Balderson v. State

• Decision Date: 17 September 2013
• Docket Number: No. S–12–0267.,S–12–0267.
• Citation: 309 P.3d 809
• Parties: Christopher D. BALDERSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

309 P.3d 809

Christopher D. BALDERSON, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–12–0267.

Supreme Court of Wyoming.

Sept. 17, 2013.

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.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

DAVIS, Justice.

[¶ 1] 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.

[¶ 2] 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. We therefore set Balderson's conviction aside and remand with instructions that his original not guilty plea be reinstated, or that he be allowed to plead anew.

ISSUES

[¶ 3] Appellant summarizes the issues in this case as follows:

I. Did the trial court commit reversible error by failing to advise Mr. Balderson of his rights as required by W.S. § 7–11–507?

II. 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.

FACTS

[¶ 4] Appellant was charged in Park County with two felony counts of aggravated assault and battery under Wyoming Statute § 6–2–502(a)(i) and (ii), as well as two counts of misdemeanor battery in violation of Wyoming Statute § 6–2–501(b). The probable cause affidavit supporting the information alleged that Balderson attacked another patron at a bar in Powell without provocation. He was also accused of using a bar stool to strike another customer, and then of kicking the man in the face when he was on the floor, abetted by other “Maryland boys,” ¹ who had accompanied him to the bar. The incident was captured on the bar's video surveillance system.

[¶ 5] Balderson pled not guilty to all charges. The district judge advised him of his constitutional rights as required by W.R.Cr.P. 11(b), and Balderson indicated that he understood them. The advisement did not include an explanation of the effect of a felony conviction on the right to own or possess a firearm or the effect of that loss on employment.

[¶ 6] Balderson was appointed counsel, but soon discharged his public defender. He tried to defend himself for a time, but ultimately proceeded to trial with two public defenders representing him.

[¶ 7] After a day of trial involving jury selection, opening statements, and the presentation of foundation evidence for the video to be offered the following day, Balderson and the State arrived at a recommended plea agreement. He agreed to plead no contest to one count of aggravated assault and battery and one count of misdemeanor battery in exchange for a recommendation of a concurrent term of two to four years of confinement, with credit for time served on each charge, and dismissal of the remaining charges. He also requested and agreed to a post-sentence investigation so that he could go to the state penitentiary sooner. SeeW.R.Cr.P. 32(a) (court may permit the presentence investigation report to be filed after sentencing with the parties' consent). The State also agreed to withdraw a petition for revocation of probation in an unspecified misdemeanor case not before the district court.

[¶ 8] The district court held a change of plea hearing with the jury waiting in the jury room. The prosecutor offered the affidavit of probable cause as the factual basis for the no contest plea. The district judge did not state that he had considered probation, and he did not offer Balderson a chance to speak in mitigation of sentence.² Balderson was not advised that he would lose his right to own or possess firearms and be ineligible to work in any occupation requiring possession of a gun.

[¶ 9] Defense counsel then offered a no contest plea on Balderson's behalf, and the court accepted the plea. The district judge did not pronounce sentence at the hearing, but instead recited the terms of the plea agreement and later entered a written judgment and sentence which implemented the parties' sentencing recommendation. This appeal was timely perfected.

STANDARD OF REVIEW

[¶ 10] This appeal requires us to construe a statute requiring advisement as to the possible loss of firearms rights, and to determine whether the district court provided that advisement. These are legal determinations to be made de novo. Starrett v. State, 2012 WY 133, ¶¶ 9, 19, 286 P.3d 1033, 1036–37, 1040 (Wyo.2012).

DISCUSSION

[¶ 11] In 2009, the Wyoming Legislature passed “[a]n Act ... requiring advisements of potential loss of firearms rights prior to conviction upon a plea of guilty or nolo contendere....” See 2009 Wyo. Sess. Laws ch. 19, § 1 (codified at Wyo. Stat. Ann. § 7–11–507). The statute provides as follows:

(a) No judgment of conviction shall be entered upon a plea of guilty or nolo contendere to any charge which may result in the disqualification of the defendant to possess firearms pursuant to the provisions of 18 U.S.C. §§ 922(g)(1), (9) and 924(a)(2) or other federal law unless the defendant was advised in open court by the judge:

(i) Of the collateral consequences that may arise from that conviction pursuant to the provisions of 18 U.S.C. §§ 921(a)(33), 922(g)(1), (9) and 924(a)(2); and

(ii) That if the defendant is a peace officer, member of the armed forces, hunting guide, security guard or engaged in any other profession or occupation requiring the carrying or possession of a firearm, that he may now, or in the future, lose the right to engage in that profession or occupation should he be convicted.

Wyo. Stat. Ann. § 7–11–507 (LexisNexis 2013).

[¶ 12] In Starrett, supra, the appellant pled guilty to the felony of third-degree sexual assault, but the district court did not advise him of the potential loss of his firearms rights under federal law. 2012 WY 133, ¶ 5, 286 P.3d at 1035. He sought to withdraw his plea, claiming on appeal that “we must simply obey the legislative command: because the district court did not give him the [firearms] advisement in open court, no judgment of conviction shall be entered upon his plea of guilty.” Id. at ¶ 10, 286 P.3d at 1037. We reviewed § 7–11–507 using the usual principles of statutory interpretation, and also noted that W.R.Cr.P. 32 requires a judgment of conviction upon a plea of guilty or nolo contendere to include any “advisements required by law.” Id. at ¶¶ 9, 11, 286 P.3d at 1036–37 (citations omitted).

[¶ 13] We allowed the appellant in that case to withdraw his plea because the district court failed to provide the required advisement:

Wyo. Stat. Ann. § 7–11–507 is clear and unambiguous.... The advisement in Wyo. Stat. Ann. § 7–11–507 is required, and W.R.Cr.P. 32(b)(1)(E) mandates that the judgment of conviction upon Starrett's plea of guilty must include that advisement. The district court's failure to give Starrett that required advisement was a Rule 32 error ... [which] requires us to set aside Starrett's judgment of conviction and remand to that court with directions that he be permitted to plead anew.

Id. at ¶ 19, 286 P.3d at 1040.³

[¶ 14] Balderson pled no contest to one count of aggravated assault and battery, which is a felony with a maximum term of ten years imprisonment. SeeWyo. Stat. Ann. § 6–2–502(b) (LexisNexis 2013). A conviction of this offense would obviously disqualify him from possessing firearms under federal law because it is a crime “punishable by imprisonment for a term exceeding one year.” See18 U.S.C. § 922(g)(1) (2012). Consequently, the district court was required to advise him that he would lose the right to possess firearms, and that he could not be employed or continue to be employed in occupations that would require him to possess or carry a firearm. § 7–11–507.

[¶ 15] However, the State claims that the district court did not err when it failed to advise Balderson of the potential loss of his firearms rights because he had already lost them. Relying on the word “may” in § 7–11–507(a) and (a)(ii), the State argues that the statute only requires advisement to defendants whose right to possess firearms could actually be lost by virtue of a guilty or no contest plea and conviction, and not of those who are already disqualified from possessing firearms by previous convictions. The State claims that Balderson was already disqualified from possessing firearms by two previous convictions reflected in the post-sentence investigation report, and that the district court was not therefore required to advise Balderson of any potential loss of firearms rights.

[¶ 16] The post-sentence investigation report is not as clear as the State believes it to be. Balderson had pled guilty to a charge of second...