Summary 2006 WY 66

Summary of Decision issued May 31, 2006

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library for assistance.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Hirsch v. State

Citation: 2006 WY 66

Docket Number: 05-20

Appeal from the District Court of Fremont County, the Honorable Nancy Guthrie, Judge.

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina Kerin, Senior Assistant Appellate Counsel; and Wade Redmon, Student Intern. Argument by Mr. Redmon.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and David L. Delicath, Senior Assistant Attorney General. Argument by Mr. Delicath.

Date of Decision: May 31, 2006

Issue: Whether the admission by Appellant that he performed oral sex on his twelve year old victim contemporaneous to his guilty plea, provides the factual basis required by Wyoming Rule of Criminal Procedure 11(f). Whether the trial court’s denial of Appellant’s motion to withdraw his guilty plea was an abuse of discretion. Whether the trial court’s election to sentence Appellant without a psychosexual evaluation was an abuse of discretion. Whether the trial court’s consideration of Appellant’s non-charged conduct in its sentencing decision constituted plain error.

Holding: Hirsch was sentenced to a term of thirteen and a half to fifteen years for one count of third degree sexual assault.
Factual Basis for Plea: In the context of circumstances prohibited under the third degree sexual assault statute, the distinction Appellant attempts to draw between a situation in which an actor initiates sexual relations with a victim and one in which the relationship was initiated by the victim, as is alleged here, is one with no legal difference because sexual intercourse is without consent when for any reason, the victim is not in a position to exercise independent judgment abut the matter. The third degree sexual assault statute provides an age of consent of sixteen and the victim was twelve at the time. Since the acts were legally nonconsensual, a reasonable inference could be drawn from the facts admitted by Appellant that the acts were “inflicted” upon the victim as that term is used in the definition proffered by Appellant.
Denial of Motion to Withdraw Plea: The Court reviewed the seven factors suggested as pertinent by Frame v. State which include: (1) whether the defendant has asserted his innocence; (2) whether the government would suffer prejudice; (3) whether the defendant has delayed in filing his motion; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was present; (6) whether the original plea was knowing and voluntary; and (7) whether the withdrawal would waste judicial resources. Appellant’s argument was predicated on an allegation of ineffective assistance of counsel. Appellant must demonstrate on the record that counsel’s performance was deficient and that prejudice resulted. The Court considered the first, fifth and sixth factors from Frame as they applied to the instant case. The first factor was rejected because Appellant at no time asserted innocence. The fifth factor asks if close assistance of counsel was present and Appellant failed to make the requisite showing. The Court’s review of the record confirmed that the sixth factor was complied with, showing that the plea was voluntary and knowing.
Psychosexual Evaluation: The Court’s review of the record led them to conclude that the district court did not abuse its discretion and that Appellant failed to demonstrate prejudice. Eight months elapsed between the court’s order for evaluation and the sentencing hearing. Appellant did not bring up the question of his inability to pay for the evaluation until sentencing. Also, the Court stated that Appellant failed to establish any prejudice arising from the district court’s decision. The burden was on Appellant to demonstrate prejudice.
Consideration of Uncharged Conduct Evidence in Sentencing: Historically, trial courts have been granted broad discretion to consider a wide range of factors about the defendant and his crimes when imposing sentence. Appellant did not object to consideration of the uncharged conduct in the presentence investigation report. This means that application of the plain error standard was triggered. The Court stated that Appellant could not establish the second prong of that test by showing transgression of a clear and unequivocal rule of law. Without a showing of prejudice, Appellant was not entitled a new sentencing hearing.

The Court affirmed.

C.J. Hill delivered the opinion for the court.

Link to the case: http://tinyurl.com/pdmb7 .