Summary 2013 WY 125

Summary of Decision October 10, 2013

Justice Davis delivered the opinion for the court. Reversed and remanded for entry of an amended sentence.

Case Name: JERELE CRAIG COTHREN, JR. v. THE STATE OF WYOMING

Docket Number: S-12-0270

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Natrona County the Honorable David B. Park, Judge

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Christyne Martens, Assistant Attorney General. Argument by Ms. Martens.

Date of Decision: October 10, 2013

Facts: Appellant Jerele Cothren returns to this Court to challenge an amended judgment and sentence issued by the District Court for the Seventh Judicial District following remand for resentencing.

Issues: Cothren raises four issues, which we restate as follows: 1. Did the district court abuse its discretion in refusing to allow Cothren to withdraw his guilty plea? 2. Did the district court err when it declined to retroactively reject the plea agreement it had accepted two years earlier, and to sentence Cothren anew while holding the State to its agreement to dismiss thirteen of fourteen charges? 3. Did the district court err by attempting to cure the illegality of Cothren’s sentence without adjusting its length on the basis of his efforts to reform himself while in prison? 4. Did the district court improperly grant Cothren credit for time served or otherwise impose an illegal sentence?

Holdings/Conclusion: We find no error in the district court’s rulings on Cothren’s motion to withdraw his guilty plea or relating to other aspects of resentencing. Unfortunately, we find that the amended sentence requires an interruption in service of the period of incarceration in this case, and that this sentence must be made to run concurrently with the first Natrona County sentence. We therefore reverse and remand for entry of an amended judgment and sentence which accomplishes that end. The district court should determine the amount of time spent in custody of the Department of Corrections to the date of resentencing and include that calculation in its judgment and sentence, but should not attempt to make any determination of good time earned or lost. We find that the sentence imposed on remand is still illegal for reasons discussed below, and reverse and remand for entry of an amended sentence.

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

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Summary 2013 WY 107

Summary of Decision September 17, 2013

Justice Davis delivered the opinion for the Court. Reversed and remanded for further proceedings consistent with this opinion.

Case Name: CHRISTOPHER D. BALDERSON v. THE STATE OF WYOMING

Docket Number: S-12-0267

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Park County the Honorable Steven R. Cranfill, Judge

Representing Appellant: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel; Wyoming Public Defender Program

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Christyne Martens, Assistant Attorney General

Date of Decision: September 17, 2013

Facts: After a day of jury trial, Appellant Christopher D. Balderson pled no contest to one felony count of aggravated assault and battery and one count of misdemeanor battery. Before taking his plea, the district court reminded him of the explanation of his constitutional rights given at arraignment, but failed to advise him of the potential loss of firearm rights, and any impact that loss might have on employment in occupations that require the use of a firearm, as required by Wyoming Statute § 7-11-507. Balderson claims that he should be permitted to withdraw his plea because he was not properly advised. He also contends that several other errors occurred during the change of plea and sentencing hearing.

Issues: Appellant summarizes the issues in this case as follows:Did the trial court commit reversible error by failing to advise Mr. Balderson of his rights as required by W.S. § 7-11-507? Did the trial court err by violating W.R.Cr.P. 11 and W.R.Cr.P. [32] to the extent that Mr. Balderson was denied due process of law? We find the first issue to be dispositive, and therefore decline to address the second.

Holdings: The State urges us to adopt a rule that would not require firearms advisements for defendants with prior convictions which disqualify them from possessing firearms under federal law. However, we cannot read an exception that the legislature has not enacted into the statute, and instead hold that § 7-11-507 applies to all defendants facing a charge which may under federal law result in loss of firearms rights and employment requiring possession of a firearm. The district court’s failure to advise Balderson as required by statute requires us to set aside the judgment of conviction and remand to that court for further proceedings consistent with this opinion. We need not address Balderson’s other claims of error during the change of plea hearing, as we have decided that he may withdraw his no contest plea if he wishes. If he decides to plead guilty or no contest rather than go to trial after remand, a new plea will have to be taken. We presume that the district court will comply with W.R.Cr.P. 11 and 32 and § 7-11-507 if that occurs. The district court failed to advise Balderson of the potential loss of his firearms rights under federal law as required by § 7-11-507, as well as the impact that might have on employment. We therefore reverse his conviction and remand for further proceedings consistent with this opinion.

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

[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. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 159

Summary of Decision December 17, 2012

Justice Burke delivered the opinion for the Court. Affirmed.

Case Names: KEVIN W. OSBORN v. THE STATE OF WYOMING

Docket Numbers: S-12-0042; S-12-00116

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Converse County, Honorable John C. Brooks, Judge.

Representing Appellant: Pro Se.

