Rutti v. State, 03-24.

• Decision Date: 08 November 2004
• Docket Number: No. 03-24.,03-24.
• Citation: 100 P.3d 394,2004 WY 133
• Parties: James P. RUTTI, JR., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

100 P.3d 394

2004 WY 133

James P. RUTTI, JR., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 03-24.

Supreme Court of Wyoming.

November 8, 2004.

Rehearing Denied December 14, 2004.

Representing Appellant: Lori L. Brand of Gay Woodhouse Law Office, Cheyenne, Wyoming.

Representing Appellee: Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbets, Senior Assistant Attorney General; Theodore E. Lauer, Director, and Shannon Sheets, Student Intern, of the Prosecution Assistance Program. Argument by Ms. Sheets.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

GOLDEN, Justice.

[¶ 1] James Rutti appeals a Judgment and Sentence that resulted from Rutti's entry of two guilty pleas pursuant to a plea agreement. After Rutti entered his guilty pleas he filed a pro se motion to withdraw them. After a hearing at which Rutti was represented by counsel, the trial court denied Rutti's motion to withdraw his guilty pleas. On appeal, Rutti makes multiple claims of error. First, Rutti was charged with sexual exploitation of a child under Wyo. Stat. Ann. § 6-4-303(b)(iii) (LexisNexis 2003)¹ for delivering child pornography. Rutti argues that § 6-4-303(b)(iii) is facially overbroad and thus violates the First Amendment to the United States Constitution. Next, Rutti claims he received legally ineffective assistance of counsel and at the least this Court should remand the case to the trial court for a hearing to develop the record regarding his ineffectiveness claim. Rutti also claims the prosecutor engaged in misconduct and breached the plea agreement. This Court finds that no remand for an evidentiary hearing is appropriate under the circumstances. Finding no prejudicial error, we affirm.

ISSUES

[¶ 2] Rutti states the issues as:

I. Whether Appellant's conviction for violation of Wyo. Stat. § 6-4-303(b)(iii) must be vacated because it is unconstitutional as violative of the First Amendment to the U.S. Constitution.

II. Whether Appellant's Sixth Amendment right to effective assistance of trial counsel was violated by trial counsel's deficient performance in defense of Appellant.

A. Whether counsel Dion Custis appropriately advised Appellant to plead guilty to a charge previously found violative of the U.S. Constitution.

B. Whether counsel Dion Custis appropriately advised Appellant to plead guilty in exchange for dismissal of a charge which Appellant had not committed as a matter of law.

C. Whether counsel Marion Yoder appropriately advised Appellant and the trial court in regard to Appellant's motion to withdraw guilty plea prior to sentencing.

III. Whether the district attorney committed prosecutorial misconduct by failing to bring jurisdictional issues to the attention of the trial court and by misrepresenting the facts to the trial court when arguing against Appellant's motion to withdraw guilty plea prior to sentencing.

IV. Whether the State breached the plea agreement with defendant by failing to dismiss two counts against him with prejudice.

V. Whether the Wyoming Supreme Court's Calene hearing procedure, established to provide evidentiary record supplementation for ineffective assistance of counsel claims, and its application by the Wyoming Supreme Court adequately protects Appellant's constitutional right to due process and/or his Sixth Amendment right to effective assistance of counsel.

The State essentially agrees with the issues as presented by Rutti.

FACTS²

[¶ 3] A Division of Criminal Investigation (DCI) agent, posing as a fifteen year-old girl, "Candy," made contact with James Rutti in a chat room on the Internet. During the course of their chat room exchange, Rutti forwarded a photograph of a preteen girl in a sexually explicit situation to the undercover agent.³ Allegedly, Rutti also suggested to "Candy" that they meet and engage in sexual activity. Rutti was arrested at his home in Laramie. During questioning, Rutti admitted to previously having sexual contact with another fifteen year-old girl who we will refer to as MA. Rutti met MA in the chat room and then arranged to meet her in person in Cheyenne where sexual contact occurred.

