McCarty v. State, No. 93-147

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore GOLDEN; TAYLOR
Citation883 P.2d 367
PartiesCharles John McCARTY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Docket NumberNo. 93-147
Decision Date25 October 1994

Page 367

883 P.2d 367
Charles John McCARTY, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
No. 93-147.
Supreme Court of Wyoming.
Oct. 25, 1994.

Page 369

Leonard D. Munker, State Public Defender, and Deborah Cornia, Appellate Counsel, Cheyenne, Representing appellant.

Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., and D. Michael Pauling, Sr. Asst. Atty. Gen., Cheyenne, Representing appellee.

Before GOLDEN, C.J., and THOMAS, CARDINE, * MACY, ** and TAYLOR, JJ.

TAYLOR, Justice.

Appellant contends the district court erred when it accepted his guilty plea to a charge of aggravated assault and battery without following the requirements of the Wyoming Rules of Criminal Procedure. Appellant also argues the district court abused its discretion in failing to grant a motion to withdraw his guilty plea prior to sentencing. On other matters, appellant claims the district court erred in denying a motion for appointment of substitute counsel and failed to grant adequate credit for time served in presentence incarceration.

We affirm.

I. ISSUES

Appellant submits these issues:

ISSUE I

Did the trial court err by failing to comply with the conditions of Rule 11 when it accepted the Appellant's guilty plea?

ISSUE II

Did the trial court abuse its discretion in not allowing the Appellant to withdraw his guilty plea prior to sentencing?

ISSUE III

Did the trial court abuse its discretion by denying the Appellant the right to substitute appointed counsel?

ISSUE IV

Did the trial court err in not granting presentence incarceration credit against the appellant's minimum and maximum sentence?

The State of Wyoming restyles the issues as:

I. Whether any challenge to the trial court's substantial compliance with W.R.Cr.P. 11 should be barred as untimely and, to the extent that court departed from the rule, whether such should be deemed harmless?

II. Whether the trial court properly denied appellant's motion to withdraw his guilty plea?

III. Whether the trial court properly refused to appoint substitute counsel for appellant?

IV. Whether the trial court properly credited appellant for all [presentence] incarceration?

Page 370

II. FACTS

In the early morning hours of October 24, 1991, Charles John McCarty (McCarty) went to the residence of his former girlfriend, Karma Andricci (Andricci), in Worland, Wyoming. Armed with a rifle, McCarty waited outside for Andricci to leave for work. At about 5:30 a.m., Andricci left her home to move her brother's car. After Andricci parked her brother's car, she noticed McCarty crouched near another vehicle. McCarty first pointed the rifle at Andricci and then lunged at her when she tried to flee. McCarty struck Andricci in the back of the head with the stock of the rifle, knocked her to the ground and began to choke her. When McCarty struck Andricci, the cartridge magazine fell out of the rifle. As McCarty tried to find the cartridge magazine, Andricci fled inside the house.

Hearing the commotion, Andricci's brother, John Dalton (Dalton), ran outside. McCarty pointed the rifle at Dalton and shouted, "John, don't do it." Dalton then heard a clicking sound as McCarty pulled the trigger. The rifle misfired. Unarmed, Dalton ran to safety and McCarty fled. The police discovered McCarty hiding near some vehicles in the area. McCarty was disarmed and placed under arrest. Tests revealed the firing pin of the rifle had struck the bullet in the chamber twice, but it had not fired.

McCarty was charged with two counts of aggravated assault and battery. On January 3, 1992, in an initial arraignment proceeding, the district court summarized the constitutional rights to which McCarty was entitled. McCarty acknowledged that he understood his rights, had received a copy of the Information, had read it and had discussed it with his attorney. The district court described the charges against McCarty and the potential penalties for those crimes. McCarty acknowledged that he understood the charges and the potential penalties. McCarty, assisted by counsel, entered pleas of not guilty.

