Thomas v. State
| Decision Date | 20 November 2007 |
| Docket Number | No. 06-266.,06-266. |
| Citation | 2007 WY 186,170 P.3d 1254 |
| Parties | Jesse THOMAS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Diane M. Lozano, State Public Defender, PDP; Tina N. Kerin, Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.
Representing Appellee: Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Assistant Attorney General.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶ 1] Pursuant to a plea agreement, Jesse Thomas pleaded no contest to one count of attempted second degree murder and two counts of aggravated assault and battery. On appeal, he claims he should be allowed to withdraw his no contest pleas because the district court did not properly advise him in accordance with W.R.Cr.P. 11 and, consequently, his pleas were not knowing and voluntary. Mr. Thomas also contends the State breached the plea agreement by arguing for a prison term of greater than 20 years on the attempted murder charge.
[¶ 2] We conclude the district court failed to advise Mr. Thomas in accordance with Rule 11 and its error was not harmless beyond a reasonable doubt. Accordingly, we reverse and remand.
[¶ 3] Mr. Thomas presents the following appellate issues:
I. Jesse Thomas' plea was involuntary due to the fact that the trial court failed to apprise Mr. Thomas of the maximum and minimum penalties and assessments at the change of plea hearing.
II. The State of Wyoming violated its plea agreement by recommending a sentence in excess of the negotiated sentencing cap.
The State rephrases the issues as:
I. Was the district court's failure to advise appellant pursuant to W.R.Cr.P. 11(b) harmless?
II. Did the State materially and substantially breach the plea agreement?
[¶ 4] Pursuant to a plea agreement, Mr. Thomas pled no contest to one count of attempted second degree murder, in violation of Wyo. Stat. Ann. §§ 6-1-301(a) and 6-2-104 (LexisNexis 2007),1 and two counts of aggravated assault and battery, in violation of Wyo. Stat. Ann. § 6-2-502(a)(iii) (LexisNexis 2007).2 The charges arose from an incident on August 2, 2005, when Mr. Thomas hit his former girlfriend with his truck and pointed a gun at her and another woman.
[¶ 5] At the re-arraignment hearing, defense counsel recited the terms of the plea agreement. She indicated the State agreed to amend the original information, which charged one count of attempted first degree murder, two counts of aggravated assault and battery and two counts of reckless endangerment, to charge one count of attempted second degree murder and two counts of aggravated assault. In addition to amending the charges, the State agreed to "cap its sentencing recommendation at no higher than 20 years" on the attempted second degree murder charge. Defense counsel stated that, with regard to the aggravated assaults, "we can argue whatever we want for those concurrent or consecutive sentences."
[¶ 6] At the sentencing hearing, counsel indicated that, in order to comply with the attempted second degree murder statute and Wyoming's indeterminate sentencing statute, Wyo. Stat. Ann. § 7-13-201 (LexisNexis 2007),3 the State's recommendation would have to be for a minimum of 20 years and a maximum of 22 years and a few months. The district court then proceeded to sentence Mr. Thomas to a period of not less than 240 months nor more than 266 months on the attempted murder charge, 96 to 120 months on one of the aggravated assault charges, and 84 to 120 months on the other. The court made the first two sentences concurrent, but the third was to run consecutively. Mr. Thomas appeals from the judgment and sentence.
[¶ 7] The issue of whether the district court adequately advised Mr. Thomas of the consequences of his plea is a question of law we review de novo. Whitten v. State, 2005 WY 55, ¶ 6, 110 P.3d 892, 894 (Wyo. 2005). Similarly, the issue of whether the State breached its obligations under the plea agreement is subject to de novo review. Frederick v. State, 2007 WY 27, ¶ 13, 151 P.3d 1136, 1141 (Wyo.2007).
