Rhodes v. State, No. S–14–0046.

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: BURKE, Chief Justice.
• Citation: 2015 WY 60,348 P.3d 404
• Decision Date: 27 April 2015
• Docket Number: No. S–14–0046.
• Parties: Marty Wayne RHODES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

348 P.3d 404
2015 WY 60

Marty Wayne RHODES, Appellant (Defendant)
v.
The STATE of Wyoming, Appellee (Plaintiff).

No. S–14–0046.

Supreme Court of Wyoming.

April 27, 2015.

348 P.3d 406

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Patricia L. Bennett, Assistant Appellate Counsel. Argument by Ms. Bennett.

Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Joshua C. Eames, Assistant Attorney General. Argument by Mr. Eames.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.

Opinion

BURKE, Chief Justice.

¶ 1] Appellant, Marty Wayne Rhodes, challenges his convictions for child abuse and third-degree sexual abuse of a minor under Wyo. Stat. Ann. § 6–2–503(b)(i) and § 6–2–316(a)(iv) (LexisNexis 2011). He contends he was denied his rights to a speedy trial and to effective assistance of counsel. He also contends the evidence was insufficient to support his conviction for third-degree sexual abuse of a minor. We affirm.

ISSUES

[¶ 2] Appellant presents the following issues:

1. Was Appellant denied his right to a speedy trial?

2. Did the State present sufficient evidence to sustain a conviction of sexual abuse of a minor in the third degree?

3. Was Appellant denied effective assistance of counsel?

The State phrases the issues in a similar manner.

FACTS

[¶ 3] Appellant and the victim's mother, Tanya Van Patten, met in Arizona in 2006, when the victim was eight years old. Appellant and Ms. Van Patten subsequently married and had three children together between 2006 and 2011. During the majority of this time, the victim lived with Ms. Van Patten's parents in Jackson, Wyoming. In December 2011, the victim moved into Appellant's and Ms. Van Patten's home in Farson, Wyoming. The relationship between Appellant and Ms. Van Patten deteriorated, and Appellant moved out of the home in April 2012.

[¶ 4] On May 22, Appellant returned to the home. He began drinking and encouraged the victim, who was fourteen years old at the time, to drink with him. While the victim was sitting on the couch in the living room, Appellant pulled down the victim's shirt, exposing her breasts. As the victim tried to get up from the couch, Appellant pulled down her shirt a second time. Appellant

[348 P.3d 407

then followed the victim into the kitchen, where he pulled the victim's shirt down a third time and grabbed her breasts. He then picked the victim up and pinned her on the floor. The victim scratched at Appellant's face until Appellant released her. Appellant called the police claiming that he had been assaulted and, after law enforcement arrived, the victim and Ms. Van Patten were transported to a relative's home in Farson.

¶ 5] Based on interviews with Appellant, the victim, and Ms. Van Patten, the State charged Appellant, on June 5, 2012, with attempted sexual abuse of a minor in the second degree, sexual abuse of a minor in the third degree, child abuse, and battery against a household member. Appellant was arraigned on these charges on July 12, 2012. A subsequent forensic interview with the victim, however, indicated that Appellant had solicited and conspired with Ms. Van Patten to commit sexual abuse against the victim. Ms. Van Patten was arrested and charged with similar crimes committed against her daughter.¹

[¶ 6] As a result of the additional information obtained from the interview with the victim, as well as statements made by Ms. Van Patten while she was detained in the Sweetwater County Detention Center, the State voluntarily dismissed the action and re-filed charges against Appellant on October 29, 2012. The new information added four more charges against Appellant—solicitation to commit sexual abuse of a minor in the first degree, solicitation to commit sexual abuse of a minor in the second degree, conspiracy to commit sexual abuse of a minor in the first degree, and conspiracy to commit sexual abuse of a minor in the second degree. On November 9, 2012, the State filed an amended information, adding the charge of sexual abuse of a minor in the first degree, based on interviews that had occurred at the detention center on October 26, and subsequent investigation. Appellant was arraigned on those charges on December 3, 2012. At the arraignment, Appellant's counsel orally asserted Appellant's right to a speedy trial. Appellant remained incarcerated from the time of his original arrest through disposition of his case.

