Keller v. State
| Decision Date | 27 August 1986 |
| Docket Number | No. 86-54,86-54 |
| Citation | 723 P.2d 1244 |
| Parties | Michael J. KELLER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Leonard Munker, State Public Defender, Gerald M. Gallivan, Director, argued, Wyoming Defender Aid Program, and Megan Olson, Student Intern, for appellant.
A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, S. Asst. Atty. Gen., Kevin Saxby, Student Intern, and Steven E. Sumida, argued, Student Intern, for appellee.
Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.
Appellant Michael J. Keller appeals from the denial of his motion to correct sentence.
The issue in this appeal is whether Rule 15(c), W.R.Cr.P., requires a trial judge to advise a defendant that restitution may be imposed in sentencing as an element of the maximum possible penalty.
We reverse.
Keller was arraigned on November 30, 1984, on a charge of destruction of property in violation of § 6-3-201, W.S.1977. At the arraignment, the trial judge informed Keller of the charge and the possible penalty as follows:
Keller pled not guilty.
On March 7, 1985, a change-of-plea hearing was held, and Keller changed his plea to nolo contendere. The possible penalty was not discussed at that hearing. The court did refer to the previous arraignment:
At the hearing the prosecution introduced testimony as to the amount of damage caused, but restitution was not specifically discussed. After a presentence investigation, Keller was sentenced on April 30, 1985, to a term of not less than 18 months nor more than three years. In addition, he was ordered to pay restitution in the amount of $7,928.36.
Keller filed a motion to delete the order of restitution based on the theory that Rule 15(c), W.R.Cr.P., required that he be informed that payment of restitution might be part of his maximum possible sentence. A hearing was held on January 14, 1986. The judge found that Keller had been aware of the possibility of restitution, and the failure to so advise him was harmless error. The motion was denied, and this appeal ensued.
Rule 15(c), W.R.Cr.P., provides in pertinent part:
"Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands, * * * [t]he 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."
The purpose of the rule is to allow the judge to determine that the defendant entered the plea voluntarily and with an understanding of the consequences. Hoggatt v. State, Wyo., 606 P.2d 718 (1980); Cardenas v. Meacham, Wyo., 545 P.2d 632 (1976). The question here is whether the possibility of restitution is part of the maximum possible penalty.
The State argues that restitution is not a "penalty" within the scope of Rule 15. Restitution may be imposed by the court as a part of a sentence pursuant to § 6-10-110, W.S.1977, Cum.Supp.1984. When construing statutes, we follow indications of legislative intent embodied in the words of the statute. McArtor v. State, Wyo., 699 P.2d 288 (1985); State, Dep't of Rev. & Tax., Motor Veh. Div. v. Andrews, Wyo., 671 P.2d 1239 (1983). The statute says that restitution may be imposed "in addition to any other punishment prescribed by law." In the act creating § 6-10-110, the legislature expressly stated that it intended to authorize the courts to impose restitution "in addition to other punishments." 1 We next look to ascertain if punishment is a penalty envisioned by Rule 15.
The words used in a rule must be given their plain and ordinary meaning unless otherwise indicated. City of Evanston v. Robinson, Wyo., 702 P.2d 1283 (1985). We see no reason to depart from the ordinary meaning in this instance. Implicit in the definition of the word "penalty" is the idea of punishment. Black's Law Dictionary (5th ed. 1979); see also Webster's Third International Dictionary (1981); The American Heritage Dictionary (1982); Random House Dictionary (1966). From the viewpoint of a defendant in a criminal trial, payment of restitution is as much a penalty as payment of a fine. Both require the payment of money. Both are direct
consequences of the plea. Both are punishments authorized by law. Restitution, therefore, is part of the "maximum possible penalty provided by law" for the purposes of Rule 15; and we hold that Rule 15(c) requires the trial judge to inform a defendant of the court's power to order restitution. The exact amount or upper limit of restitution need not be specified at the time of the plea since § 7-13-109, W.S.1977, Cum.Supp.1985, provides that the amount of restitution is to be determined at the time of sentencing.
Rule 15 requires that a defendant be advised of the maximum penalty before the plea is accepted. The State admits in its brief that "the trial judge did not specifically mention the maximum possible sentence at the change of plea hearing, nor did he specifically mention restitution at either plea hearing." Section 6-10-110, supra, specifically says that restitution may be a part of the sentence. The record shows that appellant was not advised of the maximum possible sentence until sentence was imposed.
The State contends that this omission was harmless error since its interpretation of the record is that appellant had actual knowledge that restitution might be imposed. At the hearing for correction of sentence, the trial judge ruled that the omission of advice on restitution was harmless error since he felt that appellant was aware of the possibility that restitution would be a part of the sentence.
The issue here is not what appellant or his counsel may have been aware of throughout the proceedings. In Cardenas v. Meachum, supra, 545 P.2d at 634, we held that the record must affirmatively...
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