Noel v. State

• Decision Date: 25 February 2013
• Docket Number: S-13-0059
• Citation: 2014 WY 30
• Parties: BRIAN J. NOEL, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

2014 WY 30

BRIAN J. NOEL, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).

S-13-0059

SUPREME COURT, STATE OF WYOMING

OCTOBER TERM, A.D. 2013

February 25, 2013

Appeal from the District Court of Laramie County

The Honorable Thomas T.C. Campbell, Judge

Representing Appellant:

Robert T. Moxley, Cheyenne, Wyoming.

Representing Appellee:

Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy

Attorney General; Christyne Martens, Assistant Attorney General. Argument by

Ms. Martens.

Before KITE, C.J., and HILL, BURKE, and FOX, JJ., and DONNELL, D.J.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made before final publication in the permanent volume.

DONNELL, District Judge.

[¶1] Pursuant to a plea agreement, Brian J. Noel pleaded guilty to two counts of attempted voluntary manslaughter. His pleas were accepted, and Noel was sentenced to two consecutive terms of incarceration of seventeen to twenty years. Noel now challenges on several grounds the plea agreement and the validity of his guilty pleas, as well as the sentences imposed. Finding no error, we affirm.

ISSUES

[¶2] In his original Brief of Appellant, Noel presented the following sole issue for review:

1. DID THE TRIAL COURT ABUSE ITS DISCRETION BY FAILING TO CONSIDER MITIGATING SENTENCING EVIDENCE AND BY APPLYING THAT EVIDENCE TO THE WRONG CRIME, THEREBY DEPRIVING BRIAN NOEL OF HIS PLEA BARGAIN?

However, Noel replaced his appellate counsel and in a subsequent Supplemental Brief of Appellant, he expanded his issues to include:

1. CAN A PLEA AGREEMENT BE VALID UNDER W.R.Cr.P. RULE 11(e), WHEREBY A CRIMINAL DEFENDANT MUST "RECOMMEND" CONSECUTIVE PRISON SENTENCES, WITHOUT ANY SENTENCING CONCESSION FROM THE STATE?

2. DID A LEGALLY SUFFICIENT FACTUAL OR LEGAL BASIS SUPPORT THE TRIAL COURT'S ACCEPTANCE OF GUILTY PLEAS TO "ATTEMPTED VOLUNTARY MANSLAUGHTER," AND WAS THAT CRIME LOGICALLY POSSIBLE IN THIS CASE?

3. WAS THE SENTENCING ON REDUCED CHARGES RENDERED UNFAIR BY THE TRIAL COURT'S RESTRICTIVE INTERPRETATION OF THE PLEA AGREEMENT, BY THE STATE'S POSITION THAT BRIAN NOEL ACTED WITH THE INTENT TO KILL, AND BY VICTIM IMPACT EVIDENCE THAT PORTRAYED HIM AS GUILTY OF ATTEMPTED MURDER?

4. DID THE SUBSTITUTE SENTENCING COURT ABUSE ITS DISCRETION OR ACT CONTRARY TO LAW IN THE PROCESS OF SENTENCING MR. NOEL TO NEAR-MAXIMUM, CONSECUTIVE SENTENCES?

Finally, in his Reply Brief of Appellant, apparently acting on the theory that "more is better," Noel added even more issues, stating them as:

1. WAS THE PLEA-TAKING COLLOQUY SUFFICIENT TO ASSURE THAT A "WAIVER OF APPEAL" IS ENFORCEABLE?

2. ARE THE TERMS OF A PLEA BARGAIN AND THE TRIAL COURT'S INTERPRETATION OF THE BARGAIN SUBJECT TO DE NOVO REVIEW?

3. DOES "PLAIN ERROR" DOCTRINE ALLOW THE COURT TO DISREGARD CONSTITUTIONAL DEFECTS IN THE ACCEPTANCE BELOW OF NOEL'S PLEA?

4. DOES STARE DECISIS FORECLOSE NOEL'S CHALLENGE TO HIS CONVICTION BELOW FOR A LOGICALLY IMPOSSIBLE CRIME?

[¶3] The State presents the following synopsis of the relevant issues:

I. For a guilty plea to waive all non-jurisdictional defenses, it must be voluntary, intelligent, and supported by a sufficient factual basis. When questioned by the district court, Noel asserted that he understood the entirety of the plea-taking proceedings and his plea agreement and that he sought to plead guilty voluntarily. Evidence that supported each element of the crime was presented to the district court. Did the district court properly accept Noel's guilty pleas so that he waived any non-jurisdictional defenses that he may have had?

II. Before exercising their sentencing discretion district courts may consider a wide variety of information about offenders and their crimes. The district court received and considered detailed evidence about the circumstances of Noel's crimes, evidence about his good character, and victim impact statements. Did the district court err by sentencing Noel in accordance with the terms of the plea agreement and within the range provided by statute?

