Demeulenaere v. State

• Decision Date: 15 December 2008
• Docket Number: No. S-08-0039.,S-08-0039.
• Citation: 2008 WY 147,197 P.3d 1238
• Parties: Craig Alan DEMEULENAERE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Respondent).
• Court: Wyoming Supreme Court

197 P.3d 1238

2008 WY 147

Craig Alan DEMEULENAERE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Respondent).

No. S-08-0039.

Supreme Court of Wyoming.

December 15, 2008.

Representing Appellant: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Assistant Attorney General.

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

HILL, Justice.

[¶ 1] After entering a plea of guilty, Craig Demeulenaere sought to withdraw that plea before his sentence was imposed. The district court denied his request, and on appeal, Demeulenaere contends that the court abused its discretion. We affirm.

ISSUE

[¶ 2] Demeulenaere presents one issue for our consideration:

1. The District Court abused its discretion by refusing to grant Mr. Demeulenaere's Motion to Withdraw Guilty Plea before sentencing.

FACTS

[¶ 3] In early February of 2004, Sublette County Sheriff Deputy Toby Terrell noticed the rear brake light of Demeulenaere's vehicle malfunctioning. Deputy Terrell pulled over Demeulenaere, who told the deputy that he had just replaced the fuse, as he had been noticing problems with the brake light. The deputy learned that Demeulenaere's driver's license was suspended, and accordingly took Demeulenaere into custody and conducted a search incident to arrest of Demeulenaere's person. The search revealed $2,216.00 in cash. A subsequent inventory search of Demeulenaere's vehicle revealed 46.7 grams of methamphetamine, a small scale, four individually wrapped bindles of powder, two pipes with residue, and a bag containing 7.0 grams of marijuana.

[¶ 4] Demeulenaere was charged with three counts: Count I, unlawful possession of methamphetamine with the intent to deliver in violation of Wyo. Stat. Ann. § 35-7-1031(a)(i) (LexisNexis 2007); Count II, unlawful possession of methamphetamine in violation of Wyo. Stat. Ann. § 35-7-1031(c)(ii) (LexisNexis 2007); and Count III, unlawful possession of marijuana, a misdemeanor, in violation of Wyo. Stat. Ann. § 35-7-1031(c)(i)(A) (LexisNexis 2007).¹

[¶ 5] After waiving his right to a speedy preliminary hearing, Demeulenaere filed a motion to vacate the scheduled preliminary hearing date, rescheduling it for March 10, 2004. On that date, Demeulenaere's case was bound over to the district court, where he pled not guilty to all three counts at his arraignment on June 4, 2004. On September 15, 2004, Demeulenaere filed a motion to suppress the evidence obtained from the search of his vehicle, arguing that the traffic stop and search were without probable cause and in violation of his constitutional rights. The hearing on this motion was set for October 6, but because the parties were "very close" to finalizing a plea agreement, the State moved, without objection, to continue the hearing until October 22.

[¶ 6] On October 8, 2004, the parties filed a stipulated notice of their plea agreement, which outlined for the district court that the State would dismiss Count I in exchange for guilty pleas to Counts II and III. The parties also agreed that any term of incarceration would be suspended. A change of plea and sentencing hearing was scheduled for October 22, but the district court sua sponte postponed the change of plea until November 4, 2004, clarifying in its order that the sentencing would be scheduled after the Presentence Investigation Report was completed.

[¶ 7] The November 4 change of plea hearing was held as scheduled, and, as agreed by both parties, Demeulenaere pled guilty to both Counts II and III, and the court dismissed Count I. In mid-December, however, Demeulenaere filed a Notice of Intent to File Motion to Withdraw Plea and Objection to Motion for Sentencing Hearing, arguing that his case should be dismissed because the video of Demeulenaere's traffic stop had either been misplaced or destroyed, and thus, his due process rights were violated. Having received new counsel only two weeks before these filings, Demeulenaere also alleged that his previous counsel was ineffective for failure to previously raise that issue.

