Stice v. State, No. 89-294
| Court | United States State Supreme Court of Wyoming |
| Writing for the Court | Before CARDINE; CARDINE; URBIGKIT, C.J., filed an opinion concurring in the result in which GOLDEN; URBIGKIT, Chief Justice, concurring in the result, with whom GOLDEN |
| Citation | 799 P.2d 1204 |
| Parties | Steward Nathan STICE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Decision Date | 29 October 1990 |
| Docket Number | No. 89-294 |
Page 1204
v.
The STATE of Wyoming, Appellee (Plaintiff).
Page 1205
Leonard D. Munker, State Public Defender, and Barbara L. Lauer, Asst. Public Defender, for appellant.
Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., and Richard E. Dixon, Asst. Atty. Gen., for appellee.
Before CARDINE, C.J. * , and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.
CARDINE, Justice.
Appellant Steward Nathan Stice challenges the propriety of his guilty plea to a charge of attempted voluntary manslaughter under W.S. 6-1-301(a) and W.S. 6-2-105(a)(i). The issues he raises require us to decide whether:
"I. The district court erred in accepting appellant's plea of guilty to attempted voluntary manslaughter because the court did not personally address him concerning all the items required by Rule 15(c), W.R.Cr.P.
"II. The district court erred in finding a sufficient factual basis for the guilty plea as required by Rule 15(f), W.R.Cr.P."
In addition to confronting these two issues, the State raises the following issue:
"I. May the jurisdictional mandate of W.R.A.P. 2.01 be waived when the record is devoid of any indication of ineffective assistance of counsel?"
We hold that this court has jurisdiction of this case and affirm it on its merits.
On August 9, 1988, Stice shot his wife, Annette, in the neck and then shot himself in the head at their Hawk Springs mobile home. He was angry with her for alleged infidelity.
Stice had spent the previous four days in the Albany County jail because his employer had failed to pay fines for the overweight truck he had been driving. Stice had expected his wife to pick him up at Laramie after he was released. When she failed to do so, Stice hitched a ride to Cheyenne where he met Annette. Annette drove Stice to Hawk Springs, and they both drank beer along the way.
When they arrived home, Stice noticed clothing that he believed belonged to some other men scattered about the house. Stice went to the bar at which Annette worked, where he drank part of another beer and told her boss that Annette would be late for work. Annette's boss told Stice that Annette had not been to work all weekend. An angered Stice returned to the mobile home, where a fight ensued. Stice accused Annette of having sexual relations with other men. He retrieved his handgun, struck her with it and then fired it at her but missed. Stice fired a second shot, striking Annette in the neck and penetrating her carotid artery. He then shot himself in the head. Both Annette and Stice survived the gun shot wounds. Stice's self-inflicted wound destroyed part of the right frontal lobe of his brain and his right eye.
Page 1206
Stice was originally charged with attempted second degree murder. At his arraignment on August 31, 1988, Stice pleaded not guilty, not guilty by reason of mental illness or deficiency, and not triable by reason of mental illness or deficiency. The court ordered Stice transferred to the state hospital for a mental examination.
An October 8, 1988 report from the state hospital indicated Stice was competent to stand trial. On Stice's motion, the court ordered a further evaluation. Stice was examined by a neurologist in Cheyenne and a second time at the state hospital. A December 9, 1988 report from the state hospital indicated that he was no longer competent to stand trial because he developed an uncooperative nature about him. Following a competency hearing, the court found Stice unfit to stand trial and ordered him to the state hospital for treatment.
On February 15, 1989, the state hospital reported that Stice had responded to treatment, and it now considered him competent to stand trial. A competency hearing was held in April. The court declined to make a finding as to competency.
On June 23, 1989, the court found Stice competent to stand trial. At the same hearing, Stice was allowed to change his plea to guilty of attempted voluntary manslaughter. Following questioning of Stice by his attorney, the prosecutor, and the court and the establishment of a factual basis for a guilty plea, the court accepted the plea. More details of the conduct of the hearing will be related below as necessary. The court sentenced Stice to a term of 15 to 18 years in prison.
Appellate Jurisdiction
The court entered its judgment and sentence on August 14, 1989. Stice filed his notice of appeal on November 24, 1989. The State maintains that this delay should result in a denial of jurisdiction of the appeal. The State bases its assertion on W.R.A.P. 2.01, which states in part:
"An appeal, civil or criminal, permitted by law from a district court to the Supreme Court, shall be taken by filing a notice of appeal with the clerk of the district court within fifteen (15) days from entry of the judgment or final order appealed from and concurrently serving the same in accordance with the provisions of Rule 5, W.R.C.P., unless a different time is provided by law, except that: (1) upon a showing of excusable neglect the district court in any action may extend the time for filing the notice of appeal not exceeding fifteen (15) days from the expiration of the original time prescribed herein, provided the application for extension of time is filed and the order entered prior to the expiration of thirty (30) days from entry of judgment or final order appealed from * * *."
Stice made a motion in the trial court for leave to file a late appeal in November. However, the trial court declined to act on the motion, stating that it lacked the authority to act.
