Delgado v. State, S-20-0273, S-21-0208

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtKAUTZ, Justice.
Citation509 P.3d 913
Parties Gilber Aldolfo DELGADO, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Docket NumberS-20-0273, S-21-0208
Decision Date17 May 2022

509 P.3d 913

Gilber Aldolfo DELGADO, Jr., Appellant (Defendant),
The STATE of Wyoming, Appellee (Plaintiff).

S-20-0273, S-21-0208

Supreme Court of Wyoming.

May 17, 2022

Representing Appellant: David McCarthy, David McCarthy, P.C., Rawlins, Wyoming.

Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General; Catherine M. Mercer, Assistant Attorney General. Argument by Ms. Mercer.


KAUTZ, Justice.

¶1] After threatening his wife with a knife, Gilber Aldolfo Delgado, Jr., pleaded nolo contendre (no contest) to one count of felony possession of a deadly weapon with unlawful intent. Mr. Delgado challenges the district court's denials of 1) his presentence motion to withdraw his plea under Wyoming Rule of Criminal Procedure (W.R.Cr.P.) 32(d) ; and 2) his subsequent motion to withdraw his plea for ineffective assistance of counsel under Wyoming Rule of Appellate Procedure (W.R.A.P) 21. We affirm.


[¶2] We restate and reorder Mr. Delgado's issues as:

1. Did Mr. Delgado establish defense counsel was ineffective for failing to request a court-ordered mental evaluation to determine if he was competent before he entered his no contest plea?

2. Did the district court abuse its discretion by denying Mr. Delgado's presentence motion to withdraw his no contest plea?


[¶3] With Mr. Delgado's consent, the district court used information from the affidavit the State filed in support of the criminal information as a factual basis for his no contest plea. See Dahl v. State, 2020 WY 59, ¶ 3, 462 P.3d 912, 913 (Wyo. 2020) (establishing the factual basis for the defendant's no contest pleas from the probable cause affidavit); McEwan v. State, 2013 WY 158, ¶ 15 n.4, 314 P.3d 1160, 1165 n.4 (Wyo. 2013) (with a no contest plea, the "factual basis is supplied by the prosecutor, often through reference to the affidavit supporting the information" (citing Berry v. State, 2004 WY 81, ¶ 39, 93 P.3d 222, 234 (Wyo. 2004) )). According to the affidavit, Uinta County Deputy Sheriff Andrew Kopp was dispatched on November 24, 2019, to a "possible fight in progress occurring in a vehicle." As he was responding, Deputy Kopp learned the vehicle had "arrived at a residence" in Evanston, so he proceeded to that location. He spoke with Mr. Delgado's wife who said she was driving the vehicle and Mr. Delgado was in the back seat. Their two children and an adult female were also passengers in the vehicle. Mrs. Delgado reported that Mr. Delgado "pull[ed] out" two knives and told her he could slit her throat and she would suffocate on her own blood. He held one of the knives close to her neck. Fearing he would "follow through on the threats," both she and the adult passenger called 911. After they arrived home, Mr. Delgado hid the knives under a snowmobile and told the children not to talk to the police.

[¶4] The State charged Mr. Delgado with one count of aggravated assault and battery for threatening to use a drawn deadly weapon on Mrs. Delgado. See Wyo. Stat. Ann. § 6-2-502 (a)(iii) and (b) (LexisNexis 2021). Mr. Delgado was represented by a public defender until his father retained private defense counsel. His father told defense counsel Mr. Delgado was not behaving normally, was having employment problems, and seemed depressed.

[¶5] Defense counsel met with Mr. Delgado at the jail. At that time, he was making statements she considered delusional, including that he was going to "walk on" to the

[509 P.3d 918

Denver Broncos football team. Defense counsel advised Mr. Delgado to plead not guilty by reason of mental illness (NGMI) to the aggravated assault and battery charge and to obtain a mental evaluation to support that defense. Mr. Delgado said he had already discussed pleading NGMI with prior counsel and he did not want to pursue that option. Mr. Delgado entered a plea of not guilty at his arraignment. Defense counsel attended the arraignment but did not inform the court of her concerns about Mr. Delgado's mental health or request a court-ordered mental evaluation.

¶6] After he was released from jail on bond, Mr. Delgado met with defense counsel at her office. He was no longer "in the same state he was [in] at the jail." Defense counsel described Mr. Delgado as "oriented to time, place. He was very coherent when he talked to [her]." Defense counsel again brought up the subject of a NGMI plea. She had spoken with Mrs. Delgado, who confirmed Mr. Delgado's father's opinion that Mr. Delgado was suffering from a mental condition. Defense counsel had also listened to the recording of the 911 call, which revealed Mrs. Delgado told the dispatcher Mr. Delgado was "acting out of his mind," was "crazy," and needed mental help. Although Mr. Delgado was "very agreeable" to many of her suggested defense strategies, he did not want to change his plea to NGMI because of "the stigma that's attached to the NGMI [plea]" and he could be indefinitely confined in the Wyoming State Hospital if he were successful in defending on that basis.

