Henry v. State

• Decision Date: 16 December 2015
• Docket Number: No. S–15–0102.,S–15–0102.
• Citation: 362 P.3d 785
• Parties: Elton HENRY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

362 P.3d 785

Elton HENRY, Appellant (Defendant),

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

No. S–15–0102.

Supreme Court of Wyoming.

Dec. 16, 2015.

Representing Appellant: Office of the Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Joshua C. Eames, Assistant Attorney General.

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

KAUTZ, Justice.

[¶ 1] Pursuant to a plea agreement with the State of Wyoming, Elton Henry pleaded no contest to one count of first degree sexual abuse of a minor and one count of second degree sexual abuse of a minor, both felonies. He challenges his convictions on appeal, claiming the district court did not properly advise him that his future employment opportunities could be affected by loss of the privilege to possess firearms. We conclude he waived his right to appeal this issue in his plea agreement and, in any event, the district court's advisement was sufficient.

[¶ 2] We affirm.

ISSUES

[¶ 3] Mr. Henry presents the following issue on appeal:

I. Did the trial court commit reversible error by failing to advise Mr. Henry of his rights as required by W.S. § 7–11–507 ?

The State raises an additional issue, which we rephrase:

I. Did Mr. Henry waive his right to appeal a claimed error in advisements in his plea agreement?

FACTS

[¶ 4] The underlying facts of this case are not directly relevant to the issues on appeal. In summary, the State charged Mr. Henry with nine felony counts of sexual abuse of his two young grandchildren. The State and Mr. Henry entered into a written plea agreement in which he pleaded no contest to one count of first degree sexual abuse of a minor under Wyo. Stat. Ann. § 6–2–314(a)(i) (LexisNexis 2015)¹ and one count of second degree sexual abuse of a minor under Wyo. Stat. Ann. § 6–2–315(a)(ii) (LexisNexis 2015),² and the State dismissed the other charges. The plea agreement also contained a specific waiver of Mr. Henry's rights to appeal and to object to the agreement, his pleas, and his convictions.

[¶ 5] Prior to accepting his no contest pleas, the district court advised Mr. Henry in open court that the legal consequences of pleading no contest were the same as pleading guilty. The court also explained:

THE COURT: There are a number of important consequences that result from pleading guilty to a felony. A felony conviction may deprive you of certain rights, such as the right to vote, to hold public office, or sit on a jury, and could affect you ability to obtain certain employment or licenses.

A felony conviction may affect your right to own or possess firearms or explosive devices. You should assume that you may never be allowed to have a gun.

[¶ 6] At sentencing, the district court rejected Mr. Henry's request for a suspended sentence. It ordered him to serve twenty-five to thirty years in prison on the first degree conviction and eighteen to twenty years in prison on the second degree conviction, with the terms to run concurrently. Mr. Henry filed a timely notice of appeal.

DISCUSSION

1. General Law on the Firearms Advisement

[¶ 7] Mr. Henry claims his convictions are invalid because the district court failed to comply with Wyo. Stat. Ann. § 7–11–507 (LexisNexis 2015). That statute states:

(a) No judgment of conviction shall be entered upon a plea of guilty or nolo contendere to any charge which may result in the disqualification of the defendant to possess firearms pursuant to the provisions of 18 U.S.C. §§ 922(g)(1), (9) and 924(a)(2) or other federal law unless the defendant was advised in open court by the judge:

(i) Of the collateral consequences that may arise from that conviction pursuant to the provisions of 18 U.S.C. §§ 921(a)(33), 922(g)(1), (9) and 924(a)(2) ; and

(ii) That if the defendant is a peace officer, member of the armed forces, hunting guide, security guard or engaged in any other profession or occupation requiring the carrying or possession of a firearm, that he may now, or in the future, lose the right to engage in that profession or occupation should he be convicted.

[¶ 8] We first addressed the requirements of § 7–11–507 in Starrett v. State, 2012 WY 133, 286 P.3d 1033 (Wyo.2012). In that case, the district court failed to advise the defendant under the statute when it entered judgment on his guilty plea to third degree sexual abuse of a minor. Id., ¶ 2, 286 P.3d at 1034–35. We concluded the notifications under § 7–11–507 were required by the law and the district court violated the requirements of W.R.Cr.P. 32(b)(1)(E)³ by failing to give them. Id., ¶¶ 11–12, 286 P.3d at 1037–38. Our ruling was recapped at the end of the opinion as follows:

