Brown v. State, S-16-0148
| Decision Date | 01 May 2017 |
| Docket Number | S-16-0148 |
| Citation | 393 P.3d 1265 |
| Parties | Brittany BROWN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.
Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Matthew J. Fermelia, Senior Assistant Attorney General. Argument by Mr. Fermelia.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
[¶1] Brittany Brown was charged in the district court with criminal contempt for violating a juvenile court order. She entered a conditional plea agreement, reserving the right to appeal several issues, and timely appealed. We find that the district court had concurrent jurisdiction over this criminal contempt action arising from an order issued by the juvenile court, but we reverse and remand because Mrs. Brown was denied due process. The order to show cause failed to adequately notify her of the terms of the order she was alleged to have violated or of her alleged conduct constituting some of the violations, an error that was compounded by the district court's denial of her attorney's motion for access to the juvenile court file which contained the order she was accused of violating.
[¶2] Mrs. Brown raised five issues in her appeal. The State filed a motion to reverse and remand, arguing that the issues she raised were not proper for a conditional plea. We denied the State's motion but determined that we would not consider two of the issues because they were not properly raised. We first address an issue raised by the State because it determines whether we will consider any other issue, and we rephrase the remaining issues:
[¶3] This case arises from a proceeding in juvenile court. The juvenile court records are not part of the record on appeal, but from what we can glean from the district court record, there was a juvenile delinquency proceeding concerning Mrs. Brown's minor child. The Campbell County Prosecuting Attorney's office filed a motion in the District Court for the Sixth Judicial District for an order to show cause why Mrs. Brown should not be held in criminal contempt of court. The motion alleges that Mrs. Brown failed to comply with the Adjudication and Temporary Disposition Order issued by the juvenile court by failing to check in weekly with the juvenile's probation officer, cooperate with the juvenile probation office "in all respects," and maintain telephone service. The affidavit attached to the motion states that Mrs. Brown had only one communication with the juvenile probation office; missed three interviews with the juvenile probation office, which caused the office to file a social summary without her participation; and did not have a telephone, which meant that the juvenile probation office had no means of contacting her other than by a personal visit to her apartment. The motion requests that Mrs. Brown be directed to appear in district court and show cause why she should not be held in contempt, and it cites as authority the provision of the Child Protection Act that authorizes juvenile courts to find a party in contempt, Wyo. Stat. Ann. § 14-3-438.
[¶4] The district court issued an order to show cause to Mrs. Brown, alleging that she:
[¶5] After her initial appearance, the district court appointed the state public defender's office to represent Mrs. Brown. Mrs. Brown filed a motion to dismiss for lack of jurisdiction, a motion to dismiss for lack of due process, a motion for access to confidential file, a motion for relief from appointment, and a motion for order for compensation. The State responded to Mrs. Brown's motion to dismiss for lack of jurisdiction and her motion to dismiss for lack of due process, but did not respond to her other motions.
[¶6] Mrs. Brown filed her notice of intent to enter a conditional plea, indicating that she intended to enter a conditional guilty plea to the allegations of failure to check in weekly with the juvenile probation office and failure to cooperate with the juvenile probation office, and to seek appellate review of all five of her pending pretrial motions. At the hearing on the change of plea, the court summarily denied Mrs. Brown's five pending motions. Mrs. Brown entered a conditional no contest plea to the criminal contempt charges.
[¶7] The district court issued a Judgment and Sentence that adjudicated Mrs. Brown in contempt of court for failing to:
The Judgment and Sentence imposed a sentence of incarceration for ten days, which was suspended for a ninety-day probationary period on the condition that Mrs. Brown "make her best efforts" to comply with orders in the underlying juvenile proceeding. Mrs. Brown filed a timely appeal.
[¶8] All the issues in this case are subject to de novo review. In re HLL , 2016 WY 43, ¶ 16, 372 P.3d 185, 189 (Wyo. 2016) (jurisdiction); In re CDR , 2015 WY 79, ¶ 19, 351 P.3d 264, 268-69 (Wyo. 2015) (statutory interpretation); KC v. State , 2015 WY 73, ¶ 16, 351 P.3d 236, 241 (Wyo. 2015) (due process).
[¶9] The Wyoming Rules of Criminal Procedure provide for the entry of a conditional plea:
With the approval of the court and the consent of the attorney for the state, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to seek review of the adverse determination of any specified pretrial motion. A defendant who prevails on appeal shall be allowed to withdraw the plea.
W.R.Cr.P. 11(a)(2). A valid conditional plea requires that the parties make a reservation of the right to appeal a specific issue in writing; that the state consent to the conditional plea; that the trial court approve the conditional plea; and, finally, that the appellate court decision be dispositive, either by allowing the plea to stand or by reversing the district court decision in such a way that the charges will effectively be dismissed. Matthews v. State , 2014 WY 54, ¶ 15, 322 P.3d 1279, 1281 (Wyo. 2014).
[¶10] The State argues that two of the three remaining issues asserted by Mrs. Brown in this appeal are not dispositive and thus her plea was not valid and her appeal must be dismissed and the case remanded for the entry of another plea or a trial. In particular, the State contends that whether Mrs. Brown had sufficient notice of the facts constituting contempt and whether her attorney's lack of access to the juvenile court file deprived her of effective assistance of counsel are not dispositive issues.
[¶11] In Walters v. State , we declined to review the issues raised in Mr. Walters' conditional plea because not all of them were dispositive, and we concluded that when even one of the issues preserved is not dispositive, the entire plea is invalid. 2008 WY 159, ¶ 25, 197 P.3d 1273, 1280 (Wyo. 2008) ; see also Matthews , 2014 WY 54, ¶ 18, 322 P.3d at 1282 (). An issue is dispositive if an appellate ruling in the defendant's favor would require dismissal of the charges or suppression of evidence necessary for conviction, or where an appellate ruling in the State's favor would require affirming the conviction. Walters , 2008 WY 159, ¶ 21, 197 P.3d at 1279 (citing United States v. Bundy , 392 F.3d 641, 648 (4th Cir. 2004) ). The essential inquiry for the court is whether the appeal will end the case. Id .
[¶12] We agree that two of the three issues raised by Mrs. Brown are not dispositive. Success on the question of whether the order to show cause provided adequate notice would require a remand to the district court and possible further proceedings. Success on the question of whether the district court should have given Mrs. Brown's counsel access to the juvenile court file would also result in a remand for new or additional proceedings. In most instances, this conclusion would lead us to reverse and remand the matter to the district court because the entire plea is invalid. See Matthews , 2014 WY 54, ¶ 18, 322 P.3d at 1282 ; Walters , 2008 WY 159, ¶ 25, 197 P.3d at 1280. However, we will exercise our discretion to convert Mrs. Brown's appeal to a writ of review. See Stewart Title Guar. Co. v. Tilden , 2005 WY 53, ¶ 7, 110 P.3d 865, 869-70 (Wyo. 2005). Rule 13.02 of the Wyoming Rules of Appellate Procedure states:
A writ of review may be granted by the reviewing court to review an interlocutory order of a trial court in a civil or criminal action, ... which is not otherwise appealable under these rules,...
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