Schmidt v. State, 86-291

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore BROWN; BROWN; URBIGKIT, J., filed a dissenting opinion in which CARDINE; URBIGKIT, Justice, dissenting, with whom CARDINE; I am aware that in Morrissey
Citation738 P.2d 1105
PartiesRonald William SCHMIDT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Docket NumberNo. 86-291,86-291
Decision Date23 June 1987

Page 1105

738 P.2d 1105
Ronald William SCHMIDT, Appellant (Defendant),
The STATE of Wyoming, Appellee (Plaintiff).
No. 86-291.
Supreme Court of Wyoming.
June 23, 1987.

Leonard D. Munker, State Public Defender, and Wyatt Skaggs, Asst. Public Defender, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Terry L. Armitage, Asst. Atty. Gen., for appellee.


BROWN, Chief Justice.

The single issue in this case is whether the trial court abused its discretion in revoking appellant's probation.

We will affirm.

Page 1106

In February 1982, appellant Ronald William Schmidt pled guilty to forgery. He was sentenced to a term of eight to fourteen years in prison; however, the sentence was suspended and appellant was placed on probation for eight years. Appellant implies that the court offered him a choice of two to four years imprisonment or a suspended sentence and eight years probation. This deal was offered by the prosecuting attorney, not the court. Appellant opted for the probation, which was approved by the court with some reluctance because of appellant's past record.

In his brief, appellant murmurs about the option to serve time or get probation. Despite his murmuring he does not raise as an issue the option. Appellant characterizes the choice he was given as "a Hobson's choice if ever there was one." 1

On September 10, 1986, a petition for revocation of probation was filed, charging appellant with twice being intoxicated and being in possession of firearms. The petition further stated that appellant had pled guilty to three counts of driving while under the influence of alcohol. At the commencement of the revocation hearing on September 15, 1986, counsel for appellant requested a continuance stating that he had not had sufficient time to consult with his client nor prepare for the hearing. The only specific concern explained by counsel was:

" * * * I also want time to consult the Municipal Court records to determine the adequacy of his advisory of rights prior to the time that he has pleaded guilty.* * *"

The motion for a continuance was denied and the revocation hearing proceeded with four witnesses testifying, including appellant. Most importantly, the probation officer testified in support of the allegations contained in the petition for revocation of probation. Appellant testified in his own behalf and made certain denials, but he did not deny the drinking allegations. On cross-examination, he invoked the Fifth Amendment and declined to answer questions regarding firearms and drinking.

The trial court found that appellant had violated the terms of his probation, 2 revoked probation and reimposed the sentence that had previously been suspended.

The basic rules regarding revocation of probation, applicable here, are succinctly set out in Longwell v. State, Wyo., 705 P.2d 336, 338 (1985):

"In Gronski v. State, Wyo., 700 P.2d 777, 778 (1985), this court stated:

" 'The imposition as well as the revocation of probation lies within the sound discretion of the district court, and we will not reverse the actions of the district court unless that discretion is abused.'

"We also there noted that it is well established that all that is required to revoke probation is the court's conscientious judgment, after hearing the facts, that a violation has occurred. To the same effect are Minchew v. State, Wyo., 685 P.2d 30 (1984); State v. Reisch, Wyo., 491 P.2d 1254 (1971); and Ketcham v. State, Wyo., 618 P.2d 1356 (1980); see also Buck v. State, Wyo., 603 P.2d 878 (1979); and Sanchez v. State, Wyo., 592 P.2d 1130 (1979)."

This court first defined abuse of discretion pertaining to revocation of probation in Martinez v. State, Wyo., 611 P.2d 831, 838

Page 1107

(1980), reiterated in Longwell v. State, supra, and Minchew v. State, Wyo., 685 P.2d 30 (1984):

"A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. An abuse of discretion has been said to mean an error of law committed by the court under the circumstances.* * *"

Longwell v. State, supra, at 338, then states:

"The standard of proof and the rule with respect to the nature of the evidence in cases involving probation revocation appear in Gronski v. State, supra, 700 P.2d at 778:

" ' * * * The evidence utilized by the district court in making the decision to revoke probation need not establish the violation of the conditions of probation beyond a reasonable doubt, and the usual rules of evidence need not be applied.' "

Appellant's brief makes perfunctory reference to hearsay testimony at the hearing regarding firearms, and testimony regarding matters not charged in the petition to revoke probation. We will not address these matters because appellant has not favored us with cogent argument nor has he cited authority in support of these alleged irregularities.

