Summary 2009 WY 74

Summary of Decision issued June 3, 2009

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

Case Name: Duke v. State

Citation: 2009 WY 74

Docket Number: S-07-0298, S-08-0132

Appeal from the District Court of Carbon County, the Honorable Wade E. Waldrip, Judge.

Representing Appellant Duke: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Erica M. Alden, Senior Assistant Appellate Cousnel.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.

Facts/Discussion: Duke pled guilty to third-degree sexual assault pursuant to a plea agreement.

Violation of plea agreement: The Court found no indication that the prosecutor undermined the plea agreement by exercising influence over the probation agent who wrote the PSI. The record does not show any communication between the prosecutor and the probation agent regarding the sentence recommendation nor is there any evidence that the prosecutor attempted to influence the recommendation in any way.
Voluntariness of guilty plea: Duke contended that his guilty plea was not voluntary because he was not informed by the court of an affirmative defense. Duke cited no authority requiring a trial court to inform a criminal defendant of potential defenses to the charged crimes. Nor did he point to authority requiring a defendant be permitted to withdraw a guilty plea if the court failed to advise the defendant of available affirmative defenses. Decisions from other jurisdictions suggest that Duke is incorrect as a matter of law.
Prosecutorial misconduct: The PSI included an Idaho offense of “attempted rape” which defense counsel, at the sentencing hearing, made note was reduced to a misdemeanor offense. During the State’s sentencing argument, the prosecutor made reference to Duke’s criminal history without making any reference to the level of the offense. Duke failed to demonstrate that a clear and unequivocal rule of law was violated.
Alleged violation of W.R.Cr.P. 32: The Rule requires that at least 10 days before imposing sentence unless the minimum period is waived by the defendant, the court shall provide the defendants and counsel with a copy of the PSI. But the record showed that the defendant and counsel responded they had received the report and that it arrived in a timely manner.
Addicted Offender Accountability Act: Duke contended the district court erred by imposing a sentence of imprisonment. The plain text of Wyo. Stat. Ann. § 7-13-1303 does not limit the discretion of the trial courts to make sentencing decisions. The language of the statute includes the word “may” which is permissive. Nothing in the statutory text suggests that the legislature intended any other interpretation.

Conclusion: The Court found no support for Duke’s allegation that the PSI agent was more of a surrogate for the prosecutor than an independent voice. Duke failed to establish the violation of a clear and unequivocal rule of law. The State’s reference to Duke’s criminal history during the sentencing hearing was not sufficient to demonstrate that a clear and unequivocal rule of law was violated. The record showed that Duke waived the timeliness of the PSI. The language of § 7-13-1303 is permissive and does not limit the discretion of trial courts to make sentencing decisions.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/o4y9mg .

[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.]

Summary 2008 WY 147

Summary of Decision issued December 15, 2008

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

Case Name: Demeulenaere v. State

Citation: 2008 WY 147

Docket Number: S-08-0039

Appeal from the District Court of Sublette County, the Honorable Norman E.
Young, Judge.

Representing Appellant Demeulenaere: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Assistant Attorney General.

Facts/Discussion: Appellant was pulled over because a rear brake light on his car was malfunctioning. He was arrested after the sheriff learned his driver’s license was suspended. A search was conducted and cash, drugs and drug paraphernalia was found. After entering a plea of guilty, Demeulenaere sought to withdraw that plea before his sentence was imposed.

