Major v. State

Decision Date28 January 2004
Docket NumberNo. 02-233.,02-233.
Citation2003 WY 4,83 P.3d 468
PartiesSargent K. MAJOR, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Representing Appellant: Diane E. Courselle, Director, Wyoming Defender Aid Program; Lindsay Hoyt, Student Director; and K. Adam Christian Jr., Student Intern.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Paul S. Rehurek, Deputy Attorney General.

Before HILL, C.J., and GOLDEN, LEHMAN, and VOIGT, JJ., and YOUNG, D.J.

YOUNG, District Judge.

[¶ 1] Sargent Major (Appellant) contends that his plea of nolo contendere to one count of kidnapping should have been rejected by the district court because it was not knowingly and voluntarily given. He also argues that the district court erred in denying his pro se motion to withdraw his plea. We affirm.

ISSUES

[¶ 2] Appellant states the issues on appeal as:

Did the district court err in accepting Mr. Major's no contest plea to the kidnapping charge when the record did not demonstrate that the plea was knowing and voluntary?
Did the district court abuse its discretion in denying Mr. Major's presentence motion to withdraw his guilty [sic] plea?

The State's statement of the issues is substantively identical to Appellant's.

FACTS

[¶ 3] On December 4, 2000, Appellant and a companion escaped from the Wyoming Honor Conservation Camp in Weston County. Three days later, the escapees entered the garage of an isolated home as the elderly woman who resided there returned. After taking her credit cards and some cash, Appellant and his companion forced her to accompany them in her car on a cross-country trip. The group drove from Wyoming to Lansing, Michigan, where Appellant's companion went his own way. Thereafter, Appellant and the victim began to head back west. They were stopped in Junction City, Kansas, where Appellant was arrested and the victim, who was not physically harmed during the ordeal, was freed.

[¶ 4] An Information dated December 10, 2000, charged Appellant with one count of escape in violation of Wyo. Stat. Ann. § 6-5-206(a) (LexisNexis 2003). A second Information was filed on January 25, 2001, charging Appellant with five felonies: (1) aggravated burglary in violation of Wyo. Stat. Ann. § 6-3-301(a) and (c)(i) (LexisNexis 2003); (2) larceny in violation of Wyo. Stat. Ann. § 6-3-402(a) and (c)(i) (LexisNexis 2003); (3) aggravated robbery in violation of Wyo. Stat. Ann. § 6-2-401(a)(ii) and (c)(ii) (LexisNexis 2003); (4) kidnapping in violation of Wyo. Stat. Ann. § 6-2-201(a)(ii) or (iii) and (d) (LexisNexis 2003); and (5) kidnapping in violation of Wyo. Stat. Ann. § 6-2-201(a)(i), (ii) or (iii) and (d). At arraignment, Appellant pleaded not guilty and not guilty by reason of mental illness or deficiency to all charges.

[¶ 5] At the request of Appellant's appointed counsel, several psychiatric examinations were performed on Appellant. A forensic psychologist, who was designated by the defense, concluded that Appellant suffered from some "relatively mild neuro-psychological deficits" but "this mental illness did not interfere with his capacity to appreciate the wrongfulness of his conduct at the time of the alleged criminal conduct." The evaluation concluded that Appellant was competent to stand trial.

[¶ 6] As the proceedings progressed toward trial, Appellant began to express complaints about the performance of his appointed counsel. Appellant directed his complaints to the Wyoming State Bar and the district court. He requested removal of counsel and the appointment of a substitute. On March 18, 2002, the district court held an ex parte hearing with Appellant and his counsel. Appellant had expressed his opposition to a defense based upon a claim of mental illness or deficiency. Defense counsel responded that based upon his contacts with Appellant and the facts of the case, he thought it was the most viable defense.1 Next, Appellant complained that defense counsel did not communicate with him. At the time, Appellant was in the Wyoming State Penitentiary serving the sentence that was the basis for his presence in the Honor Camp at the time of his escape. Appellant had also spent significant time at the state hospital undergoing a mental health evaluation. Defense counsel cited both of these factors as reasons for limited visitations with Appellant. However, he also noted that he had contacted Appellant by phone and in person, and that Appellant was misrepresenting the frequency of the contacts. During the discussion of this matter, it became apparent that part of the communication problem related to actions taken by personnel at the penitentiary. The court directed the State to intervene and help alleviate some of the conditions about which Appellant was complaining. Appellant then complained that his counsel had a conflict of interest because counsel had a relationship with the victim. Defense counsel explained that he had known the victim's late husband, who had been a prosecutor in Weston County for many years. Counsel had noted that he met the victim only once at a conference many years ago. He indicated that his passing acquaintance with the victim had worked to the defense's advantage since the victim consented to an interview.

