Anderson v. State

• Decision Date: 28 March 2002
• Docket Number: No. 00-289.,00-289.
• Citation: 2002 WY 46,43 P.3d 108
• Parties: Elly ANDERSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

43 P.3d 108

2002 WY 46

Elly ANDERSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 00-289.

Supreme Court of Wyoming.

March 28, 2002.

Kenneth M. Koski, State Public Defender, and Donna D. Domonkos, Appellate Counsel, Representing Appellant.

Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling and Kimberly A. Baker, Senior Assistant Attorneys General, Representing Appellee.

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

HILL, Justice.

[¶ 1] Appellant, Elly Anderson (Anderson), challenges an order of the district court revoking probation granted to her under Wyo. Stat. Ann. § 7-13-301 (Lexis-Nexis 2001).¹ Anderson contends that the district court did not have a sufficient factual basis for revoking her probation, and that it failed to establish a factual basis for her guilty plea before accepting that plea. We will reverse and remand for further proceedings consistent with this opinion.

[¶ 2] Anderson states these issues:

1. Whether Ms. Anderson received a fair probation revocation hearing when her right to due process was violated?

2. Whether the district court erred when it entered a judgment against Ms. Anderson when there was an improper factual basis presented for the plea?

The State styles the issues thus:

I. Whether the district court erred in revoking Appellant's probation?

II. Whether a factual basis was established before Appellant's guilty plea was accepted?

FACTS

[¶ 3] Anderson entered a plea of guilty to a charge that, during the early morning hours of October 3, 1996, she committed the crime of aggravated assault and battery upon the person of James Hall (Hall). That crime is defined by statute:

§ 6-2-502. Aggravated assault and battery; penalty.

(a) A person is guilty of aggravated assault and battery if he:

(i) Causes serious bodily injury to another intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;

(ii) Attempts to cause, or intentionally or knowingly causes bodily injury to another with a deadly weapon;

(iii) Threatens to use a drawn deadly weapon on another unless reasonably necessary in defense of his person, property or abode or to prevent serious bodily injury to another; or

(iv) Intentionally, knowingly or recklessly causes bodily injury to a woman whom he knows is pregnant.

(b) Aggravated assault and battery is a felony punishable by imprisonment for not more than ten (10) years.

Wyo. Stat. Ann. § 6-2-502 (LexisNexis 2001) (emphasis added).

[¶ 4] Anderson was charged in two counts, count one being the charge of aggravated assault and battery and count two being a charge of simple assault. The simple assault statute provides:

§ 6-2-501. Simple assault; battery; penalties.

(a) A person is guilty of simple assault if, having the present ability to do so, he unlawfully attempts to cause bodily injury to another.

(b) A person is guilty of battery if he unlawfully touches another in a rude, insolent or angry manner or intentionally, knowingly or recklessly causes bodily injury to another.

(c) Except as provided by subsection (e) of this section, simple assault is a misdemeanor punishable by a fine of not more than seven hundred fifty dollars ($750.00).

(d) Except as provided by subsection (f) of this section, battery is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both. Notwithstanding any other provision of law, the term of probation imposed by a judge under this subsection may exceed the maximum term of imprisonment established for the offense under this subsection provided the term of probation, together with any extension thereof, shall in no case exceed one (1) year.

(e) A household member as defined by W.S. XX-XX-XXX who is convicted upon a plea of guilty or no contest or found guilty of simple assault against any other household member, after having been convicted upon a plea of guilty or no contest or found guilty of a violation of W.S. 6-2-501(a), (b), (e) or (f), 6-2-502, 6-2-503, 6-2-504 or other substantially similar law of this or any other state, tribe or territory against any other household member, is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.

