Sword v. State

Citation746 P.2d 423
Decision Date19 November 1987
Docket NumberNo. 86-28,86-28
PartiesDonald G. SWORD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming

Public Defender Program: Leonard D. Munker, State Public Defender, and Julie D. Naylor, Appellate Counsel; Wyoming Defender Aid Program: Gerald M. Gallivan, Director, and Megan Olson, Student Intern, for appellant.

A.G. McClintock, Atty. Gen.; Jerry A. Stack, Deputy Atty. Gen.; John W. Renneisen, Sr. Asst. Atty. Gen.; and Mary B. Guthrie, Sr. Asst. Atty. Gen., for appellee.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT, and MACY, JJ.

MACY, Justice.

Appellant Donald G. Sword was indicted by a Campbell County grand jury on four counts of delivery of or possession with intent to deliver controlled substances and one count of aiding and abetting the delivery of a controlled substance. Appellant entered a plea of not guilty and filed a motion to dismiss the indictment and dissolve the grand jury on the grounds that he was denied due process of law because the grand jury was convened and conducted improperly. The district court denied appellant's motion and set the matter for trial. Meanwhile, appellant and the county attorney entered into plea negotiations in which they agreed that the county attorney would move for dismissal of Counts III and V in exchange for appellant's guilty plea. Pursuant to that agreement, appellant changed his plea to guilty, and Counts III and V were dismissed. Appellant was sentenced on the remaining counts to consecutive terms of three and one-half to seven years, five to ten years, and two and one-half to five years in the Wyoming State Penitentiary and fined $5,500.

We affirm.

On appeal, appellant apparently seeks to challenge the continued validity of the grand jury system. However, the issues specifically set forth by appellant do not challenge the constitutionality of Wyoming's grand jury statutes. They are limited instead to the manner in which this particular grand jury was conducted. In a lengthy commentary highlighting the "ills" of the grand jury system, appellant contends that he was denied due process and equal protection of the law because the Campbell County grand jury was convened and conducted improperly. Specifically, appellant raises the following issues concerning the grand jury proceedings:

"Issue I

"Whether the Appellant has been denied due process and equal protection of the law by the actions of the prosecution in deliberately avoiding the preliminary hearing and obtaining indictments without observing minimal standards of fundamental fairness.

"Issue II

"Whether the current Grant Jury was improperly impaneled under Section 7-5-102 in that there was no necessity for said body, requiring the dissolution of the panel and the dismissal of the indictments.

"Issue III

"Whether the indictments in these cases are fatally defective for failure to conform to the statutory requirement that the foreman endorse the words 'A True Bill' upon each indictment. "Issue IV

"Whether the indictments should be dismissed because the conduct of the Grand Jury lacks any indicia of reliability in the assessment of probable cause.

"Issue V

"Whether the district court committed reversible error and abused its discretion in sentencing Donald G. Sword to terms of 3 1/2 to 7 years, 5 to 10 years and 2 1/2 to 5 years, to run consecutively in the Wyoming State Penitentiary, along with a total fine of $5,500 plus a surcharge of $75 to Victims of Crimes and $350.00 reimbursement for attorney's fees."

In addition, appellant claims that the district court abused its discretion in sentencing him to three consecutive terms in the Wyoming State Penitentiary.

The State restates the issues raised by appellant and sets forth the following additional claim:

"APPELLANT'S PLEA OF GUILTY RESULTED IN THE WAIVER OF ISSUES PRESENTED IN THIS APPEAL."

We decline to address the issues raised regarding the grand jury proceedings because we conclude that, by pleading guilty, appellant forfeited his right to challenge his conviction before this Court by claiming that the grand jury was convened and conducted improperly.

It long has been the rule that a guilty plea will prohibit a criminal defendant from appellate review of all but a few defenses and objections. 2 LaFave & Israel, Criminal Procedure § 20.6 (1984). This means that in most jurisdictions, when his defenses and objections are denied upon pretrial motion, a defendant must proceed to trial in order to preserve them for appeal. Id. at 682; Comment, Conditioned Guilty Pleas: Post-Guilty Plea Appeal of Nonjurisdictional Issues, 26 UCLA L.Rev. 360 (1978). Conversely, a defendant who pleads guilty and avoids trial thereby sacrifices his right to appeal the denial of his pretrial defenses and objections. Note, Conditional Guilty Pleas, 93 Harv.L.Rev. 564 (1980).

