Reynoldson v. State

• Decision Date: 03 June 1987
• Docket Number: No. 86-233,86-233
• Citation: 737 P.2d 1331
• Parties: Arlan G. REYNOLDSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1331

737 P.2d 1331

Arlan G. REYNOLDSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 86-233.

Supreme Court of Wyoming.

June 3, 1987.

Leonard D. Munker, State Public Defender; Julie Naylor, Appellate Counsel; and Norman A. Newlon, Legal Intern, for appellant.

Peter J. Mulvaney, Deputy Atty. Gen., John W. Renneisen, S. Asst. Atty. Gen., and Karen A. Byrne, Asst. Atty. Gen., for appellee.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

URBIGKIT, Justice.

Appellant Arlan G. Reynoldson, and his co-defendant George O. Pugh, were charged with a seven-count auto-theft offense (joy-riding), pleaded guilty, and were sentenced to seven concurrent four- to ten-year penitentiary terms. Within 120 days, as provided by statute and rule, the district court amended the sentences for Reynoldson by suspending confinement and providing a term of seven years probation. Within eight months after release, Reynoldson was rearrested for a house burglary, and resentenced to the original term less credit for time served.

Appellant, by this second post-conviction, post-revocation-relief petition, challenges the original guilty pleas and denies that he received effective assistance of counsel because he was represented by the same appointed counsel as co-defendant Pugh. He contests the adequacy of the proceeding in which his guilty plea was entered, and raises the following issues:

1. Whether the trial court accepted a guilty plea in contravention of Rule 15, W.R.Cr.P., resulting in a denial of due process,

and

2. Whether defense counsel's multiple representation of co-defendant deprived appellant of his constitutional right to effective assistance of counsel.

Rule 15, W.R.Cr.P. is generally the same as Rule 11, F.R.Cr.P.

From the record of the arraignment when pleas were entered, we can generally discern the following.

On December 14, 1982, Pugh unlawfully took a truck belonging to Steven and Linda Andrews, and then picked up appellant. On the same day, he again "borrowed" a second vehicle, belonging to Merle and Kathryn Woodard, from the vicinity of the Woodard residence, picked up Reynoldson, and then wrecked the vehicle. Never to be deterred, the parties next found the keys to a vehicle of Lovercheck Land & Cattle Company at LaGrange, got the vehicle from a garage, and took off with it to again end up in a wreck--three vehicles, two wrecked, one day. On December 23, four more vehicles were involved. Pugh and appellant were at the Torrington bars getting drunk, and on leaving one bar saw a vehicle belonging to Donald and Dianna Koeteman outside with its motor running, and took off. This vehicle was apparently not damaged. Later that same day, they found a GMC truck belonging to Lanphier Farms, Inc., with the keys in it, on the road out towards Lingle, which they drove away.

As to the sixth and seventh counts encompassing the contested pleas, a Chevrolet truck belonging to Jerry and Glenda Kraus was first taken and damaged. Reynoldson was unable to relate to the court what had occurred, because, "I was really pretty drunk, and I was taking acid. I don't really recall that one." Finally, on the same day, James and Dale Gheen's Ford truck was driven and damaged. As to this last charge, after Pugh generally related the events at the arraignment, the following was said:

"THE COURT: Is that true Mr. Reynoldson?

"MR. PUGH: Yes."

This court cannot know whether this is a typographical error, as it likely was, but in any event, the court will now accept the written record as presented. ¹

Both Pugh and appellant were represented by the same attorney at the plea and sentencing sessions, having requested appointment of counsel as indigents.

In regard to any plea bargain, the defendants related:

"THE COURT: Are you both making your plea after talking to your attorney? Mr. Reynoldson?

"MR. REYNOLDSON: Yes.

"THE COURT: Mr. Pugh?

"MR. PUGH: Yes.

"THE COURT: Now, plea or sentence bargaining, an agreement between your attorney and the prosecution, is permissible but is not binding on the Court, and the Court may reject that agreement. You both understand this?

"MR. PUGH: Yes.

"MR. REYNOLDSON: Yes.

"THE COURT: All right. Now, I gathered that there had been no plea agreement as such; is that correct?

"MR. MOXLEY: There has been some agreement, your Honor. We have agreed to waive the presentence investigation and allow the State to argue sentencing unopposed at this time. We have agreed that any sentences imposed on these counts would run concurrently.

"THE COURT: And you, of course, have the right to make a motion for sentence reduction, you understand this?

