Davila v. State, No. 90-226

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore URBIGKIT; GOLDEN; URBIGKIT; Thereafter, in the somewhat extended proceedings
Citation831 P.2d 204
PartiesRudy DAVILA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Decision Date23 April 1992
Docket NumberNo. 90-226

Page 204

831 P.2d 204
Rudy DAVILA, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
No. 90-226.
Supreme Court of Wyoming.
April 23, 1992.

Public Defender Program: Leonard Munker, State Public Defender; Dave Gosar, Appellate Counsel, Cheyenne, Wyoming Defender Aid Program: Gerald M. Gallivan, Director; and Donald Gallegos, Student Intern, Laramie, for appellant.

Joseph B. Meyer, Atty. Gen.; Sylvia L. Hackl, Deputy Atty. Gen.; Karen A. Byrne, Senior Asst. Atty. Gen.; Prosecution Assistance Program: Theodore E. Lauer, Director; and Thomas L. Lynch, Student Intern, Cheyenne, for appellee.

Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.

GOLDEN, Justice.

Rudy Davila appeals from his conviction on a charge of burglary in violation of Wyo.Stat. § 6-3-301(a) and (b) (June 1988). The district court entered its judgment and sentence after accepting Davila's plea of nolo contendere.

Davila states these issues:

I. The failure of the county court to conduct a valid preliminary hearing, in which appellant was afforded counsel of his choice because he was deemed to have waived his right to counsel by his actions, resulted in a loss of jurisdiction and voided the order binding the appellant over for trial.

II. Did the county court's denial of appellant's request for a continuance to

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retain counsel of his choice violate his sixth and fourteenth amendment rights to have counsel present at a critical stage of the criminal proceedings under the federal constitution and a similar right under Article I § 6 & § 10 of the state constitution.

III. Did appellant's actions, requesting a continuance four days before the date set for the preliminary hearing, constitute a waiver of the right to have counsel represent him at the preliminary hearing?

The state addresses each of Davila's issues, and adds another:

Appellant waived any irregularities in the conduct of the preliminary hearing when he entered a plea of nolo contendere which was accepted by the district court.

The issue presented by the state resolves this case. We affirm.

FACTS

Davila was initially charged with two felonies: aiding and abetting another in the commission of auto burglary, and conspiracy to commit auto burglary. His initial appearance was held on March 2, 1990. He was accompanied by attorney Walter A. Murray, Jr., who stated that he appeared only for purposes of bond. The court informed Davila of his right to a preliminary hearing and right to counsel. He told the court that he would retain his own attorney. On March 5, 1990, a preliminary hearing was set for March 20, 1990.

On March 16, 1990, Davila filed a pro se motion to continue the preliminary hearing to enable him to finalize an agreement with his attorney of choice, Walter A. Murray, Jr. The county court denied Davila's motion on March 19, 1990, and Davila appeared at the preliminary hearing the next day without counsel. He was bound over for trial in district court.

On March 30, 1990, Davila filed an affidavit in forma pauperis in the district court and an attorney was appointed to represent him. Murray subsequently entered an appearance as Davila's counsel on April 26, 1990. On May 7, 1990, Murray filed a motion on Davila's behalf to dismiss the information on the ground that Davila was denied his right to representation at the preliminary hearing. The court denied the motion after a hearing on June 1, 1990.

On July 20, 1990, Davila changed his plea on the burglary count to nolo contendere. As part of the plea agreement the state then moved to dismiss the conspiracy count. The court dismissed the conspiracy count and accepted Davila's nolo contendere plea on the burglary charge. He received a sentence which ran concurrently with a term being served on another sentence resulting from probation revocation.

DISCUSSION

This case is resolved by the state's argument that Davila's nolo contendere plea waives all nonjurisdictional defenses, including his claim that he was denied counsel at the preliminary hearing. Because his plea constitutes a waiver it is not necessary or appropriate for this court to consider whether, on these facts, the county court should have afforded Davila representation at his preliminary hearing.

A plea of nolo contendere has the same effect in criminal cases as a guilty plea. Zanetti v. State, 783 P.2d 134, 139 (Wyo.1989). As a guilty plea waives all nonjurisdictional defenses, Sword v. State, 746 P.2d 423, 425 (Wyo.1987), so does a plea of nolo contendere. Zanetti, 783 P.2d at 139. Thus, unless Davila's claim was jurisdictional, it has been waived by his plea.

