Appeal from the District Court of Campbell County The Honorable Michael N. Deegan, Judge.
The opinion of the court was delivered by: Kite, Justice.
Before VOIGT, C. J., and GOLDEN, HILL, KITE, and BURKE, JJ.
KITE, J., delivers the opinion of the Court; VOIGT, C. J., files a specially concurring opinion.
[¶1] Maurice Carol Noller pleaded guilty to one count of aggravated vehicular homicide and two counts of driving under the influence (DUI) with serious bodily injury. At his sentencing hearing, Mr. Noller moved to strike portions of the pre-sentencing investigation report (PSI) on the grounds that they were inflammatory and argumentative. The district court denied the motion and sentenced Mr. Noller to terms encompassing the maximum period of incarceration on each count. Mr. Noller appeals, claiming the district court abused its discretion in denying his motion to strike and considering improper comments contained in the PSI. We affirm.
[¶2] Mr. Noller presents the issue for this Court's consideration as follows:
Did the district court abuse its discretion when it denied appellant's motion to strike inflammatory and argumentative language from the PSI and considered such language during sentencing?
The State asserts the district court did not abuse its discretion.
[¶3] In January of 2008, Mr. Noller was driving his pickup truck on a two-lane highway outside of Gillette, Wyoming. His two step-daughters were with him in the vehicle. Mr. Noller attempted to pass in a no passing zone, causing a head-on collision between his truck and a Chevy Suburban. Chemical testing performed after the accident established that Mr. Noller's blood alcohol content was .22.
[¶4] One of the passengers in the Suburban was killed instantly. The driver sustained serious injuries, including a broken left femur, a compound fracture of her right tibia and fibula, a broken left forearm and humerus, multiple broken bones in her right arm, a broken tailbone, two broken vertebra, damage to her liver, spleen, lungs and kidneys and hemorrhaging in her brain and spine. The driver's two year old son, who was a passenger in the back seat of the Suburban, was also seriously injured. He and his mother were flown by flight-for-life to Colorado for treatment.
[¶5] Mr. Noller was charged with one count of aggravated vehicular homicide under Wyo. Stat. Ann. § 6-2-106(b)(i) (LexisNexis 2007) and two counts of causing serious bodily injury while driving under the influence under Wyo. Stat. Ann. § 31-5-233(h)(i) (LexisNexis 2007). Mr. Noller ultimately pleaded guilty to all three charges and the district court set the matter for sentencing.
[¶6] At his sentencing hearing, Mr. Noller moved to strike portions of the PSI. As grounds for his motion, he asserted comments made by the probation and parole agent who prepared the report were argumentative, biased and showed that she improperly had assumed the role of an advocate for the prosecution rather than simply gathering factual information for the district court. The district court denied the motion and sentenced Mr. Noller to a term of eighteen to twenty years on the aggravated vehicular homicide charge, and terms of nine to ten years for each count of causing serious bodily injury while driving under the influence, with the three terms to be served consecutively. Mr. Noller timely appealed.
[¶7] We review a district court's sentencing decisions for abuse of discretion. Roeschlein v. State, 2007 WY 156, ¶ 17, 168 P.3d 468, 473 (Wyo. 2007). A sentence will not be disturbed because of sentencing procedures unless the defendant can show an abuse of discretion, procedural conduct prejudicial to him, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play. Id. An error warrants reversal only when it is prejudicial and it affects an appellant's substantial rights. Id. The party who is appealing bears the burden to establish that an error was prejudicial. Id. This Court has declined to reverse a sentence where the party objecting to particular portions of a PSI failed to demonstrate that the district court based its decision upon those parts of the report and the challenged comments "merely summarized what was apparent elsewhere in the report and provided the rationale for the agent's sentencing recommendation." Doherty v. State, 2006 WY 39, ¶ 34, 131 P.3d 963, 974 (Wyo. 2006).
[¶8] In moving to strike portions of the PSI during the sentencing hearing, defense counsel specifically objected to the following comments in the report:
In gauging the Defendant's level of remorse during the interview, this Writer did believe he felt some responsibility for his actions. However, he seemed to have about 20% remorse and 80% self-pity. . . . He seemed much more concerned that there was "no hope" for him and voiced passive defiance, even now, toward any future treatment participation. In this Writer's opinion and observation, he still maintains selfish, cowardly and self-defeating thoughts and behaviors and appears either unwilling or unable to entertain true empathy for the victims, their families and their loved ones.
(Emphasis in original). Defense counsel asserted that these comments were not reflective of the dispassionate, non-argumentative information ...