               IN THE SUPREME COURT, STATE OF WYOMING

                                       2013 WY 159

                                                         OCTOBER TERM, A.D. 2013

                                                                December 24, 2013

HENRY R. SANCHEZ,

Appellant
(Defendant),

v.                                                   S-13-0140

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                    Appeal from the District Court of Carbon County
                       The Honorable Wade E. Waldrip, Judge

Representing Appellant:
      Henry R. Sanchez, pro se.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath; Jeffrey S. Pope,
      Assistant Attorney General.

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.
VOIGT, Justice.

[¶1] A jury convicted the appellant of attempted second-degree murder, aggravated
assault and battery, possession of cocaine, and misdemeanor interference. He was
sentenced to thirty to forty years for the attempted murder conviction, with lesser
sentences to run concurrently. The appellant filed a motion for sentence reduction, which
the district court denied. Not convinced the district court had all accurate facts available
in making its decision, the appellant filed a motion for reconsideration and it too was
denied. The appellant argues on appeal that the district court abused its discretion and
violated his due process rights by denying his motions for sentence reduction and ensuing
reconsideration. He contends the State committed prosecutorial misconduct by
presenting false facts in its traverse to the motion for sentence reduction; as a result, the
district court’s denial was improper. We find no abuse of discretion by the district court,
no violation of the appellant’s constitutional rights, and no prosecutorial misconduct. We
affirm.

                                          ISSUES

[¶2] 1. Did the district court abuse its discretion in denying the appellant’s motion for
reduction of sentence?

       2. Were the appellant’s constitutional due process rights violated by the district
court’s denial of his motion to reconsider a sentence reduction?

       3. Did the State commit prosecutorial misconduct by misstating facts in its
traverse to the appellant’s motion for reduction of sentence?

                                          FACTS

[¶3] Stemming from an attack on his girlfriend, the appellant was convicted of four
crimes and sentenced to a combined prison term of thirty to forty years. In arriving at
these sentences, the district court considered, inter alia, the appellant’s Presentence
Investigation Report. The report reflected that, between 1977 and 2008, the appellant had
been charged with over forty separate crimes resulting in more than twenty-five
convictions.

[¶4] The appellant appealed his conviction and sentence to this Court. See Sanchez v.
State, 2011 WY 77, 253 P.3d 136 (Wyo. 2011). While his appeal was pending, he filed a
motion for a new trial premised upon a claim of recently discovered juror bias, which was
denied by the district court. Id. at ¶ 10, at 140. We affirmed the conviction, sentence,
and denial of the motion for new trial. Id. at ¶ 50, at 149. Thereafter, the appellant filed
a petition for post-conviction relief. The district court denied relief, and we entered an
order denying the appellant’s petition seeking a writ of review of that denial.


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[¶5] In the latest salvo, the appellant has filed a motion for sentence reduction. He
provided proof of successful completion of several prison rehabilitation programs,
attendance of various counseling sessions, employment at the prison, and being a role
model, explaining:

               I came in here [to prison] with a negative view of life. But I
               view life in a much better way now. I communicate, socialize
               and work with others in a real positive way. And a lot more, I
               help others as much as I can if it will help them in a positive
               way. I’ve learned to respect others in authority, as well as
               fellow inmates. I have no desire to live life as I did
               previously. I want to continue to be productive and give, not
               take away. I want to live a humble, honest life. Owning up
               to my mistakes and making up for them whenever I have an
               opportunity to do something for others.

[¶6] In opposition, the State filed a traverse 1 highlighting the appellant’s criminal
history. From that history it cited four of the appellant’s many crimes, asserting the
breaks in the appellant’s criminal history were due to his incarceration. Specifically, the
State argued:

               4. The Judgment and Sentence was reviewed by the
               Wyoming Supreme Court and found to be appropriate. The
               State opposes a sentence reduction of any sort as Defendant
               has already been granted an appropriate sentence, and there is
               no reason for modification. With respect to his prior criminal
               history, the Defendant’s criminal history includes the
               following police contacts:

                  1995       Driving While Under the Influence of Alcohol
                  1996       Destruction/Defacement of Property
                  1999       Simple Assault; and Driving while Under the
                             Influence of Alcohol, Possession
                  2005       Probation Violation- Original Interference with
                             Peace Officer- Injury

               The gaps in Defendant’s criminal history stem from his
               incarcerations. The information Defendant presents to [the
               district court] must be balanced against that in the information

1
 A traverse is a “formal denial of a factual allegation made in the opposing party’s pleading.” Black’s
Law Dictionary 1638 (9th ed. 2009).