Jurisdictional claims involve "the very power of the State to bring the defendant into court to answer the charge brought against him." Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628, 636 (1974). Jurisdictional defects include: unconstitutionality of the statute defining the crime pled to, Armijo v. State, 678 P.2d 864, 867-68 (Wyo.1984) failure of the indictment or information to state an offense, and double jeopardy. Tompkins v. State, 705 P.2d 836, 840 (Wyo.1985), cert. denied sub nom., Tompkins v.

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Wyoming, 475 U.S. 1052, 106 S.Ct. 1277, 89 L.Ed.2d 585 (1986).

Nonjurisdictional defects, on the other hand, are those "objections and defenses which would not prevent a trial." Sword, 746 P.2d at 426. Even constitutional challenges to pretrial proceedings fall into this category. Zanetti, 783 P.2d at 138.

When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.

Id. at 138 (quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973)). This court's jurisprudence provides several examples of nonjurisdictional defects: use of inadmissible evidence (claim of unlawful search and seizure, Tompkins, 705 P.2d at 839-40) (claim of unlawfully obtained statements, Vallo v. State, 726 P.2d 1045 (Wyo.1986)); claim that grand jury was improperly convened and conducted, Sword, 746 P.2d at 426; and claim of violation of the right to speedy trial, Zanetti, 783 P.2d at 138.

Davila's claim that he was improperly denied counsel at his preliminary hearing is nonjurisdictional. Denial of the right to representation does not implicate "the very power of the state to bring the defendant into court to answer the charge brought against him," Blackledge, 417 U.S. at 30, 94 S.Ct. at 2103, 40 L.Ed.2d at 636, and would not have prevented a trial. The district court had jurisdiction to proceed to trial and, in fact, had it granted Davila's motion to dismiss, the state could have refiled and proceeded with a new preliminary hearing and trial. As a result, Davila's plea of nolo contendere waived his claim that he was denied counsel at his preliminary hearing.

Davila's conviction is affirmed.

URBIGKIT, Chief Justice, dissenting.

Some reasonable acquaintanceship with stated standards of criminal law for this state would provide certainty in knowledge that what in this case, under the constitution, statutes and court rules, could not happen--did happen. The trial proceeding which procedurally denied access to justice for Rudy Davila and that of his co-actor, Antonio Robinson belies acceptability by any court within Wyoming law that what occurred did, in fact, occur. From this majority's acquiescence in denied counsel to the criminally accused, I strenuously dissent. Again in this case, the question is not so much guilt or innocence, although guilt was continuously denied by both Davila and Robinson, but rather a process where it appears that the court system itself is inclined to ignore fundamental principles and clearly established rules. It is absolutely inconceivable to me that this preliminary hearing was conducted without counsel being available to assist Davila or Robinson. See, in current example for the requirement that counsel shall be provided to the criminally charged defendant, United States v. Reilley, 948 F.2d 648 (10th Cir.1991).

Demonstrated denial here of the right of an accused to have counsel at a preliminary hearing, and how that county court denial pollutes succeeding proceedings, requires close factual examination.

I.

HOW THIS HAPPENED IN THE TRIAL PROCEEDING

A. Crime.

Two teenagers admittedly broke into a van at a tire distribution store and stole a number of tires. The miscreants were promptly apprehended in another burglary and, during their confession, admitted guilt of this offense and levied joint responsibility upon two adults, Robinson, appellant in appeal No. 90-286, and Davila, appellant in this case. Upon search of Robinson's vehicle, police found a stolen tire mounted on a rim and two tools, a screwdriver and a tire lug nut wrench, described for purposes of the prosecution as a "pry bar." (Every properly maintained vehicle has one.) The

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search warrants used were not included as documents in this record.

B. Arrest and Pre-Preliminary Hearing Proceedings.

Arrest of the two adults immediately followed. In Davila, an undated advisement form was filed, followed by a March 5, 1990 notice and order for a preliminary hearing prepared by the county court clerk setting a March 20, 1990 hearing date. On March 16, four days before the hearing date, Davila filed a motion for continuance stating:

COMES NOW, Rudy Davila, Defendant Pro Se, and respectively [sic] moves the Court for an Order to Continue the Preliminary hearing scheduled for March 20, 1990 by and for the reason following: That the Defendant is making arrangements to retain Walter A. Murray, Jr. as his attorney and needs 20 days in which to finalize the agreement. That Mr. Murray begins a Felony trial in Rawlins on March 19, 1990 and the number of the days for that trial is unknown.

