Starrett v. State

• Decision Date: 18 October 2012
• Docket Number: No. S–11–0284.,S–11–0284.
• Citation: 2012 WY 133,286 P.3d 1033
• Parties: Shawn Nathan STARRETT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

286 P.3d 1033

2012 WY 133

Shawn Nathan STARRETT, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–11–0284.

Supreme Court of Wyoming.

Oct. 18, 2012.

Representing Appellant: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel; Wyoming Public Defender Program.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Justin A. Daraie, Assistant Attorney General.

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

GOLDEN, Justice.

[¶ 1] This appeal presents a question of first impression whether a criminal defendant's judgment of conviction upon his plea of guilty to the felony of third degree sexual abuse of a minor must be set aside and he be permitted to plead anew because the district court failed to comply with Wyo. Stat. Ann. § 7–11–507 which states:

(a) No judgment of conviction shall be entered upon a plea of guilty or nolo contendere to any charge which may result in the disqualification of the defendant to possess firearms pursuant to the provisions of 18 U.S.C. §§ 922(g)(1), (9) and 924(a)(2) or other federal law unless the defendant was advised in open court by the judge:

(i) Of the collateral consequences that may arise from that conviction pursuant to the provisions of 18 U.S.C. §§ 921(a)(33), 922(g)(1), (9) and 924(a)(2); and

(ii) That if the defendant is a peace officer, member of the armed forces, hunting guide, security guard or engaged in any other profession or occupation requiring the carrying or possession of a firearm, that he may now, or in the future, lose the right to engage in that profession or occupation should he be convicted.

Wyo. Stat. Ann. § 7–11–507 (LexisNexis 2011) (emphasis added).

[¶ 2] Shawn Nathan Starrett (Starrett) appeals the judgment of conviction entered by the district court upon his plea of guilty to third degree sexual abuse of a minor ¹ after reaching a plea agreement with the State. In their briefing, Starrett and the State agree the district court erred when it entered the judgment of conviction upon Starrett's guilty plea without advising him in open court that his felony conviction may result in his loss of the right to possess firearms and ammunition and to engage in a profession or occupation requiring the carrying or possession of a firearm under the provisions of the federal law referenced in the above-cited statute. Starrett and the State disagree, however, about the consequences of the district court's error. Starrett contends this Court must, under de novo review, set aside the judgment of conviction and remand to the district court where he is allowed to plead anew after that court advises him as the above-cited statute directs. The State, on the other hand, maintains that, because Starrett did not object to the district court's failed advisement, this Court must affirm the judgment of conviction since Starrett has not established the plain error prejudice prong, that is to say, he has not shown that his decision to plead guilty was influenced by his belief that under his felony conviction he would remain qualified to possess firearms and ammunition and to engage in a profession or occupation requiring his carrying or possession of a firearm.

[¶ 3] After thoughtful consideration and as explained below, we agree with Starrett's contention that we must undertake de novo review of the issue presented; and, having applied that review, we conclude the district court must obey the legislative command of Wyo. Stat. Ann. § 7–11–507 before entering the judgment of conviction upon Starrett's plea of guilty in this case. Consequently, we herewith set aside Starrett's judgment of conviction and remand this case to the district court with instructions to advise Starrett in open court as the statute provides and allow him to plead anew.

ISSUE

[¶ 4] The State's issue statement adequately presents the issue before us:

When a defendant seeks to plead guilty to a felony, a court must advise him, pursuant to Wyo. Stat. Ann. § 7–11–507, that federal law disqualifies felons from possessing firearms. The district court never advised Starrett of this consequence when he pled guilty to felony sexual abuse of a minor. Even so, can Starrett's conviction be affirmed because he does not suggest that receiving the advisement would have led him to plead differently?