BACKGROUND FACTS

[¶4] On November 9, 2011, Noel, severely depressed and under the influence of alcohol, decided to commit suicide. He took a Ruger nine-millimeter handgun from his parents' home and checked into a room at the Fairfield Inn-Marriott in Cheyenne, Wyoming.

[¶5] Laramie County Sheriff's Deputies Chance Walkma and Mark Yocum subsequently responded to a call from Noel's parents that their son was suicidal and seeking assistance in locating Noel for a welfare check. The deputies learned that two handguns were missing from the Noel home and that Noel's parents were concerned that Noel might harm himself. Deputies Walkma and Yocum successfully tracked Noel to his hotel room and knocked on Noel's door.

[¶6] Noel responded to the knock, armed with the fully loaded handgun in his right hand and using his left hand to open the door, thereby concealing the right side of his body. Upon making contact with Noel, the deputies informed him of their purpose and asked Noel to come out into the hallway to speak with them. Noel replied with profanity. Suspecting that Noel was armed, the deputies commanded Noel to drop his gun but Noel refused. Deputy Walkma then utilized his Taser on Noel's left arm, with no apparent effect. Instead, Noel fired fifteen rounds in the direction of the deputies, emptying the gun of all of its ammunition and firing while he retreated into the hotel bedroom.¹ One of those bullets, likely the first one, struck Deputy Walkma, entering his abdomen and exiting near his spine. Noel then surrendered himself, shouting, "I'm done; I'm done. I'm out; I'm out."

PROCEDURAL HISTORY

[¶7] On November 9, 2011, Noel was charged with two counts of attempted second-degree murder pursuant to Wyo. Stat. Ann. §§ 6-2-104 and 6-1-301(a) (LexisNexis 2013). On July 3, 2012, a written plea agreement and Amended Information were filed with the District Court, amending Noel's charges to two counts of attempted voluntary manslaughter pursuant to Wyo. Stat. Ann. §§ 6-2-105(a)(i) (LexisNexis 2003) and 6-1-301(a).

I. The Plea Agreement

[¶8] Pursuant to the plea agreement between the State and Noel and in exchange for the amendment of charges, Noel agreed to a joint sentencing recommendation pursuant to W.R.Cr.P. 11(e)(1)(B). The agreement provided for a sentencing range of five-and-one-half years to twenty years of incarceration per count, to run consecutively. The plea agreement further specified that Noel could argue for the minimum of this agreed-upon sentencing range, while the State was free to argue for the maximum sentence within this range. The plea agreement recognized that the sentencing recommendations were not binding upon the District Court, which had the power to sentence Noel to the maximum penalties provided by law. Noel also expressly waived his right to appeal any charges, including any defects in the charging documents as well as any terms or conditions expressly stated as part of the plea agreement.

II. The Plea Taking

[¶9] On June 28, 2012, Noel appeared before the District Court to enter his change of plea, at which time he was re-arraigned on the amended charges. Defense counsel and the prosecutor explained to the court the terms of the written plea agreement, stating:

Mr. Noel understands this is a recommended plea agreement, first of all, which means the Court is not bound by any of the terms of the plea agreement.

Mr. Noel will plead to both counts, attempted manslaughter. The agreement goes on to state that the defendant is free to argue for any sentence, so long as it's not less than five and a half years and no more than 20 and - - on both counts; and that that argument will include a recommendation for consecutive terms.

Both parties are free to argue from any police reports and law enforcement reports and the law. I will let the Court know now - - seems like a good time to say it - - the parties anticipate a sentencing in this matter that may run all day. . . .

Other than that, Your Honor, that's pretty much the meat of the agreement. He will also give a factual basis, of course, that will comply with the two counts in the Amended Information.

. . .

The State is free to argue up to the maximum sentence on each count to run consecutively.

[¶10] The District Court then confirmed with Noel that he understood the agreement, verifying that Noel had signed the plea agreement and confirming that Noel entered the agreement voluntarily. Noel pleaded guilty to both amended charges, and the court asked Noel to provide a factual basis for his pleas, in response to which Noel testified, in pertinent part:

I proceeded to the door to answer it with the 9-millimeter handgun in my right hand, which was loaded with a round in the chamber, fully loaded.

. . . .

I remember seeing what appeared to be a green laser pointer. I remember feeling excruciating pain and shots.

I - - it happened extremely quick. The only thing I really remember from the point of getting - - I actually had been Tased - - that's not what I thought initially though - - was I was falling backwards. I was shooting a gun in the direction of the two sheriff's deputies.

I believe that I had fired around five to seven shots hitting the ground. My first conscious thought was, oh, my God. I threw the gun away. I yelled out to the deputies that I was done, that I was over. It happened so fast that it just didn't seem real. I couldn't believe what had happened.

. . . .

THE COURT: All right. Are you telling me that you get Tased, and you sort of fall backwards, and then the firearm goes off; or was it discharged while you recall still standing?

THE DEFENDANT: From what I remember is from when I got hit, that yes, it discharged and went off, is what I remember. I believe evidence would show otherwise. Although from my memory, all I remember is

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