(f) A household member as defined by W.S. XX-XX-XXX who commits a second or subsequent battery against any other household member shall be punished as follows:

(i) A person convicted upon a plea of guilty or no contest or found guilty of a second offense under this subsection against any other household member, after having been convicted upon a plea of guilty or no contest or found guilty of a violation of W.S. 6-2-501(a), (b), (e) or (f), 6-2-502, 6-2-503, 6-2-504 or other substantially similar law of this or any other state, tribe or territory against any other household member within the previous five (5) years is guilty of a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both;

(ii) A person convicted upon a plea of guilty or no contest or found guilty of a third or subsequent offense under this subsection against any other household member, after having been convicted upon a plea of guilty or no contest or found guilty of a violation of W.S. 6-2-501(a), (b), (e) or (f), 6-2-502, 6-2-503, 6-2-504 or other substantially similar law of this or any other state, tribe or territory against any other household member within the previous ten (10) years is guilty of a felony punishable by imprisonment for not more than two (2) years, a fine of not more than two thousand dollars ($2,000.00), or both.

Wyo. Stat. Ann. § 6-2-501 (LexisNexis 2001).

[¶ 5] Hall and Anderson lived together and had a child who was about 21 months old. During an episode of domestic violence, Anderson held a kitchen knife up in front of herself and threatened to use it on Hall. Anderson entered a plea of not guilty on November 21, 1996. On February 24, 1997, Anderson appeared in district court to change her plea in connection with a plea agreement. The agreement was that Anderson would consent to plead guilty to aggravated assault, and in exchange the State would dismiss the simple assault charge and recommend that she be sentenced under Wyo. Stat. Ann. § 7-13-301, so long as the presentence report established that she had no prior felonies, assaults or batteries. During the course of the plea proceeding,² the district court asked Anderson if she suffered from a mental illness, and she answered, "No." Anderson was asked to provide a factual basis for her plea, and the transcript reflects this:

THE DEFENDANT: Your Honor, at the time that I had the weapon in my hand, it was not drawn toward the victim. It was used to get access to try and vacate the premises because I was being detained.

THE COURT: What was the weapon you had?

THE DEFENDANT: It was a kitchen knife.

THE COURT: For the purpose of this proceedings [sic ], I understand the circumstance that you have explained here, but you threatened another individual with it?

THE DEFENDANT: To gain access to my daughter, yes, I did.

THE COURT: Who was that other individual?

THE DEFENDANT: The father of my child.

THE COURT: Did that occur in Natrona County, Wyoming?

THE DEFENDANT: Yes, it did.

[¶ 6] The district court then made findings, including a finding that there was a factual basis for the plea. Anderson was directed to make herself available to the Probation and Parole Division of the Wyoming Department of Corrections so that a presentence report could be made. The presentence report was filed with the district court on May 14, 1997, and in addition to much other information, it contained this "Evaluation:"

Before the court for her first known felony offense is a 42 year old divorced mother of one. This writer has some concerns regarding the defendant's reported history primarily due to two factors. First, in each meeting with this writer the defendant reported being sexually abused by a male authority figure. The defendant seems to partially blame herself for these instances of abuse because she claims her "bust is a magnet for men." The defendant told this writer "Mr. Hanley, I have been stacked since I was 14 years old. Now I not [sic] talking A or B here, I am talking double D's". These types of comments went on throughout this investigation. These comments, coupled with so many unverifiable reports of sexual abuse in the defendant's past, led this writer to believe that the defendant would benefit from psychiatric help at the state mental hospital either for extensive sexual abuse or pathological lying. Throughout the course of this investigation the defendant gave this writer what appears to be a lot of inaccurate information about every aspect of her past, yet gave that information in such a manner that this writer believes the defendant is either an exceptionally good liar, or she actually believes the things she reported.

[¶ 7] At the sentencing proceeding³ Anderson's attorney made an objection to the "tenor" of the report and stated to the district court that if the probation agent had followed up on Anderson's reports, then much of the information could have been verified. The district court noted the objection but then asked what the sentencing recommendation was. The discussion that followed focused in significant part on Anderson's "instability," the fact that she was currently under the care of a psychiatrist and taking medications, and that Anderson had not been truthful with the probation agent during the presentence investigation process. All in all, based upon the probation agent's perception of Anderson, which perception now had been methodically communicated to the district court, this was not an altogether promising beginning to a...