[¶ 8] On December 23, 2004, Demeulenaere's sentencing was set for March 2, 2005 and on December 27, he filed his motion to withdraw his guilty plea. The motion stated that Demeulenaere was informed that the tape had been misplaced, and that Demeulenaere only pled guilty on the advice of counsel, as he was unable to develop any claim of a "pretextual arrest" due to the missing tape. Demeulenaere noted that shortly after he had filed his notice of intent to file a motion to withdraw his plea, he was informed the tape had been located. Upon review of the tape, Demeulenaere's counsel concluded that there was, in fact, evidence of a "pretextual arrest" and possibly a "pretextual search." The plea withdrawal motion claimed that Demeulenaere's plea was not knowing, intelligent, and voluntary because he had only pleaded guilty due to his belief that the tape had been misplaced—which, he claimed, was a "fair and just reason" for withdrawing his guilty plea.²

[¶ 9] In 2005, several delays occurred at the hand of Demeulenaere. Originally, the hearing on his motion to withdraw his guilty plea was set for February 10, 2005, but was rescheduled at his request for May 6, 2005. On April 12, another motion to reschedule was filed because Demeulenaere's counsel was required to appear in another case. The hearing was rescheduled for August 5, 2005. On July 15, however, yet another motion to reschedule was filed, this time because Demeulenaere was in federal custody after having been indicted in the United States District Court for the District of Wyoming. Of course, the district court had no choice but to continue the proceedings until further notice that the case could proceed.

[¶ 10] Nothing happened in the State case until March 23, 2006, when the State requested a hearing on Demeulenaere's motion to withdraw his plea. A hearing was set for August 3, 2006, but Demeulenaere filed a motion to stay all proceedings because he was in federal custody. The State, in response, filed a traverse to this motion, and the district court scheduled a telephone conference to discuss the matter of scheduling. There is no indication in the record that this phone conference was ever held.

[¶ 11] After not appearing for the August 3rd hearing, defense counsel was contacted via telephone, and represented to the court and the State that the motion to withdraw the guilty plea could be decided on the memoranda of the parties and the record from the change of plea hearing. Accordingly, on December 4, 2006, the court denied Demeulenaere's motion to withdraw his guilty plea. Then, the court scheduled his sentencing for January 5, 2007, and ordered that a presentence investigation and a substance abuse evaluation be completed.

[¶ 12] Incredibly, Demeulenaere's sentencing date had to be delayed as well. First, Demeulenaere filed a Notice of Inability to Comply with Court Orders due to his incarceration in a federal penitentiary. The State was amenable to postponing the sentencing due to complications with the completion of the presentence investigation and substance abuse evaluation. Accordingly, the sentencing was set for April 4, 2007. After failing to appear by telephone at that hearing, Demeulenaere's counsel informed the court that Demeulenaere refused to appear by telephone and would not voluntarily cooperate in procedures to procure his presence in court. Thus, on June 18, 2007, the State filed a Petition for Writ of Habeas Corpus Ad Prosequendum, requesting that the Warden of the Lompoc Federal Correction Institute in Lompoc, California, release Demeulenaere to the custody of the Sublette County Sherriff's Department for purposes of sentencing. Eventually, Demeulenaere was sentenced on August 9, 2007, and this appeal followed.

STANDARD OF REVIEW

[¶ 13] In Hirsch v. State, 2006 WY 66, 135 P.3d 586 (Wyo.2006), we explained that the standard of review appropriate for a district court's ruling on a motion to withdraw a guilty plea or a plea of nolo contendere, before sentencing, is addressed to the sound discretion of the trial court.

A defendant does not enjoy an absolute right to withdraw a plea of guilty prior to the imposition of sentence. Osborn v. State, 672 P.2d 777, 788 (Wyo. 1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1331, 79 L.Ed.2d 726 (1984); Ecker v. State, 545 P.2d 641, 642 (Wyo.1976). The trial court is vested with discretion to determine whether to grant a motion to withdraw a plea of guilty made prior to sentencing, and it does not abuse that discretion by denying the withdrawal of the plea so long as the requirements of W.R.Cr.P. 11 were complied with at the time the plea was accepted. Kaldwell v. State, 908 P.2d 987, 990 (Wyo. 1995). Even when the defendant provides a plausible or just and fair reason for withdrawal of the plea of guilty, the denial of the defendant's motion does not amount to an abuse of discretion if the trial court conducted a careful hearing pursuant to W.R.Cr.P. 11 at which the defendant entered a plea or pleas of guilty that was knowing, voluntary, and intelligent. Osborn, 672 P.2d at 778-79.

Stout v. State, 2001 WY 114, ¶ 8, 35 P.3d 1198, ¶ 8 (Wyo.2001) (quoting Nixon v. State, 4 P.3d 864, 868-69 (Wyo.2000)); and see Becker v. State, 2002 WY 126, ¶ 11, 53 P.3d 94, ¶ 11 (Wyo.2002)(for purposes of a review such as this, a plea of nolo contendere is functionally equivalent to a guilty plea).

This standard of review has been further refined as follows:

A motion to withdraw a guilty plea, such as that filed here, is governed by W.R.Cr.P. 32(d) which provides that if a motion for withdrawal of a guilty plea is made before sentence is imposed, the court may...