Representing Appellee: Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Meri Geringer, Senior Assistant Attorney General.

Date of Decision: December 17, 2012

Facts: Appellant’s appeal related to his convictions and sentences for several serious crimes committed in 1982. In 2012, the district court granted a motion by Appellant to correct an illegal sentence, but Appellant claimed on appeal that the district court violated his right to be present when the sentence was corrected. He also challenged the district court’s denial of his motion to withdraw his previous guilty pleas.

Issues: Appellant states these issues, slightly reworded:

1. Did the trial court violate Appellant’s state and federal constitutional rights by sentencing him in absentia?

2. Did the trial court err by modifying Appellant’s sentence without allowing him to withdraw his plea?

Holdings: Appellant’s presence could not have been of any possible use, and the district court did not err in ruling that Appellant did not have the constitutional right to be present at this stage of the proceedings. The district court also did not err in refusing to allow Appellant to withdraw his guilty pleas. The district court’s decision was affirmed.

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

[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. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 110

Summary of Decision August 10, 2012


Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: STEVE EDWARD DOBBINS v. THE STATE OF WYOMING; STEVEN EDWARD DOBBINS v. THE STATE OF WYOMING

Docket Number: S-11-0050, S-11-0253

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Park County, Honorable Steven R. Cranfill, Judge.

Representing Appellant: Diane Lozano, State Public Defender and Tina N. Olson, Appellate Counsel.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; James M. Causey, Senior Assistant Attorney General.

Date of Decision: August 10, 2012

Facts: Pursuant to a plea agreement, Steve Edward Dobbins pleaded no contest to one count of sexual assault in the first degree, a felony, in violation of Wyo. Stat. Ann. § 6-2-302(a)(iii). In this consolidated appeal, Dobbins contended that the district court should have permitted him to withdraw his plea, both before and after sentencing. Specifically, Dobbins complained that he should have been allowed to withdraw his plea of no contest prior to being sentenced because he did not have close assistance of counsel and that he had a fair and just reason to withdraw his plea. Dobbins also argued that he should have been allowed to withdraw his plea of no contest after sentencing because the district court failed to properly advise him as required by W.R.Cr.P. 11, resulting in manifest injustice. According to Dobbins, the district court abused its discretion in denying his pre-sentence and post-sentence motions to withdraw his no contest plea, and that the error of the district court was not harmless. The Court affirmed the denial of both of Dobbins’ motions to withdraw his no contest plea, and affirmed the judgment and sentence.

Issues: The issue, as phrased by Dobbins, is as follows:

Should [Dobbins] be allowed to withdraw his plea because (1) the trial court erred in its advisements to [him], at arraignment and at the change of plea hearing; and (2) the trial court abused its discretion in denying [Dobbins] presentence motion to withdraw his plea?

Holdings: Having found that any error by the district court in its advisements under W.R.Cr.P. 11 did not affect Dobbins’ substantial rights and is, therefore, harmless pursuant to W.R.Cr.P. 11(h); having also found that Dobbins entered into his plea of no contest voluntarily and knowingly, and that at all times Dobbins had close assistance of counsel; the Court affirmed the district court’s denial of both Dobbins’ pre-sentence and post-sentence motions to withdraw his no contest plea. The judgment and sentence entered in this case was, therefore, also affirmed.

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

[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. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2010 WY 139

Summary of Decision issued October 26, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

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.

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 .

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Summary 2007 WY 136

Summary of Decision issued August 23, 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: Leyva v. State

Citation: 2007 WY 136

Docket Number: 06-233

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

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Senior Assistant Appellate Counsel; Kirk A. Morgan, Assistant Appellate Counsel. Argument by Mr. Morgan, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General. Argument by Mr. Pauling.

Issues: Whether the district court improperly withdrew its acceptance of Leyva’s guilty plea. Whether the district court erred in allowing evidence of uncharged misconduct to be admitted at trial.