On March 13, 1992, pursuant to a request made at the initial arraignment, another arraignment proceeding was held so McCarty could enter additional pleas to both counts of not guilty by reason of mental deficiency at the time of the alleged crime. Also on March 13, 1992, the district court ordered that the Information be amended to clarify that count one was a charge of aggravated assault and battery for the attack on Andricci in violation of Wyo.Stat. § 6-2-502(a)(ii) (1988).

On May 4, 1992, McCarty appeared at a change of plea proceeding. The district court verified that McCarty was satisfied with representation of his counsel and that he was not under the influence of alcohol or drugs or unable to understand the proceedings because of any mental illness or deficiency. The district court also inquired:

THE COURT: All right. At that previous arraignment, you were advised of your constitutional rights and your right to trial. As a matter of fact, the matter was set to begin trial today; is that correct?

THE DEFENDANT: Yes.

THE COURT: Do you wish this Court to go over any of those, to advise you again with regard to your constitutional rights?

THE DEFENDANT: No, your Honor.

McCarty also waived a re-reading of the charges or potential penalties.

The district court ascertained that McCarty had reviewed the terms of a proposed order, which memorialized the terms of the plea agreement reached by McCarty and the State. McCarty admitted that he had reviewed the terms of the plea agreement, in detail, with his attorney. The district court explained that under the plea agreement, the aggravated assault and battery charge for the attack on Dalton had been dismissed and replaced with a reckless endangerment charge and the penalty for that crime was up to one year in jail. McCarty entered a guilty plea to one count of reckless endangerment and a guilty plea to one count of aggravated assault and battery.

During the proceedings, the district court specifically inquired about McCarty's ability to understand the consequences of his change of pleas:

THE COURT: Do you think you understand the nature of these proceedings?

THE DEFENDANT: Yes.

Page 371

THE COURT: Do you think you understand what you're doing today?

THE DEFENDANT: Pardon?

THE COURT: Do you think you understand what's going on here today and what you are doing?

THE DEFENDANT: Yes.

THE COURT: Have you been able to understand what your attorney has told you?

THE DEFENDANT: Yes, your Honor.

THE COURT: [Defense Counsel], based upon your contacts with your client in this matter, do you have an opinion as to whether or not he understands the nature of these proceedings and the consequences of his plea here today?

[DEFENSE COUNSEL]: Yes, I do, your Honor.

THE COURT: What is that opinion?

[DEFENSE COUNSEL]: I believe that he does understand the nature of the proceedings.

The district court determined that the two guilty pleas had been entered voluntarily.

A factual basis was established by the county attorney's presentation of a summary of the evidence that would have been presented at trial against McCarty. At one point, McCarty began equivocating about the accuracy of the factual summary based on his claim that he had no recollection of any of the events surrounding his crimes. The district court then conducted additional examination to assure the accuracy of the factual presentation and the voluntary nature of the change of pleas. The district court asked whether McCarty had discussed all possible defenses with his counsel. McCarty replied that he and his counsel had "talked at length" about possible defenses. McCarty reiterated that he did, indeed, wish to enter pleas of guilty to the two counts contained in the plea agreement.

On the reckless endangerment conviction, the district court sentenced McCarty to one year in the county jail. On the aggravated assault and battery charge, the district court deferred further action and placed McCarty on five years supervised probation as a first-time offender under Wyo.Stat. § 7-13-301 (1987 & Cum.Supp.1994). Among the specific conditions of probation, McCarty was prohibited from initiating "any contact, directly or indirectly, in writing or otherwise, with the victims or the victims' family members." He was also prohibited from purchasing or having any firearms in his physical possession or control.

On March 22, 1993, the State filed a petition to revoke McCarty's probation based on alleged violations of the conditions of his probation. The State alleged that McCarty had mailed a birthday greeting card and a letter to Andricci. The State also alleged that McCarty had in his possession a .22 caliber rifle with a homemade silencer.

Following a hearing, the district court revoked McCarty's probation. The district court found that McCarty had violated the terms of his probation when he contacted Andricci by mailing her a greeting card and a letter. Furthermore, the district court found that McCarty had violated his probation by having a firearm in his possession.

