Keller v. State
| Docket Number | S-23-0264 |
| Decision Date | 01 July 2024 |
| Citation | 551 P.3d 465 |
| Parties | Andrew James KELLER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Appeal from the District Court of Natrona County, The Honorable Daniel L. Forgey, Judge
Representing Appellant: Andrew James Keller, pro se.
Representing Appellee: Bridget Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen R. Jones, Senior Assistant Attorney General; John J. Woykovsky, Senior Assistant Attorney General.
Before FOX, C.J., and BOOMGAARDEN, GRAY, FENN, and JAROSH, JJ.
[¶1] Andrew James Keller pled guilty to conspiracy to deliver methamphetamine. He filed two appeals related to that conviction, which this Court consolidated and ruled on in Keller v. State, 2024 WY 71, 551 P.3d 450 (Wyo. 2024) (Keller I). While released on bond and awaiting sentencing on the conspiracy charge, Mr. Keller committed additional drug-related offenses. He was arrested, tried, and convicted by a jury and now appeals that conviction. We affirm.
[¶2] We consolidate and reframe Mr. Keller’s issues as follows:
1. Did Mr. Keller meet his burden of establishing that his counsel was ineffective in advising him to waive his preliminary hearing?
2. Did Mr. Keller waive the defect he claims in the preliminary hearing because he did not raise it before trial?
3. Does res judicata bar Mr. Keller’s claim that his public defender’s alleged conflict of interest deprived him of effective assistance of counsel?
4. Was Mr. Keller denied his Sixth Amendment rights to confrontation or to compulsory process?
5. Did Mr. Keller waive his challenge to the validity of the search warrant executed on his property?
6. Did the district court properly assist Mr. Keller with his claims of inadequate access to legal resources and materials to prepare for trial and present evidence in his defense?
7. Did the prosecutor commit misconduct?
[¶3] In September of 2022, Mr. Keller posted bond after pleading guilty to one count of conspiracy to deliver methamphetamine and was released pending sentencing. During his release, the Wyoming Department of Criminal Investigations (DCI) received information that he was selling methamphetamine out of his auto shop, and it obtained a warrant to search the shop. On December 30, 2022, DCI arrested Mr. Keller and executed the search warrant. Agents found over $4,500 in cash on him, and in the shop, they found 422 grams of methamphetamine in large and small shards, and drug paraphernalia, such as one-by-one baggies and digital scales. The State charged Mr. Keller with conspiracy to deliver methamphetamine and possession of methamphetamine with intent to deliver.1
[¶4] Later that day, DCI agents advised Mr. Keller of his Miranda rights and interviewed him. In the recorded interview, Mr. Keller admitted some of the cash found on his person was from methamphetamine sales.
[¶5] At his initial appearance on January 4, 2023, the circuit court asked Mr. Keller:
Judge: Do you wish to have a Public Defender appointed to represent you?
[Mr. Keller]: No.
Judge: You’ll be hiring your own attorney?
[Mr. Keller]: Yeah[.]
…
Judge: Not working and, I’ll go ahead and appoint the Public Defender’s Office to represent you in this matter.
[Mr. Keller]: I said I didn't want the Public Defender’s Office reviewing anything pertinent to this case.
Judge: Well they'll be appointed because you’re not employed and you don’t have funds to hire an attorney and you need an attorney at your preliminary hearing. So they will be appointed at this point. You can hire your own attorney if you are able to do that and remove them from the case, okay?
[Mr. Keller]: For the record, I don’t want the Public Defender's Office reviewing anything pertinent to this case.
Judge: Yep, I understand that, but you are being appointed a Public Defender.
The circuit court entered an order appointing the State Public Defender’s Office to represent Mr. Keller. Mr. Keller did not submit an affidavit of indigency; he signed the affidavit of defendant on the court’s order with an "X" and "R.T.S."2
[¶6] Damon DeBernardi, a contract attorney with the Public Defender’s Office, filed his entry of appearance on behalf of Mr. Keller. At the time, Mr. DeBernardi was also Mr. Keller’s counsel of record for his prior conspiracy charge. Mr. DeBernardi filed a Waiver of Preliminary Hearing, which he and Mr. Keller had signed, and which specified that Mr. Keller was represented by Mr. DeBernardi. The circuit court entered an order finding that Mr. Keller was represented by Mr. DeBernardi and that he had waived his preliminary hearing. The case was bound over to the district court.
