Royball v. State
| Decision Date | 17 June 2009 |
| Docket Number | No. S-08-0234.,S-08-0234. |
| Citation | 210 P.3d 1073,2009 WY 79 |
| Parties | Kirt Orlando ROYBALL, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶ 1] The State charged Kirt Orlando Royball, Jr. with three counts of first degree sexual assault and one count of kidnapping. The parties subsequently entered into a plea agreement in which the State agreed to amend the information to charge two counts of third degree sexual assault in place of two of the first degree sexual assault counts and dismiss the remaining sexual assault and kidnapping charges. In exchange, Mr. Royball agreed to plead guilty to the amended counts of third degree sexual assault.
[¶ 2] At the change of plea hearing, the district court judge made statements concerning the plea agreement which caused Mr. Royball to terminate the hearing and file a motion for change of judge on the grounds of bias or prejudice. The circuit court to which the matter was assigned denied the motion. Mr. Royball entered a conditional guilty plea, reserving his right to appeal the denial of his motion for change of judge. We affirm.
[¶ 3] The issue presented for our determination is whether the circuit court abused its discretion when it denied the motion for change of judge.
[¶ 4] The State charged Mr. Royball with three counts of first degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-302(a)(i) (LexisNexis 2007) for forcible sexual intrusion involving a 13 year old girl. The State also charged him with one count of kidnapping in violation of Wyo. Stat. Ann. § 6-2-201(a)(i), (b)(i) and (c) (LexisNexis 2007) for forcibly confining the victim during the sexual assault. The parties subsequently entered into a plea agreement in which Mr. Royball agreed to plead guilty to two counts of third degree sexual assault in exchange for the State's agreement to amend the charges to allege two counts of third degree sexual assault in place of two of the first degree sexual assault counts and dismiss the remaining count of first degree sexual assault and the kidnapping charge.
[¶ 5] The parties appeared at a change of plea hearing and informed the district court of the terms of the plea agreement. The district court asked the State what the victim and her family thought about the amended charges. The district court expressed concern that the victim and her family went along with the plea agreement because they thought Mr. Royball would serve 30 years in prison when that might not be the outcome. After some discussion, the district court judge stated:
I'm having trouble understanding this. I know you have the executive division's prerogative of doing as you see fit with the charging and amending that's to be done, but I don't understand how anybody can read this Affidavit of Probable Cause and believe it is appropriate to reduce two first degree rape charges to third degree sexual assault.
Defense counsel responded that she was concerned from these comments that the judge may have prejudged Mr. Royball's behavior and might impose a higher sentence based upon the affidavit supporting the original charges rather than the charges to which Mr. Royball had agreed to plead guilty. Defense counsel asked that the hearing be continued to give her the opportunity to confer with Mr. Royball.
[¶ 6] The following day, Mr. Royball filed a motion for change of judge pursuant to W.R.Cr.P. 21.1(b). As grounds for his motion, Mr. Royball stated:
This court has indicated by its comments that it has read the Affidavit of Probable Cause in this matter and believes that the acts therein constitute "rape" and indicates an inability to understand why the Defendant is being allowed to enter pleas to lesser charges. The counts of third degree sexual assault to which the Defendant will enter his guilty plea do not contend that the sexual contact was by force or "rape." However, the court, by its comments appears to be convinced that a "rape" occurred and concerned that it could be foreclosed from the opportunity of sentencing the defendant to a sentence which could merge and end up being only one of fifteen years, rather than thirty.
[¶ 7] Mr. Royball asserted the judge's comments demonstrated a personal bias and/or prejudice against him and an inability to perform his judicial duties impartially. He asserted that to proceed under the circumstances would deny him his constitutional and statutory rights. Mr. Royball submitted an affidavit with his motion in which he averred that he was present in the courtroom when the judge made the comments, it was evident to him the judge felt strongly that the State should not have entered into the plea agreement, and the written transcript of the hearing did not demonstrate the emotion behind the judge's words.
[¶ 8] At a hearing convened the same day, the district court judge advised the parties that he would not take himself off the case. He stated:
I will advise you, Mr. Royball, why I'm not going to do that. When I made those comments, I was concerned about several ... different things. And ... I acknowledge it is not my role to second guess the DA's office as to what they do with regard to whether they amend a complaint. It was not my intention to suggest that. But I was concerned about a couple [of] different things, not so much that I took for granted that the information contained in the Probable Cause Affidavit was correct but rather the charging philosophy of the DA's office, and I guess to a certain extent the negotiation position.
I felt I had a duty to insure that the victim was aware of the plea agreement and of the consequences of that agreement. And in fact it appears as though there was a possibility that the victim and her family had received some information which might not have been accurate.
It is not my function, not my responsibility to interfere with the discussions between the DA's office and the victim. But I will tell you, Mr. Royball, that I was concerned about the—as much concerned about the charging philosophy of the DA's office to charge the matter as they did and then reach an agreement which appears to be significantly less—to involve charges that are significantly less than those first charged rather than an assumption on my part that you did exactly what the affidavit alleged you did. I don't know if that makes any sense to you, but that was my thought process. And for that reason I'm not going to recuse myself.
The district court judge entered an order assigning the case to a circuit court judge for the limited purpose of deciding the motion for change of judge.1
[¶ 9] The circuit court set the motion for hearing. Prior to the hearing, Mr. Royball filed with the circuit court the amended information, his affidavit and the transcript from the initial change of plea hearing in district court. During the hearing, the circuit court noted that it had reviewed those documents as well as the transcript of the district court hearing held after Mr. Royball filed his motion for change of judge. After the hearing, the circuit court denied the motion, concluding the record did not support a finding that the district court judge was biased against Mr. Royball.
[¶ 10] Back in the district court, Mr. Royball entered guilty pleas to two counts of third degree sexual assault, reserving his right to appeal the denial of his motion for change of judge.2 The district court accepted the pleas and set the matter for sentencing. Following the sentencing hearing, the district court sentenced Mr. Royball to consecutive terms of 11 to 13 years on each third degree sexual assault count.
[¶ 11] Motions to disqualify a judge based upon bias or prejudice are governed by W.R.Cr.P. 21.1(b), which provides:
(b) Disqualification for cause. — Promptly after the grounds for such motion become known, the state or the defendant may move for a change of judge on the ground that the presiding judge is biased or prejudiced against the state, the attorney for the state, the defendant or the defendant's attorney. The motion shall be supported by affidavits stating sufficient facts to demonstrate such bias or prejudice. Prior to a hearing on the motion other affidavits may be filed. The motion shall be referred to another judge, or a court commissioner, who shall rule on the motion, and if granted shall immediately assign the case to a judge other than the disqualified judge. A ruling on a motion for a change of judge is not an appealable order, but the ruling shall be made a part of the record, and may be assigned as error in an appeal of the case or on a bill of exceptions.
[¶ 12] The rule requires the party seeking disqualification to state facts that would convince a reasonable person with knowledge of all the facts that the judge harbors a personal bias or prejudice against the party or his attorney. DeLoge v. State, 2007 WY 71, ¶ 10, 156 P.3d 1004, 1008 (Wyo. 2007). The denial of a motion for disqualification of a judge for cause is reviewed under the abuse of discretion standard. Pote v. State, 695 P.2d 617, 632 (Wyo.1985). An abuse of discretion occurs when the deciding court could not have reasonably...
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