McEwan v. State

• Decision Date: 23 December 2013
• Docket Number: No. S–12–0252.,S–12–0252.
• Citation: 314 P.3d 1160
• Parties: Debora McEWAN, Appellant, Defendant, v. The STATE of Wyoming, Appellee, Plaintiff.
• Court: Wyoming Supreme Court

314 P.3d 1160

Debora McEWAN, Appellant, Defendant,

v.The STATE of Wyoming, Appellee, Plaintiff.

No. S–12–0252.

Supreme Court of Wyoming.

Dec. 23, 2013.

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Elisabeth M.W. Trefonas, Assistant Public Defender.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey Pope, Assistant Attorney General.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

DAVIS, Justice.

[¶ 1] Appellant Debora McEwan was convicted of two felony counts of obtaining public welfare benefits by misrepresentation after entering guilty pleas without admitting guilt under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).¹ Our recent decision in Balderson v. State, 2013 WY 107, 309 P.3d 809 (Wyo.2013), requires us to reverse McEwan's conviction and remand with instructions to reinstate her initial not guilty plea because the district court did not provide the required statutory firearms advisement when she changed her plea. Any other issues relating to the taking of a guilty plea can be addressed on remand if she chooses to enter a guilty plea rather than go to trial.

[¶ 2] McEwan also claims that she was denied her constitutional and rules-based rights to a speedy trial. We find no violation of those rights. She also claims error in the district court's order of restitution and the manner in which her original attorney was replaced, but we do not rule on those issues because her conviction will be vacated and the district court may resolve them on remand.

ISSUES

[¶ 3] McEwan raises five issues which, stripped to their essentials, may be stated as follows:

1. Must her two guilty pleas be set aside because the district court failed to give the advisements required by W.R.Cr.P. 11 and Wyo. Stat. Ann. § 7–11–507?

2. Was she deprived of her constitutional right to a speedy trial or the complementary right provided by W.R.Cr.P. 48?

3. Did the district court abuse its discretion in denying McEwan's motion to withdraw her guilty plea?

4. Was the district court's order relating to restitution illegal?

5. Did the district court commit plain error by allowing one public defender to substitute for another in representing McEwan?

FACTS

[¶ 4] In late October of 2008, an anonymous tip prompted the Wyoming Department of Family Services (DFS) to begin a nearly one-year investigation of McEwan and her adult son and daughter for possible welfare fraud. McEwan lived with her three minor children in Greybull, and her adult daughter had a minor child of her own. In her application for public assistance benefits, McEwan reported to DFS that she was self-employed and derived her income solely from her karaoke services business.

[¶ 5] The investigation revealed that DFS had paid McEwan's adult son for caring for his adult sister's child at times when he was working somewhere else, and when his sister, contrary to her representations to DFS, was not working. McEwan counter-endorsed the state warrants made payable to her son. After examining documents submitted to DFS and the accounts owned by McEwan at Big Horn Federal Savings Bank, particularly one listed under the name “Live Wire Entertainment,” the DFS investigator discovered that McEwan was working for four different employers (not including herself) under pseudonyms, and that she had deposited wages from three of the four into her “Live Wire” account. She did not disclose those sources of income to DFS.

[¶ 6] At the same time, McEwan obtained food stamps and child care assistance benefits relating to her minor children. As to the latter, the investigator obtained records from the establishments to whom she reportedly provided karaoke services and could not verify that McEwan was working at the times she stated in her claims for child care assistance.

[¶ 7] On January 6, 2010, the Big Horn County and Prosecuting Attorney charged McEwan with three felonies: knowingly failing to report income to obtain food stamp benefits of $500 or more in violation of Wyo. Stat. Ann. § 42–2–112(a), (k)(i); knowingly falsifying work hours to obtain child care assistance in violation of § 42–12–112(h), (k)(i); and knowingly failing to report a bank account in order to obtain food stamp benefits under § 42–2–112(a), (k)(i). She was arrested on January 11, 2010, and had her initial appearance in circuit court two days later. That court appointed a public defender to represent her, established bond, and set a preliminary hearing for January 20. She posted bond on January 18.

