Kitzke v. State, 01-19.

Decision Date02 October 2002
Docket NumberNo. 01-19.,01-19.
PartiesKenneth KITZKE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Representing Appellant: Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Assistant Appellate Counsel.

Representing Appellee: Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and T. Alan Elrod, Assistant Attorney General.

Before HILL, C.J., and GOLDEN, LEHMAN,1 KITE, and VOIGT, JJ.

VOIGT, Justice.

[¶ 1] This is an appeal from a Judgment and Sentence entered by the district court on December 14, 2000. The appellant, Kenneth Kitzke (Kitzke), initially pled not guilty to seven drug charges, but later entered into a plea agreement whereby he unconditionally pled guilty to possession of marijuana with intent to deliver, a felony, in violation of Wyo. Stat. Ann. § 35-7-1031 (LexisNexis 2001).2 In exchange, the State dismissed the remaining six counts. The district court sentenced Kitzke to 96 months to 120 months incarceration, to be served consecutively to the sentence he was then serving in the Washington state penitentiary. Kitzke appealed, alleging that his trial counsel was ineffective for failing to file a motion to suppress certain evidence and failing to prepare for sentencing.

[¶ 2] We affirm.

ISSUES

1. Was Kitzke's counsel ineffective in failing to file a motion to suppress evidence obtained in violation of Kitzke's rights under both the United States and Wyoming Constitutions?3

2. Was Kitzke's counsel ineffective in failing to file a motion to suppress evidence because a thermal heat-imaging device was used on Kitzke's residence without a search warrant?

3. Was Kitzke's counsel ineffective in failing to prepare for sentencing?

FACTS

[¶ 3] On March 9, 1998, sheriff's deputies learned from some juveniles that Kitzke was growing marijuana in a trailer with multiple locks on the door, located behind his residence on his property in Natrona County. Kitzke's stepson had told the juveniles about the drug-growing operation. On the same day, the police verified the juveniles' report by identifying the trailer and noting what appeared to be multiple locks on its door. Police also verified that Kitzke owned the land on which the trailer was located. The police checked Kitzke's criminal history and found that he had been convicted of drug-related offenses in Oregon and Wyoming, including manufacturing a controlled substance.

[¶ 4] Officers then obtained and executed a search warrant on Pacific Power and Light Company. The power company's records indicated that the electricity demand for Kitzke's property was more than twice that of similar properties and structures in the area. Using this and other information, the officers next obtained a search warrant for Kitzke's property. A search of the locked trailer revealed seeds, pipes, scales, ammunition, a.32 caliber revolver, airline tickets, equipment for growing marijuana and psilocybin mushrooms, plus various bags of marijuana.

[¶ 5] On May 12, 1998, an Information was filed in the Natrona County Court (now referred to as circuit court) charging Kitzke with seven drug violations.4 Kitzke was in prison in the state of Washington, but he requested disposition of the Wyoming case via the Interstate Agreement on Detainers. He was arrested on the Wyoming warrant on July 20, 2000. Kitzke pled not guilty at arraignment in the district court on August 10, 2000. The district court set a jury trial for October 2, 2000, but on September 29, 2000, the State requested a setting for a change of plea hearing. The district court held the hearing on October 24, 2000, and accepted a plea agreement whereby Kitzke unconditionally pled guilty to one count of possession of marijuana with intent to deliver, in exchange for the State dismissing the six remaining counts.

[¶ 6] Sentencing occurred on December 5, 2000. The appellant received a sentence of incarceration for not less than 96 months and not more than 120 months. The district court ordered this sentence to be served consecutively to the sentence Kitzke was serving in Washington.

DISCUSSION

[¶ 7] Kitzke first alleges that his trial counsel was ineffective because he failed to file a motion to suppress evidence based on an insufficient search warrant affidavit. He next alleges that use of a thermal heat-imaging device at his residence constituted a presumptively unreasonable search, and its use was one of the factors that directly led to the issuance of the search warrant. Finally, Kitzke contends that his sentencing counsel was ineffective at sentencing for failure to review the record, failure to file a motion to withdraw guilty plea and a suppression motion, and failure to prepare for sentencing. He argues that the suppression motion would have kept out the incriminating evidence, and he would have been acquitted.