[¶7] On March 1, 2023, the district court arraigned Mr. Keller on the new drug charges. Mr. Keller was present, represented by Mr. DeBemardi, and pled not guilty to each charge. Mr. DeBernardi informed the court his contract with the Public Defender’s Office had ended and that there would be a substitution of counsel. The court later granted Mr. DeBernardi’s Motion to Withdraw and appointed Marty Scott, Senior Assistant Public Defender, to represent Mr. Keller.
[¶8] After Mr. Scott’s appointment, Mr. Keller filed a change of representation motion, and Mr. Scott filed a motion to withdraw as counsel. At the hearing on the motions, Mr. Keller asserted that the Public Defender’s Office was "representing informants," that there was "no way that they [could] properly represent [his] interests," and that "the whole Public Defender’s Office [was] conflicted." Mr. Scott responded that he did not believe there was any conflict of interest but noted that the circuit court appointed the Public Defender’s Office over Mr. Keller’s objection. Mr. Scott also explained the process of conflict checks for the Public Defender’s Office. Mr. Cole, an assistant public defender, added that the Public Defender’s Office had contacted the District Attorney’s Office to ensure the confidential informants in this case did not cause Mr. Scott to have a conflict of interest in his representation of Mr. Keller. The district court ruled that there was not "a sufficient basis" to substitute a different public defender because the court did not "see a sufficient, ethical issue that’s been specifically identified that would require [the court] to do that."
[1] [¶9] When Mr. Keller requested to proceed pro se the court held a Faretta hearing.3 The court cautioned Mr. Keller on the challenges of proceeding pro se, including that he may not have the specialized training and experience that a lawyer would in defending criminal cases; he may not know all of the "rules that come into play in the legal process;" he may not have the training lawyers receive in the "examination of witnesses" which "[could] be critical to [his] defense;" and he "may be unaware of the changes in the law… particularly where [he was] incarcerated at this time." Mr. Keller said he understood these warnings. He confirmed three times that he wanted to represent himself, and the court found that Mr. Keller knowingly and voluntarily waived his right to counsel and that he could proceed pro se.
[¶10] Mr. Keller’s trial was originally set for May 30, 2023, which would have been approximately two weeks after he had elected to proceed pro se. But the court set a status conference to allow Mr. Keller time to view discovery and for the parties to discuss whether Mr. Keller would need additional time to prepare for trial. At that status conference, Mr. Keller expressed concerns with certain aspects of trial preparation due to his incarceration. He had not been able to view the discovery that had been provided to him on a hard drive, and he had not received mail and materials related to his case. The court confirmed that Mr. Keller still wanted to proceed with a jury trial now that he was representing himself and offered to contact the jail about Mr. Keller’s need to view the discovery. The court also found good cause to vacate Mr. Keller’s original trial date and set it for later.
[¶11] The court held another status conference, where the court confirmed that Mr. Keller had been able to view the discovery. However, at that status conference, Mr. Keller complained the jail law library only gave him access to "case law and references to defenses that weren’t effective in overturning the decision." He also complained he was not able to gather information for his defense or speak with his witnesses because "everything in that jail is monitored and recorded." At the end of that conference, the court asked Mr. Keller if he would be ready for trial, and Mr. Keller responded:
[¶12] Mr. Keller filed a motion to suppress the statements he made during his post-arrest interview with DCI, arguing that his statements were coerced. After a hearing on the motion, the court denied it, finding by a preponderance of the evidence that Mr. Keller’s statements were given voluntarily. Mr. Keller did not raise an issue related to the search warrant executed on his property in either his motion to suppress or the hearing on the motion.
[¶13] Before trial, the State filed a Notice Regarding Potential Fifth Amendment Issues of Potential Witnesses. The State indicated that Mr. Keller’s witnesses, including Tristany Laramendy, were all believed or suspected of having bought methamphetamine from Mr. Keller. The State asserted:
These potential witnesses may need to have certain rights afforded to them prior to testifying. The State believes that the advisement of any person who may make potentially incriminating statements, under oath, in open court should be afforded the opportunity to seek counsel regarding their rights to testify. The State believed that these advisements should be done in advance of testimony and outside the presence of the jury.
The court deferred ruling on the matter until trial.
[¶14] On the first morning of...
To continue reading
Request your trial