Bird v. State, 94-159

• Citation: 901 P.2d 1123
• Decision Date: 28 August 1995
• Docket Number: No. 94-159,94-159
• Parties: Chester Loyde BIRD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

Page 1123

901 P.2d 1123

Chester Loyde BIRD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 94-159.

Supreme Court of Wyoming.

Aug. 28, 1995.

Rehearing Denied Sept. 15, 1995.

Wyoming Public Defender Program: Leonard D. Munker, State Public Defender; and Deborah Cornia, Appellate Counsel, for appellant.

Joseph B. Meyer, Attorney General; Sylvia Lee Hackl, Deputy Attorney General; D. Michael Pauling, Mary Beth Wolff, Senior Assistant Attorneys General; Prosecution Assistance Program, Theodore E. Lauer, Director, and Cole Loftus, Student Intern., for appellee.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.

THOMAS, Justice.

The issue raised in this case is whether the trial court abused its discretion when it refused to allow Chester Loyde Bird (Bird) to withdraw his pleas of guilty to sexual assault in the first degree, ¹ and kidnapping, ² which were accompanied by his admission of the status of a habitual criminal. ³ At arraignment, the trial court furnished incorrect advice as to the maximum punishment. Bird was told three consecutive life sentences could be imposed when, in fact, there was a potential for only two consecutive life sentences. Bird also complains of an insufficient factual basis for his pleas of guilty. We are cognizant of, and emphasize, the desirability of precision and accuracy on the part of both the prosecution and the court in dealing with the acceptance of pleas of guilty. In this instance, however, we are unable to perceive any prejudice to Bird because he entered his pleas of guilty after being told he could receive the greater punishment, and he persisted in those pleas after being advised of the lesser punishment. We also are satisfied the record encompasses a factual basis sufficient to support Bird's pleas of guilty and assure the court of their accuracy. We affirm the denial by the trial court of Bird's efforts to withdraw his pleas of guilty.

In his Brief of the Appellant, Bird states these issues:

I. Did the trial court err in its failure to comply with the mandates of Rule 11 W.R.Cr.P. in accepting appellant's guilty pleas?

II. Did the trial court abuse its discretion in not allowing withdrawal of appellant's guilty pleas?

The State, in the Brief of the Appellee, restates the issues in this way:

I. Did the district court properly follow Rule 11, W.R.Cr.P., in its acceptance of appellant's guilty pleas?

II. Did the district court properly deny appellant's request to withdraw his guilty pleas?

We weigh Bird's contentions against WYO.R.CRIM.P. 11, which provides, in pertinent part, with respect to pleas:

(a) Alternatives.

(1) In General.--A defendant may plead not guilty, not guilty by reason of mental illness or deficiency, guilty, or nolo contendere. * * *

* * * * * *

(b) Advice to Defendant.--Except for forfeitures on citations (Rule 3.1) and pleas entered under Rule 43(c)(2), before accepting a plea of guilty or nolo contendere to a felony * * * the court must address the defendant personally in open court and, unless the defendant has been previously advised by the court on the record and in the presence of counsel, inform the defendant of, and determine that the defendant understands, the following:

(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law [emphasis added] and other sanctions which could attend a conviction including, when applicable, the general nature of any mandatory assessments (such as the surcharge for the Crime Victim Compensation Account), discretionary assessments (costs, attorney fees, restitution, etc.) and, in controlled substance offenses, the potential loss of entitlement to federal benefits. However:

(A) Disclosure of specific dollar amounts is not required;

(B) Failure to advise of assessments or possible entitlement forfeitures shall not invalidate a guilty plea, but assessments, the general nature of which were not disclosed to the defendant, may not be imposed upon the defendant unless the defendant is afforded an opportunity to withdraw the guilty plea; and

(C) If assessments or forfeitures are imposed without proper disclosure a request for relief shall be addressed to the trial court under Rule 35 before an appeal may be taken on that issue.

* * * * * *

(5) If the court intends to question the defendant under oath, on the record, and in the presence of counsel, about the offense to which the defendant has pleaded guilty, that the defendant's answers may later be used against the defendant in a prosecution for perjury or false statement.

