Duke v. State

• Decision Date: 03 June 2009
• Docket Number: No. S-07-0298.,No. S-08-0132.,S-07-0298.,S-08-0132.
• Citation: 2009 WY 74,209 P.3d 563
• Parties: Brian Lee DUKE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

209 P.3d 563

2009 WY 74

Brian Lee DUKE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. S-07-0298.

No. S-08-0132.

Supreme Court of Wyoming.

June 3, 2009.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.

Representing Appellee: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General. Argument by Mr. Smith.

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

BURKE, Justice.

[¶ 1] Brian Duke pled guilty to third-degree sexual assault pursuant to a plea agreement. On appeal, he alleges several errors. Principally, he contends that he should have been allowed to withdraw his guilty plea because the State breached the plea agreement. According to Mr. Duke, the agreement was breached because the presentence investigation report (PSI) contained a recommendation for the imposition of a more severe sentence than that agreed to by the prosecutor in the plea agreement. We find no error and affirm.

ISSUES

[¶ 2] Mr. Duke presents the following issues:

1. Did the State breach the plea agreement?

2. Was Mr. Duke's plea voluntary?

3. Did the prosecutor engage in misconduct?

4. Did the district court violate W.R.Cr.P. 32(a)(3)(A) or (C)?

5. Did the court violate Wyo. Stat. Ann. §§ 7-13-1301 through 7-13-1304 (LexisNexis 2005) when it sentenced Mr. Duke?

FACTS

[¶ 3] Mr. Duke was charged with one count of third-degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-304(a)(i) (LexisNexis 2005).¹ Prior to trial, a change of plea hearing was held and, in accordance with a plea agreement, Mr. Duke pled guilty to the charge. The terms of the agreement were set forth in a letter from the prosecuting attorney to counsel for Mr. Duke. The agreement was also recited in open court at the hearing.

[¶ 4] Before accepting the guilty plea, the district court advised Mr. Duke that the court was not bound by the plea agreement or required to impose the recommended sentence. The court specifically advised Mr. Duke:

The Court: You understand that this plea agreement is merely a recommendation of sentencing to the Court, the Court is not bound by that recommendation. You could receive a sentence that is more harsh than the terms of the plea agreement, and under the Wyoming Rules of Criminal Procedure, Rule 11(e)(1)(B), you will not be allowed to withdraw your plea of guilty if you receive a sentence that is more harsh. Do you understand all that?

The Defendant: Yes, sir.

The Court: You understand you will not be sentenced today, but instead the Court will order a presentence investigation and ASI [Addiction Severity Index] evaluation, and sentencing will only occur after receipt of those two documents. Do you understand that?

The Defendant: Yes, sir.

Mr. Duke confirmed that he had not been threatened or forced to enter into the agreement and also confirmed that no other promise or agreement had been made in order to induce him to change his plea. The district court placed Mr. Duke under oath and Mr. Duke provided testimony relating to the charge. The court determined that Mr. Duke's testimony established a factual basis for the plea and accepted and entered the guilty plea. The court then ordered a presentence investigation and an ASI evaluation.

[¶ 5] The PSI was submitted to the court on October 19, 2007. The report indicated that it was prepared by a probation and parole agent with the Sweetwater County office of the Wyoming Department of Corrections, Division of Field Services. The report noted that Mr. Duke pled guilty pursuant to a plea agreement, and accurately stated that the agreement provided for a recommended sentence of three to six years at the Wyoming State Penitentiary, with a referral to the Youthful Offender's Program (Boot Camp). The report also contained a section entitled Evaluation & Recommendation that included the following passage:

The Defendant takes no accountability for his actions in the present offense, nor did he show any remorse for his actions for his prior convictions. Regarding same, he told this agent this was the "second time [he] was set up for something like this." Given that the Defendant has a significant history of sexually assaulting young girls, has had extensive counseling for same and still committed the instant offense, he clearly is a threat to the community. It is recommended he be incarcerated for the maximum allotted time. Should the Defendant be released [i]nto community supervision at any time, it is recommended that sex offender conditions be imposed.

The PSI concluded with this recommendation: "May it be respectfully recommended that the Defendant, BRIAN LEE DUKE, be denied the privilege of probation."