Demeulenaere contended that the district court abused its discretion in denying his presentencing motion to withdraw guilty pleas. He analyzed his case using the seven-factor test originally set out in Frame v. State. (1)The appellant asserted his innocence stating that his brake light was working. The record showed that Demeulenaere provided adequate factual basis for the crimes to which he pled guilty but there had been no claim that he was innocent of possessing either methamphetamine or marijuana. (2)As to the second factor, the Court agreed with the State that they would suffer prejudice because the crime occurred over four years ago. (3)Demeulenaere was the cause of much of the delay in the case. (4)The withdrawal would substantially inconvenience the district court because Appellant’s claim of “pretext” would not have resulted in suppression of the evidence and the arresting officer testified he had no previous knowledge that Appellant might be carrying drugs. (5)The record is replete with instances of Demeulenaere’s interaction with counsel. (6)Appellant contended that because of the missing videotape, his pleas were not knowing and voluntary. However the record reveals a thorough colloquy at the time of the plea acceptance establishing a knowing and voluntary character. (7)Finally, the Court agreed with the State that Appellant’s claim of “pretext” had little merit and that the district court could have rationally concluded as it did.

Holding: The Court should allow withdrawal of a defendant’s plea before sentencing if a defendant presents a “fair and just reason” to do so. The district court had conducted a thorough and careful hearing pursuant to W.R.Cr.P. 11 where Demeulenaere entered knowing, voluntary and intelligent pleas of guilty.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/6anrl8 .

[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.]

Summary 2008 WY 61

Summary of Decision issued June 5, 2008

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

Case Name: Seymour v. State

Citation: 2008 WY 61

Docket Number: S-07-0255

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

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

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.

Facts/Discussion: Seymour pled guilty to felony possession of marijuana with intent to deliver. The issue was whether the search of Seymour’s vehicle violated his rights guaranteed by article 1, § 4 of the Wyoming Constitution or the Fourth Amendment to the United States Constitution.
Under both the United States and the Wyoming Constitutions, the Court examines the totality of the circumstances to determine whether the consent was voluntary. The videotape of the stop reflected the Trooper’s courteous and respectful questions and Seymour’s assent to further questioning. This was not an instance where the driver was not informed that he was free to leave and that he was not required to consent to further questioning. The canine sniff was reasonable given the totality of the circumstances some of which included continued nervous behavior, a rental car not rented by the driver, the driver not knowing the last name of the renter of the car, and the driver intending to return the car prior to the end of the rental agreement which would increase his cost.

Holding: It was undisputed that the initial detention for speeding was justified and that it did not exceed the scope of the stop. After the Trooper told Seymour he was free to go, Seymour voluntarily consented to further questioning. His voluntary consent vitiated the requirement of showing reasonable suspicion for the second detention. Based upon the totality of the circumstances at the time the Trooper called for the canine unit, he had reasonable suspicion to detain Seymour for the purpose of the canine sniff. The detention did not violate Seymour’s rights under article 1, § 4 of the Wyoming Constitution or the Fourth Amendment of the United States Constitution.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/55zkvl.

[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.]

Summary 2007 WY 186

Summary of Decision issued November 20, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Thomas v. State

Citation: 2007 WY 186

Docket Number: 06-266

Appeal from the District Court of Laramie County, the Honorable Edward L. Grant, Judge

Representing Appellant (Defendant): Dian M. Lozano, State Public Defender, PDP; Tina N. Kerin, Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Assistant Attorney General.

Issues: Whether the district court’s failure to advise Appellant pursuant to W.R.Cr.P. 11(b) was harmless. Whether the State materially and substantially breached the plea agreement.

