Ingalls v. State

• Decision Date: 20 May 2002
• Docket Number: No. 01-70.,01-70.
• Citation: 2002 WY 75,46 P.3d 856
• Parties: Dan Eugene INGALLS, Petitioner, v. The STATE of Wyoming, Respondent.
• Court: Wyoming Supreme Court

46 P.3d 856

2002 WY 75

Dan Eugene INGALLS, Petitioner, v. The STATE of Wyoming, Respondent.

No. 01-70.

Supreme Court of Wyoming.

May 20, 2002.

Sky D. Phifer, Lander, Wyoming, Representing Petitioner.

Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Robin Sessions Cooley, Senior Assistant Attorney General, Cheyenne, Wyoming, Representing Respondent.

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

VOIGT, Justice.

[¶ 1] On April 4, 1999, the petitioner, Dan Ingalls (Ingalls), was involved in an altercation with Gerald Huelle when he tried to remove his cattle from Huelle's feed grounds. For his role in the fracas, Ingalls was eventually convicted in the Fremont County Court (now circuit court) of three misdemeanors—property destruction, reckless endangering, and removal of property without the lienholder's consent. The convictions were affirmed upon appeal to the district court. On May 1, 2001, we granted Ingalls' Petition for Writ of Review. Finding error in the proceedings leading to the convictions, we reverse.

ISSUES

[¶ 2] The issues before this Court are:

1. Whether the circuit court complied with W.R.Cr.P. 11 in accepting Ingalls' pleas?

2. Whether ex parte communications occurred between the State and the circuit court that deprived Ingalls of due process?

FACTS

[¶ 3] Ingalls was charged by citation with several misdemeanors.¹ The unverified reports of the Fremont County Sheriff's office were filed along with the citations, but copies were not given to Ingalls. At arraignment, Ingalls entered not guilty pleas to all charges and informed the circuit court that he would retain private counsel. His release order included the condition that an attorney enter an appearance on his behalf within ten working days.

[¶ 4] Ingalls failed timely to have an attorney enter an appearance, so the circuit court entered an Order to Show Cause why he should not be held in contempt. At the hearing on the show cause order, Ingalls requested appointment of counsel, and the circuit court appointed a public defender to represent Ingalls. Ingalls also requested that he be supplied with a copy of the sheriff's office reports. The circuit court orally ordered the State to provide copies to Ingalls within three working days. A month later, Ingalls filed a pro se Motion to Dismiss because he had not been provided with the sheriff's office reports. The record does not reflect that the circuit court ever ruled on the motion to dismiss. Despite repeated requests to the circuit court and the prosecuting attorney, Ingalls did not get a copy of the sheriff's office reports until three months after the charges were brought.

[¶ 5] The circuit court held a scheduling conference on September 27, 1999, at which time the trial was set for November 8, 1999. The next day, Ingalls filed a Motion for Disqualification of Judge, which was later heard and denied. The trial was then reset for January 27, 2000. On that date, rather than holding a trial, the circuit judge held a conference in his chambers. The circuit judge and county attorney were present in person, while Ingalls and his attorney appeared by telephone. No verbatim recording was made of this telephone conference. A plea bargain was discussed whereby the State would amend certain charges and Ingalls would change his plea to certain charges. There was also discussion to the effect that Ingalls would change his pleas if he received no jail time. The circuit court would not "guarantee" no jail time, but agreed to order a Presentence Investigation Report, and, according to Ingalls, agreed to follow its recommendations. The Presentence Investigation Report was completed on February 18, 2000, and recommended that Ingalls receive unsupervised probation.

[¶ 6] Sentencing was held on March 14, 2000. Ingalls was sentenced to 180 days in jail for reckless endangering, and 180 days in jail for property destruction, with the sentences to run concurrently, and with all but thirty days suspended. He was also fined $100.00 for removal of property without the lienholder's consent, and was assessed court costs and a victim's compensation surcharge.

