Summary 2009 WY 33

Summary of Decision issued March 9, 2009

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

Case Name: Jones v. State

Citation: 2009 WY 33

Docket Number: S-08-0045

Appeal from the District Court of Campbell County, Honorable Dan R. Price II, Judge

Representing Appellant (Plaintiffs): Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; and Eric M. Alden, Senior Assistant Appellate Counsel.

Representing Appellee (Defendant): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Jenny L. Craig, Assistant Attorney General.

Issues: Whether an award of restitution for loss of support constitutes an illegal sentence. Whether an unauthorized amendment of the charge against Appellant leave him unaware of the charge to which he pled guilty and constitute plain error. Whether the plea was supported by an adequate factual basis to prove voluntariness since Appellant was not adequately informed at his change of plea hearing about the definition of the term “deadly weapon” as used in § 6-2-502(a)(ii).

Holdings: On December 14, 2007, the Wyoming Supreme Court issued Hite v. State (2007 WY 199) stating that a restitution ordered for “loss of support,” without more specificity, is insufficient to assure that the trial court complied with the statutory mandate, pursuant to Wyo. Stat. Ann. § 7-9-103(b), and that restitution be ordered only for “pecuniary damages” caused by a defendant’s criminal conduct. The record in the present action is insufficiently specific to permit the conclusion that the “loss of support” portion of the restitution ordered here comported with the statutory definition of “pecuniary damages.” Thus, this issue is remanded to the district court for the limited purpose of conducting a new, more specific restitution hearing.
Appellant claims that the amended felony information was never properly authorized and that he never received a preliminary hearing on the amended aggravated assault and battery charge. Appellant asserts that because of this, he was never adequately informed that he would be called to account for using a “deadly weapon” against his wife and, therefore, was unable to consider whether the instrument he used against her fit the definition of “deadly weapon” pursuant to § 6-2-502(a)(ii). However, neither the preliminary examination requirement, nor the amendment process, is jurisdictional, inasmuch as both can be waived by failure to raise the issue before trial. Here, not only did Appellant fail to raise an objection to the amended felony information in his case, but he consented to being prosecuted under the amended document in district court and waived his right to a preliminary hearing on the amended charge. The record is clear that the amending of the information occurred well before Appellant’s scheduled trial and subsequent guilty plea, bringing the amended information within the provisions of Rule 3(e)(2)(A). The amended information was also permitted by the district court because it could not have prejudiced Appellant’s substantial rights. Appellant was put on notice that he would have to defend against the amended charge between the close of his preliminary hearing and his arraignment, and what is more, the amended information was based in large part on the same facts and evidence as the original charge and stemmed out of the exact same occurrence. Although Appellant did not receive a preliminary hearing on the amended charge, his implicit waiver of his right to a preliminary hearing is quite apparent on the record. No demand for another preliminary hearing was ever made by Appellant’s defense counsel. Appellant himself, after discussing the new charging document with his counsel, proceeded to enter a plea, prepare for trial, and ultimately pled to the charges in the amended information without objection. Accordingly, there was no error.
A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes). In Wyoming, this test is fulfilled when the requirements of W.R.Cr.P. 11(b)(1) are followed. Before accepting a plea of guilty, this rule requires the district court to advise a defendant about the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law and other sanctions which could attend a conviction including, when applicable, the general nature of any mandatory assessments (such as the surcharge for the Crime Victim Compensation Account), discretionary assessments (costs, attorney fees, restitution, etc.) and, in controlled substance offenses, the potential loss of entitlement to federal benefits. The intent of the procedural requirements of Rule 11 is to “prevent the individual charged with a crime from being misled into a waiver of substantial rights.” In some circumstances, a simple reading of the information and allowing a defendant to ask questions satisfies the requirements of Rule 11; however, in other situations it may be necessary to explain the elements of the crime and define complex legal terms. The actions required of the district court in any particular case depend largely on whether the elements of the offense are difficult to understand, considering both their complexity to the average person with no legal training and the sophistication of the individual defendant.
At the change of plea hearing in the present action, the district court read to Appellant each count of the amended information, including the appropriate portion of the habitual offender statute that had been agreed upon pursuant to the plea agreement. Additionally, the court also gave Appellant the appropriate admonitions regarding maximum terms and fines associated with each count, the imposition of court costs, the Crime Victims’ Compensation surcharge, restitution, and repayment of public defender fees. Furthermore, Appellant was advised, among other things, that he could lose certain civil rights, that he was giving up his right to challenge any errors or omissions in the charging documents, and that he was waiving any defenses and the presumption of innocence. Appellant was asked by the court if he had discussed his choice to plead guilty with his attorney and whether he was doing so voluntarily. All of Appellant’s answers indicated that he knew full well what he was doing, that he was not under the influence, and that there existed no other factor that would affect his ability to understand the charges.
Given the facts and circumstances of the crime, the prosecutor’s offer of proof regarding what evidence would have been presented had the case gone to trial, and Appellant’s statement, the district court was presented with a sufficient factual basis to accept the guilty plea. The district court made no error in its determination that this was so.

Conclusion: The district court’s judgment and sentence with respect to the crimes charged and the penal sentences imposed is affirmed. However, we reverse that portion of the sentence which ordered Appellant to pay restitution for “loss of support,” is reversed and this matter is remanded to the district court for further proceedings in that regard.

Affirmed in part, reversed in part.

J. Hill delivered the opinion for the court.

Link: http://tinyurl.com/c9sqo3 .

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