Browning v. State

• Decision Date: 09 October 2001
• Docket Number: No. 00-166.,00-166.
• Parties: Michael Sean BROWNING, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

32 P.3d 1061

2001 WY 93

Michael Sean BROWNING, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 00-166.

Supreme Court of Wyoming.

October 9, 2001.

Sylvia L. Hackl, State Public Defender; Donna Domonkos, Appellate Counsel; Diane Courselle, Director, Wyoming Defender Aid Program; and Elizabeth Franklin, Student Director, Representing Appellant.

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

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

VOIGT, Justice.

[¶ 1] In February 2000, appellant, Michael Sean Browning, entered nolo contendere pleas to aiding and abetting an unlawful clandestine laboratory operation in violation of Wyo. Stat. Ann. § 35-7-1059(a)(ii) (Lexis-Nexis 2001), a felony, and possession of a controlled substance (methamphetamine) in violation of Wyo. Stat. Ann. § 35-7-1031(c)(i)(C) (LexisNexis 2001), a misdemeanor. Appellant subsequently filed what the district court characterized as a motion to withdraw the appellant's pleas, which the district court denied. On appeal, appellant contends that Wyo. Stat. Ann. § 35-7-1059(a)(ii) is unconstitutionally vague, both facially and as applied to his case, and that the district court erred by not allowing him to withdraw his pleas because the State allegedly breached the parties' plea agreement. We affirm.

ISSUES

[¶ 2] Appellant raises two issues on appeal:

I. Does Wyoming Statute XX-X-XXXX violate principles of due process guaranteed by the Fourteenth Amendment to the United States Constitution and Article 1, Section 6 of the Wyoming Constitution because the statute is vague and generally fails to provide fair notice to citizens of their potential liability?

II. Did the trial court err when it denied Mr. Browning's motion to withdraw his plea, when Mr. Browning proved that the State reneged on its obligations pursuant to the plea agreement?

The State of Wyoming, as appellee, phrases the issues in substantially the same manner.

FACTS

[¶ 3] On February 15, 2000, the district court held a change of plea hearing. The parties indicated that they had reached a plea agreement, the terms of which were placed on the record. According to the specified terms, appellant agreed to plead nolo contendere to both of the aforementioned charges, and the State agreed to recommend that any sentence be suspended (crediting appellant for time previously served) and that the district court grant appellant probation immediately. In placing the terms of the plea agreement on the record, neither party referenced returning appellant's personal property. The parties apparently did not file a formal written plea agreement with the district court.

[¶ 4] The State provided a factual basis for appellant's pleas, which appellant assented to and the district court accepted. According to that factual basis, appellant and his female companion, Deanna Pine, traveled from Custer, South Dakota, to Niobrara County, Wyoming, in August 1999. After the two had a "falling out," a Niobrara County deputy sheriff stopped appellant, who was driving a Chevy Blazer. Appellant consented to a search of the Chevy Blazer, from which the deputy sheriff seized a triple beam Ohaus scale and an orange industrial water cooler containing tubing, acid, iodine, phosphorus, alcohol-based solvent, methamphetamine, and other chemicals and materials used "in the synthesis of methamphetamine." Several of the materials were in a partial stage completion of methamphetamine "synthesis" and unused materials that would be "useful for future synthesis of methamphetamine" remained.

[¶ 5] The deputy sheriff also seized a piece of paper from appellant's personal address book that contained various figures and notes associated with the "synthesis of methamphetamine," including that it would cost $750.00 to obtain a pound of sudanephrine or epinephrine (a principal ingredient in methamphetamine), and a glass tube with methamphetamine residue was seized from appellant's personal effects and clothing. Appellant's fingerprint appeared on one item in the aforementioned water cooler, and authorities seized a towel stained with iodine from Pine, who had iodine stains on her hand, along with papers indicating an interest in ingredients associated with the "synthesis of methamphetamine."

