Jackson v. State, S–11–0145.
| Decision Date | 11 April 2012 |
| Docket Number | No. S–11–0145.,S–11–0145. |
| Parties | Victor Everett JACKSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
OPINION TEXT STARTS HERE
Representing Appellant: Diane Lozano, State Public Defender, PDP; Tina N. Olson, Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.
Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Meri V. Geringer, Senior Assistant Attorney General.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
[¶ 1] Victor Everett Jackson pled guilty to one count of third degree sexual assault in exchange for the State's agreement to request probation under Wyo. Stat. Ann. § 7–13–301 (LexisNexis 2009). The district court placed him on supervised probation for five years. Six months later, the State filed a petition to revoke his probation but proceedings on the petition were delayed. A year later, Mr. Jackson filed a motion to withdraw his guilty plea asserting that the victim of the assault had identified someone else as the perpetrator. The district court denied the motion and entered an order revoking probation. The district court entered judgment and imposed a sentence of four to five years. Mr. Jackson appealed, claiming the district court abused its discretion in denying his motion to withdraw his guilty plea. We affirm.
[¶ 2] Mr. Jackson claims the district court abused its discretion and violated his right to due process when it denied his motion to withdraw his guilty plea. The State responds that the district court properly exercised its discretion when it denied the motion.
[¶ 3] Mr. Jackson was arrested in July of 2007 on two counts of third degree sexual assault in violation of Wyo. Stat. Ann. § 6–2–303(a)(v) (LexisNexis 2005) and § 6–2–304(a)(iii) (LexisNexis 2003). The affidavit of probable cause alleged that, two years earlier, when Mr. Jackson was sixteen years old, he had sexual contact with a five year old girl. At his arraignment, Mr. Jackson pled not guilty to the charges. He subsequently filed a motion to transfer the case to juvenile court. After a hearing, the district court denied the motion to transfer.
[¶ 4] The parties reached a plea agreement pursuant to which Mr. Jackson agreed to plead guilty to one count of third degree sexual assault and the State agreed to dismiss the second count and recommend disposition of the case under § 7–13–301.1 The district court convened a hearing at which time Mr. Jackson entered a plea of guilty to one count of third degree sexual assault. The district court asked who would present the factual basis for the plea and the prosecutor stated that he would. He then recited the evidence the State intended to present at trial. The court asked defense counsel if he was satisfied the evidence would be as stated by the prosecutor; defense counsel stated that he was. Several months later, the district court entered a judgment and sentence placing Mr. Jackson on probation for five years pursuant to § 7–13–301.
[¶ 5] Six months later, the State filed a petition for revocation of probation asserting that Mr. Jackson had violated the terms of his probation in several ways. For various reasons, no proceedings occurred with respect to the petition and, a year later, Mr. Jackson filed a motion to withdraw his guilty plea. He alleged the victim had recanted her statement that he assaulted her and named another individual as the assailant. He attached to his motion a three page statement written by the victim in 2010, three years after the assault, in which she asserted she was coerced into naming Mr. Jackson as the assailant when in fact someone else had assaulted her. He asserted this was new evidence that he could not have discovered earlier. After a hearing, the district court denied the motion, finding that the evidence was not newly discovered, but was known to Mr. Jackson at the time his conviction was deferred and he was placed on probation because a similar statement made by the victim's mother was contained in the pre-sentence investigation report (PSI) which he had received prior to the deferral. Subsequently, the district court revoked Mr. Jackson's probation and imposed a sentence of four to five years with a recommendation for boot camp. Mr. Jackson appealed.
[¶ 6] We review a district court's decision to deny a motion to withdraw a guilty plea for an abuse of discretion. Winsted v. State, 2010 WY 139, ¶ 6, 241 P.3d 497, 499 (Wyo.2010). In determining whether there has been an abuse of discretion, we focus on the “reasonableness of the choice made by the trial court.” Id., quoting Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998). If the trial court could reasonably conclude as it did and the ruling is one based on sound judgment with regard to what is right under the circumstances, it will not be disturbed absent a showing that some facet of the ruling is arbitrary or capricious. Id.
[¶ 7] In asserting error in the denial of his motion to withdraw his guilty plea, Mr. Jackson argues first that the requirements of W.R.Cr.P. 11 were not satisfied before he entered his initial plea at the arraignment or later when he changed his plea to guilty.2 Rule 11 provides in relevant part:
(b) Advice to defendant.—... before accepting a plea of guilty ... to a felony ... 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....
....
(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 ... is accepted by the court there will not be a further trial of any kind, so that by pleading guilty ... 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.
....
(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.
....
(h) Harmless error.—Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.
(Emphasis added.)
[¶ 8] Mr. Jackson contends these requirements were not met at his arraignment because the court asked him only whether he had received a copy of the information, whether he was fully aware of the allegations contained in it and how he intended to plead to the charges. By its express language, the requirements of Rule 11(b) apply before a court accepts a guilty plea. At his arraignment, Mr. Jackson pleaded not guilty; therefore, Rule 11 did not apply. W.R.Cr.P. 10, which governs arraignments, provides:
Arraignments shall be conducted in open court and shall consist of reading the ... information ... 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 ... information ... before being called upon to plead.
In Mr. Jackson's case, defense counsel waived the reading of the information. In response to the court's questions, Mr. Jackson stated that he had been served with a copy of the information, was fully aware of the allegations against him and was pleading not guilty. This satisfied the requirements of Rule 10.
[¶ 9] Turning to the change of plea hearing, Mr. Jackson asserts the court did not advise him before he entered a guilty plea that any admissions he made could be used against him in later proceedings, but then, in considering his motion to withdraw his guilty plea, used the plea itself against him in denying his motion. Mr. Jackson also maintains Rule 11(b)(5) contemplates that statements by a defendant will be made under oath, which did not occur, and the factual basis for his plea was insufficient under Rule 11(f) because he did not testify and no evidence was presented. Given these omissions, he contends it is not clear that his plea was voluntary and knowingly entered as Rule 11(d) is intended to insure.
[¶ 10] As reflected in paragraph 7 above, Rule 11(b)(5) requires the district court to inform the defendant and determine that he understands that if the court questions him under oath about the offense to which he has pleaded guilty, his answers...
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