Duran v. State, 96-168

• Decision Date: 22 December 1997
• Docket Number: No. 96-168,96-168
• Citation: 949 P.2d 885
• Parties: Conrad DURAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 885

949 P.2d 885

Conrad DURAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 96-168.

Supreme Court of Wyoming.

Dec. 22, 1997.

Conrad Duran, Pro Se.

William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General and Mark T. Moran, Assistant Attorney General, for Appellee.

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN, and LEHMAN, JJ.

TAYLOR, Chief Justice.

Having signed a plea agreement without reading the document, appellant feels he should be excused from the penitentiary term therein agreed to. That term was the most prominent feature of two judgments and sentences which were not appealed. We affirm the district court's denial of appellant's efforts to avoid his plea agreement through the filing of a motion purportedly seeking correction of an illegal sentence.

I. ISSUES

Appellant, Conrad Duran (Duran), failed to articulate his issue(s). We summarize the thrust of his argument:

1. Due to his inattention to the plea agreement he signed, should appellant be entitled to post-conviction relief, sentence reduction, or permission to withdraw his guilty plea?

Appellee, State of Wyoming, states one issue:

Whether the district court correctly denied appellant's "Motion for Correction of Sentence (Rule 35 W.R.Cr.P.)" and whether appellant's motion or petition are properly before the court.

II. FACTS

On June 7, 1995, Duran was convicted of two counts of delivery of marijuana and sentenced to a term of not less than thirty months nor more than forty months in the Wyoming State Penitentiary. Duran does not contest that conviction and it is not the subject of this appeal, although the length of the sentence has relevance here.

Following the events which gave rise to the foregoing conviction, a named informant made a purchase of marijuana from Duran, and the resultant search of Duran's residence yielded a quantity of marijuana (which Duran admitted was his) as well as the scales and packaging materials which are common accoutrements of the "hemp" trade. Based upon those events, Duran was charged with two new counts of delivery of marijuana or possession thereof with intent to deliver.

When the privately retained attorney who had represented Duran in his earlier trial withdrew from the instant case, Duran requested the services of a public defender because he wanted "to plea-bargain and move on with [his] life." Following submission of an affidavit of indigence, a public defender was assigned.

Notwithstanding the desire of his client to reach a plea agreement, Duran's counsel filed a battery of pretrial motions tailored to the unique circumstances of the latest charges, and the district court responded favorably to those motions while the prosecuting attorney afforded Duran's counsel full discovery. Notwithstanding his counsel's preparedness for trial, Duran chose to enter into a plea agreement offered by the district attorney which would result in a guilty plea to one charge in return for dismissal of the second and a sentence which would run concurrently with his earlier thirty to forty month sentence, requiring only that Duran serve an additional six months pursuant to his guilty plea. Another advantage of this plea agreement, as perceived by Duran, was the permission he received to plead pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), thus receiving the benefits of the plea bargain while being relieved of having to provide a factual basis for his plea.

In response to questions from the district court, Duran repeatedly insisted that he was "just taking the plea agreement." He described one clear advantage of the plea agreement, asserting his understanding that proceeding to trial would mean: "I'd be on two charges instead of one." Pressed by the district court as to why he would take the plea agreement, Duran twice acknowledged the benefit of receiving only six months of additional penitentiary time for his latest conviction:

THE COURT: Meaning that you then fear that there's a risk that you might have to serve more time than the six months?

THE DEFENDANT: Yes, sir.

THE COURT: Is that what you're saying?

THE DEFENDANT: Yes.

* * *

THE COURT: Well, what is so good about the plea agreement that you want to take it? You've got to tell me in your own words. Is that basically it?

THE DEFENDANT: Plead guilty, admit it to the court, not get as much time as if found guilty.

THE COURT: So you don't want to run that risk of having more than six months for this charge?

THE DEFENDANT: Yes, sir.

On August 22, 1995, the district court accepted Duran's guilty plea and handed down the agreed-upon sentence to the penitentiary "for a period of not less than thirty-six (36) months nor more than forty-six (46) months," with credit for 222 days served at the Laramie County Detention Facility. No appeal followed. However, two months later, Duran notified the district court and the district court clerk, via handwritten notes, that "when the Judgment and Sentence of the court was written it did not say if the 2 sentence[s] [were] to run concurrent or consecutive. * * * Please send the paper work showing that they are to run concurrent." The district court responded with an amended judgment and sentence reiterating the thirty-six to forty-six month sentence, but making it clear that the sentence would run concurrently with Duran's earlier thirty to forty month sentence. Again, no appeal followed.

Five months later, Duran filed a motion for sentence reduction, acknowledging the district court's "sentence of 36-46 months in the Wyoming State Penitentiary," but asking for a reduction because he had been a "model prisoner" who "consistently and successfully attended psychoactive substance education, Narcotics Anonymous and Alcoholics Anonymous (certificates attached)." That motion for sentence reduction was denied.

Duran then filed a self-titled "Motion for Correction of Sentence (Rule 35, W.R.Cr.P.)," the body of which prayed the district court "to vacate his judgment and sentence, pursuant to 7-14-101 et. seq., Wyoming Statutes 1977 as amended," and also suggested that his guilty plea had been the product of a misunderstanding with his own attorney. From the denial of that pleading, Duran timely filed this appeal.

III. STANDARDS OF REVIEW

The apparent tension between the title and prayers of the pleading, the denial of which has occasioned this appeal, requires our review of pertinent standards applicable to petitions for post-conviction relief, motions for correction of an illegal sentence, and post-sentencing requests for permission to withdraw a guilty plea.

It is universally recognized that post-conviction relief is not a substitute for an appeal and the petition will not lie where the matters alleged as error could or should have been raised in an appeal or in some other alternative manner. Munoz v. Maschner, Wyo., 590 P.2d 1352 (1979).

Pote v. State, 733 P.2d 1018, 1022 (Wyo.1987). Issues amenable to redress through direct appeal are foreclosed from consideration in the context of a petition for post-conviction relief by the doctrine of res judicata. Cutbirth v. State, 751 P.2d 1257, 1262 (Wyo.1988) (citing, inter alia, Wright v. State, 718 P.2d 35, 37 (Wyo.1986)).

A motion to correct an illegal sentence is necessarily predicated upon the validity of the underlying conviction and may not be used to examine alleged errors taking place prior to the imposition of sentence. Evans v. State, 892 P.2d 796, 797 (Wyo.1995). District courts are vested with broad discretion in dealing with motions brought pursuant to W.R.Cr.P. 35, and appellate review will not yield a reversal absent demonstration of a clear abuse of that discretion. Asch v. State, 784 P.2d 235, 237 (Wyo.1989). An illegal sentence is one which...