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Edwin Vincent Conkle v. the State of Wyoming

January 3, 2013

EDWIN VINCENT CONKLE, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Park County The Honorable Steven R. Cranfill, Judge

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

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

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] Slightly less than one year after his conviction for first-degree sexual abuse of a minor, Appellant Edwin Conkle filed a pro se motion for a reduction of his sentence. He now seeks review of the district court's denial of that motion. We will affirm.

ISSUE

[¶2] Without identifying any legal issue, Mr. Conkle offers us only the information he presented to the district court in conjunction with his motion, and asks that we reduce his sentence. We will construe his filing as a request that we determine whether or not the district court abused its discretion in denying his motion for a reduction of his sentence.

FACTS

[¶3] In mid-September 2010, 39-year-old Mr. Conkle was working as an apartment manager for the Lockhart Inn in Cody. An 8-year-old girl and her father were staying in one of the apartments. On September 13, after having a drink in that apartment with Mr. Conkle, the girl's father had to leave for approximately thirty minutes to run some errands. Mr. Conkle offered to stay and watch Sponge Bob cartoons with the child while the father was gone.

[¶4] Before the girl's father returned, Mr. Conkle interrupted her dinner of pizza rolls and allegedly penetrated her vagina both digitally and lingually. She reported that abuse to her father, who in turn reported the matter to the Cody Police Department. Following a brief investigation, the Park County Attorney charged Mr. Conkle with a single count of first-degree sexual abuse of a minor under Wyo. Stat. Ann. § 6-2-314 (a)(i) and (b) (LexisNexis 2011), an offense carrying a 50-year maximum term of imprisonment.

[¶5] In late March of 2011, Mr. Conkle and the prosecutor reached a plea agreement and jointly moved for the preparation of a presentence investigation report prior to a combined change of plea and sentencing hearing. The substance abuse assessment portion of the report addressed Mr. Conkle's alcohol dependence and noted that he was neither able to recognize nor manage his impulse to drink and the circumstances that posed a high likelihood of triggering a relapse. Consequently, the assessment recommended that he receive high intensity residential treatment, followed by no less than one year of aftercare.

[¶6] The probation officer who prepared the presentence report concurred with the substance abuse assessment and concluded that incarceration was the most appropriate sentence. She noted that he showed little interest in getting therapy or addressing his substance abuse issues, that he was capable of hurting himself and others if he acted on his aggressive impulses, and that it therefore "may be necessary to protect him from himself and to protect others around him."

[¶7] The parties' plea agreement called for Mr. Conkle to enter a no contest plea to the charged offense and for a stipulation that the affidavit of probable cause filed in support of that charge would constitute the factual basis for his plea. There was no agreement to a recommended sentence, but the parties anticipated that Mr. Conkle would argue for probation and that the prosecutor would argue for a prison sentence of twenty to twenty-five years.

[¶8] At the combined change of plea and sentencing hearing, Mr. Conkle's counsel called four witnesses: Mr. Conkle's father, mother, wife, and daughter. Collectively they portrayed him as an exceptionally caring and involved family man, husband and father. They told the district judge that his entire family needed him at home, especially his daughters and his wife, who suffered from multiple sclerosis. The victim's father briefly noted the emotional difficulties he and his daughter had experienced and still experienced as a result of Mr. Conkle's sexual abuse despite their participation in counseling.

[ΒΆ9] As anticipated, the prosecutor asked the court to sentence Mr. Conkle to twenty to twenty-five years in prison, far less than the statutory maximum of fifty years. Mr. Conkle's attorney asked for a suspended sentence and a long term of intensive supervised probation or, alternatively, either a split sentence or a much shorter penitentiary sentence of three to five years. The district court, after noting that it had considered the plight of Mr. Conkle's family and the ...


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