Ochoa v. State

• Citation: 848 P.2d 1359
• Decision Date: 22 March 1993
• Docket Number: 92-67,Nos. 92-66,s. 92-66
• Parties: Roy Joseph OCHOA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff) (Two Cases).
• Court: United States State Supreme Court of Wyoming

Page 1359

848 P.2d 1359

Roy Joseph OCHOA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff) (Two Cases).

Nos. 92-66, 92-67.

Supreme Court of Wyoming.

March 22, 1993.

Leonard D. Munker, State Public Defender, Mike Cornia, Sr. Asst. Public Defender, argued, and Deborah Cornia, Appellate Counsel, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Barbara L. Boyer, Sr. Asst. Atty. Gen., and Mary Beth Wolff, Asst. Atty. Gen., argued for appellee.

Before MACY, C.J., and THOMAS, CARDINE and GOLDEN, JJ., and URBIGKIT, J. (Retired).

CARDINE, Justice.

Appellant (Roy Joseph Ochoa) pled nolo contendere to two counts of Indecent Liberties with a Minor (W.S. 14-3-105). He now challenges his conviction, alleging: (a) that the State charged and convicted him with the wrong crime; (b) that W.S. 14-3-105 is unconstitutional; and (c) that he was improperly sentenced.

We affirm.

Ochoa frames the issues as follows:

I. Did the legislature intend that third degree sexual assault would cover consensual sexual intercourse with persons under sixteen years of age?

II. Does allowing the State to choose to charge the appellant with indecent liberties violate his rights to equal protection under the Fourteenth Amendment to the United States Constitution and Article 1, §§ 2 and 7 of the Wyoming Constitution?

III. Is Wyoming Statute 14-3-105 void for vagueness and does its application violate due process when read in conjunction with other existing statutes?

IV. Should Wyoming Statute 14-3-105 be stricken as overbroad?

V. Was it reversible error for the court to consider the state hospital report in sentencing?

VI. Since the trial court lacked jurisdiction to order restitution in an undetermined amount should the order of restitution be stricken?

The State divides the issues as follows:

I. Whether appellant was properly charged and convicted under W.S. 14-3-105?

II. Whether the trial court properly considered the state hospital report for sentencing?

III. Whether the judgment and sentence should be corrected to reflect a reasonable amount of restitution?

FACTS

In late summer of 1991, Mr. Ochoa was arrested and charged with four counts of indecent liberties with a minor arising out of four separate incidents involving the same minor. After a preliminary hearing on October 11, 1991, and an arraignment on October 22, 1991, a trial date was set for December 16, 1991. At his arraignment, Ochoa pleaded not guilty to each of the four charges.

On October 30, 1991, the district court suspended the proceedings to allow a psychological examination of Ochoa because of his erratic behavior. Ochoa was examined by the state hospital and, on his request, by an independent psychologist, both of whom concluded that Ochoa was fit to stand trial.

On January 9, 1992, Ochoa was charged with two additional counts of indecent liberties. These additional charges were based on incidents with a different minor, which had occurred prior to the initial charges of the summer of 1991. Ochoa was also charged with intimidating a witness (W.S. 6-5-305(a)). Ochoa was arraigned on the additional counts on January 16, 1992, and pled not guilty to each specified count.

Soon after, Ochoa, pursuant to a plea agreement, pled nolo contendere to two counts of indecent liberties, one count for each minor. The district court accepted the agreement. The district court then carefully informed Ochoa of his right to a presentence investigation. Ochoa and his attorney acknowledged that they had discussed the merits of a presentence investigation and informed the court that Ochoa would forego the investigation until after the sentencing. The court accepted Ochoa's decision to postpone the presentence investigation.

At sentencing, the district court informed Ochoa and his counsel that it had reviewed both of the psychological reports which had been compiled as a result of the exams performed by the state hospital and the independent psychologist. The district court specifically questioned Ochoa and his counsel about whether they wanted the court to consider the reports in the sentencing decision. Ochoa, through counsel, replied that these reports should be considered.

On February 26, 1992, Ochoa was sentenced to serve seven to ten years on the first count and four to eight years on the second count, to run consecutively. Additionally, he was fined a total of $10,000 for both counts, however, the court left open the exact amount he would have to pay as restitution.

ANALYSIS

Waiver by Nolo Contendere Plea

Ochoa first argues that he was incorrectly charged, convicted and sentenced under our indecent liberties statute because it was not intended to apply to his actions. He mistakenly frames this as a challenge to the validity of the statute. Instead he is simply challenging the State's information charging him with violation of the statute.

