Kaldwell v. State, 94-271

• Decision Date: 29 December 1995
• Docket Number: No. 94-271,94-271
• Citation: 908 P.2d 987
• Parties: Kalico KALDWELL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 987

908 P.2d 987

Kalico KALDWELL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 94-271.

Supreme Court of Wyoming.

Dec. 29, 1995.

Wyoming Public Defender Program: Sylvia Lee Hackl, State Public Defender; Deborah Cornia, Appellate Counsel; Diane M. Lozano, Assistant Public Defender, for Appellant.

William U. Hill, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Prosecution Assistance Program, Theodore E. Lauer, Director, and Gregory J. Blenkinsop, Student Intern, for Appellee.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.

THOMAS, Justice.

The sole question raised by this case is whether the district court committed an abuse of discretion in refusing to grant a motion by Kalico Kaldwell (Kaldwell) to withdraw his plea of nolo contendere. The motion was made prior to the imposition of sentence pursuant to WYO.R.CRIM.P. 32(d). Our examination of the record discloses no abuse of discretion by the trial court. We hold that the trial court properly applied the standard articulated in the rule and correctly concluded Kaldwell had failed to demonstrate any fair and just reason for the withdrawal of his plea. Even had a fair and just reason been presented, no abuse of discretion will be found if the requirements of WYO.R.CRIM.P. 11 were satisfied and the plea was intentionally, knowingly, and voluntarily entered. The Judgment and Sentence of the Court is affirmed.

In his Brief of the Appellant, Kaldwell sets forth the issue as:

Did the trial court abuse its discretion by denying Appellant's motion to withdraw his nolo contendere plea?

The State of Wyoming, in its Brief of the Appellee, restates the same issue, in substantially identical language, as follows:

Did the district court abuse its discretion in denying Appellant's motion to withdraw his plea of nolo contendere prior to sentencing?

On August 25, 1993, Kaldwell was charged by an information with two counts of delivery of marijuana in violation of WYO.STAT. §§ 35-7-1031(a)(ii) (1988) and 35-7-1014(d)(xxi) (1988). ¹ Kaldwell waived his right to a preliminary examination, was bound over to the district court, and released on his own recognizance. He failed to appear on three separate occasions, but did appear for arraignment on April 7, 1994, and then entered a plea of not guilty. The record discloses the following dialogue on that occasion (emphasis added):

THE COURT: Are you presently under the influence of alcohol or drugs?

THE DEFENDANT: No, sir.

THE COURT: Do you have any mental illness or deficiency that would prevent you from understanding these proceedings?

THE DEFENDANT: No, sir.

THE COURT: Or that would prevent you from intelligently, knowingly, and voluntarily entering a plea to the charges?

THE DEFENDANT: No, sir.

Subsequently, a plea agreement was reached between the State and Kaldwell and, on May 27, 1994, Kaldwell appeared for the purpose of changing his plea. On that occasion, the trial judge advised Kaldwell of: the nature of the charges against him; the mandatory minimum and maximum penalties provided by law; the assessments that could be levied at sentencing; the ramifications of a nolo contendere plea; his right to be represented by an attorney at every stage of the proceeding; his right to persist in his plea of not guilty and proceed to a jury trial where he would have the right to assistance of counsel and the presumption of innocence; the right to confront and cross-examine adverse witnesses; the right to subpoena other witnesses and produce evidence on his behalf; the right to be free of self-incrimination; and the right to an appeal should he be found guilty. There is no contention that Kaldwell did not receive the advice from the court required by WYO.R.CRIM.P. 11. Significantly, at both the original arraignment and the proceeding at which he changed his plea, he was advised of the potential of a prison sentence. Kaldwell did enter a plea of nolo contendere at that time, and there followed a demonstration of the factual basis for Kaldwell's plea of nolo contendere.

On August 12, 1994, in open court, Kaldwell asked to withdraw the plea of nolo contendere, asserting he had entered the plea to secure his release from jail. The judge recalled the plea had been voluntary and unconditional, but he agreed to review the transcript of the proceeding. The judge stated, "[i]f there's some glitch in the transcript of those proceedings, I'll certainly consider it [allowing the withdrawal of the plea of nolo contendere]."

