Tompkins v. State

• Decision Date: 28 August 1985
• Docket Number: Nos. 84-181,84-238,s. 84-181
• Citation: 705 P.2d 836
• Parties: Wayne TOMPKINS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Curtis TOMPKINS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 836

705 P.2d 836

Wayne TOMPKINS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

Curtis TOMPKINS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

Nos. 84-181, 84-238.

Supreme Court of Wyoming.

Aug. 28, 1985.

Rehearing Denied Sept. 30, 1985.

Leonard D. Munker, State Public Defender, Martin J. McClain, Appellate Counsel, and James Carbone, Legal Intern, Wyoming Public Defender Program, Cheyenne, for appellant Wayne Tompkins.

Leonard D. Munker, State Public Defender, and Martin J. McClain, Appellate Counsel, Wyoming Public Defender Program, and Jon Randolph Kniss, Defender Aid Program, Cheyenne, for appellant Curtis Tompkins.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., Roger Fransen, Asst. Atty. Gen., and Patrick J. Crank, Legal Intern, for appellee.

Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.

ROONEY, Justice.

Appellant Wayne Tompkins pled guilty to possession with intent to deliver a controlled substance, marijuana, in violation of § 35-7-1031(a)(ii), W.S.1977, but reserved the right to appeal the constitutional issues arising from the search of the Tompkins' property. Appellant Curtis Tompkins was convicted, by a jury, of aiding and abetting in the possession of a controlled substance, marijuana, with the intent to deliver, in violation of §§ 6-1-201(a) and (b)(ii) and 35-7-1031(a)(ii), W.S.1977.

We reverse in part and affirm in part.

The Fremont County Sheriff's Department received two telephone calls, one on September 14, 1983, and the other on September 28, 1983, both calls relaying information about a large amount of marijuana being grown in a greenhouse on property belonging to Kathleen Tompkins-Taylor. A search warrant for the property was requested, and it was denied by the Fremont County Court Judge, who suggested further investigation. Thus, on September 28, 1983, in the early evening, two deputies dressed in street clothes and driving an unmarked car proceeded to the property, which is located out in the country, to talk to Kathleen Tompkins-Taylor.

The deputies parked their car outside the fence surrounding the property, entered by stepping through wood rails next to a wire fence, and walked to Kathleen's house. The house had no visible lights showing and was padlocked, but a truck known by one of the deputies to belong to Kathleen was parked nearby. While one deputy knocked on what appeared to be the front door, the other deputy walked around the side of the house and, looking through the opaque sides of the greenhouse, observed "foliage." He then looked further and found several nail holes through which he saw what appeared to be marijuana in the greenhouse. Still not satisfied, the deputy pried back a partially unsecured panel on the greenhouse to gain a better view of this suspected marijuana. He then rejoined his partner at the front of the house.

At this point the deputies called their dispatch office to send reinforcements, and they secured Kathleen's house. Once additional officers arrived, the two deputies proceeded to another house on the property. The house was occupied by Wayne Tompkins, and the deputies, still wanting to question Kathleen, believed that they might find her there.

Again, as one deputy knocked at the front door, the other walked around the house, looking for another entrance or exit. While doing so, the deputy looked into a lighted window and saw what he believed to be several marijuana plants. The occupant of the house, Wayne, upon hearing a knock at his door, invited the visitors in. Both deputies entered the house and one asked if Kathy was there. Wayne told them she was not there and invited them still further into the house. Once in the living room, the deputies noticed what were later proven to be several marijuana plants.

They identified themselves as police officers and placed Wayne under arrest.

The deputies then proceeded to Curtis' house, which was also located on the property. Curtis, who had finally noticed all the commotion, met the officers in his front yard with a rifle, which he put down upon learning the identity of the visitors. The deputies originally wanted only to remove Curtis from the scene so they could secure the property, but after reading Curtis his rights they asked him if he too possessed marijuana. He acknowledged that he did indeed have a small amount, and so the officers placed him under arrest. Charges were brought against Kathy, Wayne and Curtis. All three moved to suppress the marijuana seized. The motion was granted in favor of Kathy, due to a lack of probable cause for the issuance of the search warrant; but the motions of Wayne and Curtis were denied. Charges against Kathy were subsequently dropped.