FACTS AND PROCEEDINGS

[¶ 5] On August 31, 2011, the district court entered a judgment of conviction and sentence against Starrett upon his plea of guilty to the charge of sexual abuse of a minor in the third degree, a felony in violation of Wyo. Stat. Ann. § 6–2–316(a)(iv), pursuant to a plea agreement between Starrett and the State. The charge was based on Starrett's sexual contact of the victim on April 27, 2011, in Rock Springs, Wyoming. The district court sentenced Starrett to imprisonment of not less than eight years and not more than twelve years with credit for time served and the required monetary assessments. Starrett and the State agree in their briefing on appeal, as the record makes clear, that the district court throughout the proceedings from arraignment through entry of the judgment of conviction and sentence advised Starrett of all the advisements required under the relevant Wyoming Rules of Criminal Procedure; and Starrett and the State agree that the district court failed to advise Starrett in open court of the consequences of his guilty plea under federal law as set forth in Wyo. Stat. Ann. § 7–11–507.

DISCUSSION

[¶ 6] As a preliminary matter, we must determine the appropriate standard of review that is applicable to the issue presented in this appeal. As shall be seen, our determination of that standard of review will drive our answer to that issue.

[¶ 7] Starrett insists that the applicable standard of review is de novo because the issue presented requires the interpretation and application of Wyo. Stat. Ann. § 7–11–507. The State, on the other hand, insists that the applicable standard of review is plain error because Starrett did not object or otherwise call the district court's attention to its failure to give the statutory advisement. More specifically, the State, while conceding that three of the four prongs of the plain error test exist in this record,² contends that Starrett has not satisfied the fourth prong of that test, namely, the district court's failure to give him in open court the statutory advisement adversely affected a substantial right resulting in material prejudice to him. Mebane v. State, 2012 WY 43, ¶ 9, 272 P.3d 327, 328 (Wyo.2012).

[¶ 8] In support of the State's contention that the plain error test is the applicable standard of review, the State relies on United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004), and Mebane. In Dominguez Benitez, the criminal defendant's appeal of his conviction entered upon a plea of guilty concerned the trial court's failure to comply with F.R.Cr.P. 11(c)(3)(B) by not informing him he could not withdraw his guilty plea if the trial court did not accept the sentencing recommendation set forth in the plea agreement. The United States Supreme Court held that, in the case of a F.R.Cr.P. 11 error, the applicable standard of review is the plain error standard of F.R.Cr.P. 52(b). Dominguez Benitez, 542 U.S. at 81–83, 124 S.Ct. at 2339–40. In Mebane, the issue before us was whether the trial court adequately re-advised the criminal defendant of his right to remain silent immediately before he testified on his own behalf at trial after the State had rested its case-in-chief. Mebane, ¶¶ 4–5, 10, 272 P.3d at 328. The right-to-remain-silent advisement appears in W.R.Cr.P. 11(b)(3). Although we did not in Mebane identify W.R.Cr.P. 52(b), which addresses plain error, our decision in that case clearly applied the plain error test to Mebane's claim of W.R.Cr.P. 11(b)(3) advisement error. Both Dominguez Benitez and Mebane then concern application of the plain error standard of review to a criminal defendant's claim of a Rule 11 advisement error.

[¶ 9] Starrett is not claiming a Rule 11 advisement error. Both he and the State agree that he is claiming a statutory advisement error under Wyo. Stat. Ann. § 7–11–507. Because this statute is at issue, Starrett naturally reasons that interpretation and application of this statute is necessary to determine the consequences of the district court's failure to advise him in open court of the consequences of his plea of guilty as set forth in that statute. He asserts, therefore, we must apply our de novo standard of review to the issue before us. Our rules of statutory interpretation and application are well-known:

This court interprets statutes by giving effect to the legislature's intent.... We begin by making an inquiry relating to the ordinary and obvious meaning of the words employed according to their arrangement and connection.... We give effect to every word, clause, and sentence and construe together all components of a statute in pari materia .... Statutory interpretation is a question of law.... We review questions of law de novo without affording deference to the district court's decision. If a statute is clear and unambiguous, we simply give effect to its plain meaning. Only when we find a statute to be ambiguous do we resort to the general principles of statutory construction. An ambiguous statute is one whose meaning is uncertain because it is susceptible to more than one interpretation.

It is a basic rule of statutory construction that courts may try to determine legislative intent by considering the type of statute being interpreted and what the legislature intended by the language used, viewed in light of the objects and purposes to be accomplished....

We are guided by the full text of the statute, paying attention to its internal...