Russell v. State

• Decision Date: 31 October 2013
• Docket Number: No. S–13–0044.,S–13–0044.
• Citation: 312 P.3d 76
• Parties: Timothy James RUSSELL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

312 P.3d 76

Timothy James RUSSELL, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–13–0044.

Supreme Court of Wyoming.

Oct. 31, 2013.

Representing Appellant: W. Keith Goody, Cougar, Washington.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey Pope, Assistant Attorney General.

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

KITE, Chief Justice.

[¶ 1] Timothy James Russell was charged with one count of conspiracy to deliver methamphetamine. Pursuant to a plea agreement with the State, Mr. Russell entered a plea of nolo contendere to the charge. The district court accepted the plea and scheduled a sentencing hearing. Thereafter, Mr. Russell retained new counsel who filed a motion to withdraw the plea. After a hearing, the district court denied the motion. Mr. Russell appealed, claiming the district court abused its discretion when it denied his motion to withdraw his plea. We find no abuse of discretion and affirm.

ISSUE

[¶ 2] The issue for this Court's determination is whether the district court abused its discretion when it denied Mr. Russell's motion to withdraw his plea.

FACTS

[¶ 3] In June of 2012, the Natrona County district attorney's office charged Mr. Russell and eighteen other individuals with conspiracy to possess methamphetamine with intent to deliver in violation of Wyo. Stat. Ann §§ 35–7–1031(a)(i) and 35–7–1042 (LexisNexis 2013). Mr. Russell and the State subsequently reached a plea agreement pursuant to which Mr. Russell agreed to enter a nolo contendere plea to the conspiracy charge and the parties agreed to an eight to fourteen year prison sentence. Mr. Russell entered his plea at a hearing in September of 2012. The district court accepted the plea and scheduled the matter for sentencing.

[¶ 4] Before the sentencing, a new attorney entered an appearance on Mr. Russell's behalf and filed a motion to withdraw the nolo contendere plea. In support of the motion, counsel cited W.R.Cr.P. 32(d) and Starrett v. State, 2012 WY 133, 286 P.3d 1033 (Wyo.2012). He asserted the motion should be granted because it was made before sentence had been imposed and was for a fair and just reason in that Mr. Russell was innocent of the acts the State alleged he had committed. He further argued the district court was required under Starrett to allow Mr. Russell to withdraw his plea because it had not given the advisements required by Wyo. Stat. Ann. § 7–11–507 (LexisNexis 2013) at the plea hearing. Section 7–11–507 provides:

(a) No judgment of conviction shall be entered upon a plea of guilty or nolo contendere to any charge which may result in the disqualification of the defendant to possess firearms pursuant to the provisions of 18 U.S.C. §§ 922(g)(1), (9) and 924(a)(2) or other federal law unless the defendant was advised in open court by the judge:

(i) Of the collateral consequences that may arise from that conviction pursuant to the provisions of 18 U.S.C. §§ 921(a)(33), 922(g)(1), (9) and 924(a)(2); and

(ii) That if the defendant is a peace officer, member of the armed forces, hunting guide, security guard or engaged in any other profession or occupation requiring the carrying or possession of a firearm, that he may now, or in the future, lose the right to engage in that profession or occupation should he be convicted.

[¶ 5] After a hearing, the district court denied the motion. Relying on Dobbins v. State, 2012 WY 110, 298 P.3d 807 (Wyo.2012), the district court concluded the denial of a motion to withdraw a plea is proper even when a defendant provides a fair and just reason for withdrawing his plea if the advisements required by W.R.Cr.P. 11 were given before the plea was accepted. The district court reviewed the transcript of the plea hearing and concluded it had complied with Rule 11 and Mr. Russell had entered his plea voluntarily and with full knowledge of the consequences.

[¶ 6] The district court also analyzed the factors articulated in Frame v. State, 2001 WY 72, ¶ 7, 29 P.3d 86, 89 (Wyo.2001):

(1)Whether the defendant has asserted his innocence; (2) whether the government would suffer prejudice; (3) whether the defendant has delayed in filing his motion; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was present; (6) whether the original plea was knowing and voluntary; and (7) whether the withdrawal would waste judicial resources.The district court in essence concluded: (1) Mr. Russell had asserted his innocence; (2) the State had demonstrated some prejudice; (3) Mr. Russell did not delay in filing his motion; (4) the withdrawal would not substantially inconvenience the court; (5) close assistance of counsel was present; (6) the original plea was entered knowingly and voluntarily; and (7) judicial resources would not be wasted by allowing withdrawal.

