Schade v. State
| Decision Date | 06 September 2002 |
| Docket Number | No. 01-52.,01-52. |
| Citation | 53 P.3d 551,2002 WY 133 |
| Parties | Sidney R. SCHADE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Kenneth M. Koski, State Public Defender; and Donna D. Domonkos, Appellate Counsel, Representing Appellant.
Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Georgia L. Tibbetts, Senior
Assistant Attorney General, Representing Appellee.
Before HILL, C.J., and GOLDEN, LEHMAN,1 KITE, and VOIGT, JJ.
[¶ 1] Sidney Schade pleaded guilty to two counts of immoral or indecent acts with a minor pursuant to a plea agreement by which the state agreed to recommend probation and Mr. Schade agreed to obtain a sex offender evaluation. Several months after his release on bond pending sentencing, Mr. Schade violated a bond condition which prohibited contact with the victims. The state petitioned to revoke his bond, and Mr. Schade was arrested. Mr. Schade and the state entered into a second plea agreement which provided the state would continue to recommend probation on the condition Mr. Schade was accepted into a community alternative placement program such as the Intensive Supervision Program (ISP). Sentencing was delayed while Mr. Schade unsuccessfully attempted to gain entrance into a variety of such programs. He was ultimately sentenced to two consecutive terms of three to five years of imprisonment. Mr. Schade appeals contending the state violated the first plea agreement and the district court failed to advise him he would be unable to withdraw his guilty plea. Finding no error, we affirm.
[¶ 3] Between May 1, 1999, and August 8, 1999, Mr. Schade inappropriately touched the victims, both age fourteen, on separate occasions. He was charged with one count of third-degree sexual assault under Wyo. Stat. Ann. § 6-2-304(a)(ii) (LexisNexis 2001), two counts of immoral or indecent acts with a minor under Wyo. Stat. Ann. § 14-3-105(a) (LexisNexis 2001), and two counts of causing or encouraging a child to commit with him any immoral or indecent act under § 14-3-105(a). On December 29, 1999, at his arraignment, Mr. Schade pleaded guilty to two counts of indecent or immoral acts with a minor. In exchange for his guilty pleas, the state agreed to dismiss the remaining three charges and recommend probation. Pursuant to both his bond conditions and this first plea agreement, Mr. Schade was prohibited from contacting his victims. The first plea agreement also required that he complete a sex offender evaluation prior to sentencing.
[¶ 4] On February 16, 2000, the state petitioned to revoke his bond because Mr. Schade had contact with one of the victims, and the district court thereafter issued a bench warrant for his arrest. On May 12, 2000, Mr. Schade appeared before the district court for sentencing and acknowledged that a sex offender evaluation had not been completed. The parties reached a second agreement wherein the state would continue to recommend probation provided Mr. Schade was accepted in the ISP or a comparable program to ensure that (1) he had no further contact with the victims and (2) he enrolled in a sex offender treatment program. Although Mr. Schade was given approximately six months of continuances for his sentencing hearing to pursue admission into an ISP-type program, he was not accepted in any program. His inability to enroll in an acceptable program, coupled with his previous failure to abide by the terms of his bond release and plea agreement, caused the state to argue against probation at the sentencing hearing and to urge the court to impose consecutive imprisonment terms of four to six years. Concluding probation was not appropriate, on January 12, 2001, the district court sentenced Mr. Schade to serve consecutive imprisonment terms of not less than three years nor more than five years with credit against the minimum and maximum for time served while awaiting disposition. Mr. Schade now appeals his judgment and sentence.
[¶ 5] Mr. Schade contends the state breached the first plea agreement when it interfered with his ability to comply with its terms by incarcerating him and preventing him from being able to obtain the sex offender evaluation. Our standard concerning a plea agreement breach is as follows:
[W]hether the government has breached a plea agreement is reviewed de novo. In determining whether a breach has occurred, we: (1) examine the nature of the promise; and (2) evaluate the promise in light of the defendant's reasonable understanding of the promise at the time the plea was entered. "`Principles of general contract law guide our analysis of the government's obligations under the agreement.'" Clingman [v. State], 2001 WY 46, ¶ 20, 23 P.3d [27,] 31 [(Wyo.2001)] (). It follows that, "as in contract," a party should not be released from its obligations under a plea agreement absent another party's material or substantial breach of that agreement. A material or substantial breach is one that goes to the whole consideration of the agreement. Several factors are relevant to whether a breach is material or substantial, including the extent to which the nonbreaching party will be deprived of the benefit it reasonably expected and the extent to which the breaching party's conduct comports with the standards of good faith and fair dealing.
Browning v. State, 2001 WY 93, ¶ 32, 32 P.3d 1061, ¶ 32 (Wyo.2001) (some citations omitted).
[¶ 6] Mr. Schade asserts general principles of contract law prohibit a party's interference with another party's ability to perform its contract obligations. In this instance, he argues the prosecution's actions in revoking his bond made it impossible for him to fulfill a requirement of the first plea agreement that he obtain a sex offender evaluation. He asserts the state should not be permitted to rely on his nonperformance to revoke the plea agreement when the state's actions directly caused his nonperformance. However, the plea agreement was revoked because he contacted a victim. In addition, Mr. Schade had almost three months from the entry of his pleas on December 29, 1999, to the date of his arrest on March 22, 2000, for violation of his bond condition in which to complete the sex offender evaluation, and he failed to do so.
[¶ 7] Furthermore, Mr. Schade ignores the fact the plea agreement was renegotiated. The second agreement did not require a sex offender evaluation and, instead, was contingent on him being accepted into the ISP or a comparable program. Consequently, his completion of a sex offender evaluation was no longer a prerequisite for the state's probation recommendation and was irrelevant.
[¶ 8] Mr. Schade also contends, without citing any authority, the district court did not advise him that, if he failed to comply with the interim probation conditions, the state could not be forced to abide by the plea agreement. As an initial matter, there were no interim probation conditions; rather, no contact with the victims was a bond condition for Mr. Schade being released on his own recognizance. Although this bond condition was mentioned at the arraignment where Mr. Schade advised the court he accepted the first plea agreement, it was not an independent condition of the agreement. The "no contact" provision was mentioned merely in the context of a reminder to all parties that it was a requirement for bond. Furthermore, as the state points out, W.R.Cr.P. 11(d) does not require a district court, as a condition of ensuring a plea is voluntary, to specifically advise a defendant of the consequences of failing to comply with a plea agreement's terms. It is axiomatic that, if a defendant fails to comply with a plea agreement, the state is not bound by that agreement.
[¶ 9] W.R.Cr.P. 11(d) requires a district court to assure that a plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The purpose of this rule is to allow the judge to determine whether the defendant entered the plea voluntarily and with an understanding of the consequences of the plea. Smallwood v. State, 748 P.2d 1141, 1143 (Wyo. 1988). This court looks to the totality of the circumstances to determine the voluntariness of a plea. Reyna v. State, 2001 WY 105, ¶ 9, 33 P.3d 1129, ¶ 9 (Wyo.2001). The well defined standard for determining whether a plea was knowing and voluntary provides:
"[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature...
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