[¶ 8] Mr. Thomas claims his pleas were not knowing and voluntary because the district court did not advise him of the minimum and maximum penalties for his crimes, the possibility that restitution would be ordered or that his sentences could run consecutively. Rule 11 of the Wyoming Rules of Criminal Procedure sets out the procedure for pleas. Subsection (b) of that rule delineates the advisements the district court must give a defendant before accepting a plea of guilty or no contest:
(b) Advice to Defendant. — Except for forfeitures on citations (Rule 3.1) and pleas entered under Rule 43(c)(2), before accepting a plea of guilty or nolo contendere to a felony or to a misdemeanor when the defendant is not represented by counsel, the court must address the defendant personally in open court and, unless the defendant has been previously advised by the court on the record and in the presence of counsel, inform the defendant of, and determine that the defendant understands, the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law and other sanctions which could attend a conviction including, when applicable, the general nature of any mandatory assessments (such as the surcharge for the Crime Victim Compensation Account), discretionary assessments (costs, attorney fees, restitution, etc.) and, in controlled substance offenses, the potential loss of entitlement to federal benefits. However:
(A) Disclosure of specific dollar amounts is not required;
(B) Failure to advise of assessments or possible entitlement forfeitures shall not invalidate a guilty plea, but assessments, the general nature of which were not disclosed to the defendant, may not be imposed upon the defendant unless the defendant is afforded an opportunity to withdraw the guilty plea; and
(C) If assessments or forfeitures are imposed without proper disclosure a request for relief shall be addressed to the trial court under Rule 35 before an appeal may be taken on that issue.
(2) The defendant has the right to be represented by an attorney at every stage of the proceeding and, if necessary, one will be appointed to represent the defendant;
(3) The defendant has the right to plead not guilty or to persist in that plea if it has already been made, the right to be tried by a jury and at that trial the right to the assistance of counsel, the right to confront and cross-examine adverse witnesses, the right to court process to obtain the testimony of other witnesses, and the right against compelled self-incrimination;
(4) If a plea of guilty or nolo contendere is accepted by the court there will not be a further trial of any kind, so that by pleading guilty or nolo contendere the defendant waives the right to a trial; and
(5) If the court intends to question the defendant under oath, on the record, and in the presence of counsel, about the offense to which the defendant has pleaded guilty, that the defendant's answers may later be used against the defendant in a prosecution for perjury or false statement.
[¶ 9] In Ingalls v. State, 2002 WY 75, ¶ 11, 46 P.3d 856, 860 (Wyo.2002), we explained that W.R.Cr.P. 11 sets forth the procedure for courts to use in determining that a defendant's plea is intelligent, knowing and voluntary and entered with an understanding of the consequences. See also, Bird v. State, 901 P.2d 1123, 1128 (Wyo.1995), cert. denied, 531 U.S. 907, 121 S.Ct. 253, 148 L.Ed.2d 183 (2000); Smallwood v. State, 748 P.2d 1141, 1143 (Wyo.1988). We have stressed that "[s]trict compliance with the rule is required to ensure due process of law." Ingalls, ¶ 11, 46 P.3d at 860. Other than as specifically allowed in Rule 11, "resort to the extended record should not be required; the record made at the time a guilty plea is entered should satisfy the rule's requirements." Id. See also, Follett v. State, 2006 WY 47, ¶ 23, 132 P.3d 1155, 1163 (Wyo.2006) ().
[¶ 10] The colloquy at the hearing when Mr. Thomas changed his plea to no contest to the three counts for which he ultimately was sentenced was quite short. Defense counsel described the plea agreement as:
[Defense Counsel]: The agreement is that the State will reduce the charge from attempted first-degree murder to attempted second-degree murder. They will put a cap of 20 years for their arrangement (sic) on what his sentence would be after we receive the presentence investigation report.
He also will plead guilty to two aggravated assaults, and we can argue whatever we want for those concurrent or consecutive sentences.
The district court reviewed the terms of the plea agreement and then addressed Mr. Thomas as follows:
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