[¶ 7] On March 29, 2013, Appellant filed a motion to dismiss the four original charges. He claimed that there had been a violation of his right to a speedy trial under the constitution and under W.R.Cr.P. 48(b)(2), which provides that “[a] criminal charge shall be brought to trial within 180 days following arraignment ....” The district court denied the motion.

[¶ 8] Appellant's trial began on May 13, 2013. After hearing testimony from numerous witnesses, including Appellant, Ms. Van Patten, and the victim, a jury found Appellant guilty of one count of child abuse and one count of third-degree sexual abuse of a minor. Appellant was acquitted on the remaining charges. The court sentenced Appellant to consecutive sentences of thirteen to fifteen years on the sexual abuse charge and four to five years on the child abuse charge. Appellant timely filed this appeal.

DISCUSSION

I. Right to Speedy Trial

[¶ 9] In his first issue, Appellant contends he was denied his right to a speedy trial under W.R.Cr.P. 48 and under the Sixth Amendment to the United States Constitution. The issue of whether the defendant has received a speedy trial is reviewed de novo. Ortiz v. State, 2014 WY 60, ¶ 32, 326 P.3d 883, 892 (Wyo.2014).

A. W.R.Cr.P. 48

[¶ 10] Pursuant to W.R.Cr.P. 48(b)(2), a “criminal charge shall be brought to trial within 180 days following arraignment....” For purposes of analyzing a speedy trial claim under Rule 48, we begin by calculating the time between the defendant's arraignment and trial, excluding the time periods specified in the rule. Berry v. State, 2004 WY 81, ¶ 21, 93 P.3d 222, 228 (Wyo.2004). In conducting a Rule 48 analysis, we have held that the speedy trial time

[348 P.3d 408

period begins anew when charges are re-filed against a defendant. Berry, ¶ 22, 93 P.3d at 228 ; Alicea v. State, 13 P.3d 693, 700 (Wyo.2000) ; Hall v. State, 911 P.2d 1364, 1370 (Wyo.1996). As noted above, the State initially filed criminal charges against Appellant in June 2012. Appellant was arraigned on those charges on July 12, 2012, and those charges were dismissed on the State's motion on October 29, 2012. On the same day, the State filed a second information, and Appellant was arraigned on those charges on December 3, 2012. Appellant's trial commenced on May 13, 2013. The amount of time elapsed from Appellant's arraignment on the new charges, on December 3, 2012, and the beginning of his trial, on May 13, 2013, was 161 days.

¶ 11] Appellant does not dispute that, under existing precedent, the delay did not result in a violation of W.R.Cr.P. 48. He claims, however, that we should depart from precedent holding that the 180–day period for determining whether Rule 48 has been violated begins anew after charges are re-filed. In support of this argument, Appellant asserts that “Rule 48 does nothing to limit the number of times the State can dismiss and refile a charge, therefore does nothing to protect the accused, and affords the State an almost unlimited amount of time to build a case and hold a defendant in jail while it does so.” Appellant also asserts that, if the speedy trial period begins anew when charges are re-filed, there is no need for Rule 48(b)(3)(C) to provide that “[t]he time between the dismissal and the refiling of the same charge” shall be excluded in computing the speedy trial period.

[¶ 12] As indicated in the discussion above, Rule 48 does not directly address the issue of whether the 180–day speedy trial period set forth in the Rule begins anew when charges are re-filed against a defendant. In those jurisdictions where this question is not specifically addressed by rule or statute, courts have taken different approaches in determining how the speedy trial period should be calculated.

As for trial on a charge earlier dismissed, those statutes and court rules which specifically address this situation often ensure that the prosecutor cannot circumvent speedy trial requirements by a process of dismissal and recharging, typically by asserting that the time does not begin running anew (as might well be the case if dismissal was on motion of the defendant) but instead is merely interrupted between dismissal and recharging. When these matters are not addressed in the speedy trial statute or court rule, then they must be addressed by the courts when such situations arise, which can produce various results; especially as to the troublesome matter of prosecutor dismissal and recharging, there is “no uniformity in approach.”

5 Wayne R. LaFave, et al. Criminal Procedure § 18.3(c) (3d ed. updated 2014) (footnotes omitted). In Curley v. State, 299 Md. 449, 474 A.2d 502, 505 (1984), the Maryland Court of Appeals found that “the approaches taken in other jurisdictions can be divided into three broad, if not always clearly bounded, categories.” In the first category of cases, courts hold that the speedy...