Sisneros v. State
| Decision Date | 25 October 2005 |
| Docket Number | No. 04-15.,No. 04-237.,04-15.,04-237. |
| Citation | 2005 WY 139,121 P.3d 790 |
| Parties | Ralph SISNEROS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Ken Koski, State Public Defender, PDP; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Appellate Counsel. Argument by Ms. Kerin.
Representing Appellee: Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Peter Free, Assistant Attorney General. Argument by Mr. Free.
Before HILL, C.J., and GOLDEN, KITE, VOIGT, JJ., and WALDRIP, D.J.
[¶ 1] Ralph Sisneros appeals from the judgment and sentence entered by the district court after he pled guilty to two counts of third degree sexual assault. Mr. Sisneros reserved his right to appeal the district court's denial of his motion to dismiss for violation of his right to a speedy trial and the district court's ruling that the minor victim, KF, was competent to testify. We affirm.
[¶ 2] Mr. Sisneros states the following issues on appeal:
I. Was appellant denied his right to a speedy trial, and should the charges against him have been dismissed with prejudice due to violation of W.R.Cr.P. 48 and his constitutional right to a speedy trial?
II. Did the trial court err in finding the alleged victim, KF, competent to testify against appellant?
The State rephrases the issues as follows:
I. Was appellant denied his right to a speedy trial under W.R.Cr.P. 48 and the United States and Wyoming Constitutions?
II. Did the trial court err in finding the alleged victim, KF, competent to testify against appellant?
[¶ 3] Mr. Sisneros lived with KF and her mother for a few months in 2002. At that time, KF was six years old. In October 2002, Mr. Sisneros' former girlfriend reported to the Cheyenne Police Department that Mr. Sisneros had told her he was molesting KF. The police investigated the allegations against Mr. Sisneros and learned of several instances where Mr. Sisneros had touched KF inappropriately. He also watched pornographic movies and masturbated in her presence.
[¶ 4] The State charged Mr. Sisneros with three counts of third degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-304(a)(ii) (LexisNexis 2005) and two counts of taking indecent liberties with a minor in violation of Wyo. Stat. Ann. § 14-3-105(a) (LexisNexis 2005). He was arraigned on April 28, 2003, and pled not guilty to all of the charges. An attorney from the public defender's office was appointed to represent Mr. Sisneros and filed a written demand for a speedy trial. The trial was originally scheduled to begin on July 15, 2003, in a stacked setting. Because of its placement in the trial stack, Mr. Sisneros' trial was continued on three occasions until October 7, 2003. On October 1, 2003, the State filed a motion to continue the trial because its lead investigator would not be available to testify during the week of October 7, 2003. The court held a hearing on the State's motion to continue, and Mr. Sisneros' attorney remarked that the defense also needed additional time to prepare. The district court treated the motion as a joint motion to continue and reset the trial to begin on October 21, 2003.
[¶ 5] On October 14, 2003, Mr. Sisneros filed a motion to disqualify the entire Laramie County District Attorney's Office from prosecuting him. He claimed the State had listed Jon Forwood, the Laramie County District Attorney, as a fact witness in the case, thereby creating a conflict of interest, which was imputed to the entire office. Mr. Sisneros requested a special prosecutor be appointed in his case. Later that day, the district court held a hearing on his motion to disqualify the district attorney's office from prosecuting him. During that hearing, the parties discussed the fact that the 180 day speedy trial period would expire on October 25, 2003. Defense counsel stated Mr. Sisneros did not want to waive his right to a speedy trial, and she recognized, therefore, the court might be hesitant to continue the trial. She acknowledged, however, the court could grant a continuance past the 180 day limit if the continuance was required in the due administration of justice. The State represented it could find a special prosecutor to take the case. The district court did not rule upon the motion at that time.
[¶ 6] Later that day the district court held another hearing with the parties. During that hearing, which was conducted over the telephone and inadvertently was not reported, the parties discussed the options available to them regarding Mr. Sisneros' right to a speedy trial, including proceeding with the trial and prohibiting Mr. Forwood from testifying or dismissing the case without prejudice to allow a special prosecutor to be appointed. Apparently, the State represented it preferred to dismiss the charges against Mr. Sisneros without prejudice, and defense counsel acknowledged the State had the right to do so. At the conclusion of the hearing, the district court understood the parties had agreed to a dismissal without prejudice. A deputy district attorney signed a motion to dismiss without prejudice on Friday, October 24, 2003. The motion was not filed, however, until Monday, October 27, 2003, on which date the district court entered the order dismissing the case without prejudice. Mr. Sisneros filed a notice of appeal of the dismissal without prejudice, and that case was assigned Wyoming Supreme Court Docket No. 04-15.
