Spencer v. State, 04-100.

• Decision Date: 30 August 2005
• Docket Number: No. 04-100.,04-100.
• Citation: 118 P.3d 978,2005 WY 105
• Parties: John Franklin SPENCER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

118 P.3d 978

2005 WY 105

John Franklin SPENCER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 04-100.

Supreme Court of Wyoming.

August 30, 2005.

Representing Appellant: Kenneth M. Koski, State Public Defender, and Donna D. Domonkos, Appellate Counsel. Argument by Ms. Domonkos.

Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling; Senior Assistant Attorney General; Eric Johnson, Director, Prosecution Assistance Program; and Scott Dutcher, Student Intern. Argument by Mr. Dutcher.

Before HILL, C.J., and GOLDEN, KITE, VOIGT, and BURKE, JJ.

HILL, Chief Justice.

[¶ 1] Appellant, John Franklin Spencer (Spencer), challenges the district court's decision to impose a sentence that was meted out so as to be served consecutive to a sentence previously imposed in federal court, but concurrent with a sentence that was previously imposed by another Natrona County district judge. The sentence previously imposed in Natrona County was imposed in such a manner so as to be concurrent with the federal sentence. Spencer entered a plea of guilty pursuant to a plea bargain wherein the prosecutor agreed that the sentence in this case would be concurrent, and of the same duration, as the other Natrona County sentence. No mention was made of the status of the federal case; indeed, the existence of the federal sentence was not broached with the district court until the day of sentencing. Spencer contends that the prosecutor breached the plea bargain, that the sentence imposed is illogical and, perhaps, illegal (in theory it must be served twice), and that the sentence was otherwise improper. We will reverse and remand with directions that the district court impose a sentence consistent with the plea agreement (i.e., the sentence in this case must be concurrent with, and of the same duration, as Spencer's other state sentence, but not consecutive to his federal sentence), or permit Spencer to withdraw his guilty plea.

ISSUES

[¶ 2] Spencer raises these issues:

I. Whether [Spencer] received an illegal sentence when the district court ordered that his sentence run concurrently and consecutively in a manner which has [Spencer] serving his sentence twice.

II. Whether [Spencer] is entitled to specific performance on his plea agreement or in the alternative whether he should be allowed to withdraw his guilty plea.

The State rephrases the issues thus:

I. Did the trial court exceed its authority when it made [Spencer's] sentence in this case concurrent to another state sentence but consecutive to his federal sentence; and does the trial court's sentencing order require [Spencer] to serve the same sentence twice, in violation of the Double Jeopardy Clause?

II. Did the prosecutor violate the plea agreement by recommending that [Spencer's] sentence in this case be concurrent to another state sentence but consecutive to his federal sentence?

FACTS AND PROCEEDINGS

[¶ 3] Spencer was arrested on February 27, 2003, and charged with violating Wyo. Stat. Ann. § 6-3-403 (LexisNexis 2005) (receiving and disposing of stolen property). He appeared for arraignment on April 8, 2003, at which time he entered pleas of not guilty.

[¶ 4] A change of plea hearing was held on August 28, 2003. At that hearing, the district court asked Spencer's counsel if Spencer was going to change his plea. Defense counsel replied:

Yes. Well, Your Honor, the plea agreement is that Mr. Spencer will plead guilty to the receiving stolen property count, and I'm not positive which number. I believe it's the first case. Mr. Schafer has those enumerated.

The second case would be dismissed. But as part of this plea agreement, Mr. Spencer will also plead guilty to a charge in front of Judge Park. The conditions of the plea are that these are cold pleas. The only thing is that they will run concurrent between cases in front of both Courts.

[¶ 5] The prosecutor enlarged on that somewhat:

Yes, Your Honor. In case number 15834-B, the defendant will be pleading guilty and providing a factual basis to the count of receiving and concealing stolen property. And in this file, 15848-B, the State will be moving to dismiss in exchange for Mr. Spencer's plea of guilty to the other charge as I indicated.

And in Judge Park's file, Your Honor, it's case number 15878, we have a plea disposition in which defendant would plead guilty to Count II, III, and IV and Counts I and V will be dismissed. We've agreed that all counts will run concurrent and that after the preparation of a presentence investigation, we'll be arguing sentencing at that time, each case to run concurrent, Your Honor.

