Hirsch v. State, 05-20.

• Citation: 135 P.3d 586,2006 WY 66
• Decision Date: 31 May 2006
• Docket Number: No. 05-20.,05-20.
• Parties: Leonard Lee HIRSCH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 586

135 P.3d 586

2006 WY 66

Leonard Lee HIRSCH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 05-20.

Supreme Court of Wyoming.

May 31, 2006.

COPYRIGHT MATERIAL OMITTED

Representing Appellant: Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina Kerin, Senior Assistant Appellate Counsel; and Wade Redmon, Student Intern. Argument by Mr. Redmon.

Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and David L. Delicath, Senior Assistant Attorney General. Argument by Mr. Delicath.

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

HILL, Chief Justice.

[¶ 1] Leonard Lee Hirsch (Hirsch) pleaded guilty to sexual assault in the third degree in violation of Wyo. Stat. Ann. § 6-2-304(a)(i)¹ (LexisNexis 2005). Prior to sentencing, he filed a motion to withdraw the plea. The district court denied the motion and sentenced Hirsch to a term of thirteen and a half to fifteen years in the Wyoming State Penitentiary. On appeal, Hirsch seeks reversal of his conviction and sentence contending that the district court committed error when it: (1) accepted his guilty plea when there was an insufficient factual basis to support it; (2) erroneously denied the motion to withdraw his guilty plea given the ineffective assistance provided by his trial counsel; (3) sentenced Hirsch without requiring a previously ordered psychosexual evaluation; and (4) considered uncharged conduct at sentencing. Finding no errors, we affirm.

ISSUES

[¶ 2] Appellant raises the following issues:

I. Was a proper factual basis established, sufficient to permit acceptance of Mr. Hirsch's guilty plea, where the district court was presented with no evidence that Mr. Hirsch "inflicted" sexual intrusion upon the victim?

II. Did the district court err by denying Mr. Hirsch's motion to withdraw his guilty plea based upon his claim of ineffective assistance of counsel?

III. Did the district court commit procedural error when it recanted its order for a psychosexual evaluation, and when it considered at sentencing alleged crimes for which Mr. Hirsch was never charged or convicted?

The State frames the issues as:

I. Contemporaneous to his guilty plea, Appellant admitted that he performed oral sex on his twelve-year-old victim. Did that admission provide the factual basis required by Wyoming Rule of Criminal Procedure 11(f)?

II. The trial court denied Appellant's motion to withdraw his guilty plea. Was that denial an abuse of the trial court's discretion?

III. The trial court elected to sentence Appellant without a psychosexual evaluation. Did the court abuse its discretion in doing so?

IV. The trial court considered Appellant's non-charged conduct in its sentencing decision. Did the court commit plain error when it did so?

FACTS

[¶ 3] Hirsch befriended his neighbors, including their twelve-year-old daughter, the victim. Hirsch would allow her to use his computer to surf the internet and check her email. They began a sexual relationship that Hirsch alleged was instigated by the victim. Over a period of months, Hirsch would perform oral sex on the victim on a weekly basis. On at least two occasions, the victim performed oral sex on Hirsch.

[¶ 4] On November 17, 2003, a felony information was filed charging Hirsch with one count of third degree sexual assault. Hirsch waived his preliminary hearing and was bound over to the district court. At his arraignment on February 4, 2004, Hirsch entered a plea of guilty. The district court ordered Hirsch to obtain a psychosexual evaluation.

[¶ 5] In March of 2004, Hirsch's trial counsel withdrew and new counsel was appointed in April. On August 3, 2004, Hirsch filed a motion to withdraw his guilty plea predicated upon a claim that his initial trial counsel rendered ineffective assistance when advising him to plead guilty. On October 13, 2004, the district court held a joint hearing on the motion to withdraw the plea and for sentencing. After hearing argument from counsel, the court denied the motion. Hirsch sought to delay sentencing on the basis that he had not yet obtained the ordered psychosexual evaluation. The court concluded that an evaluation was not required by law and proceeded to sentence Hirsch to a term of thirteen and a half to fifteen years.

[¶ 6] On October 21, 2004, Hirsch filed a Motion to Re-Sentence claiming that he had received inadequate notice of the court's intent to proceed with sentencing during the hearing on the motion to withdraw plea. The court held a re-sentencing hearing on December 8, 2004, at the conclusion of which it re-imposed the same sentence.

[¶ 7] Additional facts will be set forth as we address the claims raised by Hirsch in his appeal.

DISCUSSION

Factual Basis for Plea

[¶ 8] In his first issue, Hirsch challenges the sufficiency of the factual basis for his plea.

