McNaughton v. State

• Decision Date: 29 November 2016
• Docket Number: S-16-0098,S-15-0118
• Citation: 2016 WY 112,384 P.3d 276
• Parties: Joseph Scott McNaughton, Appellant (Defendant), v. State of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

384 P.3d 276

2016 WY 112

Joseph Scott McNaughton, Appellant (Defendant),

v.State of Wyoming, Appellee (Plaintiff).

S-15-0118

S-16-0098

Supreme Court of Wyoming.

November 29, 2016

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior

Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Emily Elliott, Student Intern. Argument by Ms. Elliott.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

BURKE

, Chief Justice.

[¶1] Appellant, Joseph Scott McNaughton, challenges his conviction of conspiracy to deliver a controlled substance, methamphetamine, in violation of Wyo. Stat. Ann. §§ 35-7-1031(a)(i)

and 35-7-1042 (LexisNexis 2013). He contends he received ineffective assistance of counsel. We affirm.

ISSUE

[¶2] Mr. McNaughton presents a single issue:

Was Mr. McNaughton provided effective assistance of counsel?

FACTS

[¶3] Mr. McNaughton's participation in a conspiracy to deliver methamphetamine was discovered during an investigation of Preston and Ernesto Montoya by the Wyoming Division of Criminal Investigation (DCI) and the federal Drug Enforcement Administration. The investigating agents used, among other tools, a court-authorized wiretap to record phone calls and text messages from cell phones. During the course of the investigation, the agents intercepted communications between Mr. McNaughton and Preston Montoya regarding methamphetamine. Based on the intercepted communications and surveillance of Mr. McNaughton and his girlfriend, Teresa Porter, DCI obtained a warrant to search Ms. Porter's residence. Upon execution of the warrant, DCI arrested Mr. McNaughton and Ms. Porter and seized Ms. Porter's cell phone. Ms. Porter's phone contained incriminating text messages between her and Mr. McNaughton regarding the sale of methamphetamine.

[¶4] Mr. McNaughton was charged with one count of conspiracy to deliver a controlled substance in violation of Wyo. Stat. Ann. §§ 35-7-1031(a)(i)

and 35-7-1042. The court appointed a public defender to represent him. After charging Mr. McNaughton, the State sent defense counsel a letter notifying counsel of the procedure for obtaining the evidence against Mr. McNaughton. The letter informed counsel that he could provide the State a “hard drive with at least 200 GB of storage” or, in the alternative, he could arrange to view the discovery in person at the United States Attorney's Office in Casper. Defense counsel did not provide any type of storage medium to acquire the discovery, nor did he contact anyone to arrange access to view the discovery at the U.S. Attorney's Office.

[¶5] The State subsequently sent a formal plea offer to defense counsel. The State proposed that, in return for Mr. McNaughton's guilty plea to the felony conspiracy charge, the State would agree to recommend a sentence of five to eight years in prison. Mr. McNaughton rejected the plea offer, and the State did not present any subsequent offers.

[¶6] Following Mr. McNaughton's rejection, defense counsel filed a motion for a bill of particulars. In response, the State asserted that the motion was untimely and that the information and accompanying affidavit adequately apprised Mr. McNaughton of the allegations against him. The State also noted that its evidence against Mr. McNaughton had been made available to him. The district court did not rule on the motion prior to trial.

[¶7] Several days before trial, the State provided a hard drive to defense counsel containing the incriminating evidence against Mr. McNaughton. On the morning of the first day of trial, defense counsel requested a ruling on his motion for a bill of particulars. In the ensuing colloquy with the court, counsel admitted that he had not listened to all of the evidence provided by the State:

I don't know how many phone calls are on that thing. I sometimes say 18,000 phone calls. It's something like that. I don't have time as a Public Defender to listen to every one of those phone calls and go through those things. And so I didn't read all of those things. So if minimum representation in a case like this is you have got to listen to every phone call on that terabyte drive, that hasn't happened.

The district court denied the motion, concluding that the charging document and the accompanying affidavit provided a sufficient description of the charge.

[¶8] During trial, the State presented evidence of phone and text conversations tending to incriminate Mr. McNaughton. Following trial, the jury found Mr. McNaughton guilty of conspiracy. On February 25, 2015, the district court sentenced him to not less than four years nor more than eight years in prison. In rendering its decision, the court concluded that, in light of Mr. McNaughton's prior felonies and his history of probation violations, probation was not an appropriate sentence. Mr. McNaughton appealed his conviction and sentence, and the appeal was docketed in this Court as S-15-0118.