* * * * * *

(f) Determining accuracy of plea.--Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.

* * * * * *

(h) Harmless error.--Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.

The primary contention by Bird is that a violation of WYO.R.CRIM.P. 11(b)(1) occurred at his arraignment because the maximum possible punishment was overstated. Bird's contention elevates the concept of technical error to new heights and could even be described as pressing technical error to the ultimate. He argues, because of this error, the trial court committed an abuse of discretion in refusing to permit him to withdraw his pleas of guilty after he was sentenced to two life terms to run concurrently instead of the three consecutive life terms pronounced prior to his pleas.

The information charged sexual assault in the first degree in Count I and kidnapping in Count II. The felonies charged in Counts I and II of the information are violent felonies as defined in WYO.STAT. § 6-1-104 (1988). In what was set forth as Count III, the information alleged Bird had been convicted of felonies on two or more previous charges, separately brought and tried, which arose out of separate occurrences. These prior convictions made Bird eligible for life sentences pursuant to WYO.STAT. § 6-10-201(b)(ii) (1988).

The record discloses the trial judge read the information to Bird when he appeared in the district court for arraignment. The judge also read the Wyoming statutes defining sexual assault and its attendant penalties; kidnapping and its attendant penalties; and the habitual criminal statute leading to enhanced penalties. In informing Bird of the "maximum possible penalty provided by law," the trial judge stated:

If you plead guilty or if the court were to find you guilty on all of these to the maximum extent with what I will call the worst fact situation as alleged in the information, it would appear that you could receive three life sentences.

Continuing with the litany required in WYO.R.CRIM.P. 11, the judge advised Bird of the mandatory and discretionary assessments that could be imposed. He explained to Bird the consequences of entering a plea of guilty. The judge specifically asked Bird if he understood the charges against him, and Bird replied, "Yes, I do." The judge then asked, "Do you feel you understand the possible penalties and consequences should you plead guilty or be convicted?" Bird again replied, "Yes, I do." After that, the judge continued by explaining to Bird the constitutional rights available to one charged with a crime. He determined Bird had discussed the facts of his situation with his attorney. He was informed Bird's questions to his attorney had been answered; the legal procedures had been explained to him; he had been advised about the law; and he had faith and confidence in the ability of his lawyer.

The judge then made the determination that Bird's pleas were voluntary and, although some negotiations had occurred, no plea agreement had been reached. Bird was informed by the judge of the rights he would waive if he entered a plea of guilty. When he was asked if he understood those rights and that he would be giving up those rights by pleading guilty, Bird replied, "Yes, I do." Bird declined the opportunity to ask any questions. He then entered pleas of guilty to first degree sexual assault, aggravated kidnapping, and he admitted the status of a habitual criminal based upon three prior convictions. The trial judge asked, "Mr. Bird, is there any reason the court should not accept your guilty pleas?" Bird's reply was, "Not that I know of, Your Honor." The court then accepted Bird's pleas.

At the same hearing, Bird elected to proceed immediately to sentencing without the benefit of a presentence investigation. At that time, the court entered into a colloquy with counsel, in the presence of Bird, with respect to the sentencing:

THE COURT: All right. I guess I'll hear additional comments and recommendations or other information appropriate for sentencing from the state.

STATE'S ATTORNEY: The only complication is whether or not Mr. Bird will receive a life sentence enhancement on the first degree sexual assault and the aggravated kidnapping. The concern I have is that if Mr. Bird was convicted of first degree sexual assault and aggravated kidnapping, those sentences would have to run concurrently because they arose out of one occurrence. I think that's what the law is.

So I don't believe that we can give him consecutive life sentences because they arose out of one occurrence, and it's my belief that he receives enhancement of two life sentences that are concurrent.

THE COURT: So one life sentence out of Counts I and II, and a life sentence on Count III, but both those two life sentences to run concurrently?

STATE'S ATTORNEY: No. I think what the law is--* * * [Bird's attorney] has some case law here. So he can correct me if I'm wrong--but Count III is not, he's not even sentenced on Count III. Count III is--acts as an enhancement on Counts I and II. And he would receive two life sentences on Count I--life sentence on Count I...