Derrera v. State

• Decision Date: 13 June 2014
• Docket Number: No. S–13–0174.,S–13–0174.
• Citation: 327 P.3d 107
• Parties: Raymond Anthony DERRERA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

327 P.3d 107

Raymond Anthony DERRERA, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–13–0174.

Supreme Court of Wyoming.

June 13, 2014.

Representing Appellant: Raymond A. Derrera, pro se.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Caitlin F. Young, Assistant Attorney General.

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

FOX, Justice.

[¶ 1] Raymond Derrera pled guilty to the charge of driving while under the influence of alcohol (DWUI), his fourth such offense in ten years. Mr. Derrera was convicted of a felony under the law providing that a fourth DWUI offense within ten years is a felony subject to sentence enhancement. He now appeals his felony sentence enhancement, contending that two prior DWUI convictions relied on by the district court were not constitutionally obtained and therefore should not have been relied upon for purposes of enhancing his sentence. We affirm.

ISSUES

[¶ 2] 1. Does Mr. Derrera's 2007 conviction, in which he pled guilty without counsel, constitute a violation of his Sixth Amendment right to counsel?

2. Did the district court subject Mr. Derrera to double jeopardy when it reinstated Mr. Derrera's 2009 DWUI after dismissing the case with prejudice?

FACTS

[¶ 3] On June 19, 2012, Mr. Derrera drove with a blood alcohol concentration of 0.16%. The State charged him with one count of driving under the influence of alcohol with a blood alcohol level of 0.08% or greater. This was Mr. Derrera's fourth offense within the previous ten years, making it a felony under Wyo. Stat. Ann. § 31–5–233(e) (LexisNexis 2013).¹ Mr. Derrera pled not guilty at his arraignment on August 30, 2012.

[¶ 4] On January 23, 2013, Mr. Derrera filed a Motion to Strike Two of Four Prior Convictions for Enhancement Purposes Thereby Reducing DWUI Charge From Felony to Misdemeanor. Specifically, his motion challenged his prior DWUI convictions in CR–2006–3226 and CR–2009–2891.

[¶ 5] In CR–2006–3226, Mr. Derrera was charged with misdemeanor DWUI for events occurring on November 3, 2006. On January 12, 2007, he entered into a plea agreement with the State, acknowledged that he wished to proceed without counsel, and pled guilty pro se. The circuit court set the sentencing hearing for March 7, 2007, and subsequently reset it to March 26, 2007. Mr. Derrera did not appear for the sentencing hearing on March 26, and the court issued a bench warrant for his arrest. Mr. Derrera was arrested on August 21, 2007. He appeared in court the next day, and was sentenced to six months imprisonment. At his sentencing, Mr. Derrera stated that he was represented by counsel. The court responded that there was nothing in the file to indicate this, and proceeded with sentencing.

[¶ 6] On October 29, 2007, counsel for Mr. Derrera filed a Motion to Vacate Judgment and Sentence, arguing that Mr. Derrera's constitutional right to counsel was denied when he was sentenced without his counsel present. The motion was denied at a December 5, 2007 hearing, where Mr. Derrera's retained counsel was present.

[¶ 7] In 2009, Mr. Derrera was again charged with misdemeanor DWUI. The case proceeded to a jury trial on May 19, 2009. At trial, Mr. Derrera's counsel objected to the State's expert witness because the State had not provided Mr. Derrera with the expert's curriculum vitae. The judge, sua sponte, declared a mistrial and ordered the State to request another setting for trial within two weeks. Two weeks elapsed without any action by the State. On June 8, 2009, Mr. Derrera's counsel filed a Motion to Dismiss and Assessment of Public Defender Fees. The next day, the circuit court granted the motion and dismissed the case with prejudice. In its order dismissing the case, the court wrote:

THE COURT FINDS, that the State having failed to comply with the Court's May 19th 2009 order setting a deadline of June 1, 2009 for them to file a setting for retrial in this matter, her[e]by dismisses the aforementioned case with prejudice.

THE COURT FURTHER FINDS that [Mr. Derrera] has been prejudiced in this matter to such a degree that no other options are available to the Court absent a dismissal with prejudice.

....

NOW, THEREFORE IT IS ORDERED that the above-entitled matter shall be, and the same hereby is, Dismissed with Prejudice.

[¶ 8] Two months later, on August 6, 2009, the State filed a Motion to Vacate Order Dismissing Case. The State argued that it was denied an opportunity to be represented at the dismissal hearing because it was never provided with a copy of the motion and order to dismiss. They attributed this to a clerical error by the clerk of court under W.R.Cr.P. 36. In response, on September 4, 2009, Mr. Derrera's counsel filed a Motion to Dismiss Based on Violation of Double Jeopardy Provisions of Wyoming and United States Constitutions. The circuit court held a hearing on both motions on September 21, 2009. At the hearing, the court reversed its order to dismiss with prejudice, allowing the State two weeks from September 21, 2009, within which to refile the misdemeanor DWUI charge. On October 2, 2009, the State refiled the charge in docket number CR–2009–2891. Mr. Derrera ultimately entered a guilty plea in that action.