Allowing an untimely first appeal as of right in a criminal case is sometimes warranted in order to prevent a denial of due process and ensure effective assistance of counsel. Price v. State, 716 P.2d 324, 327 (Wyo.1986). In Price, the appellant failed to file his notice of appeal within the requisite time after final judgment was entered. Instead, he appealed nearly a year later when an order was entered transferring him from the state hospital to the penitentiary. Relying upon Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985), we allowed Price his appeal. 716 P.2d at 327. Circumstances in Stice's case warrant we allow his appeal.
When Stice entered his guilty plea on June 23, 1989, the court was prepared to pronounce sentence. The court, however, ordered a presentence investigation in part to allow time for Stice to undergo reconstructive surgery, needed as a result of his self-inflicted wound, before being transferred to the state penitentiary. When Stice was sentenced on August 11, 1989, this surgery had yet to be performed, some of which was scheduled to be performed in Scottsbluff, Nebraska on August 19. Correspondence from Stice to his counsel and
Page 1207
from his counsel to the State Public Defender indicate that Stice wished to appeal, but his counsel thought Stice lacked any basis for appeal. Stice's appellate counsel has raised two important issues. We will not deny Stice his right to due process due to counsel's oversight. In order to ensure that Stice be afforded effective assistance of counsel, we will decide Stice's issues on their merits.Acceptance of the Plea
At the change of plea hearing, after the court found Stice competent to proceed, Stice's counsel, Leonard Munker, informed the court of a plea agreement and Stice's desire to plead guilty to attempted voluntary manslaughter. The court addressed Stice, asking him how he pleaded to the charge, and Stice responded he pleaded guilty. The court then had Stice take the witness stand, and Munker questioned him.
Munker asked Stice if he understood the maximum penalties and advised him that he had the right to go to trial by jury of twelve which must reach an unanimous verdict; that he had a right to counsel if he went to trial; that he had a right to call witnesses on his behalf; that he had a right to confront witnesses against him; and that he had a right to testify himself if he...
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Noel v. State, S-13-0059
...89 (Wyo. 1992); Warren v. State, 809 P.2d 788 (Wyo. 1991) (recognizing the crime of attempted voluntary manslaughter); Stice v. State, 799 P.2d 1204, 1205 (Wyo. 1990); Best v. State, 736 P.2d 739, 747 (Wyo. 1987); Shepard v. State, 720 P.2d 904, 905 (Wyo. 1986).[¶35] In addressing a compara......
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Noel v. State, No. S–13–0059.
...85, 89 (Wyo.1992); Warren v. State, 809 P.2d 788 (Wyo.1991) (recognizing the crime of attempted voluntary manslaughter); Stice v. State, 799 P.2d 1204, 1205 (Wyo.1990); Best v. State, 736 P.2d 739, 747 (Wyo.1987); Shepard v. State, 720 P.2d 904, 905 (Wyo.1986). [¶ 35] In addressing a compar......
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Harvey v. State, No. 90-113
...to ensure Harvey effective assistance of appellate counsel. 37 Gambling Devices v. State, 694 P.2d 711, 716 (Wyo.1985); Stice v. State, 799 P.2d 1204, 1207 This case, from announcement of the reversal of the earlier conviction to coverage culminating in the commencement of trial proceedings......
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State v. Gutierrez, No. 94,317.
...as lesser included offense). At least one of our sister jurisdictions appears to be in a similar position. See Stice v. State, 799 P.2d 1204 (Wy.1990) (defendant pleaded guilty to attempted voluntary manslaughter; untimely appeal permitted where district court had failed to inform defendant......
-
Noel v. State, S-13-0059
...89 (Wyo. 1992); Warren v. State, 809 P.2d 788 (Wyo. 1991) (recognizing the crime of attempted voluntary manslaughter); Stice v. State, 799 P.2d 1204, 1205 (Wyo. 1990); Best v. State, 736 P.2d 739, 747 (Wyo. 1987); Shepard v. State, 720 P.2d 904, 905 (Wyo. 1986).[¶35] In addressing a compara......
-
Noel v. State, No. S–13–0059.
...85, 89 (Wyo.1992); Warren v. State, 809 P.2d 788 (Wyo.1991) (recognizing the crime of attempted voluntary manslaughter); Stice v. State, 799 P.2d 1204, 1205 (Wyo.1990); Best v. State, 736 P.2d 739, 747 (Wyo.1987); Shepard v. State, 720 P.2d 904, 905 (Wyo.1986). [¶ 35] In addressing a compar......
-
Harvey v. State, No. 90-113
...to ensure Harvey effective assistance of appellate counsel. 37 Gambling Devices v. State, 694 P.2d 711, 716 (Wyo.1985); Stice v. State, 799 P.2d 1204, 1207 This case, from announcement of the reversal of the earlier conviction to coverage culminating in the commencement of trial proceedings......
-
State v. Gutierrez, No. 94,317.
...as lesser included offense). At least one of our sister jurisdictions appears to be in a similar position. See Stice v. State, 799 P.2d 1204 (Wy.1990) (defendant pleaded guilty to attempted voluntary manslaughter; untimely appeal permitted where district court had failed to inform defendant......