"MR. MOXLEY: Yes.

* * *

* * *

"THE COURT: Okay. All right, the Court finds that George Owen Pugh and Arland [sic] G. Reynoldson are both alert. They are not under the influence of alcohol or drugs nor suffering from any mental defect which would affect their ability to understand these proceedings, and that they are both competent to enter a plea of guilty to each of the counts, that the plea is knowingly and voluntarily made after consultation with competent counsel, without any improper inducement or conditions, and with an understanding of the charges and the direct consequences. There is a factual basis for the guilty plea on each of the seven counts, which the Court accepts. Now, normally, we would ask for a presentence investigation at this time, but counsel has stated that that was waived by both of you."

With prior waiver of preliminary hearing, the trial court entered a judgment and sentence for both defendants on each charge, to be served concurrently, of four to ten years with credit for 19 days for time served. ²

In early April 1983, appellant filed a pro-se motion and an affidavit for sentence reduction. Later in the month, his appointed counsel also filed a similar motion. The trial court then suspended the confinement sentence as of July 1, 1983, and placed appellant on probation for seven years. Included in the probation terms was:

"4. That said Defendant shall make restitution in the total amount of $4,127.31, to be paid in monthly payments as specified by the local Probation and Parole Officer upon determination of Defendant's ability to pay; all such payments to be made to the Clerk of the District Court of Goshen County by cash, certified check, cashier's check or money order, for distribution in accordance with the Supplemental Order filed herein."

The supplemental order defined the restitution amounts involved:

" * * * Merle J. Woodard, $2,161.99; Lovercheck Land & Cattle Company, $1,227.84; Dale Gheen, $407.48; Jerry Kraus, $330.00."

On February 2, 1984, a petition for revocation of probation and issuance of a bench warrant was filed, alleging that on December 14, 1983, appellant had committed felony burglary. The warrant alleged that he had broken into and entered a residence in Saratoga, Wyoming, stolen a television set, a knife, a stereo, and food, and later pawned the television and stereo in Scottsbluff, Nebraska. Attached to the petition was a statement signed by appellant and witnessed by an attorney from the Public Defender's office, which said:

"2. That following the grant of probation, specifically on December 14, 1983, I entered the residence of Brett and Lane Ussery at 805 1/2 West Spring Street in Saratoga, Wyoming, without their consent, and removed from that premises several items including a television set, a knife, and a stereo, also without consent.

"3. That I pawned the television and stereo taken from the Ussery residence in Scottsbluff, Nebraska, using my own name."

At the revocation hearing Reynoldson attempted to blame someone else as the principal for the burglary, but admitted pawning the merchandise but not his receipt of the money obtained. Scottsbluff, Nebraska is "a ways down the pike" from Saratoga, Wyoming. Probation was revoked on February 9, 1984 by reinstatement of the previous sentence with credit of 212 days for previous time served.

Two months later, Reynoldson again filed a motion for reduction of sentence, which was denied May 1, 1984. A pro-se petition for post-conviction relief was filed December 20, 1984, raising three issues: (1) that the crime was a misdemeanor when sentenced; (2) the plea was involuntary; and (3) unintelligent and ineffective assistance of counsel involving co-representation conflict of interest. After a course of correspondence between appellant and the court essentially encompassing a denial of the requested relief, appellant then filed a further motion to vacate sentence on September 11, 1985, and a motion for a new trial on January 6, 1986. Pugh, who was still in the penitentiary on October 31, 1985, signed an affidavit saying that he had actually said that Reynoldson was innocent, not guilty, of the joyriding episodes. On February 6, 1986, appellant filed a motion for credit for street time from July 1, 1983 until his arrest for the burglary of December 14, 1983.

To answer this course of events, the district judge thoughtfully appointed the office of the Public Defender on February 7, 1986 to represent appellant, which counsel then filed another motion for post-conviction relief. That motion, along with appellant's request for street-time credit, was denied, and it is that decision from which this appeal is now presented. ³ This court is presented with the two issues addressed in the post-conviction-relief petition: inadequate information upon which a guilty plea was accepted, and inadequate representation because the same appointed counsel represented both co-defendants, each of whom pleaded guilty at the same time.

The statute in force at the time of the offenses provided:

"Any person or persons who shall without specific authority of the owner or his duly authorized and accredited agent, willfully, wantonly, or maliciously take possession of, or drive, or propel, or take away, or attempt to take possession of, drive, propel, or...