Wanberg v. State

• Decision Date: 15 June 2020
• Docket Number: S-19-0199
• Citation: 466 P.3d 269
• Parties: Gregory Clyde WANBERG, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

466 P.3d 269

Gregory Clyde WANBERG, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-19-0199

Supreme Court of Wyoming.

June 15, 2020

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Desiree Wilson, Senior Assistant Appellate Counsel.

Representing Appellees: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General; Catherine Mercer, Assistant Attorney General.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

KAUTZ, Justice.

[¶1] Gregory Clyde Wanberg pled no contest to aggravated assault and battery against a pregnant woman in violation of Wyo. Stat. Ann. § 6-2-502(a)(iv) (LexisNexis 2019). Before sentencing he moved to withdraw his plea, alleging that the complaining witness had recanted. Mr. Wanberg claims the district court abused its discretion when it denied his motion. We affirm the district court's decision, but for different reasons than stated by the district court.

[¶2] Mr. Wanberg also claims the written judgment entered against him imposed a greater sentence than that found in the district court's oral pronouncement. The State concedes the written sentence varies from the district court's oral statement at sentencing and the matter should be remanded. We agree.

ISSUES

[¶3] Mr. Wanberg presents the following issues for our review:

1. Whether the district court abused its discretion when it denied Mr. Wanberg's motion to withdraw his no contest plea.

2. Whether the district court's written sentence differed from its oral pronouncement, requiring a remand.

FACTS

[¶4] On January 5, 2018, someone called 911 from a residence in Laramie County, Wyoming, but hung up before talking to a dispatcher. Deputies went to the residence and met Koriena Fantetti who acknowledged she made the phone call. Deputy R. Montgomery provided an Affidavit of Probable Cause, recounting Ms. Fantetti's statements. Ms. Fantetti stated Mr. Wanberg knew she was 5 months pregnant and he had been living off and on with her at the residence. On January 4, she "attempted to leave the residence, but Mr. Wanberg chased after her and prevented her from leaving by using physical force and verbal threats." The next day she "attempted to sneak out of the residence" and "made it to a vehicle." She said Mr. Wanberg came out of the residence, "punched [her] in the left cheek with a closed fist and told her she was not going anywhere." She told Deputy Montgomery that she felt "a pain of 4 on a scale from 0 to 10." The deputy observed "signs of bruising on her left cheek which [was] consistent with being hit with a closed fist."

[¶5] The State charged Mr. Wanberg with kidnapping, aggravated battery on a pregnant woman, and domestic battery. Pursuant to a plea agreement, Mr. Wanberg pled "no contest" to the aggravated battery charge on July 5, 2018. In exchange, the State dismissed the other two charges and agreed not to charge Mr. Wanberg with witness intimidation in a separate matter. The State also agreed to recommend probation. The district court accepted the facts in the Affidavit of Probable Cause as a sufficient factual basis to support Mr. Wanberg's no contest plea.

[¶6] The district court attempted to conduct a sentencing hearing on December 20, 2018. At the hearing, defense counsel expressed concern about Mr. Wanberg's fitness to proceed but did not mention anything about Mr. Wanberg wanting to withdraw his plea or about a witness recanting. The district court continued the sentencing hearing and ordered that Mr. Wanberg be evaluated at the Wyoming State Hospital. Eventually, he was found fit to proceed.

[¶7] Mr. Wanberg again appeared before the district court on March 7, 2019. The court addressed Mr. Wanberg's bond, and defense counsel requested "a week at least" before a sentencing hearing. No one mentioned anything about a plea withdrawal or a witness recanting.

[¶8] The district court set a second sentencing hearing on April 29, 2019. That same day, but before the sentencing hearing, Mr. Wanberg filed a Motion to Withdraw Plea of No Contest. In his motion, Mr. Wanberg claimed "new evidence has come to light." Specifically, he alleged Ms. Fantetti "has now provided defense counsel with a notarized affidavit stating that he did not hit her. The affidavit is dated December 5, 2018." The affidavit was not attached to the motion, and the motion contained no quotes from it.

[¶9] At the April 29, 2019, hearing the district court began by stating that Mr. Wanberg's counsel had filed a motion to withdraw his plea. The district court then invited counsel to present "arguments as to why you believe that [withdrawal of the plea] ... is appropriate." Defense counsel informed the court that in December Mr. Wanberg's mother gave him an affidavit "that was apparently signed by Miss Fantetti." He stated, "in that affidavit Miss Fantetti denies across the board that anything ever happened; that she made all of this up."