[¶ 4] An Information was filed in Laramie County against Rutti containing four counts. Count I charged Rutti with sexual exploitation of a child by delivering child pornography pursuant to § 6-4-303(b)(iii). Count II charged Rutti with soliciting a minor pursuant to Wyo. Stat. Ann. § 14-3-104 (LexisNexis 2003)⁴ for his chat room contact with the DCI agent. Counts III and IV charged Rutti with third-degree sexual assault for separate acts occurring during his sexual encounter with MA.⁵

[¶ 5] Rutti was represented by the Public Defender's Office. Eventually, Rutti accepted a plea bargain whereby he would plead guilty to one count of third degree sexual assault and one count of sexual exploitation of a child by delivering child pornography in exchange for the State dismissing the other two counts and standing silent at sentencing. At a change of plea hearing, after satisfying the trial court that his pleas were knowing and voluntary, Rutti entered his two guilty pleas. Both Rutti and the State supplied the factual bases for Rutti's respective guilty pleas at the change of plea hearing. Soon after the hearing and the acceptance by the trial court of Rutti's two guilty pleas, the State dismissed the other two counts without prejudice.

[¶ 6] Almost five months after the change of plea hearing, but prior to sentencing, Rutti filed a pro se motion to withdraw his guilty pleas. In the motion, Rutti alleged he was coerced by his defense counsel to enter the guilty pleas. Rutti alleged that he always had wanted to go to trial. His defense counsel, however, prior to Rutti's acceptance of the plea bargain, was unfamiliar with the facts and the law of the case and informed Rutti that he would not put on any sort of defense. Because of the attitude of defense counsel, Rutti alleged he felt compelled to accept the plea bargain. Rutti also alleged in his motion that he had a defense that he wanted to present, although Rutti did not specify the nature of that defense.

[¶ 7] Rutti's motion to withdraw his guilty pleas was heard by the trial court. Rutti was represented by different defense counsel at the hearing. Rutti was the only person to testify at the hearing. Rutti testified that, within a couple of days after he entered the pleas, he told his prior defense attorney that he wanted to withdraw his guilty pleas and go to trial but his attorney refused to file a motion to withdraw the pleas. In response to questioning by the State, Rutti testified that he wasn't threatened in any way to accept the plea bargain but did so because "[t]here was no other choice, apparently." The trial court denied the motion. Generally, Rutti was sentenced to a term of three to five years, suspended, on the count of sexual exploitation of a child by delivering child pornography and a term of four to seven years on the count of third degree sexual assault.

[¶ 8] After filing this appeal, Rutti filed two motions with this Court requesting this Court remand this case to the trial court for an evidentiary hearing limited to the issue of whether two of Rutti's defense counsels provided legally effective representation. This Court denied both motions.

DISCUSSION

Constitutionality of § 6-4-303(b)(iii)

[¶ 9] Rutti's challenge to the facial validity of § 6-4-303(b)(iii) as overbroad and violative of the First Amendment presents an issue of law. This Court reviews issues of law de novo. Anderson v. Bommer, 926 P.2d 959, 961 (Wyo.1996).⁶

[¶ 10] Rutti claims that § 6-4-303 is overbroad and therefore facially unconstitutional under the First Amendment of the United States Constitution. As an initial observation, we must emphasize that a criminal defendant who pleads guilty waives any antecedent non-jurisdictional defects in his conviction. "A criminal defendant, by pleading guilty, admits all of the essential elements of the crime charged and thus waives all nonjurisdictional defenses." Ochoa v. State, 848 P.2d 1359, 1361 (Wyo.1993). While this leaves only narrowly proscribed issues open to appeal, this Court has previously accepted that challenging the constitutionality of the statute under which the criminal defendant was charged does qualify as a jurisdictional defense. Armijo v. State, 678 P.2d 864, 867 (Wyo.1984) ("[a] criminal defendant does not, however, waive the right to challenge the constitutionality of the statute defining the crime to which he enters a plea of guilty by virtue of his plea").

[¶ 11] When analyzing an overbreadth challenge under the First Amendment:

The general rule is that one who alleges unconstitutionality bears a heavy burden and must clearly and exactly show the unconstitutionality beyond any reasonable doubt. Pauling v. Pauling, 837 P.2d 1073, 1076 (Wyo.1992). However, that rule does not apply where a citizen's fundamental constitutional right, such as free speech, is involved. The strong presumptions in favor of constitutionality are inverted, the burden then is on the governmental entity to justify the validity of the ordinance, and this Court has a duty to declare legislative enactments invalid if they transgress that constitutional provision.

Miller v. City of Laramie, 880 P.2d 594, 597 (Wyo.1994). "The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process." Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255, 122 S.Ct. 1389, 1404, 152 L.Ed.2d 403 (2002). A statute is unconstitutional on its face if it prohibits a substantial amount of protected expression. Id. at 244, 122 S.Ct. at 1398-99. If a statute is facially overbroad in violation of the First Amendment it cannot be enforced in any part. Because of the severity of the remedy,...