Mills v. State

Decision Date04 February 2020
Docket NumberS-19-0125
Citation458 P.3d 1
Parties James Leonard MILLS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Desiree Wilson, Senior Assistant Appellate Counsel. Argument by Ms. Wilson.

Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General. Argument by Mr. Eames.


DAVIS, Chief Justice.

[¶1] James Mills’ trial counsel filed a motion to suppress evidence which challenged only the initial basis for a traffic stop that ultimately led to the discovery of drugs and drug paraphernalia in Mr. Mills’ vehicle. The district court concluded that a traffic violation justified the initial stop, and it denied the motion. Mr. Mills proceeded to trial, and a jury found him guilty of two felonies and one misdemeanor. On appeal, Mr. Mills argues that admitting evidence seized during the traffic stop was plain error because it was seized in violation of the Fourth Amendment to the United States Constitution. Alternatively, he argues he received ineffective assistance of counsel by his trial counsel’s failure to challenge the duration of the traffic stop in his motion to suppress evidence. We conclude that Mr. Mills received ineffective assistance of counsel, and we therefore reverse and remand.


[¶2] We address the following issues:1

1. Does W.R.Cr.P. 12 preclude plain error review of issues not raised in Mr. Mills’ motion to suppress evidence?
2. Did Mr. Mills receive ineffective assistance of counsel due to his attorney’s failure to challenge the duration of his traffic stop in a motion to suppress evidence?

[¶3] While patrolling on July 10, 2017, Deputy Kyle Borgialli received a communication from DCI agents, who indicated that they had witnessed a possible drug transaction, described the two vehicles involved, and requested that he "find legal cause to stop and speak with those vehicles." Shortly thereafter, Deputy Borgialli saw two vehicles matching their descriptions turn left onto a four-lane road. One vehicle turned into the inside lane nearest the road’s center line, while the other took a wider turn into the outside lane of the road. Deputy Borgialli initiated a traffic stop of the vehicle that had taken the wider turn.2

[¶4] Deputy Borgialli approached the vehicle’s driver, Mr. Mills, told him the reason for the stop, and requested Mr. Mills’ license, registration, and proof of insurance. While Mr. Mills gathered his documents Deputy Borgialli repeatedly asked him whether he had "weapons," "anything illegal," or "illegal narcotics" on his person or in the vehicle. After repeatedly indicating that he did not have anything illegal in the vehicle, Mr. Mills became frustrated and answered "No" in an elevated tone of voice.3

[¶5] Deputy Borgialli took Mr. Mills’ documents back to his patrol car, called in Mr. Mills’ license number to his dispatcher, and filled out a warning citation. As he was returning to Mr. Mills’ vehicle, another officer at the scene told him that he had observed Mr. Mills put a brown paper sack under his seat.4 When he approached Mr. Mills, Deputy Borgialli informed him that one of the documents he had provided was a price quote, not "actual proof of insurance," and he again requested proof of insurance. Mr. Mills immediately provided his proof of insurance, which Deputy Borgialli quickly examined and returned to Mr. Mills. Deputy Borgialli held onto Mr. Mills’ other documents and the completed warning citation, and asked Mr. Mills to step out of the vehicle so that he could "explain" the citation to him. Mr. Mills refused to exit the vehicle, saying Deputy Borgialli could "explain it right here" and that he needed to get home.

[¶6] Officer Steven Dillard arrived on scene with a drug-sniffing dog while Mr. Mills was refusing to exit his vehicle. Deputy Borgialli summoned Officer Dillard to Mr. Mills’ vehicle. Officer Dillard came over, leaving his canine on the sidewalk near a patrol car, and Deputy Borgialli told him Mr. Mills would not "get out of the vehicle for the canine." The two officers attempted to persuade Mr. Mills to exit the vehicle, but Mr. Mills continued to refuse. Eventually, several officers forcibly removed Mr. Mills from his vehicle and placed him under arrest for interference with a peace officer due to refusal to obey the request to exit the vehicle. Wyo. Stat. Ann. § 6-5-204(a) (LexisNexis 2019). Officers conducted a search incident to arrest and found two packages of methamphetamine and one package of cocaine in one of his pockets. After Mr. Mills was removed from the vehicle, Officer Dillard ran his canine around it, and the dog alerted. A search of the vehicle uncovered four glass methamphetamine pipes, jeweler’s baggies, two digital scales, and $3,600 cash.