I

On April 2, 1984, Wayne and the deputy county and prosecuting attorney stipulated as follows: (1) That Wayne would enter a plea of guilty to the charge of possession of a controlled substance with intent to deliver; (2) said plea would be entered prior to the trial of Curtis; and (3) Wayne

" * * * reserves the right to appeal the constitutional issues arising from the search of the Tompkins property on September 28th and 29th, 1983. The parties deem the issue to be a question of fundamental right and that by pleading guilty the Defendant does not waive his right to appeal."

The trial court then accepted Wayne's plea of guilty and accepted the stipulation.

The first question facing us is the propriety of entering a plea of guilty with the express reservation of the right to appeal the constitutional issues arising from a search. The general rule in criminal cases is that a defendant who pleads guilty is deemed to have admitted all of the essential elements of the crime charged, and that he thus waives all nonjurisdictional defenses. Even though a plea of guilty has been entered, however, a defendant may challenge on appeal jurisdictional defects with respect to the charge against him, such as the constitutionality of the statute under which he was charged. Armijo v. State, Wyo., 678 P.2d 864 (1984); Small v. State, Wyo., 623 P.2d 1200 (1981).

Rule 15, W.R.Cr.P., governs pleas in criminal cases. The alternative pleas are listed as "not guilty, not guilty by reason of mental illness or deficiency, unfit to proceed by reason of mental illness or deficiency, guilty, or nolo contendere." Rule 15(a), W.R.Cr.P. There is no provision for a conditional plea of guilty.

We stated in Britain v. State, Wyo., 497 P.2d 543, 545 (1972), that "Rule 15 of our criminal rules is the same as Rule 11 of the Federal Rules of Criminal Procedure." Since that time, Rule 11, F.R.Cr.P., has been amended, and the rules are no longer the same. Effective August 1, 1983, the federal rule was amended to provide for a conditional plea of guilty as one of several alternative pleas. That rule provides, in part:

"With the approval of the court and the consent of the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, he shall be allowed to withdraw his plea." Rule 11(a)(2), F.R.Cr.P.

The fact that our Rule 15 was once the same as Rule 11, F.R.Cr.P., and has not been amended to match Rule 11(a)(2), F.R.Cr.P., adds weight to the conclusion that a conditional plea is neither contemplated nor to be allowed under our rules of criminal procedure.

It is enlightening to note what a commentator had to say about the effect of guilty pleas under Rule 11, F.R.Cr.P., before subsection (a)(2) went into effect.

"A plea of guilty waives all nonjurisdictional defects in the proceeding. It even Armijo v. State, supra, 678 P.2d at 867, involved a claim that the statute under which Mr. Armijo was charged was unconstitutional. We said:

                bars the later assertion of constitutional challenges to the pretrial proceedings.  Claims that the prosecution obtained evidence unlawfully, or that the defendant was illegally detained, or that he was denied a speedy trial will not survive a guilty plea, except to the extent that they may go to the voluntariness of the plea.  But the preclusive effects of guilty pleas do not apply to constitutional claims that go 'to the very power of the State to bring the defendant into court to answer the charge brought against him.'   A defendant who has pleaded guilty may still contend that the indictment or information failed to state an offense, or that the statute under which he was charged is unconstitutional, or that the prosecution is barred by double jeopardy."   1 Wright, Federal Practice and Procedure:  Criminal 2d § 175, pp. 624-628 (1982)
                

" * * * A criminal defendant does not, however, waive the right to challenge the constitutionality of the statute defining the crime to which he enters a plea of guilty by virtue of his plea. Lopez v. State, Wyo., 586 P.2d 157 (1978); Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968); and 1 Wright, Federal Practice and Procedure, § 175, pp. 627-628 (1982). Little purpose would be served by requiring a defendant to insist upon a trial in order to preserve his opportunity to challenge the constitutionality of the statute, and we do not insist upon that. The constitutional question is properly before this court."

In Lopez v. State, Wyo., 586 P.2d 157 (1978), the case referred to in Armijo above, the defendant claimed that the conduct to which he pled guilty and established a factual basis constituted a violation of the negligent homicide statute rather than the manslaughter statute. The issue which he preserved for appeal was whether the negligent homicide statute impliedly repealed the manslaughter statute, an issue which goes to the jurisdiction of the court to try him for manslaughter.

In the case at bar, Wayne is not challenging the jurisdiction...