[W]e must apply our de novo standard of review to the issue before us because that issue requires our interpretation and application of a statute. We hold that Wyo. Stat. Ann. § 7–11–507 is clear and unambiguous; therefore, we must simply give effect to its plain meaning. We hold that, because the legislature has used the word "shall" in its language, "[n]o judgment of conviction shall be entered upon a plea of guilty ... unless the defendant was advised in open court by the judge," this Court accepts the provision as mandatory and has no right to make the law contrary to what the legislature prescribed. The word "shall" in this statute intimates an absence of discretion. The advisement in Wyo. Stat. Ann. § 7–11–507 is required, and W.R.Cr.P. 32(b)(1)(E) mandates that the judgment of conviction upon Starrett's plea of guilty must include that advisement. The district court's failure to give Starrett that required advisement was a Rule 32 error. Consistent with our precedent dealing with Rule 32 error, we hold that the district court's failure to include in Starrett's judgment of conviction upon his plea of guilty the advisement required by Wyo. Stat. Ann. § 7–11–507 requires us to set aside Starrett's judgment of conviction and remand to that court with directions that he be permitted to plead anew.

Id., ¶ 19, 286 P.3d at 1040.

[¶ 9] In Balderson v. State, 2013 WY 107, ¶ 14, 309 P.3d 809, 812 (Wyo.2013), we explained there are two distinct advisements required by § 7–11–507. Subsection (a)(i) requires the district court to advise a defendant pleading guilty or no contest to a felony of possible disqualification from possessing firearms under federal law, and subsection (a)(ii) requires notification that loss of the firearm privilege may affect the defendant's employment opportunities. Id. See also Parks v. State, 2014 WY 57, 325 P.3d 915 (Wyo.2014) ; Cobb v. State, 2013 WY 142, 312 P.3d 827 (Wyo.2013) ; Pedraza v. State, 2014 WY 24, 318 P.3d 812 (Wyo.2014). The advisements are necessary to ensure the defendant enters his plea with knowledge of all potential consequences, and the failure to give them will result in reversal of the convictions. Balderson, ¶¶ 22, 25, 309 P.3d at 814.

[¶ 10] Furthermore, the advisements are compulsory even though the defendant may not actually be affected by the particular consequences. In McEwan v. State, 2013 WY 158, ¶ 19, 314 P.3d 1160, 1166 (Wyo.2013), we reversed the defendant's conviction because she was not given the firearms advisements when she pleaded guilty to obtaining welfare benefits by misrepresentation. The Court reached that conclusion even though Ms. McEwan had previously lost her firearms privileges as the result of a felony conviction and "she was not employed in an occupation that required her to carry a firearm, and we ha[d] no reason to believe that she [had or ever would] have aspirations to obtain such a job." Id.

2. Waiver

[¶ 11] The State claims Mr. Henry waived, in his plea agreement, the right to appeal the district court's failure to give the firearms advisement. In Bush v. State, 2003 WY 156, ¶ 6, 79 P.3d 1178, 1181 (Wyo.2003), we stated that "a defendant may waive his right to appeal, so long as that waiver is knowing and voluntary."See also United States v. Hernandez, 134 F.3d 1435, 1437 (10th Cir.1998). In other cases, however, we have noted the waiver of the right to appeal has limited application when the district court's alleged error undermines the validity of the guilty plea itself. See Noel v. State, 2014 WY 30, ¶ 16, 319 P.3d 134, 141–42 (Wyo.2014).

[¶ 12] In United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.2004) (en banc) (per curiam), the United States Court of Appeals for the Tenth Circuit adopted a three-part test to determine whether a waiver of the right to appeal is enforceable in a given case. Under the test, the appellate court determines:

(1) whether the disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice[.]

Id. By ensuring the waiver is knowing and voluntary and does not result in a miscarriage of justice, the Hahn test protects against the concerns voiced in Noel.

[¶ 13] Under the first element of the Hahn test, we must determine the scope of Mr. Henry's waiver of his right to appeal. We review plea agreements de novo and interpret them using general contract principles. Schade v. State, 2002 WY 133, ¶ 5, 53 P.3d 551, 554 (Wyo.2002) ; Noel, ¶ 17, 319 P.3d at 142. Ambiguities in a waiver of appellate rights will be interpreted against the State; however, a defendant will be held to the clear terms of a lawful plea agreement. Hahn, 359 F.3d at 1325, 1328.

[¶ 14] In Wyoming, questions about the meaning of a plea agreement have typically arisen in the context of a defendant's claim that the State breached the terms of the agreement. Schade, supra. See also Fernandez v. State, 2006 WY 8, 126 P.3d 111 (Wyo.2006). However, Knox v. State, 848 P.2d 1354 (Wyo.1993), addressed whether the defendant...