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              available before the [district court] at Sentencing. The
              Defendant has not presented [the district court] with any
              information that was not available at the time of sentencing,
              and as such, reduction in sentence would be contrary to the
              interests of justice. Based on all of the foregoing, nothing
              new compels the requested reduction.

The State also highlighted that the appellant did not present any pertinent information to
the district court that was not available at the time of sentencing. After considering the
appellant’s motion for sentence reduction, the State’s response, and “being otherwise
well-advised,” the district court entered an order denying the motion.

[¶7] The appellant, believing the district court was led astray by the State, filed a
motion to correct alleged misstatements by the State. Titled “Motion to Correct
Prosecuting Attorney’s Misstatement of Facts in Opposing Defendant’s Motion for
Sentence Reduction,” he argued the statement in the State’s traverse regarding “gaps” in
the appellant’s criminal history improperly insinuated the appellant did not commit
crimes only when he was incarcerated. The appellant clarified he had only been
incarcerated for seventy-two days from 1995 through 2005, and urged the district court to
focus on his current progress in prison.

[¶8] Along with his motion to correct misstatements made by the State, the appellant
also filed a motion requesting the district court to reconsider a sentence reduction because
of the State’s misrepresentations. The State’s response reaffirmed its previous traverse,
explaining its “position remains the same and opposes a sentence reduction of any sort as
[the appellant] has already been granted an appropriate sentence, and there is no reason
for modification.” After reviewing the appellant’s request, the State’s response, and
again being “otherwise well-advised in the premises,” the district court denied the
appellant’s motion to reconsider.

[¶9] This appeal was timely perfected. The appellant raises three issues, all of which
relate to the statements made in the State’s traverse.

                                      DISCUSSION

                  Did the district court abuse its discretion in denying
                   the appellant’s motion for reduction of sentence?

[¶10] In his first issue, the appellant claims the district court erred in denying his motion
for sentence reduction. We have explained that “[t]rial courts enjoy broad discretion to
decide whether to reduce a criminal defendant’s sentence, and we will not disturb those
decisions absent a clear abuse of discretion.” Conkle v. State, 2013 WY 1, ¶ 11, 291 P.3d
313, 315 (Wyo. 2013). “Judicial discretion is a composite of many things, among which


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are conclusions drawn from objective criteria; it means a sound judgment exercised with
regard to what is right under the circumstances and without doing so arbitrarily or
capriciously.” Hodgins v. State, 1 P.3d 1259, 1261 (Wyo. 2000) (quotations omitted).

[¶11] To support his claim, the appellant argues that the district court relied on two
misrepresentations made by the State, resulting in the improper denial of his motion for
sentence reduction. First, he argues the district court erred due to reliance on an
inaccurate description of his criminal history set forth in the State’s traverse. Second, the
appellant argues the State’s traverse “misrepresented to the district court that
[a]ppellant’s motion . . . presented no new information to base a modification of sentence
on.” That is, as the appellant contends, the district court should have reduced his
sentence because of his laudable progress while incarcerated—including the completion
of numerous rehabilitative programs available at the Wyoming State Penitentiary.

[¶12] While the State’s statement regarding the “gaps” in the appellant’s criminal
history may be inartful, when read in context with the entire traverse, the essence of the
State’s assertion simply is that the appellant’s criminal record is quite lengthy.
Furthermore, nothing in the record indicates the district court relied on this statement in
reaching its decision. See e.g., Gailey v. State, 882 P.2d 888, 892-93 (Wyo. 1994) (“On
appeal, this court presumes, in cases tried without a jury, that the court in reaching its
decision disregarded improperly admitted evidence unless the record affirmatively shows
that the trial court’s decision was influenced by improperly admitted evidence.”). In fact,
the district court not only had the parties’ briefs to consider, but additional material such
as the appellant’s Presentence Investigation Report.

[¶13] With regard to the appellant’s claim that his good behavior while in prison
justifies a sentence reduction, those facts alone do not require the district court to grant
the appellant’s motion. Hodgins, 1 P.3d at 1261-62. Nor do those facts provide grounds
for us to find the district court abused its discretion. Conkle, 2013 WY 1, ¶ 14, 291 P.3d
at 315. “[I]t would be unwise to usurp what is properly a function of the district courts
by finding an abuse of discretion in denying a sentence reduction motion simply because
it was supported by evidence of a defendant’s commendable conduct while incarcerated.”
Id. We decline to depart from this view in the instant case.

[¶14] After reviewing the entire record and giving the required deference to the district
court’s determination, we cannot say there was an abuse of discretion. We can only
conclude that, after considering everything as a whole, the district court properly denied
the appellant’s motion for sentence reduction.