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35 practice notes
  • Duffy v. State, Nos. 91-52
    • United States
    • United States State Supreme Court of Wyoming
    • July 28, 1992
    ...achieved under the doctrine of waiver on the ground that the improper denial of counsel is a non-jurisdictional defect. Davila v. State, 831 P.2d 204 Nevertheless, because of the critical nature of the claim, we examine its validity. The material facts relating to this claim by Duffy begin ......
  • Cloud v. State, No. S–11–0102.
    • United States
    • United States State Supreme Court of Wyoming
    • February 9, 2012
    ...if factual guilt is validly established." Floyd, ¶ 13, 144 P.3d at 1239 (internal citations omitted). See generally Davila v. State, 831 P.2d 204, 206 (Wyo.1992) (examples of non-jurisdictional defects waived by a guilty plea include use of inadmissible evidence and claim of violation of th......
  • Snow v. State, No. S-08-0222.
    • United States
    • United States State Supreme Court of Wyoming
    • September 23, 2009
    ...cannot be waived. Compare Taylor, 2003 WY 97, ¶ 11, 74 P.3d at 1239; Kitzke, 2002 WY 147, ¶¶ 8-9, 55 P.3d at 699; and Davila v. State, 831 P.2d 204, 205-06 (Wyo. 1992), with Taylor v. State, 612 P.2d 851, 861 (Wyo. 1980) and Hutchins v. State, 483 P.2d 519, 521 (Wyo.1971). The question has ......
  • Asch v. State, No. 00-128.
    • United States
    • United States State Supreme Court of Wyoming
    • February 6, 2003
    ...stage in the criminal proceedings at which a defendant has a constitutional right to the assistance of counsel. See Davila v. State, 831 P.2d 204, 214 (Wyo.1992) (Urbigkit, C.J., dissenting); Auclair v. State, 660 P.2d 1156, 1160 (Wyo.), cert. denied, 464 U.S. 909, 104 S.Ct. 265, 78 L.Ed.2d......
  • Request a trial to view additional results
35 cases
  • Duffy v. State, Nos. 91-52
    • United States
    • United States State Supreme Court of Wyoming
    • July 28, 1992
    ...achieved under the doctrine of waiver on the ground that the improper denial of counsel is a non-jurisdictional defect. Davila v. State, 831 P.2d 204 Nevertheless, because of the critical nature of the claim, we examine its validity. The material facts relating to this claim by Duffy begin ......
  • Cloud v. State, No. S–11–0102.
    • United States
    • United States State Supreme Court of Wyoming
    • February 9, 2012
    ...if factual guilt is validly established." Floyd, ¶ 13, 144 P.3d at 1239 (internal citations omitted). See generally Davila v. State, 831 P.2d 204, 206 (Wyo.1992) (examples of non-jurisdictional defects waived by a guilty plea include use of inadmissible evidence and claim of violation of th......
  • Snow v. State, No. S-08-0222.
    • United States
    • United States State Supreme Court of Wyoming
    • September 23, 2009
    ...cannot be waived. Compare Taylor, 2003 WY 97, ¶ 11, 74 P.3d at 1239; Kitzke, 2002 WY 147, ¶¶ 8-9, 55 P.3d at 699; and Davila v. State, 831 P.2d 204, 205-06 (Wyo. 1992), with Taylor v. State, 612 P.2d 851, 861 (Wyo. 1980) and Hutchins v. State, 483 P.2d 519, 521 (Wyo.1971). The question has ......
  • Asch v. State, No. 00-128.
    • United States
    • United States State Supreme Court of Wyoming
    • February 6, 2003
    ...stage in the criminal proceedings at which a defendant has a constitutional right to the assistance of counsel. See Davila v. State, 831 P.2d 204, 214 (Wyo.1992) (Urbigkit, C.J., dissenting); Auclair v. State, 660 P.2d 1156, 1160 (Wyo.), cert. denied, 464 U.S. 909, 104 S.Ct. 265, 78 L.Ed.2d......
  • Request a trial to view additional results

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