[¶10] Defense counsel did not present the affidavit to the court. He did not offer Ms. Fantetti as a witness. He did not offer Mr. Wanberg's mother as a witness, although he stated she was present in the courtroom. In an apparent attempt to explain why Ms. Fantetti was not presented as a witness, counsel stated "we [tried] to get her to the office one time at least. She had an appointment. She didn't show up. Then she called recently, left messages. I haven't gotten back to her. She's that type of a witness, credibility issues. As of late she's made repeated comments to other persons ... that she made all of this up, Your Honor." Counsel did not identify or call these "other persons" to testify. He simply stated, "should the Court allow for more evidence in this matter before the Court rules on this motion," Mr. Wanberg will "ask for a setting where I would have a subpoena served upon Miss Fantetti to have her come in to testify as to just what happened."

[¶11] The district court asked the State, "if the plea were allowed to be withdrawn, would there be prejudice to the State in this case in terms of your ability to present your case?" The State responded, "I don't believe there would be."

[¶12] The district court made specific findings on six of the seven factors related to withdrawal of a plea listed in Frame v. State, 2001 WY 72, 29 P.3d 86 (Wyo. 2001). Based on those findings, the district court concluded "there is no just or fair reason to allow him to withdraw his plea." No written order denying Mr. Wanberg's motion to withdraw his plea appears in the record.

[¶13] After hearing arguments about sentencing, the district court imposed a 3 to 5 year prison sentence. It then stated, "I would suspend that [incarceration], and I would place you on ... supervised probation for a period of three years." One month later, the district court signed a written Judgment and Sentence which states "probation shall continue for a period of 5 years ...."

DISCUSSION

1. Did the district court abuse its discretion when it denied Mr. Wanberg's motion to withdraw his no contest plea?

[¶14] We review the denial of a motion to withdraw a plea for an abuse of discretion. See Steffey v. State , 2019 WY 101, ¶ 17, 449 P.3d 1100, 1105 (Wyo. 2019) ; Berger v. State , 2017 WY 90, ¶ 7, 399 P.3d 621, 623 (Wyo. 2017). "A court abuses its discretion only when it could not reasonably decide as it did." Steffey, ¶ 18, 449 P.3d at 1105, (citing Berger, ¶ 7, 399 P.3d at 623 and Venard v. Jackson Hole Paragliding, LLC , 2013 WY 8, ¶ 6, 292 P.3d 165, 168 (Wyo. 2013) ); see also, Chapman v. State , 2013 WY 57, ¶ 52, 300 P.3d 864, 874 (Wyo. 2013) (under the abuse of discretion standard, we decide "whether the trial court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious" (quotations omitted)). "An abuse of discretion can [also] exist if the wrong law has been applied, the correct law has been applied but incorrectly interpreted, or if the correct law has been improperly applied." Grove v. Pfister , 2005 WY 51, ¶ 6, 110 P.3d 275, 278 (Wyo. 2005) ; see also, Finley Res., Inc. v. EP Energy E&P Co., L.P., 2019 WY 65, ¶ 7, 443 P.3d 838, 842 (Wyo. 2019).

[¶15] Withdrawal of a plea before sentencing is governed by W.R.Cr.P. 32(d) which states: "If a motion for withdrawal of a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason." This rule requires that the defendant show or prove to the court a fair and just reason for withdrawal of his plea. "The defendant has the burden of establishing a fair and just reason for withdrawal of a plea before sentence is imposed." Steffey , ¶ 30, 449 P.3d at 1107-08 ; Winsted v. State, 2010 WY 139, ¶ 7, 241 P.3d 497, 499 (Wyo. 2010) ; Major v. State, 2004 WY 4, ¶ 14, 83 P.3d 468, 473 (Wyo. 2004).

[¶16] In Frame , this Court outlined seven non-dispositive factors to assist the district court in deciding whether the defendant has established a fair and just reason in support of a motion to withdraw his plea:

(1) Whether the defendant has asserted his innocence; (2) whether the government would suffer prejudice; (3) whether the defendant has delayed in filing his motion; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was present; (6) whether the original plea was knowing and voluntary; and (7) whether the withdrawal would waste judicial resources.

Id., ¶ 7, 29 P.3d at 89 (citing 3 Wright, Federal Practice and Procedure: Criminal 2d § 538 (Supp. 2001), and United States v. Black , 201 F.3d 1296, 1299-1300 (10th Cir. 2000) ). The Frame factors are not exclusive or exhaustive, and do not provide a numerical calculation indicating when a "fair and just reason" exists for withdrawal of a plea. "Our intention in setting out the list of factors in F...