[¶ 9] On October 16, 2009, Mr. Derrera's counsel filed a Petition for a Writ of Interlocutory Review of Order, or in the Alternative, Petition for a Writ of Certiorari. The district court issued its Order Denying Petition for Writ of Review on November 5, 2009, citing a failure to comply with Wyoming Rules of Appellate Procedure, Rule 13.03,² as well as failing to provide sufficient support to grant a writ pursuant to Rule 13.02.³ Mr. Derrera did not appeal.

[¶ 10] During the change of plea hearing for the DWUI charge now before us, Mr. Derrera raised concerns over the 2007 and 2009 DWUI convictions. The district court reminded Mr. Derrera that by pleading guilty, he could be pleading to a felony if he had the required number of prior DWUI convictions within the specified period of time. Mr. Derrera chose to plead guilty and the court found that his plea was knowing and voluntary.

[¶ 11] The district court then heard argument on Mr. Derrera's Motion to Strike Two of Four Prior Convictions for Enhancement Purposes Thereby Reducing DWUI Charge From Felony to Misdemeanor. The court ruled that because Mr. Dererra had not appealed his earlier convictions, they could not be overturned, and it was therefore permissible to consider them for enhancement. Accordingly, the court enhanced Mr. Derrera's conviction to a felony, sentencing him to 16 to 24 months in the state penitentiary. Mr. Derrera timely filed his pro se appeal.

[¶ 12] Mr. Derrera does not challenge his two other prior DWUI convictions.

STANDARD OF REVIEW

[¶ 13] We have held that a defendant may challenge prior convictions when they are used for purposes of sentence enhancement, under certain circumstances.

When a defendant challenges a conviction underlying a finding that he is a habitual traffic offender, he must make a prima facie showing that one or more of the underlying convictions was constitutionally invalid. A prima facie showing is one which would permit the court to find that one or more of the traffic offense convictions essential to the order of revocation was not obtained in accordance with the defendant's constitutional rights. Once the defendant makes this showing, the prosecution must establish by a preponderance of the evidence that the conviction was constitutionally obtained.

City of Laramie v. Cowden, 777 P.2d 1089, 1091 (Wyo.1989) (citations omitted) (quoting People v. Swann, 770 P.2d 411, 412 (Colo.1989)). We review constitutional questions de novo. Smith v. State, 2009 WY 2, ¶ 52, 199 P.3d 1052, 1067–68 (Wyo.2009).

[¶ 14] We do not have the complete record in the 2007 and 2009 proceedings. We have previously stated, “[i]t is the appellant's burden to bring a complete record to this Court” for review. Painovich v. Painovich, 2009 WY 116, ¶ 9, 216 P.3d 501, 504 (Wyo.2009) (citing Beeman v. Beeman, 2005 WY 45, ¶ 10, 109 P.3d 548, 551 (Wyo.2005)). For the purposes of this appeal, we only consider those facts contained in the record presented to us by Mr. Derrera.

DISCUSSION

I. Does Mr. Derrera's 2007 conviction, in which he pled guilty without counsel, constitute a violation of his Sixth Amendment right to counsel?

[¶ 15] Mr. Derrera contends that his 2007 DWUI conviction cannot be used for felony enhancement purposes because he did not validly waive his right to counsel during his plea hearing or sentencing.⁴

[¶ 16] The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” U.S. Const. amend. VI. In Gideon v. Wainwright, 372 U.S. 335, 339–40, 83 S.Ct. 792, 794, 9 L.Ed.2d 799 (1963), the United States Supreme Court held that the Fourteenth Amendment incorporates the Sixth Amendment right to counsel, and accordingly requires states to make appointed counsel available to indigent defendants in all “criminal prosecutions.” ⁵ This Court has further articulated that the right to counsel is not just for trials, but applies to all “critical stages” in which the substantial rights of the accused may be affected. Duffy v. State, 837 P.2d 1047, 1052 (Wyo.1992) (citing United States v. Wade, 388 U.S. 218, 227, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967)); Nelson v. State, 934 P.2d 1238, 1240 (Wyo.1997). Because of the clear, substantial rights implicated in pleading guilty, we find that a plea hearing is indeed a “critical stage” of criminal proceedings, and therefore the right to counsel attaches. See Duffy, 837 P.2d at 1052 (A proceeding is “critical” if “[t]he defendant makes some sort of admission against penal interest, loses a potential defense, or furnishes a plea of guilty or nolo contendere.” (Emphasis added.)).

[¶ 17] The Sixth Amendment,...