Facts/Discussion: Pursuant to a plea agreement, Appellant pled no contest to one count of attempted second degree murder and two counts of aggravated assault and battery.
Standard of Review: The issue of whether the district court adequately advised Appellant of the consequences of his plea is a question of law the Court reviews de novo.
Appellant claimed his pleas were not knowing and voluntary because the district court did not advise him of the minimum and maximum penalties for his crimes, the possibility that restitution would be ordered or that his sentences could run consecutively. Rule 11 sets out the procedure for pleas. The Court reviewed the district court record on the advisements concerning the possible penalties attendant to his crimes. Thus while Appellant was informed that he could be subject to the maximum penalties authorized by law for his crimes, the district court did not advise him about the specific minimum or maximum penalties associated with any of his crimes. At the change of plea hearing the district court did not recite the penalties for the attempted second degree murder charge or the aggravated assault charges. The Court has consistently held that because strict compliance with Rule 11 is required, error in the plea acceptance procedure demands reversal unless the State can demonstrate it was harmless beyond a reasonable doubt. The Court has stated the district court must make requisite advisements on the record in accordance with Rule 11. The Court explained in Major v. State that the competency evaluation was not intended to answer the question of whether Appellant had sufficient understanding of the nature of the charges and penalties associated with the charges to effectively enter no contest pleas. Rule 11 specifically requires the court to personally question the defendant about his knowledge of the maximum penalty for his crime.
The Court noted that in determining whether error in the case was harmless, they were cognizant of the fact that the State’s recommended sentence on the attempted murder charge and the sentence actually imposed was the lowest possible sentence allowed under the law. However, the district court failed to inform Appellant of the penalties associated with his crimes which contributed to the error in the plea agreement. Had the district court recited the minimum and maximum at the change of plea hearing, the fact that the State could not recommend a maximum sentence of 20 years would have become obvious. Thus the district court’s acceptance of a plea agreement which included an illegal sentence recommendation further undermined the validity of Appellant’s no contest plea.

Holding: The Court concluded the district court failed to advise Appellant in accordance with Rule 11 and the record showed the error was not harmless beyond a reasonable doubt. Therefore they reversed and remanded the district court’s decision.
It was unnecessary for the Court to consider the remainder of Appellant’s arguments about the validity of his pleas or whether the State materially breached the plea agreement.

Reversed and remanded.

J. Kite delivered the opinion.

Link: http://tinyurl.com/2fbavx .

Summary 2007 WY 123

Summary of Decision issued August 2, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Case Name: Marinaro v. State

Citation: 2007 WY 123

Docket Number: S-07-0014

Appeal from the District Court of Laramie County, Honorable Nicholas Kalokathis, Judge

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

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Paul S. Rehurek, Senior Assistant Attorney General

Date of Decision: August 2, 2007

Issue: Whether the district court abused its discretion or erred as a matter of law in denying the appellant’s motion to suppress the evidence found in his car during a traffic stop.

Facts/Discussion: During the course of a legal detention of an individual, law enforcement officers may pose questions to that person that are unrelated to the underlying purpose of the seizure and that are not independently justified by reasonable suspicion. Additionally, suspicionless questioning of a motorist by a law enforcement officer during the course of a traffic stop regarding weapons and contraband is not a Fourth Amendment violation so long as it does not extend the duration of the traffic stop. In the present action, the hearing transcript and the videotape of the traffic stop establish quite clearly that (1) the appellant does not challenge the validity of the initial traffic stop; (2) the brief questioning in the patrol car did not extend the period of detention necessary to write out the warning tickets; and (3) the appellant consented to the questioning in the patrol car, he consented to the questioning after he exited the patrol car, and he consented to the search of his car.
In examining the totality of the circumstances to determine whether these consents were voluntary, such factors as the way the requests were phrased by the officer, whether the individual was told he could refuse the request, and the presence of other coercive factors are examined. Once again, the hearing transcript and the videotape of the traffic stop in the present action to point out that: (1) the entire traffic stop was very brief (2) the trooper’s conduct throughout was professional, courteous, and completely non-coercive; and (3) all of the consents given by the appellant were unhesitant and immediate.

Holdings: The “coercive factors” present during this traffic stop are the same “coercive factors” that are present at every traffic stop: an armed and uniformed officer, plus the flashing lights on the patrol car. In the present case, the appellant knew that he was free to go because the trooper had told him he could go. His departure was stopped only by his consent to a non-demanding, relatively cordial request by the trooper to ask more questions. A reasonable person in the appellant’s position at that time would have felt that he could have said “no” and proceeded on his way. Thus, the evidence in this case was discovered via the voluntary consent of the appellant.

Affirmed.

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

Link: http://tinyurl.com/ys3bj8 .