[¶7] Defense counsel negotiated a plea agreement with the State wherein Mr. Delgado would plead no contest to a reduced charge of possession of a deadly weapon with "intent to unlawfully threaten the life or physical well-being of another[.]" Wyo. Stat. Ann. § 6-8-103 (LexisNexis 2021). The amended charge was still a felony, but unlike the original aggravated assault and battery charge, it was not considered a violent felony and carried a maximum sentence of five years in prison rather than 10 years. Compare § 6-8-103 (possession of a deadly weapon with unlawful intent) with § 6-2-502(b) (aggravated assault and battery). See also, Wyo. Stat. Ann. § 6-1-104(a)(xii) (LexisNexis 2021) (" ‘Violent felony’ means murder, manslaughter, kidnapping, sexual assault in the first or second degree, robbery, aggravated assault, strangulation of a household member, aircraft hijacking, arson in the first or second degree, aggravated burglary, a violation of W.S. 6-2-314(a)(i) or 6-2-315(a)(ii) or a third, or subsequent, domestic battery under W.S. 6-2-511(a) and (b)(iii) )[.]"). The parties also agreed to a prison sentence of one to three years, suspended in favor of two years of supervised probation.

[¶8] The district court accepted Mr. Delgado's no contest plea. It found he knowingly and voluntarily entered the plea after conferring "with competent counsel that he [was] satisfied with" and he was "competent to enter into the plea agreement as well as to plead no contest to the amended charge." The court deferred sentencing at the request of defense counsel. Just two days after pleading guilty, Mr. Delgado's employer informed him he would be terminated from his employment if he was convicted of a felony.

[¶9] In preparation for sentencing, defense counsel recommended Mr. Delgado obtain a mental evaluation. He was evaluated by Brian Petrovich, a licensed clinical psychologist, on March 27 and April 7, 2020. Mr. Petrovich diagnosed Mr. Delgado with moderate alcohol use disorder and moderate major depressive disorder. After this mental evaluation but prior to obtaining Mr. Petrovich's report, Mr. Delgado was arrested for driving while under the influence of alcohol. He entered an inpatient "dual diagnosis" (substance abuse and mental health) treatment program and was diagnosed by psychiatrist Duy Pham, M.D., with severe alcohol use disorder and bipolar I disorder, for which he was prescribed medication.

[¶10] After being discharged from inpatient treatment, Mr. Delgado filed a motion to withdraw his no contest plea pursuant to W.R.Cr.P. 32(d). He maintained he should be allowed to withdraw the plea because

[he] believe[d] at the time of the incident which resulted in this charge ... and [at the] change of plea hearing ..., he was experiencing an episode of manic behavior and did not understand the extent of his

[509 P.3d 919

actions, was unable to determine right from wrong[,] and was further unable to conform his conduct to the appropriate conduct.

He also indicated he wanted to withdraw his plea because a felony conviction would prevent him from continuing his current employment. After a hearing, the district court denied Mr. Delgado's motion to withdraw his no contest plea and sentenced Mr. Delgado to the parties’ agreed upon sentence. Mr. Delgado filed a notice of appeal, which we docketed as S-20-0273.

¶11] Mr. Delgado then filed a motion to withdraw his plea pursuant to W.R.A.P. 21, which states: "Following the docketing of a direct criminal appeal, the appellant may file, in the trial court, a motion claiming ineffective assistance of trial counsel. The motion may be used to seek a new trial or to seek plea withdrawal." Mr. Delgado claimed his trial counsel was ineffective because she did not request "he be evaluated pursuant to [ Wyo. Stat. Ann. §] 7-11-303 ... [t]o determine if he was competent to proceed prior to entering his no contest plea." We stayed the briefing on Mr. Delgado's appeal in S-20-0273 pending the district court's decision on the Rule 21 motion. After holding a hearing on Mr. Delgado's Rule 21 motion, the district court issued findings of fact, conclusions of law, and an order denying Mr. Delgado's motion. Mr. Delgado appealed that decision as well. We docketed the case as S-21-0208, lifted the stay in S-20-0273, and consolidated the two appeals for briefing...

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3 practice notes
  • Roberts v. State (In re RVR), S-22-0032
    • United States
    • United States State Supreme Court of Wyoming
    • 6 December 2022 criminal cases and at the adjudicatory stage of juvenile delinquency proceedings. See, e.g., Delgado v. State, 2022 WY 61, ¶¶ 12-13, 509 P.3d 913, 919 (Wyo. 2022); In re JP, 2022 WY 94, ¶ 12, 514 P.3d 785, 789 (Wyo. 2022). In both criminal and juvenile cases, the right arises from the Si......
  • Sena v. State, S-21-0082, S-21-0083, S-21-0279
    • United States
    • United States State Supreme Court of Wyoming
    • 17 August 2022 denying a Rule 32(d) motion to withdraw, this Court treats no contest pleas like guilty pleas." Delgado v. State , 2022 WY 61, ¶ 26, 509 P.3d 913, 922–23 (Wyo. 2022) (citing Winsted v. State , 2010 WY 139, ¶ 7, 241 P.3d 497, 499 (Wyo. 2010) ). The "district court has discretion in determ......
  • Rodriguez v. State, S-22-0013
    • United States
    • United States State Supreme Court of Wyoming
    • 9 September 2022
    ...type of evidence which would sustain a mental illness or deficiency defense. Id. at 976 ; see also Delgado v. State , 2022 WY 61, ¶ 34, 509 P.3d 913, 924 (Wyo. 2022) (evidence must relate to defendant's mental state at time of crime).[¶44] Given the lack of evidence to support Mr. Rodriguez......
1 cases
  • Sena v. State, S-21-0082, S-21-0083, S-21-0279
    • United States
    • United States State Supreme Court of Wyoming
    • 17 August 2022
    ...denying a Rule 32(d) motion to withdraw, this Court treats no contest pleas like guilty pleas." Delgado v. State , 2022 WY 61, ¶ 26, 509 P.3d 913, 922–23 (Wyo. 2022) (citing Winsted v. State , 2010 WY 139, ¶ 7, 241 P.3d 497, 499 (Wyo. 2010) ). The "district court has discretion in......

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