Summary 2006 WY 62

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Case Name: Reichert v. State

Citation: 2006 WY 62

Docket Number: 05-71 & 05-172

Appeal from the District Court of Goshen County, Honorable Keith G. Kautz, Judge

Representing Appellant (Defendant): Dion J. Custis, Cheyenne, Wyoming

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; James Michael Causey, Assistant Attorney General.

Date of Decision: May 17, 2006

Issues: Whether the appellant's case was prejudiced due to the denial of the motion to withdraw the guilty plea and the motion to recuse the judge. Whether the appellant was denied effective assistance of counsel. Whether the appellant was prejudiced due to the judicial bias caused by a conflict of interest. Whether the appellant was prejudiced due to the judicial bias caused by the political influence regarding his case. Whether the appellant was prejudiced due to the conflict of interest with the prosecuting attorney.

Holdings: A guilty plea is valid only when it represents a voluntary and intelligent choice among the alternative courses of action open to a defendant. Pursuant to W.R.Cr.P. 11(b), the district court was required to inform an appellant of: the nature of and penalties for the charges filed against him; his right to be represented by an attorney, plead not guilty, be tried by a jury, and choose not to testify; his right to plead guilty and waive his right to trial; and the fact that any statements made by him in court under oath could be used against him. Pursuant to W.R.Cr.P. 11(d), the district court is also required to ensure an appellant's plea is voluntary. The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement.

In the present action, the record does not indicate Appellant's pleas and the factual basis for them were given other than voluntarily, knowingly and intelligently. The district court fully informed him concerning the maximum penalties for the charged offenses and advised him no one could make him plead a certain way and if anyone tried to do so he should inform the court. He was further specifically advised there were no guarantees about sentencing. Likewise the transcript of the sentencing hearing contains nothing suggesting Appellant wished to withdraw his pleas, was coerced into entering them or entered them without being advised of his rights. The first suggestion the pleas were coerced or made unknowingly and unintelligently came after the district court imposed a more severe sentence than either Appellant or defense counsel expected. Then, represented by substitute counsel, Appellant moved to withdraw his guilty pleas, claiming he did not enter them knowingly and intelligently because defense counsel failed to adequately explain the potential consequences of the pleas. However, the receipt of erroneous advice from counsel concerning the likely sentence is not a sustainable ground for withdrawing a guilty plea where there is no showing of an actual reliance on statements made by the prosecutor or judge in entering the plea. Although defense counsel's early belief that the sentence would likely be probation may have had some influence on Appellant's decision to plead guilty, the record shows Appellant's primary reason for pleading guilty was to avoid other charges. Appellant testified he told the judge at the arraignment his plea was voluntary because he believed if he did not plead guilty the United States would bring additional charges against him.

Thus, the record clearly shows Appellant entered into the plea agreement, having been fully informed of the charges to which he was pleading and the maximum penalties, expressly for the purpose of avoiding additional state and federal charges - charges which had the potential to result in an even lengthier sentence than the one ultimately imposed. The fact that Appellant agreed to plead guilty to avoid more serious charges and in the hope of receiving probation only to have the district court impose a more severe penalty than Appellant and defense counsel expected does not give rise to a "fundamental defect" resulting in "a complete miscarriage of justice" or an "omission inconsistent with the rudimentary demands of fair procedure." Therefore, Appellant has failed to meet his burden of showing the district court abused its discretion when it denied his motion. Appellant has not demonstrated the district court's ruling resulted in manifest injustice. Considering all of the circumstances, the district court's imposition of a more severe penalty than defense counsel believed was appropriate and advised Appellant was likely does not constitute manifest injustice.

At the arraignment in this action, the prosecutor disclosed his relationship with three of the victims and the fact that he believed that under the ethical rules which apply to conflicts, he did not have a conflict. If Appellant had concerns about the prosecutor's relationship with the victims, he did not inform the court at that time or any other time prior to raising the issue in his motion to withdraw his guilty plea. Once he raised the issue, the prosecutor removed himself from the case and a special prosecutor stepped in to represent the State. The special prosecutor represented the State at the hearing on Appellant's motion to withdraw his plea. A review of these same ethical rules (Rules 1.7 & 3.8 of the Wyoming Rules of Professional Conduct and the ABA Standards of Criminal Justice Relating to Prosecution Function Standard 3-1.3) shows that none of these provisions expressly prohibits a prosecutor from representing the State in a case where family members are victims of the offense charged. However ill-considered it might appear on the surface, no manifest injustice resulted from the prosecutor's representation of the State despite his familial relationship with three of the victims. Nothing in the record suggests his relationship with the victims affected him in carrying out his responsibility to minister justice, influenced the outcome of the case or prejudiced Appellant in any way. In addition, Appellant waived any objection to the prosecutor's participation in the case. Thus, the district court did not abuse its discretion in denying the plea withdrawal motion on the basis of prosecutorial bias.

