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Jason James Joreski v. the State of Wyoming

November 14, 2012

JASON JAMES JORESKI, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Natrona County The Honorable Catherine E. Wilking, Judge

The opinion of the court was delivered by: Hill, Justice.

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

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] Jason Joreski entered an Alford plea to three counts of first degree sexual abuse of a minor and one count of third degree sexual abuse of a minor. The Alford plea allowed Joreski to enter a guilty plea without allocuting or otherwise admitting his participation in the crimes. During Joreski's sentencing hearing, the district court cited to a number of factors that influenced the court's sentencing decision and then commented on Joreski's flippancy and lack of remorse before announcing its decision. Joreski challenges the sentence, contending that the district court violated his constitutional right against self incrimination by using his silence as evidence of a lack of remorse. We affirm.

ISSUE

[¶2] Joreski presents a single issue on appeal:

Did the trial court err in considering [Joreski's] lack of remorse at sentencing, when [Joreski] entered an Alford plea, and declined at sentencing to allocute?

FACTS

[¶3] On May 22, 2011, the Mills, Wyoming police department was called to respond to a family dispute. Joreski's fifteen year old daughter, C.J., had run away from home to her grandparents' home. When the police reported to the grandparents' address, the grandparents reported that Joreski had shown up, dragged his daughter from their residence, forced her into his minivan and left the residence. A short time later, Joreski returned his daughter to the grandparents' residence.

[¶4] On May 24, 2011, C.J.'s grandmother reported to a Mills police officer that C.J. had disclosed to her that she had been sexually abused by Joreski. C.J. was thereafter interviewed, and her reported abuse was investigated. On June 8, 2011, Joreski was charged with twenty counts relating to the sexual abuse of his daughter beginning in 2007 and continuing into 2011.

[¶5] On July 28, 2011, Joreski pled not guilty to all counts. On September 9, 2011, following plea negotiations with the State, Joreski changed his plea and entered an Alford guilty plea to Counts One, Two, and Four, each of which charged him with first degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-314(a)(ii), and to Count Three, which charged him with third degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-316(a)(iv). In exchange for Joreski's plea, the State dropped the remaining charges and agreed to cap its requested sentence at a maximum of twenty-five years, with Joreski permitted to argue for a shorter sentence.

[¶6] After the district court advised Joreski of his rights and the consequences of an Alford plea, the State set out the factual basis for the plea. Neither Joreski nor his counsel objected to the sufficiency of the State's factual basis, and the district court found the State's factual basis to be "strong evidence of Mr. Joreski's actual guilt to the crimes charged." The district court then accepted Joreski's guilty plea.

[¶7] On December 16, 2011, the district court held a sentencing hearing. Consistent with its plea agreement, the State requested a sentence of twenty to twenty-five years for Counts One, Two, and Four, and a sentence of thirteen to fifteen years for Count Three, all to run concurrently. Counsel for Joreski argued for a sentence of five to ten years for each count, again to run concurrently. Following argument by counsel, the district court gave Joreski an opportunity to speak:

THE COURT: . Mr. Joreski, you have an opportunity to speak before sentence is pronounced. Is there ...


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