[¶ 8] On the day set for the preliminary hearing, McEwan waived the time limits contained in Wyoming Rule of Criminal Procedure 5 and asked the circuit court to postpone it “for a reasonable time as established by the Court.” The hearing was first postponed to February 3 and later to March 24, 2010, when it was held and McEwan was bound over to district court. The record does not reflect the reasons for the continuance from February 3 to March 24 of 2010.

[¶ 9] On April 1, 2010, the county attorney requested a setting for arraignment. The arraignment was to take place on May 18, but on May 14 defense counsel moved for a continuance due to a scheduling conflict, and the district judge reset the hearing to June 22, 2010 at his request. Just prior to the arraignment, McEwan filed a motion to peremptorily disqualify the assigned district court judge as then permitted by Wyoming Rule of Criminal Procedure 21.1(a).² The district judge was not aware when the arraignment began that he had been disqualified, and he read McEwan her rights and advised her of the nature of the charges against her and the maximum penalties. Before she was asked to enter a plea, McEwan's attorney advised the court of the peremptory disqualification and asked that the arraignment be postponed and that another judge be appointed. As defense counsel requested, the judge did not proceed with the arraignment, although he could have done so before reassigning the case under Rule 21.1(a).³

[¶ 10] The new judge held McEwan's arraignment on August 26, 2010. On October 5, McEwan moved to compel discovery from DFS and requested a hearing on that motion. On October 21, the court set the motion hearing for October 28, and on October 25, it set McEwan's trial as the second case stacked for trial on January 31, 2011. Two days before a pretrial conference scheduled for January 13, McEwan moved to continue both the conference and the trial. On January 18, the court reset the pretrial conference to March 24 and the trial to April 11, 2011.

[¶ 11] In early March of 2011, McEwan filed a signed and witnessed waiver of her right to a speedy trial and a motion to vacate the trial setting. The motion recited that she was negotiating with the newly-elected county attorney for a plea agreement for herself, and if possible, a “global” agreement also resolving similar charges against her adult children. She anticipated that negotiations could be completed within ninety days and asked that the pretrial conference and trial not be reset until after June 15, 2011.

[¶ 12] Within a week of filing that motion, defense counsel requested that McEwan be evaluated to determine whether she was mentally fit to proceed under Wyo. Stat. Ann. § 7–11–303, and expressed his belief that she was incapable of assisting in her own defense. The court granted the motion, and that decision suspended the proceedings until the evaluation was completed. Wyo. Stat. Ann. § 7–11–303(a) (LexisNexis 2013). The State Hospital submitted its finding that McEwan was in fact fit to proceed on May 13, 2011.

[¶ 13] On June 29, 2011, another public defender entered his appearance and identified himself as the substitute for McEwan's original public defender. That same day, he filed demands for discovery, for notice of the prosecutor's intent to introduce uncharged misconduct evidence, and for a speedy trial. On September 27, 2011, the district court acted on McEwan's motion to reset her trial after June 15, 2011, and scheduled a pretrial conference on December 15, 2011, and trial on January 9, 2012, when it would be second on the trial stack. On December 16, 2011, the court rescheduled the pretrial conference to May 24, 2012, and trial first on the trial stack for June 4, 2012 on its own motion. The record contains no contemporaneous complaint from McEwan regarding the schedule established by the court's September 27 and December 16 orders.

[¶ 14] On May 24, 2012, a letter in which McEwan indicated by her signature that she had accepted a plea agreement offered by the prosecutor was filed. The State agreed to dismiss the charge relating to concealment of income in order to obtain food stamps, in exchange for which McEwan agreed to enter an Alford guilty plea to the remaining two charges. The State also agreed to cap its sentencing argument to ask for concurrent sentences of no more than four to six years on those charges, and to dismiss pending felony probation revocation proceedings against her. McEwan was free to argue for a lesser sentence and probation. She agreed to pay restitution on all three of the original charges.

[¶ 15] McEwan changed her plea to guilty as required by the agreement the same day it was filed.⁴ During that hearing she indicated that she understood the agreement and the advisements given her by the court, and that she was satisfied with her attorney's representation.

[¶ 16] A presentence investigation report was completed on June 10, 2012, and the court set McEwan's sentencing for August 2. The sentencing hearing began with an oral motion by McEwan's attorney to withdraw her guilty plea. Counsel explained that McEwan “feels” she was confused and did not fully understand what was going on and what she was agreeing to at the time she changed her plea, that she felt coerced by a threat that the prosecutor might bring additional...