Schmidt v. State, 5828

• Court: Wyoming Supreme Court
• Writing for the Court: Before ROONEY; THOMAS; ROSE
• Citation: Schmidt v. State, 668 P.2d 656 (Wyo. 1983)
• Decision Date: 02 September 1983
• Docket Number: No. 5828,5828
• Parties: Mark Wayne SCHMIDT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

Page 656

668 P.2d 656

Mark Wayne SCHMIDT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5828.

Supreme Court of Wyoming.

Sept. 2, 1983.

Sylvia Lee Hackl, Appellate Counsel, Wyoming Public Defender Program, Cheyenne, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Michael L. Hubbard, Asst. Atty. Gen., for appellee.

Before ROONEY, C.J., and RAPER, ^* THOMAS, ROSE, and BROWN, JJ.

THOMAS, Justice.

This case presents the question of an abuse of discretion on the part of the district court in denying a motion which was made prior to the imposition of sentence by the appellant, Mark Wayne Schmidt, to withdraw his plea of guilty. We conclude that under Rule 33(d), W.R.Cr.P., the test to be applied in reviewing the ruling of the district court when a criminal defendant moves to withdraw his plea of guilty before sentence is imposed is whether there was an abuse of discretion on the part of the sentencing judge. In this instance there was no abuse of discretion, and the judgment and sentence imposed by the district court will be affirmed.

In his brief Mark Wayne Schmidt states the issue as follows "Whether trial court erred in denying Appellant's pre-sentence motion to withdraw his guilty plea and re-enter pleas of not guilty and not guilty by reason of mental illness or deficiency."

In its statement of the issue appellee, the State of Wyoming, invokes the applicable test, and states the issue as follows:

"DID THE TRIAL COURT ABUSE ITS DISCRETION IN DENYING APPELLANT'S MOTION TO WITHDRAW HIS GUILTY PLEA PRIOR TO SENTENCING?"

The record in this case discloses the following events in connection with the prosecution of Schmidt. The criminal complaint which was filed on July 16, 1981, charged that on July 14, 1981, Schmidt committed the crimes of sexual assault in the first degree in violation of § 6-4-302(a), W.S.1977, and assault while armed with a deadly or dangerous weapon in violation of § 6-4-506(b), W.S.1977. Schmidt was arrested on August 2, 1981, and on August 4, 1981 he was brought before the commissioner for proceedings in accordance with Rule 5, W.R.Cr.P. On August 14, 1981, a written waiver of Schmidt's right to a speedy preliminary hearing was filed, and on August 25, 1981, he filed a motion pursuant to § 7-11-303, W.S.1977, seeking an examination on the question of whether he suffered from a mental illness or deficiency. ¹

On August 26, 1981, the State and Schmidt stipulated a reasonable belief that grounds existed which would necessitate the examination under the statute, and on August 27, 1981, the justice of the peace transferred the case to the district court so that it might proceed to order an examination pursuant to the statute. On August 31, 1981, the district court ordered the examination, and Dr. Brian Miracle was appointed to make it.

Dr. Miracle submitted his report on October 1, 1981, and on October 30, 1981, the district court remanded the case to the justice of the peace court for a preliminary hearing. Thereafter, on November 6, 1981, Mark Schmidt filed a written waiver of his right to a preliminary hearing, and on November 9, 1981, an information was filed in the district court. The charges alleged in the information were identical to those which had been asserted in the criminal complaint, except that reference was made to a prior conviction of rape in the State of Iowa which the State suggested resulted in the maximum penalty for the charge of sexual assault being five years to life in accordance with § 6-4-306(c)(i), W.S.1977. On November 12, 1981, an order was entered setting the case for arraignment on November 20, 1981.

On November 20, 1981, Schmidt filed a Motion to Require Plaintiff to Amend Information to Conform to Charge on Original Complaint in which he contended that he had waived preliminary hearing on only a charge of sexual assault in the first degree and had not waived preliminary hearing on a charge of sexual assault in the first degree aggravated by a prior conviction. On November 20, 1981, Schmidt's arraignment was commenced together with the arraignment of other persons charged with criminal violations, but when he pressed his motion no plea was entered. On December 11, 1981, a written waiver of his right to a speedy trial was filed by Schmidt, and on the same date he entered pleas of not guilty to both Count 1 and Count 2 of the Information which had been amended to delete from Count 1 the aggravating circumstances with respect to the charge of sexual assault in the first degree.