Appellant further argues that the trial court abused its discretion in not granting a continuance. Appellant contends that he needed more time to consult the municipal court records. Apparently, the only concern appellant had about the court records was whether the municipal judge advised him that a plea of guilty could affect his probation granted February 12, 1982. Subsequently, he contends that Rule 9, Wyoming Rules of Criminal Procedure for Justice of the Peace Courts, mandates that the municipal judge advise an accused of the consequence of a plea of guilty. He also cites Rule 15, Wyoming Rules of Criminal Procedure, for the same proposition.

Appellant was charged in the Town of Torrington Municipal Court with seven violations of law. The city prosecutor and appellant, with the assistance of counsel, negotiated a plea bargain. Pursuant to this plea bargain, appellant pled guilty to two counts of driving while under the influence of alcohol. In exchange for this plea, four charges were dismissed and prosecution on the remaining charge deferred.

In this instance, we do not think that it makes any difference whether or not the municipal judge advised appellant how his plea of guilty could affect his probation which was granted in 1982. We will assume for the purpose of our discussion that the municipal judge did not advise appellant how his plea of guilty could affect his probation.

Rule 9, W.R.Cr.P.J.C., provides in part:

"(a) Procedure on guilty pleas.--A defendant may plead not guilty or guilty or, with the consent of the court, nolo contendere. Except as provided in Rules 22 and 24, the court may refuse to accept the plea of guilty, and shall not accept such plea without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. * * *"

We do not believe that the municipal judge's duty to advise an accused of the consequences of his plea of guilty contemplates a duty to advise what effect a plea of guilty might have on probation granted four and one-half years before, as in this case. Moreover, appellant has not cited any contrary authority. He cites Hoggatt v. State, Wyo., 606 P.2d 718 (1980); Cardenas v. Meacham, Wyo., 545 P.2d 632 (1976); and Britain v. State, Wyo., 497 P.2d 543 (1972), for the proposition that an accused must be informed of the consequences of his plea.

There is nothing in Hoggatt, Cardenas or Britain that remotely suggests that a judge should advise an accused of the effect that a plea of guilty might have on probation granted in the past. If a judge

Page 1108

were required to advise the accused concerning remote consequences of his plea of guilty, he would have to be, among other things, a prophet, psychiatrist, economist, sociologist and employment counselor.

The cases cited by appellant speak of the consequences of a plea of guilty in the case then and there before the court. Among other things, the court must inform the accused that if he pleads guilty he waives his right to a trial and his right against self-incrimination. Another consequence of a guilty plea is a possible penalty.

The court must advise the accused of the minimum and maximum penalties.

We do not believe that the trial court abused its discretion in denying a continuance; and it has not been shown that appellant was prejudiced by such denial. It is apparent from the record that appellant was aware of the conditions of the order placing him on probation in February of 1982. There was ample evidence, most of which was not denied, to justify revocation. The trial court did not abuse its discretion in revoking probation and reimposing the original sentence.


URBIGKIT, J., filed a dissenting opinion in which CARDINE, J., joins.

URBIGKIT, Justice, dissenting, with whom CARDINE, Justice, joins.

The court begins its opinion by concluding that the issue here involved is the propriety of probation revocation. The court discusses in detail the wide latitude the district court possesses in those decisions, with which I have no disagreement. However, that is not the only or even the most significant issue presented. The court fails to adequately address the constitutionally important procedural issue--whether the district court abused its discretion by failing to grant appellant's counsel a continuance of the revocation hearing so that the attorney could meet his professional and constitutional duty in criminal representation. See Haselhuhn v. State, Wyo., 727 P.2d 280, cert. denied 479 U.S. 1098, 107 S.Ct. 1321, 94 L.Ed.2d 174 (1987), Urbigkit, J., dissenting.

On February 12, 1982, Appellant Schmidt pleaded guilty to forging a $10.00 check, and was sentenced to confinement in the Wyoming State Penitentiary for a term of not less than eight years nor more...

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