Mehring v. State, 92-114

• Decision Date: 27 September 1993
• Docket Number: No. 92-114,92-114
• Citation: 860 P.2d 1101
• Parties: Timothy Jay MEHRING, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1101

860 P.2d 1101

Timothy Jay MEHRING, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 92-114.

Supreme Court of Wyoming.

Sept. 27, 1993.

Leonard D. Munker, State Public Defender, Cheyenne, and Lee E. Christian, Fort Collins, CO, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., and Barbara L. Boyer, Sr. Asst. Atty. Gen., Cheyenne, for appellee.

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

TAYLOR, Justice.

Appellant, Timothy Jay Mehring (Mehring), pled guilty to two counts of sexual assault in the second degree. He brings this appeal to challenge the sufficiency of the procedure used by the trial court in determining his understanding of the charges. In addition, Mehring maintains his guilty pleas were not voluntary, in part, because one of the three public defenders who represented him performed in such a deficient manner as to constitute ineffective assistance of counsel. Finally, Mehring asserts the contents of a presentence investigative report violated substantive and procedural requirements.

We affirm. However, because of a procedural error in sentencing, we order a limited remand to complete the record.

I. ISSUES

Mehring identifies four issues for this court's consideration:

I. Does the court's failure to advise appellant of the nature of the charge as required by Wyoming Rule of Criminal Procedure 15 require automatic reversal?

II. Was appellant's guilty plea knowing, intelligent and voluntary?

III. Was appellant prejudiced by ineffective assistance of counsel at several critical stages of the proceedings?

IV. Did the presentence investigation report violate W.R.Crim.P. 32 and due process?

II. FACTS

In December of 1990, Mehring moved into a Jackson, Wyoming townhouse. An eleven-year-old child (victim) and the child's father also lived in the townhouse. Shortly after moving in, Mehring committed an act involving sexual contact with the victim. In a series of incidents between December of 1990 and May of 1991, the sexual contact escalated to sexual intrusion.

Jackson police interviewed the victim and the victim's father while investigating another reported occurrence of sexual contact with a minor allegedly involving Mehring. Further investigation resulted in the filing of an Information on July 23, 1991, charging Mehring with eight counts of sexual assault in the second degree, Wyo.Stat. § 6-2-303(a)(v) (1988), and two counts of sexual assault in the third degree, Wyo.Stat. § 6-2-304(a)(ii) (1988). All the charges stemmed from incidents involving the victim living in the townhouse.

Mehring appeared at a change of plea hearing on February 3, 1992. The State disclosed that as part of a plea bargain, Mehring had agreed to plead guilty to two counts of sexual assault in the second degree and the State had agreed to dismiss the first eight counts of the Information. Additionally, the State had agreed not to bring charges for the alleged sexual assaults of other victims. Mehring established a factual basis for the pleas at the hearing.

Following a presentence investigation, the trial court sentenced Mehring to serve terms of not less than eighteen years nor more than forty years at the Wyoming State Penitentiary for each count of sexual assault in the second degree. The sentences are to be served concurrently. The sentences given by the trial court exceeded the State's recommendation of ten to twenty-five year terms contained in the plea bargain. Following the filing of a timely appeal, this court ordered a limited remand for an evidentiary hearing to consider issues related to the claim of ineffectiveness of counsel.

III. DISCUSSION

This court reviews the conduct of a hearing in which a guilty plea is entered as a whole. Stice v. State, 799 P.2d 1204, 1209 (Wyo.1990). Our inquiry determines if the district court sufficiently described the nature of the charges, including the possible penalties; informed the defendant of the right to representation; informed the defendant of the rights waived by a guilty plea; and obtained a factual basis for the plea. Osborn v. State, 806 P.2d 259, 271 (Wyo.1991); Stice, 799 P.2d at 1209; W.R.Cr.P. 11(b). The intent of the procedural requirements is to prevent the individual charged with a crime from being misled into a waiver of substantial rights. Peper v. State, 768 P.2d 26, 29 (Wyo.1989).

Mehring maintains reversible error occurred when the trial court failed to advise him of the nature of the charges before accepting his guilty plea. Mehring considers the failure of the trial court to either explain the elements of the charges or obtain a representation by counsel that the nature of the charges had been explained violated the rule of strict compliance announced in Crawford v. State, 701 P.2d 1150, 1153 (Wyo.1985). See also Smallwood v. State, 748 P.2d 1141, 1143 (Wyo.1988).

