Stout v. State, 00-314.

• Decision Date: 03 December 2001
• Docket Number: No. 00-314.,00-314.
• Parties: Luke Ray STOUT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

35 P.3d 1198

2001 WY 114

Luke Ray STOUT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 00-314.

Supreme Court of Wyoming.

December 3, 2001.

Representing Appellant: Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Ryan R. Roden, Assistant Appellant Counsel.

Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and T. Alan Elrod, Assistant Attorney General.

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

HILL, Justice.

[¶ 1] Luke Ray Stout (Appellant) appeals the denial of his motions to withdraw his guilty plea filed prior to sentencing and his request for new counsel. Appellant also claims that his counsel did not adequately represent him at sentencing. We affirm.

[¶ 2] Appellant raises two issues on appeal:

Issue I

Whether the district court abused its discretion in failing to fully explore Appellant's request for substitute counsel; in the alternative, the district court abused its discretion in not rejecting, on its own motion, Appellant's guilty plea, or failing to grant Appellant's motion for withdrawal of guilty plea, as Appellant was not adequately advised by appointed counsel?

Issue II

Whether Appellant was adequately represented at his sentencing, in violation of his sixth amendment right to counsel?

The State framed the issues on appeal in slightly different language:

I. Did the district court properly deny Appellant's motions for substitution of counsel and withdrawal of his guilty plea?

II. Did Appellant receive adequate and effective representation at his sentencing hearing?

FACTUAL BACKGROUND

[¶ 3] On March 9, 2000, Appellant slit Justin Bloxom's throat. Fortunately, Bloxom survived. Appellant was arrested and charged with attempted first-degree murder. On August 16, 2000, Appellant entered into a plea agreement with the State. Appellant agreed to plead guilty to attempted voluntary manslaughter and, in exchange, the State agreed to recommend a sentence of 10 to 18 years in the penitentiary. A change of plea hearing was held at which Appellant was informed that by pleading guilty he would be waiving certain rights, including the right to a jury trial. Appellant acknowledged that he understood the consequences of his plea and expressed his desire to proceed with the plea agreement:

[Court]: At that time [arraignment] I gave you a number of advisements concerning the rights that you had in connection with the charge. I also talked to you about the consequences of entering a guilty plea. And I believe that I explained to you that if you entered a guilty plea you give up some of the rights that we talked about, including the right to go to trial, the right to confront State witnesses, the right to present witnesses in your defense, the right to object to technical defects in the proceedings, if any.

And, of course, most importantly, if a person pleads guilty, they subject themselves to possible imposition of all the penalties and consequences that, you know, are a part of the charge that's filed.

Do you have any questions about any of that?

[Appellant]: No, sir.

....

[Court]: So what do you think you want to do, [Appellant], do you think you want to change your plea to the amended charge in hopes the Court will approve the plea agreement we've talked about or not?

[Appellant]: Yes, sir.

After establishing a factual basis for the plea, the district court accepted Appellant's guilty plea to attempted voluntary manslaughter.

[¶ 4] On August 28, 2000, Appellant sent a letter to the district court judge expressing dissatisfaction with his counsel and requesting appointment of "an attorney with experience." Appellant also requested a meeting with the judge because he had questions. On September 7, 2000, the district court held a hearing on Appellant's letter. At the hearing, the district court announced that it was treating Appellant's letter as a motion to substitute counsel and as a motion for a withdrawal of his guilty plea. Appellant cited three reasons for his request: (1) his counsel allegedly had informed him that he could go to trial even after changing his plea to guilty; (2) counsel allegedly told him that if he did choose to go to trial after changing his plea, he would not be able to obtain a different counsel and would have to proceed on his own; and, (3) counsel had supposedly told Appellant's grandmother that he was certain of Appellant's guilt. During the course of the hearing the following colloquy took place:

[Appellant]: The main reason for this [the request for new counsel] was [defense counsel's] comment after the last hearing, Your Honor.

