Summary 2007 WY 27

Summary of Decision issued February 15, 2007

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Case Name: Frederick v. State

Citation: 2007 WY 27

Docket Number: 05-173

Appeal from the District Court of Laramie County, the Honorable Peter G. Arnold, Judge

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Marion Yoder, Senior Assistant Public Defender. Argument by Ms. Yoder.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Daniel M. Fetsco, Assistant Attorney General. Argument by Mr. Fetsco.

Issue: Whether imposition of sentence was proper. Whether the trial court erred by ordering the defendant to pay restitution. Whether the trial court erred by entering a written judgment and sentence requiring payment of public defender fees after orally waiving those fees.

Facts/Discussion: Appellant was originally charged with one count of first-degree sexual assault. Appellant and the State agreed that he would plead guilty to a lesser charge of third-degree sexual assault and the State would recommend probation and possible deferral of the conviction. The district court rejected the agreement and entered a sentence of two to four years. Appellant challenges the district court’s rejection of the plea agreement, the order of restitution and the payment of public defender fees.
When a plea of guilty is entered as a result of a plea agreement, any promises made by the State must be fulfilled and whether a prosecutor has violated an alleged agreement is a question that is reviewed de novo. A plea agreement is a contract to which the general principles of contract law are applied. The prosecutor must stand by the terms of the agreement; and if the State is unable to carry out the terms, the correct remedy is withdrawal of the plea. The standard of review of restitution orders is confined to a search for procedural error or a clear abuse of discretion. Challenges to the factual basis of an award of restitution can be waived if the defendant enters into a plea agreement and then fails to object at sentencing. If the defendant does not object to the amount of restitution ordered by the district court, the reviewing court must review for plain error. If the defendant challenges the authority of the district court to order restitution, then review is under a de novo statutory interpretation standard because a court has only that authority to act which is conferred by the subject statute.

Improper Sentence: The district court indicated that it considered a number of factors, including undisputed evidence of bruising. A court is given broad discretion in sentencing and may consider a wide variety of factors about the defendant and his crimes. The sentence will not be overturned unless there is a clear abuse of discretion. Due process requires a sentence be imposed only on accurate information. Appellant does not challenge the accuracy of the evidence, only that it was a factor in sentencing. The district court’s statements indicate the evidence was properly considered and they fell short of any indication that the district court was sentencing Appellant for first-degree sexual assault. The district court considered both the PSR and Appellant’s statements. Neither Appellant nor his counsel objected to or contradicted the evidence of the victim’s bruising. There was no evidence the initial charge prejudiced Appellant in terms of the sentence imposed. Appellant had not shown any prejudice and he was not entitled to a new sentencing hearing. Appellant also contended the sentencing procedure violated W.R.Cr.P. 32; that his counsel was ineffective for failing to object at various stages; and that the prosecutor violated the plea agreement between the parties. The Court reviewed the record which indicated there was compliance with applicable rules. Appellant failed to present any analysis of the performance of his counsel. The facts, as conceded by Appellant were more than sufficient to support the conviction. Appellant contended the prosecutor violated the agreement between the parties. The agreement was the State would not object to consideration under § 7-13-301. The State fully complied with the terms of this agreement.

Abuse of Discretion in Ordering Restitution and Public Defender Fees: The district court ordered Appellant to pay restitution to the victim and that restitution should be directed to the State or agency which assisted the victim. Appellant did not object. The Judgment and Sentence ordered restitution but did not direct restitution to the agency. Since there was no objection, the order can be reversed only if there was no authority for it or if it constituted plain error. The applicable statute is Wyo. Stat. Ann. § 7-9-102. The Court addressed the difference between the oral ruling and the written Judgment and Sentence. When a discrepancy exists the oral pronouncement prevails. The Court determined there was authority for the order of restitution from the statutes that require restitution and from § 6-2-309(j). The victim impact statement and the comments of the prosecutor, to which there were no objections, established the hospital billed for these expenses and that they would be paid by the investigating law enforcement agency. The Court has held that a victim impact statement is credible evidence upon which a court may impose a restitution amount. The Court stated it was the defendant’s obligation to object to any sentencing information he contended was inaccurate; that the defendant must challenge the accuracy of the information and has the duty to deny, dispute or disprove it. There was no objection at sentencing and no contention of plain error presented in the appeal. The Court reviewed the record to determine whether the order of restitution constituted plain error. Appellant did not articulate nor was the Court able to find any violation of an unequivocal rule of law. Appellant challenged payment of public defender fees. The oral pronouncement at sentencing was that Appellant was unable to pay. The State conceded the Judgment and Sentence must be amended to conform with the oral ruling.

Holding: It appeared to the Court that in imposing the sentence, the district court considered the facts supporting the charge and took into account appropriate particular mitigating circumstances, including letters and statements presented on behalf of Appellant. The Court would not disturb the sentence imposed by the district court.

The sentence was affirmed. The matter was remanded for the purpose of correcting the Judgment and Sentence so that it conformed to the oral ruling of the district court concerning payment of restitution and public defender fees.

District Judge Park delivered the decision.

J. Golden, dissenting: J. Golden stated the transcript for the change of plea hearing showed the parties agreed on a specific sentence as part of the plea agreement. The State acknowledged the statement presented by defense counsel corresponded with its understanding of the plea agreement. The plea agreement was not in writing but J. Golden believed the language quoted was sufficient to indicate it was an agreed sentence as contemplated by W.R.Cr.P. 11(e)(1)(C). In that case, Appellant retained his right to withdraw his plea in the event the district court rejected the terms of the plea. The district court apparently misunderstood the terms and advised Appellant he would not be allowed to withdraw his plea. At sentencing when the district court rejected the sentencing terms of the plea and sentenced Appellant to a term of two to four years, neither the prosecutor nor defense objected on the basis it ran contrary to the plea. Appellant argued the lack of objection at both the change of plea hearing and the sentencing hearing equated to both prosecutorial misconduct and ineffective assistance of counsel. Appellant also claimed the district court erred in not advising him at sentencing that he could withdraw his plea as a consequence of the court’s rejection of the agreed upon sentence. J. Golden believed those claims had merit and he would have reversed and remanded with directions Appellant be allowed to withdraw his plea.
J. Golden also discussed the issue of reimbursement for a sexual assault medical examination. Since no specific loss payee was identified, the district court’s decision regarding reimbursement was premature. The district court’s order requiring Appellant to reimburse the victim for the cost of the medical examination should have been reversed.

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