[¶7] The State charged Mr. Mills with two felony counts of possession with intent to deliver a controlled substance (cocaine and methamphetamine), and with one misdemeanor count of interference with a peace officer. Mr. Mills’ trial counsel filed a motion to suppress evidence. The entirety of the motion’s legal argument consisted of citation to the United States and Wyoming Constitutions and the following two sentences:

The Wyoming Supreme Court has ruled that "a traffic stop initiated by a law enforcement officer after personally observing a traffic violation is supported by probable cause [reasonable suspicion] and does not violate Article 1, Section 4 of the Wyoming Constitution." Fertig v. State , 2006 WY 148, ¶ 28, 146 P.3d 492, 501 (Wyo. 2006). Deputy Borgialli did not see a traffic violation by this Defendant and therefore the initial stop was not supported by reasonable suspicion.

(alteration in original). At the hearing on the motion, Mr. Mills’ counsel argued only "that there did not exist reasonable suspicion or probable cause to believe that Mr. Mills had committed a traffic offense justifying the initial stop." Because "the only issue in front of the Court [was] the basis for the stop" the State did not "address any other issues."

[¶8] The State introduced testimony from Deputy Borgialli that he had not captured Mr. Mills’ traffic violation on his patrol car’s dash cam because of the position of his car, but that he had personally observed it. On cross examination, Mr. Mills’ defense counsel similarly limited his inquiry to the initial basis for the stop. In closing, Mr. Mills’ counsel argued that "the issue [came] down to whether or not a traffic violation occurred at the intersection," pointing out that "the officer does not have any physical or camera footage of the traffic violation."

[¶9] The district court denied the motion, concluding that Deputy Borgialli’s testimony was "highly credible" and that Borgialli had "personally observed [Mr. Mills] commit a traffic violation" justifying the stop. Because Mr. Mills did "not challenge[ ] the scope, duration or intensity of the stop" the court did not address those issues.

[¶10] Mr. Mills proceeded to trial, and the State introduced testimony from Deputy Borgialli, Officer Dillard, and a forensic analyst with the Wyoming State Crime Laboratory. Deputy Borgialli testified about the circumstances of the traffic stop, his interactions with Mr. Mills, and evidence found during the search of Mr. Mills and his vehicle. Officer Dillard testified similarly.

[¶11] Finally, the forensic analyst testified about the types and weights of the narcotics found in Mr. Mills’ pocket. The State also introduced multiple photographs of the evidence discovered in Mr. Mills’ pocket and vehicle and three plastic bags containing the narcotics.

[¶12] The jury convicted Mr. Mills of all three counts. The court sentenced him to concurrent sentences of six to eight years on each of the felony counts, and to 128 days for the misdemeanor count, with credit for time served. Mr. Mills timely appealed.

I. W.R.Cr.P. 12 precludes plain error review of issues not raised in Mr. Mills’ motion to suppress evidence.
A. Standard of Review

[¶13] "While the question of waiver is often one of fact, when the facts and circumstances relating to the subject are admitted or clearly established, waiver becomes a question of law which we consider de novo ." Rodriguez v. State , 2019 WY 25, ¶ 16, 435 P.3d 399, 403 (Wyo. 2019) (quoting Verheydt v. Verheydt , 2013 WY 25, ¶ 21, 295 P.3d 1245, 1250 (Wyo. 2013) ). Here, the record is clear, and the facts giving rise to waiver are undisputed; thus, our review is de novo.

B. W.R.Cr.P. 12(b) Waiver and Rodriguez

[¶14] We recently held in Rodriguez "that the failure to assert an objection or defense through a Rule 12(b) -required pretrial motion is a bar to appellate review of the claim unless good cause is shown for the failure to make the required filing." Rodriguez , ¶ 31, 435 P.3d at 408. Mr. Mills argues that we should review issues not raised in his motion to suppress evidence for plain error, asserting that Rodriguez’s "new procedural rule of waiver" does not apply retroactively. We do not agree that Rodriguez created a "new procedural rule of waiver," and conclude that W.R.Cr.P. 12(b) bars appellate review of issues not raised in Mr. Mills’ motion to suppress evidence.

[¶15] Generally, statutes operate only prospectively, while judicial decisions apply retroactively and prospectively. United States v. Security Indus. Bank , 459 U.S. 70, 79, 103 S. Ct. 407, 413, 74 L.Ed.2d 235 (1982). Under certain circumstances, however, judicial decisions are only given prospective effect. See, e.g., Best v. Best , 2015 WY 133, ¶ 34, 357 P.3d 1149, 1157 (Wyo. 2015) (applying holding prospectively only). For a decision to warrant only prospective application, the decision "must establish a new principle of law, either by overruling...

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