[¶ 7] The district court also considered Mr. Russell's claim that it failed to give the advisements required by § 7–11–507. It concluded § 7–11–507 was inapplicable because Mr. Russell was already disqualified from possessing firearms by a conviction prior to entry of his plea in this case.¹

[¶ 8] Finally, the district court considered W.R.Cr.P. 32(d) which provides as follows:

(d) Plea Withdrawal.—If a motion for withdrawal of a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason. At any later time, a plea may be set aside only to correct manifest injustice.

Finding Mr. Russell's assertion of innocence to be speculative and conclusory, the district court concluded he had not met his burden of proving that a fair and just reason existed for allowing him to withdraw his plea. Accordingly, the district court entered an order denying his motion and the case proceeded to sentencing. After a hearing, the district court entered a judgment convicting Mr. Russell of conspiracy to possess methamphetamine with intent to deliver and sentenced him to serve eight to fourteen years in prison with credit for 121 days served. Mr. Russell timely appealed.

STANDARD OF REVIEW

[¶ 9] We review a district court decision on a motion to withdraw a plea for abuse of discretion. Dobbins, ¶ 30, 298 P.3d at 815. The core of our inquiry focuses upon the reasonableness of the district court's decision. Jackson v. State, 2012 WY 56, ¶ 6, 273 P.3d 1105, 1107 (Wyo.2012). The findings of fact leading to denial of a motion to withdraw a plea are subject to the clearly erroneous standard of review. Dobbins, ¶ 30, 298 P.3d at 815.

DISCUSSION

[¶ 10] Mr. Russell asserts the district court's conclusion that he failed to meet his burden of proving a fair and just reason for allowing him to withdraw his nolo contendere plea is unreasonable. He contends the district court's factual findings on the Frame factors weighed heavily in his favor; therefore, his motion should have been granted. He argues his claim of innocence considered alone constituted fair and just reason for allowing the withdrawal. When combined with the findings on the other factors, he asserts the totality of the circumstances supported allowing him to withdraw his plea. If the circumstances in his case did not present “a fair and just reason” for allowing withdrawal, he argues, no circumstance will satisfy the standard and Rule 32(d) as it was intended to apply to pre-sentence motions is functionally dead.

[¶ 11] The State asserts the district court's ruling denying the motion was reasonable. Citing Dobbins, the State argues that a district court may deny a motion upon finding that the requirements of W.R.Cr.P. 11 were met when the plea was accepted. Because those requirements were met in this case, the State contends the district court had “unfettered discretion to deny [Mr.] Russell's motion without analyzing the issue further.” The State further asserts the district court reasonably concluded Mr. Russell failed to meet his burden of proving “a fair and just reason” under Rule 32(d).

[¶ 12] In numerous cases, this Court has said:

A defendant does not enjoy an absolute right to withdraw a plea of guilty prior to the imposition of sentence. The trial court is vested with discretion to determine whether to grant a motion to withdraw a plea of guilty made prior to sentencing, and it does not abuse that discretion by denying the withdrawal of the plea so long as the requirements of W.R.Cr.P. 11 were complied with at the time the plea was accepted. Even when the defendant provides a plausible or just and fair reason for withdrawal of the plea of guilty, the denial of the defendant's motion does not amount to an abuse of discretion if the trial court conducted a careful hearing pursuant to W.R.Cr.P. 11 at which the defendant entered a plea or pleas of guilty that was knowing, voluntary, and intelligent.

Dobbins, ¶ 11, 298 P.3d at 811, citing McCard v. State, 2003 WY 142, ¶ 6, 78 P.3d 1040, 1042 (Wyo.2003). See also Bear Cloud v. State, 2012 WY 16, ¶ 18, 275 P.3d 377, 385 (Wyo.2012); Demeulenaere v. State, 2008 WY 147, ¶ 13, 197 P.3d 1238, 1241 (Wyo.2008); Hirsch v. State, 2006 WY 66, ¶ 14, 135 P.3d 586, 592–93 (Wyo.2006); Van Haele v. State, 2004 WY 59, ¶ 14, 90 P.3d 708, 712–13 (Wyo.2004); Major v. State, 2004 WY 4, ¶ 12, 83 P.3d 468, 473 (Wyo.2004); Stout v. State, 2001 WY 114, ¶ 8, 35 P.3d 1198, 1203 (Wyo.2001); Nixon v. State, 4 P.3d 864, 868–869 (Wyo.2000); Triplett v. State, 802 P.2d 162 (Wyo.1990); Osborn v. State, 672 P.2d 777, 788 (Wyo.1983); Schmidt v. State, 668 P.2d 656, 660 (Wyo.1983). In some of these cases, when asked to decide whether a motion to withdraw a plea was properly denied, this Court limited its inquiry to whether the district court complied with Rule 11. Those cases generally involved a motion to withdraw a plea specifically based on a claim that the plea resulted from a district court's failure to comply...