A criminal defendant, by pleading guilty, admits all of the essential elements of the crime charged and thus waives all nonjurisdictional defenses. Davila v. State, 831 P.2d 204, 205 (Wyo.1992); Zanetti v. State, 783 P.2d 134, 139 (Wyo.1989); Tompkins v. State, 705 P.2d 836, 839 (Wyo.1985); Armijo v. State, 678 P.2d 864, 867 (Wyo.1984). A plea of nolo contendere has the same effect as a guilty plea. Davila, 831 P.2d at 205; Zanetti, 783 P.2d at 139; State v. Steele, 620 P.2d We have said that jurisdictional defenses and objections involve:

1026 (Wyo.1980). Therefore, when a criminal defendant pleads nolo contendere, he or she waives all nonjurisdictional defenses and objections. Davila, 831 P.2d at 205.

"[T]he very power of the state to bring the defendant into court to answer the charge against him" Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628, 636 (1974). Jurisdictional defects include: unconstitutionality of the statute defining the crime pled to, Armijo v. State, 678 P.2d 864, 867-68 (Wyo.1984), failure of the indictment or information to state an offense, and double jeopardy. Tompkins v. State, 705 P.2d 836, 840 (Wyo.1985) * * *.

Davila, 831 P.2d at 205-06. In other words, a criminal defendant may, after pleading guilty or nolo contendere, attack a defect only if it involves "attributes of jurisdiction." United States v. Gipson, 835 F.2d 1323, 1324 (10th Cir.1988) (holding that a challenge based upon statutorily mandated recusal of judge is jurisdictional and thus preserved). Nonjurisdictional defenses and objections are

those "objections and defenses which would not prevent a trial." Sword [v. State], 746 P.2d [423,] 426 [ (Wyo.1987) ]. Even constitutional challenges to pretrial proceedings fall into this category. Zanetti, 783 P.2d at 138.

Davila, 831 P.2d at 206.

Ochoa's initial contention is, essentially, no different than the error alleged in Sword v. State, 746 P.2d 423 (Wyo.1987). There, Mr. Sword attempted to challenge the validity of the grand jury proceedings, but we denied review because the alleged defect was nonjurisdictional and raised after his guilty plea. Sword, 746 P.2d at 425. Ochoa's challenge is grounded in the same basic process as the grand jury procedure, that is, deciding whether and how to charge a suspected criminal.

The Oklahoma Supreme Court, addressing this same issue, held that when a criminal defendant pleads guilty to the crime charged and subsequently attempts to challenge the "propriety of the charge as applied to the facts in her case," then that type of challenge is nonjurisdictional. Stokes v. State, 738 P.2d 1364, 1366 (Okl.Crim.App.1987). Mr. Ochoa's first argument is no different. He argues that the indecent liberties statute should not be applied to the facts of his case.

By pleading nolo contendere, Ochoa admitted all the essential elements of the crime charged. There is no dispute that he was charged with indecent liberties by the State and that he agreed to plead to that charge. In essence, Ochoa is attempting to challenge the district court's determination, after his nolo plea, that he violated the indecent liberties statute. This he cannot do. Small v. State, 623 P.2d 1200, 1202 (Wyo.1981).

We hold that Ochoa's initial allegation of error is nonjurisdictional because it is an objection to the pre-trial procedure and not one that would prevent a trial.

Equal Protection

Ochoa next argues that permitting the State to choose which statute to charge him under is violative of both the federal and Wyoming constitutional guarantees of equal protection. He is not directly challenging the validity of the statutes involved. Instead, he is challenging the constitutionality of the decision-making process used by the State in the performance of its charging function. This is no different than contesting the constitutionality of the prosecution's methods for obtaining evidence against a defendant.

This second claim must also fail because it is not jurisdictional. It is nonjurisdictional because it relates to possible deprivation of constitutional rights which occurred before the trial. Davila, 831 P.2d at 206; citing Zanetti, 783 P.2d at 138; see generally Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973) (which affirmed the principle that when the defendant pleads guilty, he or she waives nonjurisdictional defects and may not thereafter raise independent claims involving the deprivation of constitutional rights occurring before entry of the plea). Therefore, we hold that Ochoa's second

claim of error was also forfeited by his nolo contendere plea.

Vagueness

Ochoa next argues that our indecent liberties statute is both unconstitutionally vague and overbroad. Both of these contentions challenge the validity of the statute under which he was charged and are jurisdictional. Hence, they are both preserved beyond the nolo contendere plea and properly before this court.

We specifically held our indecent liberties statute constitutional against a vagueness challenge in Sorenson v....