[¶ 8] Analysis of these claims must begin with the observation that an unconditional guilty plea waives all non-jurisdictional defenses, including claims based on the alleged deprivation of constitutional rights. Smith v. State, 871 P.2d 186, 188-89 (Wyo. 1994); Davila v. State, 831 P.2d 204, 205-06 (Wyo.1992). The only claims not waived by an unconditional guilty plea are those that address the jurisdiction of the court or the voluntariness of the plea. Wilson v. United States, 962 F.2d 996, 997 (11th Cir.1992). "Jurisdictional defenses involve the state's power to bring the defendant into court; non-jurisdictional defenses are those `"objections and defenses which would not prevent a trial."' " Smith, 871 P.2d at 188 (quoting Davila, 831 P.2d at 205-06

). "`When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.'" Smith, 871 P.2d at 188 (quoting Davila, 831 P.2d at 206).

[¶ 9] Examples of jurisdictional defects are unconstitutionality of the statute defining the crime, failure of the indictment or information to state an offense, and double jeopardy. Davila, 831 P.2d at 205. Non-jurisdictional defects include the use of inadmissible evidence, the use of unlawfully obtained statements, a claim that a grand jury was improperly convened and conducted, and a claim of violation of the right to speedy trial. Id. at 206. Kitzke's claim that counsel was ineffective in failing to file a motion to suppress is non-jurisdictional, as it does not implicate a matter directly relating to the entry of his guilty plea or the power of the state to bring him into court. See, e.g., State v. Quick, 177 Ariz. 314, 868 P.2d 327, 329 (1993)

. Nevertheless,

[w]hen a guilty plea has been entered upon the advice of counsel, the voluntariness of that plea may depend on the extent to which that advice comports with the constitutional guarantee to the effective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985); Worthen v. Meachum, 842 F.2d 1179, 1184 (10th Cir.1988).

Lower v. State, 786 P.2d 346, 349 (Wyo.1990). In Mehring v. State, 860 P.2d 1101, 1112-13 (Wyo.1993), we said:

The examination of a claim of ineffective assistance of counsel requires a showing that counsel's performance was deficient and that the deficient performance prejudiced the defense. Dickeson v. State, 843 P.2d 606, 609 (Wyo.1992) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)

). When a guilty plea is challenged based on ineffective assistance of counsel, the defendant, to establish prejudice, must show that there is a reasonable probability that, but for counsel's errors, a plea of guilty would not have been entered and the defendant would have insisted on going to trial. Hill [v. Lockhart], 474 U.S. [52] at 59, 106 S.Ct. [366] at 370 [88 L.Ed.2d 203 (1985)]. The Hill standard was adopted by Wyoming in Lower v. State, 786 P.2d 346, 349 (Wyo.1990). A strong presumption is invoked that counsel rendered adequate and reasonable assistance. Gist v. State, 737 P.2d 336, 342 (Wyo.1987). The burden is on the defendant to overcome this presumption. Dickeson, 843 P.2d at 609.

[¶ 10] Kitzke alleges that his trial counsel was ineffective for failing to attempt to suppress the evidence that the State obtained through a search warrant. The gist of his argument is that there was insufficient information in the affidavit that was used to obtain the search warrant from which a neutral magistrate could find probable cause to allow the search. The affidavit reads as follows:

1. Your affiant is a Deputy Sheriff with the Natrona County Sheriff's Office assigned as a Special Agent with the Division of Criminal Investigation, Central Drug Enforcement Team. Affiant has approximately three years of law enforcement experience. Affiant has received training from the Wyoming Law Enforcement Academy, Wyoming Division of Criminal Investigation, and the United States Attorney's Office in the area of controlled substance violations. Your affiant has also received training from the Wyoming Division of Criminal Investigations in regards to indoor grow operations.
2. Your affiant knows from his training and experience and from information shared by other agents, that marijuana growers normally use indoor grow lights and exhaust fans, which use substantially more electricity than would be used in a normal house hold [sic].
3. On March 9, 1998, Investigator Corey Davison of the Natrona County Sheriff's Department, forwarded to your affiant a report concerning an indoor marijuana grow. Investigator Davison shared with your affiant that during the course of an aggravated assault investigation, the information of a marijuana grow was received. During questioning of juvenile
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