Spencer then changed his plea to guilty. As a part of its advisements to Spencer, the district court stated that it "would defer acceptance of the plea agreement pending presentence investigation." However, no mention was made at these proceedings about ongoing criminal charges in a federal court or a sentence having been imposed in a federal court. A Presentence Investigation Report was filed in the district court on October 17, 2003. No mention is made of pending federal charges in the presentence report.

[¶ 6] On November 14, 2003, Spencer was scheduled to appear before the district court for sentencing. However, at that time he was in the custody of federal authorities and not present for sentencing. Sentencing was then rescheduled. On December 9, 2003, Spencer again was to appear for sentencing. Spencer had been brought to Casper for this proceeding, but was inexplicably transported back to Wheatland by federal authorities before it was convened. At this December 9, 2003 proceeding, it became evident that the district court would need to issue a Writ of Habeas Corpus Ad Prosequendum and such a writ was issued. Apparently because of the difficulty of getting Spencer before the court for sentencing, the district court continued sentencing proceedings in this matter until after the federal proceedings were concluded. Although it must be assumed that Spencer was aware that he had been prosecuted and sentenced in federal court, that judgment and associated sentence is not a matter of record in this case.

[¶ 7] On March 9, 2004, Spencer finally appeared before the district court for sentencing. The prosecutor made this overture to the district court with respect to sentence:

Mr. Spencer comes before the Court on a felony charge of receiving and concealing stolen property. The Court can recall the defendant provided a factual basis in which he admitted basically to accepting a pool stick, a leather jacket, a western knife, and a .357 handgun, and basically attempting to get rid of those particular items.

Recently, Mr. Spencer was sentenced in front of Judge Park on a charge of two counts of burglary and one count of grand larceny. He also, Your Honor, was recently sentenced in federal court for 57 months on a drug case. Our agreement in this case essentially is that it's a cold plea, but we have agreed to run it concurrent to the sentence that the defendant received in Judge Park's court where he was sentenced last month. And that is docket number 15878-A.

Just for the Court's information, Judge Park did sentence the defendant recently, and he received a four- to six-year sentence to run concurrent with this case and also to run concurrent with the sentence that he received in federal court of 57 months.

What I'm recommending to the Court, Your Honor, is that he receive a four- to six-year sentence in this court today, that it run concurrent with the sentence that Judge Park sentenced the defendant to, but that it run consecutive to the sentence that defendant received in federal court.

As the Court can see, the defendant does have a pretty significant criminal record. Checking that, Your Honor, they — his felony convictions started off earlier back in the early '90s. He has a record that starts in 1991. I counted up his previous felonies which were two prior felonies, one federal felony for a total of three felonies. And then if you count the felonies that he was recently sentenced for in Judge Park's court, there are three additional felonies. So technically, this would be his seventh felony conviction.

I think a four- to six-year sentence is even somewhat low considering that number of felonies, but I would have to advise the Court that he did make a proffer and did provide information in reference to the felony conviction that he was sentenced to. Most of the recent felonies I believe are due to the fact that the defendant was a severe substance abuser with the use of methamphetamine. And it does indicate in the Presentence Investigation that he's received treatment. In fact, he received inpatient treatment twice before he got in trouble for these particular offenses.

The Presentence Investigation does recommend a sentence at the Wyoming State Penitentiary with the Intensive Treatment Unit. We would agree with that, Your Honor. And so I would recommend four to six years in the Wyoming State Penitentiary to run concurrent with 15878-A, that's Judge Park's case, and to run consecutive to the defendant's federal sentence. I would also, Your Honor, recommend that the defendant be required to pay restitution as indicated in the Presentence Investigation.

I recently called the police department evidence room to find out whether any of those items were recovered: the coat, the pool cue, the gun, or the leather jacket. None of those items were recovered. So I would recommend what's outlined in the Presentence Investigation, that the defendant pay that specific amount which — I can't find it right now, Your Honor, but it is indicated in the Presentence Investigation. Thank you.

[¶ 8] Spencer's attorney responded:

Your Honor, I don't have any objection and Mr. Spencer has no objection to the term of four to six years concurrent with the case in 15878-A. However, I cannot imagine how that sentence can be...