Deeds v. State

Decision Date03 October 2014
Docket NumberNo. S–13–0256.,S–13–0256.
Citation2014 WY 124,335 P.3d 473
PartiesAndrew William DEEDS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming 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; Jenny L. Craig, Senior Assistant Attorney General; Darrell D. Jackson, Faculty Director, David E. Singleton, Student Director, and Katie J. Koski, Student Intern, of the Prosecution Assistance Program. Argument by Ms. Koski.

Before BURKE, C.J., and HILL, KITE,* DAVIS, and FOX, JJ.

Opinion

FOX, Justice.

[¶ 1] Andrew Deeds was initially charged with seven counts of first-degree sexual abuse of a minor, but entered guilty pleas to five counts of second-degree sexual abuse of a minor. The district court sentenced him to five consecutive sentences of no less than twelve years and no more than eighteen years, and ordered that Mr. Deeds be given credit for 721 days of presentence confinement, without specifying how those days should be applied to his sentence. On appeal, Mr. Deeds contends that the prosecutor breached the plea agreement and committed prosecutorial misconduct when she referred to elements of first-degree sexual abuse of a minor and presented unreliable allegations at the sentencing hearing. We affirm on those issues. We remand to the district court to specify how Mr. Deeds' presentence confinement should be applied to his sentence, in compliance with Wyoming Rule of Criminal Procedure 32(c)(2)(F).

ISSUES

[¶ 2] 1. Did the prosecutor breach the plea agreement when she referred at sentencing to elements of a crime to which Mr. Deeds did not plead?

2. Did the prosecutor engage in misconduct that denied Mr. Deeds due process when she referred to elements of the no-longer-charged offense at sentencing?

3. Did the prosecutor engage in misconduct that denied Mr. Deeds due process when she presented undocumented information of bragging, for the first time, during the sentencing hearing?

4. Was the sentence's reference to credit for presentence confinement sufficiently specific to comply with W.R.Cr.P. 32(c)(2)(F) ?

FACTS

[¶ 3] Andrew Deeds was charged with seven counts of first-degree sexual abuse of a minor. Wyo. Stat. Ann. § 6–2–314(a)(i) (LexisNexis 2013). The State and Mr. Deeds agreed to a plea agreement to reduce the charges to five counts of second-degree sexual abuse of a minor. Wyo. Stat. Ann. § 6–2–315(a)(ii) (LexisNexis 2013). They also agreed that sentencing would be open to argument at the sentencing hearing. The plea agreement, which was not reduced to writing, was presented by the prosecutor and agreed to by Mr. Deeds' counsel.

[PROSECUTOR]: This plea agreement anticipates an amendment of the charge from first degree—or sexual abuse of a minor in the first degree to sexual abuse of a minor in the second degree, five counts of that, which is a felony, punishable for not more than 20 years, and a fine of not more than $10,000, or both, for each count. So that's basically changing it from first to second and dropping two counts, and I have the Second Amended Information for the Court.
THE COURT: Thank you.
....
THE COURT: All right. Thank you. Any further terms?
[PROSECUTOR]: No, Your Honor. We'd just argue sentencing to the Court. That would be our plea agreement.
THE COURT: All right. Thank you. [Addressing defense counsel], has she accurately set forth the terms of the plea agreement?
[DEFENSE COUNSEL]: Yes, Your Honor, that's correct.

[¶ 4] Before accepting Mr. Deeds' guilty plea, the district court questioned him about the factual basis for it. The district court asked Mr. Deeds whether he performed sexual intercourse or digital penetration on the victim. Mr. Deeds replied that he had not, and that the contact with the victim consisted of “just primarily—just touching.”

[¶ 5] The district court then asked the prosecutor whether there were any additional facts pertinent to the plea agreement. The prosecutor replied, “I guess for purposes of second degree we don't need to—but she provided information about intrusion, and he, at that time, confirmed that and confirmed that there were about ten times[.] The district court then asked Mr. Deeds, “You talked to law enforcement after this and admitted to this conduct; is that correct?” Mr. Deeds replied, “Yes, sir.” The district court then accepted the guilty pleas on all five amended charges.

[¶ 6] At the sentencing hearing, the district court reviewed the presentence investigation report (PSI) with both parties and asked whether there were any requested amendments. Mr. Deeds' counsel requested three changes, which, after some discussion, were accepted by the district court.

