asking that Mr. Sandoval be sentenced to the minimum term of twenty years to life in prison. Mr. Sandoval gave a short statement apologizing for his actions and asking for leniency. The State advocated for a significantly more severe sentence of seventy years to life in prison. In support of its position, the State argued that the evidence demonstrated that Mr. Sandoval's crime was brutal and prolonged and did not amount to a short fit of rage. At the conclusion of the hearing, the district court accepted the State's recommendation and sentenced Mr. Sandoval to serve seventy years to life in prison. He appealed.
[¶6] At his sentencing hearing, Mr. Sandoval did not object to the district court's sentencing procedures. Our review is, therefore, limited to a search for plain error. In order to establish plain error, the defendant must show that the record patently demonstrates the district court transgressed a clear and unequivocal rule of law and such violation adversely affected his substantial right. Manes v. State, 2004 WY 70, ¶ 9, 92 P.3d 289, 292 (Wyo. 2004).
[¶7] Although our review is for plain error, we are also guided by other principles. Sentencing decisions rest within the broad discretion of the district court. DeLoge v. State, 2002 WY 155, ¶ 9, 55 P.3d 1233, 1237-38 (Wyo. 2002). We will not reverse a sentencing decision "absent a showing by the defendant of an abuse of discretion, procedural conduct prejudicial to him, circumstances that manifest inherent unfairness and injustice, or conduct that offends the public sense of fair play." Id.
[¶8] Due process requires that the court consider only accurate information in imposing sentence. Manes, ¶ 9, 92 P.3d at 292. "[A] sentencing decision cannot be based upon unreliable information, undocumented information, or inaccurate information." Hubbard v. State, 2008 WY 12, ¶ 24, 175 P.3d 625, 630 (Wyo. 2008). If a prosecutor brings undocumented or inaccurate allegations to the district court's attention during sentencing, he engages in misconduct. Id. Nevertheless, a showing that inaccurate information was presented to the court will not necessarily justify a reversal; "the defendant must demonstrate that the trial court relied upon the statements in sentencing to prevail." Manes, ¶ 9, 92 P.3d at 292. See also, Hubbard, ¶ 19, 175 P.3d at 629.
1. Prosecutorial Misconduct
[¶9] Mr. Sandoval claims that his right to a fair sentencing was violated when the prosecutor introduced facts at the sentencing hearing that were not documented in the record. He points to several different instances which he claims amount to prosecutorial misconduct.
[¶10] First, Mr. Sandoval contests the prosecutor's assertion that he joked with his father about the homicide. The prosecutor stated:
Is there remorse? Does [Mr. Sandoval] feel bad? Maybe, but in a conversation he had with his father, Your Honor, his father told him, "Somebody saw you - - somebody saw you on TV down in Denver. You're famous." They chuckled about it.
He claims that the "chuckling incident" was undocumented and the prosecutor should not have mentioned it at sentencing.
[¶11] Mr. Sandoval is apparently correct in his assertion that this conversation was not documented in the record. The prosecutor, therefore, committed misconduct by referring to it at sentencing. See, DeLoge, ¶ 13, 55 P.3d at 1239. However, in order to warrant reversal, Mr. Sandoval must demonstrate that he was prejudiced because the district court relied upon the improper information in passing sentence. He concedes that there is no indication that the improper statement ...