[Court]: So your grandmother, to walk out and say, "We know he did it," that is—

[Appellant]:—I don't believe acting professional. That wasn't—wasn't something that your attorney, somebody that's supposed to be representing you, walks out and says to your family. That was—it was—I believe it was very wrong and that

[Court]: So that's what you're relying upon?

[Appellant]: Well, no. I'm not relying on anything, anymore. I don't know all the fancy talk and [Court]: But that's—you're thinking that that was some sort of an error in the case? After you had already pled guilty, some comment made by your lawyer you think somehow justifies you changing your plea?

[Appellant]: No. I think the error was in his lack of—his lack of counsel when I told him I wanted to change my plea, that I didn't want to take the plea, which was before the hearing. I told him I didn't want to take the plea, that I wanted to go to trial. He did not—he did not—he did not tell me that something like this may happen.

[Court]: Something like what?

[Appellant]: Like if I were to take the plea that I didn't have the opportunity for—to go back to trial. When he offered the plea to me, that was part of

[Court]: Wait a minute. I told you that if you pled guilty you would give up your right to trial. I personally told you that before you changed your plea. So I don't know what you're talking about off the record, but on the record I told you that.

[Appellant]: Right. And I guess off the record I might have misunderstood what he said, but I believe he told me that even if I changed my plea to guilty that I would still have the option of going—of taking that back and going to trial. Obviously, I misunderstood. And that's another problem. I need to know what's going on. I haven't—I haven't actually known what's happened since the beginning.

[Defense Counsel]: Your Honor, with regard to [Appellant's] motion to withdraw his plea, I certainly don't want to stand in the way of his ability to seek the Court's permission to do that. I did not necessarily interpret his letter as a motion here for that, although I can see that obviously is his intent.

[Appellant]: No, it is not my intent. My intent was a continuance so that maybe I can get representation, representation that I would be satisfied with; and then based on what—the reason I was asking for this was to get the representation so that somebody might start telling me what's going on.

[Defense Counsel]: And I would suggest that if [Appellant's] reasons for seeking to withdraw his plea are having to do with my professional conduct, it puts me in a potential conflict of interest in helping him establish the basis to withdraw his plea; and I would suggest that it would be most appropriate that another attorney aid him in pursuing that goal if that is his goal. And perhaps a decision on that matter should be continued until he's had a chance to consult with counsel.

[Prosecutor]: Your Honor, it seems to me that what [Appellant] is looking for, according to what he said, is an attorney that he's satisfied with. I don't know [Appellant], and I don't know if such an attorney exists on the face of the earth. [Appellant] finds himself in a tough predicament here.

It seems to me that any decision—if what [Appellant] is trying to do is finished [sic ] private counsel to represent him, we've got—we've got a sentencing date now, depending on what happens with any motion to withdraw his plea, if that's granted; then we'll have a trial date.

The clock has been running. He apparently has known about this since he sent this letter out August 28th. He's had or his family has had time to try to find counsel for him. I think maybe we're better off waiting to cross those bridges until we come to it. Let's see if he ever finds an attorney that he's satisfied with before we make a decision to grant either a motion— well, grant his motion at least for substitute counsel at this time, because on the basis of it, from what I've heard, he has yet to produce any evidence that would indicate that [defense counsel] has either been incompetent, has a conflict of interest or is otherwise incapable of providing effective assistance of counsel.

[Appellant]: Your Honor, [the prosecutor] is right. I wrote that letter asking for a continuance so that my family might possibly find an attorney that would represent me, not anybody else's interests, not—not what anybody else thinks. Wouldn't represent his own opinions; he would represent me. But—it sounds like a waste of my breath.

[Court]: Well, counsel, from the perspective of the criminal justice system, if a defendant is carefully advised of his rights, it would be bad policy to automatically allow last-minute changes in counsel; and, obviously, we have a lot of case law regarding requests to change pleas.

Examining the record in this case in particular, and also trying to construe [Appellant's] comments here this morning favorably for him, the Court still does not see any kind of reasonable or lawful basis that it could conclude that he has not been represented adequately throughout these proceedings, nor does the Court find anything in the record that would indicate a reason to change the plea that he entered back on August 16, 2000.

So the

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