[¶ 7] Appellant's final, and main, complaint was that defense counsel had failed to investigate a potential defense that he wanted to pursue. Specifically, he insisted that the victim was not kidnapped because she had accompanied him voluntarily. Appellant contended that there were various witnesses2 in Michigan who could confirm that the victim had several opportunities to escape or to inform third parties that she was being held against her will, but she never did either. Counsel countered that to the extent he had been able to locate any of the witnesses, they simply did not support Appellant's story. Counsel also noted that the victim completely denied Appellant's allegations and he just did not believe Appellant was advancing a plausible defense. At that point in the hearing, Appellant informed the court that he thought his counsel was a good lawyer, that he did not want him replaced, and that all he really wanted was for the witnesses he had identified to be contacted. Defense counsel replied that he would attempt to do so, though he was not optimistic about locating them or that they would support Appellant's position. After hearing all of this, the district court concluded that it would not allow defense counsel to withdraw absent a competent replacement. Appellant concurred in the decision noting that his preference was to retain his current counsel.

[¶ 8] Eleven days later, a change of plea hearing was held. Appellant appeared and entered a plea of guilty to the escape charge. After the district court accepted the plea, Appellant complained about his attorney and requested a new one to handle the remaining charges against him. The crux of Appellant's complaint was that counsel was not going to call the witnesses from Michigan to testify at trial. Defense counsel explained that he could not locate some of the witnesses and those that he had found either could not remember Appellant or their stories did not agree with Appellant's. The court noted that Appellant had said he wanted to retain defense counsel at the March 18 hearing and that there was no reason to allow a change of counsel at such a late date just four days before the scheduled trial on April 1. Accordingly, the court denied Appellant's request for new counsel.

[¶ 9] After a short discussion with Appellant about the consequences of self-representation, the court asked if there was anything else, at which point Appellant replied, "Yeah. How can I get all this mess settled now, right here right now?" The hearing was recessed so that Appellant could consult with counsel. When the hearing resumed, the parties announced that a plea agreement had been reached. In exchange for a no contest plea to a single count of kidnapping, the State agreed to dismiss the other four pending counts against Appellant.3 After reviewing the proposed plea agreement, the court questioned Appellant on whether he understood the agreement and the attendant consequences. Appellant repeatedly insisted that he understood the plea and that it was what he wanted to do. The district court noted that the plea was being made with a complete understanding by Appellant of the pending charges and the attendant penalties, along with the rights that were being waived by making the plea. The court then accepted the no contest plea.

[¶ 10] Appellant's sentencing hearing commenced on August 21, 2002. Just prior to the hearing, Appellant presented to the court and counsel a pro se motion to withdraw his no contest plea on the kidnapping charge. The sole basis of the motion was a contention by Appellant that he had been denied his constitutional right to adequate legal representation. The crux of Appellant's motion was the allegation that defense counsel had failed to develop a defense based on the existence of exculpatory witnesses identified by Appellant. When the court asked Appellant if he wanted to elaborate on his motion, he declined saying that the motion was self-explanatory. After hearing from the State, the district court concluded that Appellant had received adequate representation, and that there was no fair or just reason to allow withdrawal of the plea. The court proceeded to sentence Appellant, who has now brought this appeal challenging the validity of his no contest plea to kidnapping.

STANDARD OF REVIEW

[¶ 11] For purposes of appellate review, a nolo contendere plea is functionally equivalent to a guilty plea. Becker v. State, 2002 WY 126, ¶ 11, 53 P.3d 94, ¶ 11 (Wyo. 2002) (citing Ochoa v. State, 848 P.2d 1359, 1361 (Wyo.1993)). A guilty plea must be made knowingly and voluntarily. Id. (quoting McCarty v. State, 883 P.2d 367, 372 ...

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