On December 12, 1981, Schmidt was released from custody after the appearance bond required by the court had been filed. On February 12, 1982, that bond was revoked. Other information in the record discloses that the bond was revoked after Schmidt was charged with another sexual assault in Washakie County, Wyoming, which occurred after his release from custody. Schmidt's trial was set for April 12, 1981, and the State subpoenaed witnesses for that trial.

On April 9, 1982, Schmidt again was before the district court at which time he continued his plea of not guilty but added a plea of not guilty by reason of mental illness or deficiency. In an order which was dated April 13, 1982, and filed on April 16, 1982, the district court reflected those proceedings and ordered an examination in accordance with § 7-11-304, W.S.1977 ², noting in its order that an earlier examination had been made in accordance with § 7-11-303(b), W.S.1977. On May 24, 1982, Dr. Miracle, who again had been designated as the examiner, but this time of the defendant's choice, filed his second report. In the meantime an examination also had been conducted at the Wyoming State Hospital, apparently in connection with the criminal proceedings which had been filed in Washakie County, Wyoming, and a report dated February 25, 1982, from the Wyoming State Hospital is included among the papers in the record in this case.

Thereafter the trial date again was set for August 5, 1982. The State of Wyoming subpoenaed six witnesses to proceed with this trial. In the meantime the State of Wyoming had filed another Amended Information which alleged the aggravation of the first count relating to sexual assault in the first degree and which relied upon a conviction of sexual assault in Washakie County as an aggravating circumstance enhancing the available sentence. On August 5, 1982, Mark Wayne Schmidt then changed his plea from not guilty and not guilty by reason of mental illness or deficiency to guilty to Count 1. The record reflects that this occurred while the jury panel was waiting in the court room. The record also reflects a written agreement between Mark Wayne Schmidt and the Big Horn County and Prosecuting Attorney by which the defendant agreed to plead guilty to one count of sexual assault after the Amended Information had again been amended to delete the aggravating circumstance for the enhancement of punishment as to that count. The State of Wyoming agreed to this amendment; agreed to dismiss Count 2 of the Amended Information; agreed not to object to any recommendation by defense counsel that the sentence imposed be the same as that imposed in Washakie County; and both parties agreed that the agreement which they had made was subject to approval by the court. On the same day the district court ordered a presentence investigation to be accomplished and the sentencing then was set for October 22, 1982.

On October 15, 1982, a Motion to Withdraw Guilty Plea was filed by the defendant, Mark Wayne Schmidt. This motion reflects that Schmidt had been evaluated on October 1, 1981, and May 24, 1982, by Dr. Brian Miracle, a clinical psychologist. It also notes that he had been evaluated by the Wyoming State Hospital at Evanston, Wyoming. The essence of the motion, then, is that in an examination performed on September 29, 1982, Dr. John F. Yost, a psychiatrist practicing in Denver, Colorado, concluded that Mark Schmidt "lacks substantial capacity to appreciate the wrongfullness [sic] of his conduct or to conform his conduct to the requirements of law in regards [sic] to the two sexual assaults mentioned in the preceding evaluation." In an accompanying affidavit Dr. Yost stated his conclusion:

"5. That on September 29, 1982, I conducted an examination of Mark Wayne Schmidt, defendant in the above-entitled matter, and based upon the examination upon my professional knowledge as a psychiatrist, it is my opinion that at the time of the alleged criminal conduct in this case, the accused, Mark Schmidt, as a result of mental illness or deficiency, lacked substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law."

Dr. Yost's conclusion was premised upon his diagnosis that Schmidt suffered from:

"1) Post traumatic stress disorder delayed type (DSM III # 309.81); 2) Obsessive Compulsive Disorder (DSM III # 300.30) manifested by repeated sexual acting out."

The justification in Schmidt's motion for relying upon Dr. Yost was that the previous evaluators did not have the specialized experience and training in dealing with post-Vietnam stress syndrome. The evaluations by Dr. Miracle and the Wyoming State Hospital were contrary in their ultimate conclusion to that of Dr. Yost. The reports indicate that the evaluators were aware of his service in Vietnam. Dr. Miracle's diagnoses do reflect "AXIS I 309.81 Post Traumatic Stress Syndrome." The report from the Wyoming State Hospital does not include that diagnosis. There also is present in the file a copy of a report submitted by the Iowa Security Medical Facility, Oakdale, Iowa, on August 24, 1973, a date which preceded Mark Wayne Schmidt's service in Vietnam, which relates to a similar event to that involved in this criminal case, and contains conclusions similar to those reached by the Wyoming State Hospital and Dr. Miracle...