Sanchez v. State, 4978
| Citation | 592 P.2d 1130 |
| Decision Date | 28 March 1979 |
| Docket Number | No. 4978,4978 |
| Parties | Jesus Monje SANCHEZ, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below). |
| Court | United States State Supreme Court of Wyoming |
James P. Castberg, Powell, signed the brief for appellant.
John J. Rooney, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Sharon A. Fitzgerald, Legal Intern, signed the brief on behalf of appellee.
Before RAPER, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE, J., Retired. *
The appellant-defendant Jesus Monje Sanchez pleaded guilty in the district court to a third-degree sexual assault, § 6-4-304, W.S.1977, and was sentenced to a term of not less than one year and eight months nor more than four years in the Wyoming State Penitentiary. This appeal challenges the sentence on the ground that the district court erred in stating it could not consider probation.
We will vacate the judgment and sentence and remand the case for further proceedings.
We premise this decision on the ground that the record, as it stands, simply will not support a plea of guilty to any crime. This issue is not raised in the appeal. However, Rule 15, W.R.Cr.P., 1 requires that judgment on a plea of guilty shall not be entered unless the court is satisfied that there is a factual basis for the plea. Strict adherence to that rule is required. Britain v. State, Wyo.1972, 497 P.2d 543, 545. This court will not usually consider an issue which is not assigned as error. However, we retain the right, indeed we are duty bound to consider an unassigned error under the plain error doctrine as well as our general supervisory powers, where the error is blatant and results in an unmistakable and unconscionable miscarriage of justice. Rule 49(b), W.R.Cr.P.; 3 Wright, Federal Practice and Procedure, § 856, p. 373 (discussing Rule 52(b), F.R.Cr.P., same as Rule 49(b), W.R.Cr.P.); 24 C.J.S. Criminal Law § 1678(5). The defendant was initially charged with sexual assault in the first degree in violation of § 6-4-302, W.S. 1977. 2 The charge was later reduced to sexual assault in the second degree, § 6-4-303, W.S.1977. 3 A motion for a bill of particulars was filed by the defense counsel but the record discloses no disposition of this motion nor any response from the prosecuting attorney. A motion for discovery and inspection was also made, but again the record reflects no disposition or response. The record contains an order of the district judge signed and filed November 22, 1977, which directed the prosecuting attorney to "fully investigate and report to the Court in writing the criminal record and social history of the Defendant." No response to this order appears in the record. The defendant was arraigned on November 21, 1977. It was necessary for the court to utilize an interpreter, Mr. Carrizales, in this and in subsequent proceedings because the defendant and his codefendant, Collazo, did not speak or understand the English language to any great extent. The defendant was informed of all his constitutional rights and the charges against him, and both defendant and his codefendant indicated throughout the proceedings that they understood their rights and the charges against them. The defendant and his codefendant pleaded guilty to the second-degree sexual assault charge. The court continued to question defendant and his codefendant in order to ascertain their complete understanding.
The defense counsel then asked defendant a series of questions. It was established that he and the codefendant were together on the day in question.
After the defense counsel elicited from defendant that Margaret Bright had said "no" on one occasion, the trial judge pursued the questioning:
Further testimony, under questioning by the defense counsel, produced answers that somewhat contradicted the above. Then:
The transcript of this proceeding indicates that a statement was taken from the defendant. The defense counsel became aware of this in a somewhat unusual manner.
The defense attorney then questioned the defendant about the statement. The prosecuting attorney also asked a few questions about the statement. The defendant did not indicate he wished to change his story in light of the statement. The statement itself is not in the record nor do we have any information about the circumstances in which it was taken. No inquiry was made in this regard. A similar situation arose over a statement of the codefendant. That statement does not appear in the record either, nor was inquiry made as to its origin.
When the codefendant testified, the story became more confused. The defendant and the codefendant met the victim in a bar and she played pool with them. She left the bar with them but got mad and went back to the bar. The codefendant was drunk but said he understood what he was doing.
The codefendant then somewhat contradicted this testimony. He said he had hold of her hand and that she said "no" more than once. Then:
Some confused testimony followed about the undressing of the victim and who was driving the car.
(Bracketed material supplied.)
The prosecuting attorney offered to explain this away, but the judge said he didn't understand it to be that way. The codefendant than stated that Jesus was driving. When asked again if the victim consented to intercourse, he responded that she had said that she didn't care.
More confusing testimony follows. No other evidence was presented that serves to establish the factual basis for the crime in question. The trial judge then accepted the codefendant's guilty plea. He had earlier accepted defendant's guilty plea.
Defendant was sentenced on April 5, 1978. At that time the trial judge made the following statement to defendant and his codefendant:
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