W.R.Cr.P. 11(f) provides:

Determining accuracy of plea.—Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.

[¶ 9] In Sami v. State, 2004 WY 23, ¶¶ 9-10, 85 P.3d 1014, 1017-18 (Wyo.2004), we said:

This Court reviews the conduct of a hearing in which a guilty plea is entered as a whole. Mehring v. State, 860 P.2d 1101, 1106 (Wyo.1993). "Our inquiry determines if the district court sufficiently described the nature of the charges, including the possible penalties; informed the defendant of the right to representation; informed the defendant of the rights waived by a guilty plea; and obtained a factual basis for the plea." Id. The intent of the procedural requirements is to prevent the individual charged with a crime from being misled into a waiver of substantial rights. Id. W.R.Cr.P. 11 requires that the district court satisfy itself that a factual basis exists for the guilty plea before accepting such plea. Rude v. State, 851 P.2d 15, 18 (Wyo.1993). A sufficient inquiry includes a determination that the defendant understood his conduct, in light of the law, to be criminal. Barnes v. State, 951 P.2d 386, 389 (Wyo.1998). Rule 11 does not require proof beyond a reasonable doubt that a defendant who pleads guilty is actually guilty nor does it require complete descriptions of the elements in accepting a plea. Mehring, 860 P.2d at 1108-09; see W.R.Cr.P. 11(b).

. . . .

. . . The trial judge may properly draw inferences from the defendant's admissions or the evidence presented by the state to satisfy all elements of the crime to which the defendant is pleading guilty. Rude, 851 P.2d at 18.

[¶ 10] Hirsch pleaded guilty to "inflict[ing] sexual intrusion on a victim under the age of sixteen years" while being at least four years older than the victim under circumstances not constituting first or second degree sexual assault.² Hirsch contends that the district court should not have accepted the plea because the factual basis was not sufficient to establish that he "inflicted" sexual intrusion³ on the victim. Hirsch contends that the statute contemplates the use or threat of force by utilizing the verb "inflicts" in subsection (a)(i), and the verb "subjects" in subsections (a)(ii)-(iii). Hirsch claims that there is nothing in the factual recitation given in support of the plea to indicate that force was present here. While acknowledging that consent is immaterial under the third degree sexual assault statute, Hirsch contends that this situation is different because the victim did not merely acquiesce in having sex with him; rather, the victim initiated the relationship. Hirsch insists that obliging the victim's request is not sufficient to "inflict⁴" sexual intrusion. According to Hirsch, his conduct was more properly characterized as a violation of the indecent liberties statute, Wyo. Stat. Ann. § 14-3-105(a) (LexisNexis 2005).⁵

[¶ 11] Initially, we note that whether or not another statute exists under which the defendant could have arguably been charged is an irrelevancy: "The prosecutor is vested with the exclusive power to determine who to charge with a crime and with what crime to charge them." DeLeon v. State, 896 P.2d 764, 768 (Wyo.1995) (citing Billis v. State, 800 P.2d 401, 417 (Wyo.1990)).

[¶ 12] In the context of circumstances prohibited under the third degree sexual assault statute, the distinction Hirsch attempts to draw between a situation in which an actor initiates sexual relations with a victim and one in which the relationship was initiated by the victim, as is alleged here, is one with no legal difference. "Sexual intercourse is without consent when, for any reason, the victim is not in a position to exercise independent judgment about the matter." Wilson v. State, 655 P.2d 1246, 1258 (Wyo.1982) (emphasis added). The third degree sexual assault statute provides an age of consent of sixteen. Moe v. State, 2005 WY 58, ¶ 13, 110 P.3d 1206, 1211 (Wyo. 2005). As a matter of law, the victim in this case had no capacity to consent to the acts Hirsch admitted engaging in with her. No act of hers could constitute a defense to the crime charged.

[¶ 13] After entering a guilty plea, Hirsch gave the following responses to the district court:

Court: Okay. And you had a young girl who was your next-door neighbor. Was she your next-door neighbor? Tell me about your interaction with the young girl on October 16th, 2003.

Hirsch: All right. I must clarify that it was not on October 16th.

Court: Okay. When was it?

Hirsch: The best I can remember it was the 10th of October.

. . . .

Court: Okay. So October 10th of 2003. And tell me what happened.

Hirsch: All right. As usual, she come over to see me, and she was on the computer for a little while.

Court: And how old is this little girl?

Hirsch: At that time she was 12.

Court: And you knew she was 12?

Hirsch: Yes, Your Honor, I did.

Court...