At the outset of the change of plea hearing, the trial court informed Mehring that before accepting his plea, the trial court would be talking to him to "make sure that you understand exactly what you're doing." After confirming that Mehring did not desire to proceed with his scheduled jury trial, the trial court inquired:

THE COURT: Do you understand, Mr. Mehring, that if you plead guilty to one or more of these counts, that you are admitting all of the essential elements contained in those counts, that there won't be a further trial of any kind?

THE DEFENDANT: Yes, Your Honor.

* * * * * *

THE COURT: Mr. Mehring, it is my understanding that you are choosing to plead guilty to two counts of second degree sexual assault; is that correct?

THE DEFENDANT: Yes * * *.

The trial court then informed Mehring of the possible minimum and maximum sentences he faced if he pled guilty. This colloquy followed:

THE COURT: Do you have any questions about these charges or any of the possible consequences?

THE DEFENDANT: No, Your Honor.

THE COURT: Do you recall--[the judge who] arraigned you on this case. Do you recall him talking with you about the elements of the crime?

THE DEFENDANT: Yes * * * I do.

THE COURT: You understand the State has to prove each element contained in each count by proof beyond a reasonable doubt before you can be convicted of these crimes?

THE DEFENDANT: Yes.

Prior to accepting the guilty pleas, the trial court questioned whether Mehring had discussed his change of pleas with his counsel. Mehring replied that he had.

When the change of plea proceeding occurred, the applicable rule of criminal procedure provided, in 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, the following:

(1) The nature of the charge to which the plea is offered * * *[.]

W.R.Cr.P. 15(c)(1), Wyo.Rep. 578-584 P.2d XIX (1978) (hereinafter Former Rule 15). See W.R.Cr.P. 11(b).

Analysis of a trial court's compliance with the requirements of Former Rule 15 may be divided into two components, one mandatory and one discretionary. The mandatory component is stated in the plain language of the rule. The trial court accepting the plea must inform the accused of the nature of the charge and determine that the charge is understood before accepting the plea. The failure to satisfy this component will result in reversal as a violation of due process. Crawford, 701 P.2d at 1153.

The discretionary component is the trial court's ability to select the means utilized to comply with the requirements of Former Rule 15. "We have no hard and fast rule regarding how much information is necessary to explain the nature of a charge to a defendant." Stice, 799 P.2d at 1209. We have noted that one method would be for the trial court to read the indictment or information and permit the defendant to ask questions. Peper, 768 P.2d at 29. Another method may be to explain the elements of the charged crime and define complex legal terms. Id. at 30. "The actions required of the district court in any particular case depend largely on whether the elements of the offense are difficult to understand, considering both their complexity to the average person with no legal training and the sophistication of the individual defendant." Id. The relevant question on appeal becomes whether the means selected by the trial court complied with constitutional requirements of due process and the intent of Former Rule 15.

The pertinent language of Former Rule 15 was identical to the pre-1983 version of Rule 11 of the Federal Rules of Criminal Procedure. 1 Charles Alan Wright, Federal Practice and Procedure: Criminal 2d, § 171 (1982 & Supp.1993). See Britain v. State, 497 P.2d 543, 545 (Wyo.1972). The present F.R.Cr.P. 11, as amended in 1983, is substantially similar to revised W.R.Cr.P. 11 which became effective March 24, 1992. In adopting rules which are substantially similar to the Federal Rules of Criminal Procedure, this court has traditionally given great weight to relevant precedent from federal courts, particularly the Supreme Court of the United States. See, e.g., Farbotnik v. State, 850 P.2d 594, 603-04 (Wyo.1993) and Dobbins v. State, 483 P.2d 255, 258 (Wyo.1971).

In the leading case on determining the understanding of the charge, Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), the Supreme Court of the United States offered guidance on the sufficiency of the notice required before a guilty plea may be accepted in a plea bargain. Morgan was charged with first-degree murder; but in a plea bargain, he agreed to plead guilty to second-degree murder. Id. at 638, 96 S.Ct. at 2254. The United States Supreme Court held Morgan's plea was involuntary because he did not receive adequate notice that intent to kill was an element of second-degree murder. Id. at 647, 96 S.Ct. at 2258.

Two critical points converged to result in the decision. First, Morgan never received the constitutionally required notice of...