On August 23, 1994, after the trial court had reviewed the transcript of the proceeding in which Kaldwell entered his plea of nolo contendere, it denied Kaldwell's motion to withdraw his plea. Kaldwell's defense counsel was granted leave to withdraw from representation because of the possibility he could be called as a witness regarding the motion to withdraw the plea. Kaldwell's replacement counsel filed a written motion to withdraw the plea of nolo contendere on August 29, 1994. The hearing on that motion was held on September 1, 1994, and the motion was again denied. On September 2, 1994, Kaldwell was sentenced to a term of not less than twenty, nor more than thirty, months in the Wyoming state penitentiary. He appealed from that judgment and sentence.

In Wyoming, withdrawal of a plea of nolo contendere is provided for in WYO.R.CRIM.P. 32(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. (Emphasis added.)

In Dichard v. State, 844 P.2d 484, 486 (Wyo.1992), we said:

As indicated by the rule's permissive tenor, whether or not to permit a withdrawal of a guilty or nolo contendere plea lies within the discretion of the district court. See, e.g., Reay v. State, 800 P.2d 499 (Wyo.1990).

The action of the trial court in denying a motion to withdraw a plea of guilty is to be set aside only for abuse of that recognized discretion. Dichard.

In Reay v. State, 800 P.2d 499, 500 (Wyo.1990) (citing Zanetti v. State, 783 P.2d 134, 137 (Wyo.1989), we approved the district court's conclusion that "[a] defendant seeking to withdraw his guilty plea prior to sentencing must present a plausible reason for withdrawal." We have clarified, both prior to and following Reay, the interaction between WYO.R.CRIM.P. 11 and WYO.R.CRIM.P. 32 with respect to withdrawal of a plea:

Withdrawal of a plea of guilty before sentencing is not an absolute right. Denial by the district court is within its sound discretion and there must be a plausible reason for withdrawal. United States v. Webster, 9 Cir.1972, 468 F.2d 769, cert. den., 410 U.S. 934, 93 S.Ct. 1385, 35 L.Ed.2d 597; United States v. Valdez, 5 Cir.1971, 450 F.2d 1145. See also United States v. Needles, 2 Cir.1973, 472 F.2d 652. Where an exhaustive voir dire of defendant before accepting plea makes it abundantly clear that the plea was entered voluntarily, with full understanding of its consequences, and there is a factual basis, there is no abuse of discretion. United States v. Fernandez, 2 Cir.1970, 428 F.2d 578. When a patient and understanding judge gives every consideration to a defendant's change of position the day before trial and the defendant attempts to mock the administration of justice, there is no abuse of discretion. Burnett v. United States, 10 Cir.1968, 404 F.2d 29.

Ecker v. State, 545 P.2d 641, 642 (Wyo.1976).

In Triplett v. State, 802 P.2d 162, 165 (Wyo.1990), we expressed the rule in this way:

In Schmidt [Schmidt v. State, 668 P.2d 656 (Wyo.1983) ], this court held that simply the presentation of a plausible reason to withdraw the plea of guilty does not establish an abuse of discretion in denying the motion. In that case, the court ruled that abuse of discretion is not demonstrated even if a "plausible" or a "just and fair" reason for withdrawal is presented if the requirements of Rule 15 [now Rule 11], W.R.Cr.P., have been met and the record is clear that the defendant intelligently, knowingly, and voluntarily entered into his plea of guilty. If those criteria are satisfied, it is not an abuse of discretion to refuse to allow withdrawal of the plea. See also Osborn [Osborn v. State, 672 P.2d 777 (Wyo.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1331, 79 L.Ed.2d 726 (1984) ]; Ecker [Ecker v. State, 545 P.2d 641 (Wyo.1976) ].

Triplett and our other cases make clear that a defendant has no absolute right to withdraw his plea of guilty prior to sentencing. These are the pertinent standards in this case.

The hearing on the written motion to withdraw the plea of nolo contendere, filed by Kaldwell's replacement counsel, included both direct and cross-examination of Kaldwell. Kaldwell testified he had entered his plea of nolo contendere because the original attorney "told me to plead guilty to the charge and I could go home." Kaldwell said he believed he then would be permanently released from the charges. The judge said:

I think what we have here is a serious question of credibility as to what's happened here on the stand today from the defendant. It looks to me like it's a case of recent fabrication, that he has this frame of mind that he really didn't know that he would be up for sentencing. He should have known back in May that there were sentencing consequences, for a variety of reasons.

First, the court advised him of that fact.

Secondly, he was asked to go to the probation department and do a presentencing report.

Thirdly, when he was brought back to this court in return of a bench warrant, the probation agent--and I recall very vividly at that hearing, I told Mr. Kaldwell, "you don't have to cooperate if you don't want to, but it is something the court will take into account at your...