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         Were the appellant’s constitutional due process rights violated by the
        district court’s denial of his motion to reconsider a sentence reduction?

[¶15] The appellant claims the district court’s denial of his motion to reconsider resulted
in the deprivation of his constitutional right to due process. We review constitutional
claims de novo. Jacobsen v. State, 2012 WY 105, ¶ 9, 281 P.3d 356, 359 (Wyo. 2012).
Determinations regarding sentencing must “satisfy the requirements of due process and
outside of capital proceedings, sentencing must ensure that the information the sentencing
court relies upon is reliable and accurate.” Peden v. State, 2006 WY 26, ¶ 12, 129 P.3d
869, 872 (Wyo. 2006) (citations and quotations omitted).

[¶16] Premised upon the same statements in the State’s traverse discussed above, see
supra ¶ 6, the appellant contends his due process rights were violated when the district
court denied his motion to reconsider a sentence reduction even though it had
“information concerning the prosecutor’s manipulation of the record.” However, as we
have already explained, the record does not support the appellant’s claim that the district
court relied on the misrepresentations by the State. Indeed, the appellant informed the
district court of the alleged misstatements in his motion to reconsider. Apprised of the
appellant’s concerns, the district court nevertheless denied to reconsider a sentence
reduction after otherwise being fully informed. It did so with access to the whole case
record, including the Presentence Investigation Report and other materials to confirm the
appellant’s entire criminal history.

[¶17] The appellant has not met his burden of establishing the district court’s reliance on
false information. See Peden, 2006 WY 26, ¶ 10, 129 P.3d at 872 (“It is the appellant’s
burden to establish that the sentencing court in fact rested the sentence on false or
improper premises.”). We conclude the district court’s denial to reconsider a sentence
reduction did not infringe upon the appellant’s due process rights. See id. at ¶ 13, at 873;
see also Van Riper v. State, 999 P.2d 646, 648-49 (Wyo. 2000) (due process not violated
where district court considered defendant’s corrections and noted them in writing on the
PSI); Blankinship v. State, 974 P.2d 377, 380 (Wyo. 1999) (district court did not rely on
the contested information); Bloomquist v. State, 914 P.2d 812, 823 (Wyo. 1996) (disputed
matters either not factual or not crucial to sentencing); and Johnson v. State, 790 P.2d
231, 232-34 (Wyo. 1990) (due process rights not found to be violated because the
appellant failed to carry his burden to establish that the sentencing judge in fact rested the
sentence on false or improper premises).

           Did the State commit prosecutorial misconduct by misstating facts
           in its traverse to the appellant’s motion for reduction of sentence?

[¶18] Lastly, the appellant again relies on the two statements contained in the State’s
traverse and argues such statements constitute prosecutorial misconduct. For a claim of
prosecutorial misconduct, we review the entire record to determine if the prosecutor’s


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conduct prejudiced the case so as to deprive the appellant a fair proceeding. Drennen v.
State, 2013 WY 118, ¶ 10, 311 P.3d 116, 121 (Wyo. 2013). “The burden of establishing
prosecutorial misconduct rests upon the appellant who raises the issue.” Butcher v. State,
2005 WY 146, ¶ 39, 123 P.3d 543, 554 (Wyo. 2005) (quoting Lancaster v. State, 2002
WY 45, ¶ 32, 43 P.3d 80, 94 (Wyo. 2002)).

[¶19] As we explained above, see supra ¶ 12, while the statement regarding “gaps” in
the appellant’s criminal history was gauche—and at worst not entirely accurate—the gist
of the statement was to capture the appellant’s lengthy criminal record. After reviewing
the record and considering the context, we cannot say the State’s comment regarding the
appellant’s criminal record amounts to misconduct. Even if it could be construed as
improper, the appellant has not articulated how it was harmful to him. Indeed, the
appellant provides no support that the district court relied on this one sentence and not
other readily available information like the Presentence Investigation Report.

[¶20] Similarly, the State’s assertion that the “[a]ppellant’s motion . . . presented no new
information to base a modification of sentence on” is not improper. In fact, this
contention technically is correct. While it is commendable that the appellant has made
great progress while incarcerated, such accomplishments do not compel a sentence
reduction. See Carrillo v. State, 895 P.2d 463, 464 (Wyo. 1995).

[¶21] We conclude the two statements in the State’s traverse do not amount to
prosecutorial misconduct. Furthermore, we find the appellant has not met his burden of
proving that prejudice resulted.

                                     CONCLUSION

[¶22] Finding no abuse of discretion by the district court, no violation of the appellant’s
constitutional rights, and no prosecutorial misconduct, we affirm.




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