[¶ 7] Ingalls filed an appeal to the district court on March 16, 2000. Because no record was made of the proceedings held in chambers on January 27, 2000, the circuit court received submissions from Ingalls and the State to attempt to settle the record pursuant to W.R.A.P. 3.03. The circuit court accepted the State's submission and entered an Order Settling Record on September 7, 2000. That version of the record indicated that, during the telephone conference in chambers, Ingalls pled no contest to reckless endangering and guilty to both property destruction and removal of property without lienholder's consent. In affirming the convictions, the district court declined to substitute its judgment for that of the circuit court as to which version of the facts was correct, and concluded that Ingalls had failed to show violation of any substantial right.

DISCUSSION

W.R.CR.P. 11

[¶ 8] This Court adopted the Wyoming Rules of Criminal Procedure in 1968. The rules were revised and re-adopted in 1991. The purpose of the rules is set forth in W.R.Cr.P. 2:

These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.

[¶ 9] Consonant with these purposes, W.R.Cr.P. 3 and 3.1 provide that misdemeanors may be charged by citation rather than by indictment or information. Likewise, subsections (b) and (c) of W.R.Cr.P. 11 allow for less formal advisements at arraignment where a defendant charged only with a misdemeanor is represented by counsel. Nevertheless, the Wyoming Rules of Criminal Procedure contemplate certain formalities in the plea process. For instance, whether charged by indictment, information, or citation, and whether charged with a felony or misdemeanor, each defendant must be arraigned pursuant to W.R.Cr.P. 10:

Arraignments shall be conducted in open court and shall consist of reading the indictment, information or citation to the defendant or stating to the defendant the substance of the charge and calling on the defendant to plead thereto. The defendant shall be given a copy of the indictment, information or citation before being called upon to plead.

[¶ 10] It is in the acceptance of guilty and nolo contendere pleas that the judge is most strictly required to follow the dictates of the Wyoming Rules of Criminal Procedure, in general, and W.R.Cr.P. 11, in particular. Several subsections of W.R.Cr.P. 11 bear directly on the issues at hand:

(b) Advice to Defendant.—Except for forfeitures on citations (Rule 3.1) and pleas entered under Rule 43(c)(2), before accepting a plea of guilty or nolo contendere to a felony or to a misdemeanor when the defendant is not represented by counsel, the court must address the defendant personally in open court and, unless the defendant has been previously advised by the court on the record and in the presence of counsel, inform the defendant of, and determine that the defendant understands, the following:

(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law and other sanctions which could attend a conviction including, when applicable, the general nature of any mandatory assessments (such as the surcharge for the Crime Victim Compensation Account), discretionary assessments (costs, attorney fees, restitution, etc.) and, in controlled substance offenses, the potential loss of entitlement to federal benefits....

* * *

(2) The defendant has the right to be represented by an attorney at every stage of the proceeding and, if necessary, one will be appointed to represent the defendant (3) The defendant has the right to plead not guilty or to persist in that plea if it has already been made, the right to be tried by a jury and at that trial the right to the assistance of counsel, the right to confront and cross-examine adverse witnesses, the right to court process to obtain the testimony of other witnesses, and the right against compelled self-incrimination;

(4) If a plea of guilty or nolo contendere is accepted by the court there will not be a further trial of any kind, so that by pleading guilty or nolo contendere the defendant waives the right to a trial; and

(5) If the court intends to question the defendant under oath, on the record, and in the presence of counsel, about the offense to which the defendant has pleaded guilty, that the defendant's answers may later be used against the defendant in a prosecution for perjury or false statement.

(c) Waiver of advisements.—A misdemeanor defendant represented by counsel may waive the advisements required in subdivision (b).

(d) Insuring that plea is voluntary.— The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the state and the defendant or the defendant's attorney.

* * *

(f) 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.

(g) Record of proceedings.—A verbatim record of the proceedings at which the defendant enters a plea shall be made and, if there is a plea of guilty or nolo contendere, the record shall include, without limitation, the court's advice to

...