[¶ 6] At the sentencing hearing, defense counsel contended that the PSI contained several factual inaccuracies. In order to preserve context, we present the entire exchange from the record:

The Court: [Defense Counsel], have you received both documents [the PSI and ASI report] in a timely manner?

[Defense Counsel]: Yes, Your Honor.

The Court: Are there any additions, deletions, or corrections to those documents?

[Defense Counsel]: Yes, Your Honor. Beginning on page 4 of the presentence investigation, Roman numeral III, prior offense history, there's a juvenile court history dated 12/15/02. My client would like to make a note that he was never charged for this burglary. He did go to the juvenile diversion program on January 1, 2003. That's listed in the disposition and date paragraph, however not for the burglary.

The Court: The Court will delete that offense and not consider it in sentencing. Anything else?

[Defense Counsel]: Yes, Your Honor. On page 5, on the cruelty to animal charge misdemeanor, my client would like to make a note that he wasn't charged with this. On the disposition, it does say dismissed.

The Court: The Court will delete that reference and not consider it in sentencing. Anything else?

[Defense Counsel]: On the offense of attempted rape, my client would like to make a note it was reduced to battery with intent to commit a serious felony, which was a misdemeanor offense.

The Court: The attempted rape charge will be considered as a misdemeanor.

[Defense Counsel]: On page 6, under the adult court history title, the last offense listed there, my client is unaware of what the endangering the welfare of a minor — what that citation is about.

The Court: That offense will be deleted and will not be considered by the Court.

[Defense Counsel]: On Page 8, under marital status, it is listed a current spouse or significant other. The young lady listed there as his girlfriend, she is not his girlfriend anymore.

The Court: That change is noted.

[Defense Counsel]: On page 9, under the employment section, the unemployment date since, it says February 3, 2007. However, he still had his job available to him until March.

The Court: Anything else?

[Defense Counsel]: Pardon?

The Court: Anything else?

[Defense Counsel]: Under the evaluation recommendation, page 12 — this is Roman numeral VII. The parts where the agent is making [her] recommendation, [she's] using the burglary and attempted rape and cruelty to animals, which were the additions and deletions which we have discussed just now. And that is all, Your Honor.

The court then heard argument from Mr. Duke and the State. The State recommended the agreed-upon sentence as follows:

Your Honor, the State would ask that you sentence the defendant per the plea agreement. Penitentiary time is — is important in this case. It's appropriate in this case. We're talking about a 12-year-old girl who he had sex with. If this had been charged under the new statutes that were passed under — as of July 1, he would be looking at substantially more time due to that age difference.

Also, the Court can consider, you know, the underlying facts of that prior offense. You know, there's prior sexual misconduct by this defendant. And that's why I think penitentiary time — the State's pursuing penitentiary time in this case.

It's not part of the plea agreement and it's not part of our sentencing worksheet, but something I think would be important for the Court to consider and benefit the defendant is some type of psychosexual evaluation and treatment. Maybe that's something he can begin at the penitentiary.

I do have faith in the boot camp program. They do an excellent job up there. He's of such a young age that — he won't even turn 18 until, I think, later this month — or, actually, until January. I think given a shot, due to his age, at the boot camp would be important, because that would be followed by a period of supervision. However, based upon his previous history, this being an additional sexual offense, I'd ask the Court to accept the plea agreement.

Defense counsel also urged the court to sentence Mr. Duke in accordance with the plea agreement.

[¶ 7] The district court did not accept the recommendation and, instead, sentenced Mr. Duke to ten to fifteen years of imprisonment. Mr. Duke appealed. His appeal was docketed as case number S-07-0298. While his appeal was pending, Mr. Duke filed a motion in the district court to withdraw his guilty plea. He claimed that the plea agreement bound not just the prosecutor's office, but also the Department of Corrections, and more specifically, the probation agent who prepared the PSI. Consequently, he contended that the sentencing recommendation in the PSI violated the agreement. We stayed briefing in Mr. Duke's direct appeal pending resolution of this motion.

[¶ 8] The district court found no breach of the plea agreement and denied Mr. Duke's motion to withdraw his plea. Mr. Duke appealed from the order, and that appeal was docketed in this Court as case number S-08-0132. Mr. Duke moved for...