Unobjected Victim Impact Allegations of Uncharged Misconduct Are Not Plain Error Absent Proof of Inaccuracy and Sentencing Reliance

Introduction

In Andrew Atkinson v. The State of Wyoming, 2026 WY 51 (May 6, 2026), the Wyoming Supreme Court addressed a recurring sentencing problem: what happens when a victim impact statement includes allegations of uncharged misconduct, and the defendant does not object at sentencing.

Andrew Atkinson pled guilty under a global plea agreement to (among other offenses in other dockets) aggravated assault and battery and felony child abuse arising from a violent attack on his girlfriend, NB, in the presence of their two-year-old child, AB. Before sentencing, NB submitted written and oral victim impact statements that described additional alleged abuse and property-related misconduct that were not the subject of the counts to which Mr. Atkinson pled guilty.

The central issue on appeal was whether the district court committed reversible error by considering those portions of NB’s victim impact statements describing uncharged conduct, when Mr. Atkinson neither objected nor disputed the statements in the sentencing process.

Summary of the Opinion

The Court affirmed. Because Mr. Atkinson failed to object, the Court reviewed for plain error and held he did not meet that standard. The Court emphasized two failures:

  1. Mr. Atkinson did not show the challenged allegations were inaccurate, unreliable, or undocumented, particularly given that he agreed to restitution for certain property items referenced in the victim’s account and did not dispute the written statement under W.R.Cr.P. 32(a)(3)(A).
  2. Mr. Atkinson did not show the sentencing court relied on the uncharged-misconduct allegations; the district court’s remarks reflected reliance on the violent nature of the charged conduct, the presentence investigation report, and Mr. Atkinson’s criminal history—not on the disputed “other acts.”

Without a showing of a clear legal violation and material prejudice (a reasonable probability of a more favorable sentence absent the alleged error), the plain-error claim failed.

Analysis

Precedents Cited

1) Standard of review when there is no sentencing objection

  • Hagen v. State, 2025 WY 22, ¶ 13, 563 P.3d 1084, 1087 (Wyo. 2025): cited for the general proposition that many sentencing decisions are reviewed for abuse of discretion, framing the baseline rule Mr. Atkinson sought to apply.
  • Jewkes v. State, 2022 WY 90, ¶ 7, 513 P.3d 154, 158 (Wyo. 2022): the controlling pivot in this case. The Court used Jewkes to reaffirm that when a defendant does not object to statements or procedures at sentencing, appellate review is for plain error.
  • Town v. State, 2015 WY 78, ¶ 9, 351 P.3d 257, 260 (Wyo. 2015) and Sandoval v. State, 2009 WY 121, ¶ 6, 217 P.3d 393, 395 (Wyo. 2009): cited via Jewkes to anchor Wyoming’s consistent use of plain-error review for unpreserved sentencing complaints.
  • Ridinger v. State, 2021 WY 4, ¶ 32, 478 P.3d 1160, 1168 (Wyo. 2021) and Hartley v. State, 2020 WY 40, ¶¶ 9-10, 460 P.3d 716, 719 (Wyo. 2020): used to emphasize that even alleged constitutional sentencing errors are reviewed for plain error when not preserved below.

2) Due process at sentencing: inaccurate/unreliable information and “reliance”

  • Sandoval v. State, 2009 WY 121, ¶ 8, 217 P.3d at 395: supplies the core due-process rule—sentencing must be based on accurate information and not on unreliable, undocumented, or inaccurate claims.
  • Manes v. State, 2004 WY 70, ¶ 9, 92 P.3d 289, 292 (Wyo. 2004): cited (through Sandoval) for the crucial limitation: showing inaccurate information was presented is not enough; the defendant must show the court relied on it in sentencing. The Court later cited Manes, 2004 WY 70, ¶ 13, 92 P.3d at 293, to conclude no clear legal violation occurred where reliance was not shown.
  • Hubbard v. State, 2008 WY 12, ¶ 24, 175 P.3d 625, 630 (Wyo. 2008): quoted in Sandoval for the articulation that sentencing cannot rest on unreliable, undocumented, or inaccurate information.

3) The mechanics of plain error and “material prejudice”

  • Jewkes v. State, 2022 WY 90, ¶ 8, 513 P.3d at 158: provides the three-part plain-error test applied here (record clarity; violation of clear rule; denial of substantial right with material prejudice).
  • Velasquez v. State, 2026 WY 11, ¶ 18, 582 P.3d 915, 920 (Wyo. 2026) (quoting Bruce v. State, 2015 WY 46, ¶ 71, 346 P.3d 909, 930 (Wyo. 2015)): defines material prejudice as a reasonable probability of a more favorable outcome absent the error.
  • Soares v. State, 2024 WY 39, ¶ 37, 545 P.3d 871, 880 (Wyo. 2024) (quoting Doherty v. State, 2006 WY 39, ¶ 23, 131 P.3d 963, 971 (Wyo. 2006)): reinforces that prejudice cannot be presumed or merely asserted; it must be shown.
  • Lott v. State, 2022 WY 143, ¶ 10, 519 P.3d 646, 649 (Wyo. 2022) (quoting Klingbeil v. State, 2021 WY 89, ¶ 40, 492 P.3d 279, 288 (Wyo. 2021)): reiterates that failure to establish any element defeats plain-error relief.