Facts/Discussion: Leyva appealed his conviction on two felony counts, one for burglary and one for third offense illegal possession of a controlled substance.
Standard of Review: In reviewing a district court’s decision to accept or reject a guilty plea, the Court generally applies an abuse of discretion standard. However, in analogous cases involving sentencing under a plea agreement, the Court has applied the plain error standard when the defendant did not enter any objection. A trial court’s decision on the admissibility of evidence is entitled to considerable deference, and will not be reversed on appeal unless the appellant demonstrates a clear abuse of discretion.
Did the district court improperly withdraw its acceptance of Leyva’s guilty plea: Leyva relied on two cases, United States v. Ritsema and Brewer v. Starcher. Those cases hold that after a guilty plea is accepted and the sentence pronounced, the trial court may not withdraw its acceptance or increase its sentence. In both cases, the trial court was acting unilaterally and over the objections of the defendants. In the instant case, the district court asked Leyva if he wished to withdraw his plea and Leyva said yes, and the district court allowed him to withdraw his plea. The district court’s actions were consistent with Wyoming’s rules of criminal procedure. W.R.Cr.P. 32(d) provides the district court the authority to allow withdrawal of a guilty plea if made before a sentence is imposed. Because the Court concluded the district court’s decision did not violate any clear and unequivocal rule of law, it was not necessary for them to consider whether Leyva had established material prejudice. They noted that after the district court allowed him to withdraw his guilty plea, he was given another chance to change his plea. Also, the district court gave him the same sentence he would have received under the terms of the plea agreement.
Did the district court err in allowing evidence of uncharged misconduct to be admitted at trial: Evidence of other crimes, wrongs or acts is admissible if it serves a proper purpose, and is excluded only if its sole purpose is to prove that a defendant has a disposition to commit crimes. Intrinsic evidence (“part and parcel” of the crimes charged) is subject to W.R.E. 404(b). The district court’s misstatement that the evidence was not subject to W.R.E. 404(b) was rendered immaterial when the court immediately proceeded to analyze the evidence. The district court expressly found the evidence was relevant and that the evidence was more probative than prejudicial. The record reflected the district court considered the required criteria, had legitimate bases for its conclusions, and did not abuse its discretion in admitting the evidence at trial.
Leyva further challenged the district court’s ruling on procedural grounds. The Court has adopted a procedure to be followed when uncharged misconduct evidence is to be introduced at trial. The State’s response to Leyva’s pretrial demand for notice of intent to introduce evidence was that it did not intend to introduce any evidence pursuant to W.R.E. 404(b). The State maintained the position on appeal and the district court agreed with it. The State listed the evidence in its pretrial memorandum. Leyva made no claim that the evidence was inadmissible until trial was underway. At that point, the district court dismissed the jury and conducted a hearing on uncharged misconduct evidence. When the district court ruled the evidence was admissible, it did not list every conceivable purpose for admissibility. The record contained sufficient information to explain and support the trial court’s conclusions, and to allow meaningful review.

Holding: The district court did not err in granting Leyva’s request to withdraw his guilty plea. The district court did not abuse its discretion in admitting uncharged misconduct evidence. Rather the district court properly analyzed the evidence under W.R.E. 404(b), had a legitimate basis for admitting the evidence and under the circumstances, fulfilled the mandatory requirements for admitting evidence under W.R.E. 404(b).

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/3xnmrb .

Summary 2007 WY 118

Summary of Decision issued July 31, 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: Meyers v. State

Citation: 2007 WY 118

Docket Number: 05-284

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

Representing Appellant (Defendant): Ken M. Koski, State Public Defender, PDP; Donna D. Domonkos, Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; James Michael Causey, Assistant Attorney General.

Issue: Whether the District Court erred in denying Meyers’ post-sentence “Motion to Withdraw No Contest Plea” without a hearing and should his claim also be rejected as res judicata.

Facts/Discussion: Meyers sought to withdraw his nolo contendere plea after the district court sentenced him for attempted voluntary manslaughter. The district court denied Meyers’ motion without a hearing. The Court noted that most of the facts were stated in their decision on Meyers’ first appeal from 2005.
Withdrawal of Plea: Rule 32(d), W.R.Cr.P., states that after a criminal defendant who pleads nolo contendere is sentenced, such plea may be set aside only to correct manifest injustice. The district court has discretion in deciding whether or not manifest injustice exists. It does not specify that a district court must hold a hearing and the Court has adopted a two-part test formerly used by the federal courts in determining whether or not to allow the withdrawal of a plea: if the defendant alleges facts which if true, would entitle him to relief and the trial court can deny a hearing if the defendant’s allegations are contradicted by the record, are inherently unreliable or are merely conclusions rather than statements of fact.
Meyers’ contention that he was denied a psychological evaluation was directly contradicted by the record. A hearing on his claims would not have presented any plausible basis for concluding that manifest injustice would result if withdrawal was not permitted.
Res Judicata: It is a longstanding rule that issues which could have been raised in an earlier proceeding are foreclosed from subsequent consideration. Meyers appealed his case long before he moved to withdraw his plea. He could have claimed that his plea was involuntary but did not.

Holding: The district court properly decided Meyers’ motion to withdraw plea without a hearing. Meyers should have made his claim that his plea was involuntary in his original appeal. Res judicata prevents him from making that claim now. The action of the district court is affirmed on each of these bases.

Affirmed.

Kautz, District Judge delivered the decision.

Link: http://tinyurl.com/26nest .