Before the district court imposed sentence, McCarty filed a motion to withdraw his guilty plea to the aggravated assault and battery charge. McCarty also demanded that his counsel be permitted to withdraw, so new counsel could be appointed to represent him. Both motions were denied by the district court. The district court sentenced McCarty to a term of incarceration for not less than five years nor more than seven years at the Wyoming State Penitentiary.

III. DISCUSSION

Initially, we must address the State's contention that McCarty's appeal of his guilty plea to aggravated assault and battery is untimely. McCarty was placed on probation under the first-time offender program created by Wyo.Stat. § 7-13-301 which provides, in pertinent part:

(a) If a person who has not previously been convicted of any felony is...

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15 practice notes
  • Van Haele v. State, No. 03-138.
    • United States
    • United States State Supreme Court of Wyoming
    • 25 Mayo 2004
    ...that the individual facing the criminal charges is not misled into an unintentional waiver of substantial rights. Id. McCarty v. State, 883 P.2d 367, 372 (Wyo. 1994). We look to the totality of the circumstances to determine the voluntariness of a plea. Mehring v. State, 860 P.2d 1101, 1108......
  • Reyna v. State, No. 00-193.
    • United States
    • United States State Supreme Court of Wyoming
    • 6 Noviembre 2001
    ...that the individual facing the criminal charges is not misled into an unintentional waiver of substantial rights. Id. McCarty v. State, 883 P.2d 367, 372 (Wyo. 1994). We look to the totality of the circumstances to determine the voluntariness of a plea. Mehring v. State, 860 P.2d 1101, 1108......
  • Major v. State, No. 02-233.
    • United States
    • United States State Supreme Court of Wyoming
    • 28 Enero 2004
    ...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 (Wyo.1994) and Parke v. Raley, 506 U.S. 20, 28, 113 S.Ct. 517, 523, 121 L.Ed.2d 391 (1992)). Whether or not a plea was knowing and voluntar......
  • Dobbins v. State , Nos. S–11–0050
    • United States
    • United States State Supreme Court of Wyoming
    • 10 Agosto 2012
    ...specifically note that we, too, have indicated our reluctance to allow Rule 11 to turn into a mere ritualistic litany. McCarty v. State, 883 P.2d 367, 373 (Wyo.1994). See also Gist, 768 P.2d at 1056–57: In this instance, while the court did not comply with Rule 15(c), W.R.Cr.P., at the chan......
  • Request a trial to view additional results
15 cases
  • Van Haele v. State, No. 03-138.
    • United States
    • United States State Supreme Court of Wyoming
    • 25 Mayo 2004
    ...that the individual facing the criminal charges is not misled into an unintentional waiver of substantial rights. Id. McCarty v. State, 883 P.2d 367, 372 (Wyo. 1994). We look to the totality of the circumstances to determine the voluntariness of a plea. Mehring v. State, 860 P.2d 1101, 1108......
  • Reyna v. State, No. 00-193.
    • United States
    • United States State Supreme Court of Wyoming
    • 6 Noviembre 2001
    ...that the individual facing the criminal charges is not misled into an unintentional waiver of substantial rights. Id. McCarty v. State, 883 P.2d 367, 372 (Wyo. 1994). We look to the totality of the circumstances to determine the voluntariness of a plea. Mehring v. State, 860 P.2d 1101, 1108......
  • Major v. State, No. 02-233.
    • United States
    • United States State Supreme Court of Wyoming
    • 28 Enero 2004
    ...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 (Wyo.1994) and Parke v. Raley, 506 U.S. 20, 28, 113 S.Ct. 517, 523, 121 L.Ed.2d 391 (1992)). Whether or not a plea was knowing and voluntar......
  • Dobbins v. State , Nos. S–11–0050
    • United States
    • United States State Supreme Court of Wyoming
    • 10 Agosto 2012
    ...specifically note that we, too, have indicated our reluctance to allow Rule 11 to turn into a mere ritualistic litany. McCarty v. State, 883 P.2d 367, 373 (Wyo.1994). See also Gist, 768 P.2d at 1056–57: In this instance, while the court did not comply with Rule 15(c), W.R.Cr.P., at the chan......
  • Request a trial to view additional results

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