[¶ 6] The district court accepted appellant's pleas and imposed sentence in accordance with the plea agreement. The district court filed a formal Judgment and Sentence on April 12, 2000. The Judgment and Sentence states, without specifying the terms of the parties' plea agreement, that "said pleas were the product of a plea agreement which was fully disclosed and accepted by the Court." The second-to-last paragraph in the Judgment and Sentence, which is separate and apart from the district court's findings and reference to the parties' plea agreement, also states:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that any property of the Defendant held by the Sheriff of Niobrara County be released to the Defendant or his duly authorized agent, except for property of the Defendant which now is held or detained as, or for evidence in any pending state or federal criminal action, proceeding or investigation, and except for property of the Defendant which otherwise is unlawful for the Defendant to control or possess.

[¶ 7] On April 10, 2000, appellant, pro se, filed a motion to support a writ of habeas corpus, which the district court treated as a motion to withdraw appellant's pleas. Appellant appeared with counsel for a motion hearing later that day, claiming that the State had not returned his personal property in accordance with the parties' plea agreement, and requesting that the district court allow him to withdraw his pleas.

[¶ 8] The Niobrara County sheriff's department apparently possessed appellant's Chevy Blazer and several items of appellant's personal property ("a lot of stuff," tools, "very very good wrenches," a black leather coat, a set of jumper cables, overnight bag, motorcycle title allegedly endorsed to appellant, etc.). After receiving information that a Tim Barber reported that the black leather coat had been stolen from him in Custer, South Dakota, the Niobrara County sheriff's department mailed the coat, motorcycle title, and jumper cables to the Custer, South Dakota sheriff's department. Because Mr. Barber indicated that he would not pursue criminal charges if these items were released to him, the South Dakota authorities apparently released the items to Barber. Appellant's remaining personal property, including the Chevy Blazer, tools, and "stuff," etc., was returned to an individual appellant designated to receive the property on his behalf. Appellant claimed at the hearing that the remaining items were of "considerable value" and necessary to "liquidate everything I have for my daughter and for my legal aid."¹

[¶ 9] The district court found that returning appellant's personal property was an enforceable term of the parties' plea agreement, but that the black leather coat was subject to a pending criminal investigation in Custer, South Dakota, and fell within the exception contained in the applicable Judgment and Sentence provision. The district court was not sure why the jumper cables and motorcycle title were sent to South Dakota and concluded that the circumstances did not warrant allowing appellant to withdraw his pleas, indicating also that it would enforce the agreement "and see that [appellant's] rightful property is provided to him."

DISCUSSION

CONSTITUTIONALITY OF WYO. STAT. ANN. § 35-7-1059

[¶ 10] Appellant first argues that Wyo. Stat. Ann. § 35-7-1059 is unconstitutionally vague, both facially and as applied to his case. In particular, appellant contends that the non-exclusive list of "laboratory equipment" in Wyo. Stat. Ann. § 35-7-1058(a)(iv) (LexisNexis 2001) contains items one ordinarily can lawfully possess, and the statute fails to adequately define the circumstances from which one can infer that an actor "intended" to engage in a clandestine laboratory operation as required by Wyo. Stat. Ann. § 35-7-1059(a)(ii). Appellant further argues that the statute is vague as applied to the facts of his case because he did not have sufficient notice that "merely transporting items that belonged to Ms. Pine," which "were legal items to possess," could allow one to infer that he, based on the combination of these items, intended to engage in a clandestine laboratory operation.

[¶ 11] In challenging a statute for facial vagueness, appellant must demonstrate that the statute reaches a "substantial amount of constitutionally protected conduct;² or the statute specifies no standard of conduct at all." Campbell v. State, 999 P.2d 649, 657 (Wyo.2000). The ultimate test is "whether a person of ordinary intelligence could read the statute and comprehend what conduct is prohibited" because laws must provide explicit standards for those who apply them. Id. "`A statute employs a standard, for purposes of vagueness, if "by [its] terms or as authoritatively construed [it applies] without question to certain activities, but whose application to other behavior is uncertain," ' " whereas a vague statute impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Id. (quoting Luplow v. State, 897 P.2d 463, 466 (Wyo.1995)

and Griego v. State, 761 P.2d 973, 976 (Wyo.1988)).

[¶ 12] Every law is presumed constitutional, with all doubt resolved in its favor. Campbell, 999 P.2d at 657 (quoting Luplow, 897 P.2d at 466

and Keser v. State, 706 P.2d 263, 266 (Wyo.1985)). "In considering statutory language, the plain, ordinary and usual meaning of the words used controls in the absence of clear statutory...