Holcomb v. State
| Decision Date | 16 August 2007 |
| Docket Number | No. 06-288.,06-288. |
| Citation | 2007 WY 131,165 P.3d 105 |
| Parties | Edward Allen HOLCOMB, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Nicholas H. Carter and Kurt A. Infanger of Carter Law Office, P.C., Gillette, Wyoming.
Representing Appellee: Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Paul S. Rehurek, Senior Assistant Attorney General.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶ 1] This is an appeal from the sentence imposed upon the appellant after he pled guilty to felony stalking pursuant to a plea agreement. The issue presented is whether the district court abused its discretion or erred as a matter of law when, prior to sentencing, it denied the appellant's motion to withdraw his plea. We reverse.
[¶ 2] At a change-of-plea hearing in district court, the appellant pled guilty to felony stalking. He did so pursuant to a plea agreement, the primary term of which was that "we have agreed to propose to the sentencing judge that he be considered for deferral under 7-13-301."1 The district court accepted the guilty plea, but did not enter a conviction, pending completion of a presentence investigation report. With specific regard to deferred prosecution, the following colloquy occurred:
[¶ 3] Later in the hearing, after a factual basis for the crime was established, the district court went to great lengths to detail for the appellant what would happen if he received deferred prosecution and what would happen if he did not receive deferred prosecution:
Now those are both possible, ten years in jail to which a fine of up to $10,000 could be added if you don't receive the deferral under Section 7-13-301.
And I want to explain to you as best I can under the proceedings today what the differences are. I'm sure you and [Defense Counsel] have gone over those, but I want the record to be clear that you've heard those today.
There is a difference between getting the deferral and not getting the deferral. Now in some of the things there's no difference, in some of the things there is a big, big difference. I'll start out with one of the big differences.
If you get a deferral, there would be no jail sentence or a fine. And if you comply with the probation, there would never be a jail sentence or a fine, okay? But if you don't get the deferral, both of those are possible.
Under either situation there would be an assessment of $10 court costs; under either situation there would be an assessment for the Victims of Crime Compensation Fund in the minimum amount of $100. Under either situation you could be required to make restitution.
There are additional consequences under either situation. First of all, under either situation your guilty plea would be part of your criminal record, and a criminal record is permanent. And that would be the case even if you get the deferred, because it would be part of the criminal record showing that you pled guilty and that you got the deferred, and it would always be there even if you were successful in getting the deferred. And the reason is, you're only allowed to have one in your lifetime, so they keep a record of it so to make sure that a person doesn't accident[al]ly get two. And because of that, it could be someone might feel that you are not a good risk for employment, deferred or not deferred. And under either situation it could have a negative affect upon your reputation in the community.
Now if you get or don't get the deferred, the civil rights you lose are the right to vote, right to serve on a jury, right to hold public office. Those rights would be lost until you received a pardon or restoration of rights, and there's no guarantee that you would get that. And even if you are successful in probation, those rights would never be restored, they are lost under either. You lose the right to possess or use weapons. If you were on probation or parole even from a different court or a different jurisdiction, your probation or parole could be revoked. If you are on probation for a felony, you won't be eligible for a deferred; you have to have no prior felonies to be eligible.
If you plead guilty, you give up your right to complain about any errors or omissions in the charging documents, except that they failed to charge a crime.
The last thing I want to mention if there is a conviction and no deferred, you will have to submit a blood or tissue sample for DNA testing and record-keeping. Those are the main consequences, although there would be others if you enter a plea of guilty. And it would, depending upon the consequences, there would not be a difference of whether you get the deferred or not get the deferred.
Do you feel that you understand these consequences?
[¶ 4] In addition, during another lengthy explanation of the effect of entering a guilty plea, the judge further detailed that the plea agreement entailed a recommendation for the sentencing judge to consider deferred prosecution:
THE COURT: A guilty plea gives up the right to a trial. There would be no confrontation of witnesses, no evidence presented; the only issue would be what sentence should be imposed. Although in your case it recommends a deferral, the Court would consider that, but first, as I told you before, once the Court makes a decision on any of that, you won't be able to change your mind....
Finally, in summing up after accepting the plea and the factual basis, the court stated that it would "not enter the conviction in order to give possible consideration, or to give consideration to the expected recommendation for the deferred under Section 7-13-301."
[¶ 5] Unfortunately for the appellant's prospects under his plea agreement, the presentence investigation report indicated that in 1999, he had received a "deferred judgment" in a Colorado case involving disturbing the peace and interference with police authority, both misdemeanors. Thus, as the parties appear later to have agreed, he was ineligible from the outset for deferred prosecution under Wyoming's statute.
[¶ 6] Prior to sentencing, the appellant filed a motion under W.R.Cr.P. 32(d) for permission to withdraw his plea. In his motion, the appellant explained that an attorney had handled the Colorado charges for him and that he was not aware that he had received the equivalent of a Wyoming deferred prosecution. W.R.Cr.P. 32(d) provides as follows:
(d) Plea withdrawal. — If a motion for withdrawal of a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason. At any later time, a plea may be set aside only to correct manifest injustice.
[¶ 7] The State contested the appellant's motion by arguing that: (1) the State was unaware of the Colorado disposition when it entered into the plea agreement; (2) the appellant was in the best position to have knowledge of the Colorado disposition; and (3) the court had explained to the appellant that he would not be allowed to withdraw his plea if the court did not accept the plea agreement. The district court denied the motion without a hearing, concluding in its decision letter that the appellant had not shown a "fair and just reason" to permit withdrawal of his plea. The court then sentenced the appellant to a term of 18 to 48 months in the custody of the Department of Corrections, but suspended that sentence in favor of probation.
[¶ 8] A general statement of our role in reviewing the denial of an appellant's motion to withdraw a guilty plea is found in Burdine v. State, 974 P.2d 927, 929-30 (Wyo. 1999):
A defendant has no absolute right to withdraw his plea of guilty prior to sentencing. Grady v. State, 914 P.2d 1230, 1232 (Wyo. 1996); Kaldwell v. State, 908 P.2d 987, 990 (Wyo.1995). The discretion afforded to the trial court will not be deemed abused in those cases where "the requirements of W.R.Cr.P. 11 have been met and the record is clear that the defendant intelligently, knowingly, and voluntarily entered into his plea of guilty." Kaldwell, supra., quoting Triplett v. State, 802 P.2d 162, 165 (Wyo.1990).
(Footnote omitted.) Stating the test somewhat differently, we said the following in Herrera v. State, 2003 WY 25, ¶ 10, 64 P.3d 724, 727 (Wyo.2003):
Decisions concerning whether a trial court properly denied a motion for withdrawal of a guilty plea, either pre-sentence or post-sentence, are determined under an abuse of discretion standard of review. In deciding...
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