[¶ 7] The State called the victim's mother for a victim impact statement. In her statement to the court, she discussed taking the victim to the doctor where the victim described “her uncle having an orgasm.” The mother also stated:

Not only has he not shown any remorse, I've also learned that he brags in detail about what he's done to my daughter. He said such things as that his penis was too large ( [mother] in tears), and he would have raped her more, but it hurt her too bad, and this is stuff he's bragging about in jail.... Please protect any future victims and please let my daughter know that the system will protect her.

[¶ 8] Defense counsel and the State then presented their recommendations for sentencing and the mitigating and aggravating factors. The State stressed that Mr. Deeds had actually committed sexual intrusion despite the fact that the charges had been amended to a lesser charge not requiring intrusion as an element. The prosecutor stated that Mr. Deeds had originally admitted to intrusion and his denial of such action at the change of plea hearing was evidence of his lack of responsibility. The prosecutor also noted that Mr. Deeds was bragging about his criminal actions while in prison:

He's talked about this a lot in jail. We've been contacted by various people about his bragging about this, but the net result from that to me is that he's not sorry. He's maybe sorry he got caught, but he doesn't—when you're bragging about it, it doesn't seem to be—he's not grasping that he victimized somebody and this is probably going to affect her for the rest of her life.

[¶ 9] With regard to sentencing, the prosecution also stated:

What I—again, what I've done is I've given this Court the ability to do—to give the kind of treatment, which I think is very lenient treatment for a grown man having intercourse with a little girl for being sentenced to prison on one count, and then get suspended sentences on the others, to sentencing him to 20 years on each one consecutive; the Court has that leeway, everywhere from zero to a hundred years. I think somewhere more in the line of the middle of that would be appropriate, at the very least.

[¶ 10] Mr. Deeds' counsel then argued for reduced sentencing and increased treatment opportunities. The district court expressed reservations about the State's limited treatment options when weighed against the potential for recidivism characteristic of sexual abuse perpetrators.

[¶ 11] Before issuing its final judgment and sentence, the district court allowed Mr. Deeds to make a statement. Mr. Deeds did not use the opportunity to indicate acceptance of responsibility, instead rationalizing his behavior:

Then what were the conditions or circumstances in which it or they became an involuntary problem. Another way to look at it as such is that we resort to trying to solve this problem by choosing to do something we're accustomed to or familiar with, in other words only because of the lack of apparent remedies and/or coping mechanisms that have not been so commonly introduced in our daily lives or habits.

[¶ 12] The district court sentenced Mr. Deeds to consecutive sentences of “not less than 12, nor more than 18 years in prison” on each of the five counts of second-degree sexual abuse of a minor. In its final Judgment and Sentence, the district court explained that [p]robation was considered by the Court and deemed inappropriate given the charge against Defendant[,] and [t]hat the risk of re-offense by Defendant is high.” The district court ordered that Mr. Deeds “be given credit of seven hundred twenty-one (721) days off of the minimum and maximum sentence for time served in the Sheridan County Detention Center, Sheridan, Wyoming, for pre-sentence confinement.”

[¶ 13] Mr. Deeds timely filed this appeal.

DISCUSSION
I. Did the prosecutor breach the plea agreement when she referred at sentencing to elements of a crime to which Mr. Deeds did not plead?

[¶ 14] We apply a de novo standard of review to determine whether the terms of the plea agreement were breached. Noel v. State, 2014 WY 30, ¶ 17, 319 P.3d 134, 142 (Wyo.2014) ; Spencer v. State, 2005 WY 105, ¶ 12, 118 P.3d 978, 982–83 (Wyo.2005) ; Ford v. State, 2003 WY 65, ¶ 8, 69 P.3d 407, 410 (Wyo.2003).

A plea agreement is a contract between the defendant and the State to which the general principles of contract law are applied. When determining whether a breach of the plea agreement has occurred we: (1) examine the nature of the promise; and (2) evaluate the promise in light of the defendant's reasonable understanding of the promise at the time the plea was entered. The prosecutor must explicitly stand by the terms of any agreement; and if the State is unable to carry out the terms, the correct remedy is withdrawal of the plea. The State may not obtain the benefit of the agreement and at the same time avoid its obligations without violating either the principles of fairness or the principles of contract law.

Frederick v. State, 2007 WY 27, ¶ 13, 151 P.3d 1136, 1141 (Wyo.2007) (internal citations and quotation marks omitted).

[¶ 15] Our analysis...

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