4) Sentencing courts may consider broad information, including reliable other-acts/hearsay

  • Town v. State, 2015 WY 78, ¶ 13, 351 P.3d at 261 (quoting Capellen v. State, 2007 WY 107, ¶ 16, 161 P.3d 1076, 1080 (Wyo. 2007)): supports the principle that sentencing courts may consider a broad range of information about the defendant and the offense.
  • Mangus v. State, 2013 WY 13, ¶ 28, 293 P.3d 459, 468-69 (Wyo. 2013) (quoting Capellen v. State, 2007 WY 107, ¶ 16, 161 P.3d at 1080): provides the specific rule that sentencing may include hearsay reports implicating the defendant in other crimes if sufficiently reliable. This precedent undercut Mr. Atkinson’s premise that “uncharged misconduct” allegations are categorically improper at sentencing.

Legal Reasoning

  1. Preservation drove the standard of review. Because Mr. Atkinson did not object to the written or oral victim impact statements and did not raise a due process claim below, the Court—consistent with Jewkes, Town, and Sandoval—reviewed only for plain error.
  2. No showing of inaccuracy/unreliability/undocumented assertions. The Court treated “uncharged misconduct” as not inherently unusable at sentencing. Instead, the due-process inquiry (from Sandoval/Manes) is whether the sentencing judge considered inaccurate or unreliable information and relied on it. Here, the Court highlighted:
    • Mr. Atkinson’s restitution stipulation for items (a gun and electronics) referenced in the victim’s account, which supported reliability (or at least undermined a claim of obvious falsity).
    • His failure to dispute the written statement under W.R.Cr.P. 32(a)(3)(A), despite having the statement in advance.
  3. No showing of judicial “reliance.” The Court rejected the argument that the district court’s acknowledgment that it had received and reviewed the victim impact statement equaled reliance on the disputed uncharged allegations. The Supreme Court read the sentencing remarks as a description of the materials considered “in part,” not as a signal that the judge used the contested “other acts” to aggravate punishment.
  4. No material prejudice. Even assuming arguendo that some challenged content should not have been considered, the Court found no reasonable probability of a more favorable sentence because the record showed the sentence was driven by:
    • the extreme violence and injuries described in the charged conduct (including pistol-whipping, strangulation, and a collapsed lung);
    • Mr. Atkinson’s “significant criminal history;” and
    • the need to protect the public and deter similar conduct.
    Under Velasquez/Bruce and Soares/Doherty, that defeated the prejudice element of plain error.

Impact

Atkinson strengthens (and operationalizes) a practical rule for Wyoming sentencing appeals:

  • A defendant who fails to object to victim impact content at sentencing will almost always be confined to plain-error review, even when the argument is framed as due process.
  • Complaints about “uncharged misconduct” in victim impact statements are unlikely to succeed absent a record showing:
    1. the statements were inaccurate, unreliable, or undocumented, and
    2. the judge actually relied on them in selecting the sentence.
  • Defense counsel are effectively put on notice that, to preserve and substantiate a sentencing challenge, they should: (a) object contemporaneously; (b) invoke the Rule 32 dispute mechanism; and (c) build a record that distinguishes “reviewed” materials from “relied upon” aggravators.
  • For prosecutors and victims, the decision confirms that victim impact statements may include broader context, including other acts, so long as the information has indicia of reliability and the sentencing outcome can be justified by proper factors.

Complex Concepts Simplified

Victim impact statement
A written or oral statement by a victim describing the harm suffered and the offense’s effects, offered to inform sentencing. It may include context about the relationship and aftermath, but it is not itself proof beyond a reasonable doubt of new crimes.
Uncharged misconduct
Alleged bad acts not resulting in a conviction in the case being sentenced. Wyoming law does not categorically exclude such information at sentencing; the question is reliability and fairness.
Plain error
A demanding appellate standard used when no objection was made. The appellant must show: (1) a clear record; (2) violation of a clear and unequivocal rule of law; and (3) material prejudice.
Due process at sentencing (accuracy and reliance)
Sentencing cannot be based on inaccurate or unreliable information. But even if questionable information appears in the record, the defendant must show the judge relied on it when choosing the sentence.
W.R.Cr.P. 32(a)(3)(A)
A procedural mechanism allowing parties to dispute information presented for sentencing (commonly in the presentence report, and here used as a reference point for disputing allegations before sentencing). Not using it can matter on appeal because it leaves the record undeveloped.
Restitution stipulation
An agreement to pay for losses. In this case, the restitution agreement for a gun and electronics weakened the claim that all property-related allegations in the victim impact statement were baseless.

Conclusion

Atkinson does not announce that victim impact statements may freely include anything; instead, it clarifies what an appellant must prove to obtain reversal when no sentencing objection was made. The decision reinforces three interlocking propositions: (1) unpreserved sentencing complaints are reviewed for plain error; (2) due process is violated only when the court relies on inaccurate or unreliable information; and (3) even then, reversal requires material prejudice. Practically, the case elevates the importance of timely objections and Rule 32 disputes to ensure a record capable of showing both inaccuracy and reliance.