Summary 2010 WY 139

Summary of Decision issued October 26, 2010

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Case Name: Winsted v. State

Citation: 2010 WY 139

Docket Number: S-10-0011

URL: http://tinyurl.com/22kl73e

Appeal from the District Court of Natrona County, Honorable W. Thomas Sullins, Judge

Representing Appellant (Defendant): H. Michael Bennett, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Senior Assistant Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Craig C. Cook, Student Intern; Anna C. Swain, Student Intern.

Date of Decision: October 26, 2010

Facts: Appellant entered a plea agreement and pleaded no contest to one count of knowingly possessing a deadly weapon with intent to unlawfully threaten the life or physical well-being of another, in violation of Wyo. Stat. 6-8-103 (2007). Prior to sentencing, he filed a motion to withdraw his no contest plea. In his motion to withdraw he asserted that after his release he was able to procure funds to hire private counsel and would now like to exercise his right to a trial by jury. He based his motion on the contention the allowing him to proceed to trial with the counsel of his choice is a fair and just reason contemplated under the W.R.Cr.P 32(d). The district court denied the motion and he challenges that decision in this appeal.

Issues: Whether the district court abused its discretion by denying defendant’s motion to withdraw no contest plea prior to sentencing.

Holdings: A district court’s decision to deny a motion to withdraw a guilty plea for is reviewed under an abuse of discretion of discretion standard. In determining whether there has been an abuse of discretion, the focus will be on the reasonableness of the choice made by the trial court. If the trial court could reasonably conclude as it did and the ruling is one based on sound judgment with regard to what is right under the circumstances, it will not be disturbed absent a showing that some facet of the ruling is arbitrary or capricious.

Appellant attempts to satisfy the abuse of discretion standrad by raising several issues that were not presented to the district court. He also fails to provide support for his position. By way of illustration, there is Appellant’s contention on appeal that he should be allowed to withdraw his plea because he did not understand that he would not be able to own firearms if convicted of the felony charge. There are two fundamental flaws with this argument. First, he never raised this issue in his motion to withdraw or in his argument to the district court on his motion. Second, the record shows that he was clearly and unequivocally advised of the risk at the change of plea hearing and he told the court that he understood that risk.

He also suggests that he was pressured into entering the plea because of his lengthy confinement and that he may have received inadequate assistance of counsel. These issues also were not raised in his motion to withdraw his plea. At the change of plea hearing, he clearly and unequivocally advised the district court that his plea was voluntary and that he was satisfied with the performance of his counsel.

Appellant does not identify any factual or legal error made by the district court in applying the factors used to determine abuse of discretion. He merely contends that the court abused its discretion in applying the factors. He asserts that a no contest plea is not the same as a guilty plea. He maintains that any imposition on judicial resources is outweighed by the right of a jury trial and that any inconvenience to the State is minimal. The district court considered these arguments and, after weighing all of the factors, concluded that the motion should be denied. There was no abuse of discretion in that decision.

Appellant concedes that the district court complied with the requirements of W.R.Cr.P. 11. He was adequately advised of his rights and the consequences of his plea. He told the district court that he understood his rights, that he was satisfied with his counsel, and that he was voluntarily entering his plea. He did not contend otherwise at the hearing or in his motion to withdraw his plea. Appellant merely sought to withdraw his plea on the basis that he had hired “private counsel.” Essentially, he changed his mind and wanted to go to trial. The district court found that was not a “fair and just” reason and denied the motion.

A fair and just reason includes inadequate plea colloquies, newly discovered evidence, intervening circumstances, or other reasons that did not exist when the defendant entered the plea. The reason must be something more than the wish to have a trial, or belated misgivings about the plea. If an appropriately conducted Rule 11 proceeding is to serve a meaningful function, on which the criminal justice system can rely, it must be recognized to raise a strong presumption that the plea is final and binding. Withdrawal of the plea would needlessly waste judicial resources and the time and efforts of the parties involved. It is also undisputed that in this action the State would suffer some degree of prejudice. The State, relying on the plea agreement and entry of the plea, dismissed one count and a pending DWUI charge in circuit court. In order to pursue those charges, the State would be required to initiate new criminal proceedings. Trial on all charges would be delayed. Witness’ loss of memory during this time period, or their unavailability, could unfairly prejudice the State.

Appellant had the burden of establishing a fair and just reason for withdrawal of his plea. He has failed to meet that burden. The district court’s decision was reasonable given the facts and circumstances presented at the hearing on the motion to withdraw.

Affirmed.



J. Burke delivered the opinion for the court.