[¶ 7] A special prosecutor acting on behalf of the State filed an information against Mr. Sisneros on October 24, 2003. The special prosecutor later amended the information to charge Mr. Sisneros with additional counts based upon the same course of conduct as the original information. He was arraigned on those charges on December 1, 2003, and entered "not guilty" pleas on all charges. The trial was set for February 17, 2004.
[¶ 8] On February 2, 2004, the public defender who had been representing Mr. Sisneros filed a notice of change of defense counsel. She indicated that the public defender's office had a conflict of interest and could not continue to represent Mr. Sisneros because he had filed a grievance against her with the Wyoming State Bar. The public defender's office then contracted with a private attorney to represent Mr. Sisneros, and he filed an entry of appearance on February 4, 2004. Mr. Sisneros' new attorney filed a demand for a speedy trial and a motion for a continuance on the same day he filed his entry of appearance. The trial was reset for March 16, 2004. Mr. Sisneros subsequently filed a motion to dismiss the charges with prejudice for lack of a speedy trial and a motion for a hearing to determine whether the victim, KF, was competent to testify. The district court held a hearing on Mr. Sisneros' motion to dismiss and concluded he had not been denied his right to a speedy trial. The district court also held a hearing to determine whether KF was competent to testify and concluded she was.
[¶ 9] In light of the district court's rulings, Mr. Sisneros and the State entered into a plea agreement in which he pled guilty to two counts of third degree sexual assault and the remainder of the charges were dismissed. He, however, reserved his right to appeal the district court's denial of his motion to dismiss for lack of a speedy trial and its determination that the victim was competent to testify. The district court sentenced Mr. Sisneros to serve 10 to 12 years of imprisonment on the first count and 18 to 20 years on the second count. The court ordered the sentences be served consecutively, but suspended the sentence on the second count and placed Mr. Sisneros on probation for a period of 20 years. He then filed a notice of appeal, which this Court docketed as Supreme Court Docket No. 04-237. Docket Nos. 04-15 and 04-237 were, subsequently, consolidated for review by this Court.
[¶ 10] Mr. Sisneros asserts his right to a speedy trial was violated. He claims the State violated W.R.Cr.P. 48 when it did not either bring him to trial or dismiss the first case within 180 days after his initial arraignment. He also claims he was denied a speedy trial in violation of the Sixth Amendment to the United States Constitution and Article 1, § 10 of the Wyoming Constitution.
[¶ 11] We consider first whether his right to a speedy trial under W.R.Cr.P. 48(b) was violated. That rule provides, in pertinent part:
(b) Speedy trial.
* * *
(2) A criminal charge shall be brought to trial within 180 days following arraignment unless continued as provided in this rule.
(3) The following periods shall be excluded in computing the time for trial:
(A) All proceedings related to the mental illness or deficiency of the defendant;
(B) Proceedings on another charge;
(C) The time between the dismissal and the refiling of the same charge; and
(D) Delay occasioned by defendant's change of counsel or application therefor.
* * *
(5) Any criminal case not tried or continued as provided in this rule shall be dismissed 180 days after arraignment.
[¶ 12] In the first case, Mr. Sisneros was arraigned on April 28, 2003. On October 24, 2003, the prosecutor signed a motion to dismiss the charges against Mr. Sisneros. The motion was not filed on that day, and the 180 day limit expired on October 25, 2003, which was a Saturday. The State's motion to dismiss was filed on Monday, October 27, 2003, and the district court dismissed the charges without prejudice on that same day. Mr. Sisneros argues his case was not dismissed until the 182nd day after he was arraigned and he was, therefore, entitled to a dismissal with prejudice in accordance with W.R.Cr.P. 48(b)(5).
[¶ 13] In response, the State contends the case was dismissed within the speedy trial period because the 180 day...
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