A few jurisdictions have provided for a contrary result by enacting statutes which permit the defendant to enter a guilty plea conditioned upon reservation of the right to appeal specified issues. 2 LaFave & Israel, supra. Wyoming is not among them. Instead, we have maintained the position that a defendant who pleads guilty admits the elements of the crime charged and waives the right to appeal all but a few defenses and objections. Vallo v. State, Wyo., 726 P.2d 1045 (1986); Tompkins v. State, Wyo., 705 P.2d 836 (1985), cert. denied 475 U.S. 1052, 106 S.Ct. 1277, 89 L.Ed.2d 585 (1986).

In determining what defenses and objections are forfeited by a guilty plea, courts have applied a variety of standards. See 2 LaFave & Israel, supra at 677-80. In the past, this Court has resolved the question by holding that "nonjurisdictional" claims are forfeited by a guilty plea while "jurisdictional" claims are not. Tompkins, 705 P.2d at 839. As one commentator has indicated, this differentiation "simply begs the question." 2 LaFave & Israel, supra at 679. In an attempt to clarify the distinction, the South Dakota Supreme Court recently defined nonjurisdictional claims--those which are waived by a guilty plea--as those "which would not prevent a trial from taking place." State v. Grosh, S.D., 387 N.W.2d 503, 507 (1986). Jurisdictional claims would be those which, if asserted and sustained upon pretrial motion, would preclude the State from bringing the defendant to trial.

This approach is consistent with our prior holding that a defendant who pleads guilty is not barred from claiming on appeal that the statute under which he was convicted is unconstitutional. Kallas v. State, Wyo., 704 P.2d 693 (1985), citing Armijo v. State, Wyo., 678 P.2d 864 (1984). Such a claim, once sustained upon pretrial motion, clearly would prevent a trial from taking place. If the statute making the commission of an act a crime were declared unconstitutional, the State would be precluded from bringing the defendant to trial. Under such circumstances, it would make little sense to require the defendant to...

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18 cases
  • Bowlsby v. State
    • United States
    • Wyoming Supreme Court
    • June 12, 2013
    ...that Mr. Bowlsby entered unconditional guilty pleas to both charges. A guilty plea waives all non-jurisdictional defenses. Sword v. State, 746 P.2d 423, 425 (Wyo.1987). Jurisdictional defenses are not waived, however, and we have previously recognized that double jeopardy is a jurisdictiona......
  • Sword v. Shillinger
    • United States
    • Wyoming Supreme Court
    • November 17, 1989
    ...involved who still remains incarcerated for his conviction which was the result of a "bargained" guilty plea. In Sword v. State, 746 P.2d 423 (Wyo.1987) (Sword I), this court affirmed the grand jury proceedings, as it had in Hennigan, 746 P.2d 360, albeit for a different reason, and also af......
  • Davila v. State
    • United States
    • Wyoming Supreme Court
    • April 23, 1992
    ...as a guilty plea. Zanetti v. State, 783 P.2d 134, 139 (Wyo.1989). As a guilty plea waives all nonjurisdictional defenses, Sword v. State, 746 P.2d 423, 425 (Wyo.1987), so does a plea of nolo contendere. Zanetti, 783 P.2d at 139. Thus, unless Davila's claim was jurisdictional, it has been wa......
  • Martin v. State, 88-155
    • United States
    • Wyoming Supreme Court
    • October 11, 1989
    ...equivalent of a plea of guilty, it must follow that the effect of that plea is to waive all "non-jurisdictional" claims. Sword v. State, 746 P.2d 423 (Wyo.1987), citing Vallo v. State, 726 P.2d 1045 (Wyo.1986); and Tompkins v. State, 705 P.2d 836 (Wyo.1985), cert. denied 475 U.S. 1052, 106 ......
  • Request a trial to view additional results

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