[¶9] In November 2015, Mr. McNaughton filed a motion for a new trial asserting that defense counsel was ineffective for failing “to investigate and review discovery,” failing to “thoroughly research the controlling law,” and failing to “request a continuance on the basis of his inability to review the large amount of discovery.” The court held a hearing on the motion and heard testimony from Mr. McNaughton, his trial counsel, and the prosecutor. Defense counsel admitted that he had not reviewed all of the material provided by the State. He indicated, however, that Mr. McNaughton would only enter a plea bargain if the State agreed to reduce the charge against him to a misdemeanor.

[¶10] The district court denied the motion for a new trial. The court addressed only the issue of prejudice, holding that Mr. McNaughton had not established that he was prejudiced by his counsel's performance during plea negotiations. The district court concluded that “any claimed prejudice in that regard is simply speculative.” The court did not find any credible evidence that the State ever made a plea offer for probation or that the sentencing court would have accepted the State's recommendation for probation. Mr. McNaughton filed a second appeal, which was docketed in this Court as S-16-0098. We consolidated the cases for purposes of argument and decision.

DISCUSSION

[¶11] In his only issue, Mr. McNaughton claims he received ineffective assistance of counsel. Claims of ineffective assistance of counsel involve mixed questions of law and fact and are reviewed de novo . Hibsman v. State , 2015 WY 122, ¶ 14, 355 P.3d 1240, 1244 (Wyo. 2015)

.

[¶12] In order to prevail on a claim of ineffective assistance of counsel, an appellant must demonstrate, first, that trial counsel's performance was deficient and, second, that the deficient performance caused prejudice to the defense. Rodriguez v. State , 2010 WY 170, ¶ 14, 245 P.3d 818, 823 (Wyo. 2010)

(citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) ). The failure to make the required showing of either deficient performance or prejudice will result in a finding that counsel was not ineffective. Osborne v. State , 2012 WY 123, ¶ 19, 285 P.3d 248, 252 (Wyo. 2012).

[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. ... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.

Sen v. State , 2013 WY 47, ¶ 39, 301 P.3d 106, 121 (Wyo. 2013)

(quoting Strickland , 466 U.S. at 697, 104 S.Ct. at 2069 ).

[¶13] Mr. McNaughton contends his counsel was ineffective because he “was under the mistaken understanding that the State did not have much, if any, evidence which would establish this conspiracy.” He claims his counsel was deficient for failing to review all of the evidence against him. According to Mr. McNaughton, his counsel's failure to review the evidence or to request a continuance prevented him from entering a more favorable plea agreement. He characterizes the evidence as “overwhelming,” and asserts that his counsel should have more aggressively pursued a plea bargain. According to Mr. McNaughton, he was prejudiced by his counsel's performance because “a skilled criminal defense advocate would likely be able to secure a more favorable agreement than was obtained in his current sentence.”

[¶14] We find it unnecessary to address the deficiency prong of the ineffectiveness standard because Mr. McNaughton has not established he was prejudiced by counsel's alleged deficient performance. See Pendleton v. State , 2008 WY 36, ¶ 21, 180 P.3d 212, 219 (Wyo. 2008)

; Bloomer v. State , 2010 WY 88, ¶ 19, 233 P.3d 971, 976 (Wyo. 2010). In order to establish prejudice, the defendant must demonstrate a reasonable probability that, absent the deficient performance of counsel, the outcome of his trial would have been different. Galbreath v. State , 2015 WY 49, ¶ 10, 346 P.3d 16, 20 (Wyo. 2015). Mr. McNaughton's claim that a more favorable plea agreement could have been obtained, however, is unsupported by the record in this case.

[¶15] Mr. McNaughton points to statements by trial counsel indicating that he would have more aggressively pursued a plea deal had he been aware of the evidence against Mr. McNaughton. For example, counsel stated that if he had been aware of the text messages between Mr. McNaughton and Ms. Porter, he “probably would have changed the attitude about negotiating with [the prosecution].” However, there is no indication in the record that the State would have offered a plea bargain that was more favorable than the sentence Mr. McNaughton received after trial, or that was...