Prejudice involves a prejudgment or forming of an opinion without sufficient knowledge or examination; bias is a leaning of the mind or an inclination toward one person over another. A mere allegation of judicial bias is insufficient to form a basis for disqualification; sufficient facts showing bias must be presented in the affidavit supporting the motion. Appellant was required to submit an affidavit stating sufficient facts to show the existence of judicial bias or prejudice against him. Pursuant to W.R.C.P. 401(b)(2), the judge should have been recused if a reasonable person, assuming the facts in the affidavit were true, could infer that he had a bias or prejudice preventing him from dealing fairly with Appellant. In the present action, the facts presented by the Appellant were not sufficient to cause a reasonable person to infer the judge was biased or prejudiced against Appellant. A judge may not be removed for cause simply on the basis that his brother was, at one time, a customer of the defendant. Likewise there was nothing in the testimony presented at the plea withdrawal hearing from which a reasonable person could infer the judge was biased or prejudiced. Some of Appellant's testimony concerning the judge's bias, such as a statement made by the governor and reported in the newspaper, was hearsay. Evidence presented in support of a motion to disqualify a judge is generally insufficient when it is supported merely by hearsay. Much of the rest of Appellant's testimony was speculation, which is also insufficient to support a motion to disqualify. Simply stated, there was no evidence showing the district court judge prejudged the case or formed an opinion without sufficient knowledge or examination. There likewise was no showing the judge had a leaning of the mind or an inclination toward one person over another. Thus, the district court did not abuse its discretion in denying the plea withdrawal motion.

To warrant reversal on his claim of ineffective assistance of counsel, Appellant must show counsel failed, in light of all circumstances existing at the time of the alleged act or omissions, to employ such judgment or render such assistance as would have been offered by a reasonably competent attorney under like circumstances. When an attorney has allegedly misadvised his client with respect to the entry of a guilty plea, a determination must be made of whether the decision to plead and forego the defense of his case resulted in prejudice to the client. That determination involves two interrelated questions: whether, in the absence of counsel's error, the recommendation of a reasonably competent attorney concerning the plea would differ from that given; and whether, absent the error, the outcome of a trial would have been more advantageous to the client than the result of his plea. The defendant may also establish the necessary prejudice by proof of circumstances indicating that, in deciding whether or not to plead guilty, he placed special emphasis on the challenged aspect of his attorney's advice. He must suggest to the reviewing court a plausible reason why, had his representation been as he claims it should have been, he would have chosen to forsake the benefits of the plea agreement for the risks of trial.

The record shows Appellant has failed to meet his burden of proving either defense counsel's performance was deficient or he suffered prejudice as a result. The record simply does not support Appellant's claim that defense counsel did not properly advise him concerning the effect of a guilty plea and misled him to believe he would receive probation or a shorter prison sentence. Based upon the information he had early on in the case, defense counsel advised Appellant he thought probation was likely. As circumstances changed and it became apparent the amount of money involved was much greater than he had been told and Appellant did not have the ability to pay it back, defense counsel advised Appellant he was concerned jail time was a real possibility. Defense counsel testified he explained the terms of the plea agreement to Appellant and was certain he understood them. He, and the district court, explained the maximum sentences that could be imposed for the crimes committed. Defense counsel testified Appellant knew the prosecutor intended to argue for prison time at sentencing. Defense counsel testified he made no promises to Appellant other than to represent him the best he could. He did not force Appellant to plead guilty, threaten him or promise him he would get probation. He told Appellant his sentence depended in large part on his ability to pay back the money he owed people for their crop. Thus, defense counsel provided the assistance a reasonably competent attorney would have provided under similar, and changing, circumstances. Appellant has failed to carry his burden of demonstrating defense counsel's performance was deficient. Even if the record established defense counsel's performance was deficient, which it does not, Appellant's claim of ineffectiveness would fail. A defendant is not prejudiced by advice which is merely misleading if the trial court, prior to taking his plea, has corrected any misunderstanding engendered by that advice Also, Appellant presents no argument as to how his decision to plead guilty and forego trial prejudiced him. He fails to assert, much less show, how the outcome would have been more advantageous to him had he gone to trial rather than entering a plea. Absent the presentation of any argument on these key issues, Appellant has failed to carry his burden of proving he was prejudiced by counsel's alleged ineffectiveness.

Appellant also contends defense counsel's assistance was ineffective in that he failed to assert the claims of prosecutorial and judicial bias. The record shows defense counsel considered both issues and discussed them with Appellant. Defense counsel testified he believed the prosecutor and the judge were fair and would handle the case in an unbiased manner. Defense counsel testified after discussing the issues with Appellant, he made the tactical decision that Appellant was better off with the assigned prosecutor and judge than he would be asking for a different judge and prosecutor. There is nothing in the record to support the claim that these decisions were deficient. Rather, they were consistent with the tactical decisions of a reasonably competent attorney acting under similar circumstances.

Affirmed.

J. Kite delivered the opinion for the court.