WINSTED v. The State of Wyo.

• Decision Date: 26 October 2010
• Docket Number: No. S-10-0011.,S-10-0011.
• Citation: 241 P.3d 497,2010 WY 139
• Parties: Richard John WINSTED, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

241 P.3d 497
2010 WY 139

Richard John WINSTED, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).

No. S-10-0011.

Supreme Court of Wyoming.

Oct. 26, 2010.

241 P.3d 498

Representing Appellant: H. Michael Bennett, H. Michael Bennett, PC, Cheyenne, Wyoming.

Representing Appellee: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Senior Assistant Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Craig C. Cook, Student Intern; Anna C. Swain, Student Intern.

Before KITE, C.J., and GOLDEN, HILL, VOIGT ^* , and BURKE, JJ.

BURKE, Justice.

[¶ 1] Appellant, Richard John Winsted, pleaded no contest to one count of knowingly possessing a deadly weapon with intent to unlawfully threaten the life or physical well-being of another, in violation of Wyo. Stat. Ann. § 6-8-103 (LexisNexis 2007). Prior to sentencing, he filed a motion to withdraw his no contest plea. The district court denied the motion and he challenges that decision in this appeal. We affirm.

ISSUE

[¶ 2] Mr. Winsted presents one issue: Whether the district court abused its discretion by denying defendant's motion to withdraw no contest plea prior to sentencing.

FACTS

[¶ 3] On November 12, 2008, at 12:20 a.m., officers from the Casper Police Department responded to a report of possible gunfire at an apartment complex. An initial investigation revealed no signs of shots fired and the officers left the scene. At 7:15 a.m., the management of the apartment complex contacted the police with information that they had located a bullet hole and spent bullet. The officers attempted to contact the resident of the apartment from which the bullet had been fired, but were unsuccessful. The officers then entered the apartment, using a key provided by management, to determine whether anyone in the residence had been injured. Once inside, officers observed Mr. Winsted crouched behind a bed. He held a shotgun which was positioned on top of the bed and pointed directly at the officers.

[¶ 4] The officers retreated and called for backup. Eventually, the officers convinced Mr. Winsted to surrender. He admitted to the officers that a shot was fired in his apartment but claimed that it occurred accidentally while he was cleaning a pistol. He was charged with two felony counts, one stemming from the pistol shot in the apartment,

241 P.3d 499

and the other from the threat to the officers from the shotgun. ¹ Mr. Winsted entered a plea of not guilty to both charges.

[¶ 5] Mr. Winsted subsequently entered into a plea agreement with the State. As part of the agreement, Mr. Winsted agreed to plead no contest to Count II. In return the State agreed to dismiss Count I and a DWUI charge pending in circuit court. He entered the plea on June 30, 2009 and was released from jail pending sentencing. On August 6, 2009, prior to sentencing, Mr. Winsted filed a motion seeking to withdraw his plea pursuant to W.R.Cr.P. 32(d). After a hearing, the district court issued an order denying the motion. At a subsequent sentencing hearing, the district court placed Mr. Winsted on probation in accordance with the plea agreement. He timely filed this appeal.

STANDARD OF REVIEW

[1] [2] [¶ 6] We review a district court's decision to deny a motion to withdraw a guilty plea for an abuse of discretion. Frame v. State, 2001 WY 72, ¶¶ 7, 9, 29 P.3d 86, 89, 90 (Wyo.2001). In determining whether there has been an abuse of discretion, we focus on the “reasonableness of the choice made by the trial court.” Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998). If the trial court could reasonably conclude as it did and the ruling is one based on sound judgment with regard to what is right under the circumstances, it will not be disturbed absent a showing that some facet of the ruling is arbitrary or capricious. Rolle v. State, 2010 WY 100, ¶ 9, 236 P.3d 259, 264 (Wyo.2010).

DISCUSSION

[3] [4] [5] [¶ 7] Mr. Winsted sought to withdraw his plea prior to sentencing. In such circumstances, “the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason.” W.R.Cr.P. 32(d). A defendant has no absolute right to withdraw a plea of guilty before sentence is imposed. McCard v. State, 2003 WY 142, ¶ 6, 78 P.3d 1040, 1042 (Wyo.2003). “[W]here the strictures of W.R.Cr.P. 11 have been met, and the defendant intelligently, knowingly, and voluntarily entered into his plea of guilty, the district court's decision to deny such a motion is within its sound discretion.” Frame, ¶ 7, 29 P.3d at 89.

Seven factors have been suggested as pertinent to the exercise of the courts discretion: (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. 3 Wright, King & Klein, Federal Practice and Procedure: Criminal 2d 538 (Supp.2001); United States v. Black, 201 F.3d 1296, 1299-1300 (10th Cir.2000).

Id. The defendant has the burden of establishing a fair and just reason for withdrawal of a plea before sentence is imposed. Major v. State, 2004 WY 4, ¶ 14, 83 P.3d 468, 473 (Wyo.2004). For the purposes of an appeal, a plea of no contest is functionally equivalent to a guilty plea. Id., ¶ 11, 83 P.3d at 472.

[¶ 8] In his motion to withdraw, Mr. Winsted asserted that, after his release, he was able “to procure funds to hire private counsel and would now like to exercise his right to a trial by jury.” He based his motion on his contention that “allowing him to proceed to trial with the counsel of his

241 P.3d 500

choice after making arrangements to hire private counsel is a fair and just reason contemplated under the rule.”

[¶ 9] The State resisted the motion contending that the “fact [that] Defendant has been able to obtain a Monday morning quarterback as a lawyer does not meet the standard as espoused under Rule 32.” The State urged the court to apply the seven factors identified in Frame, and contended that proper application of those factors mandated denial of the motion. The State pointed out that as a result of the plea agreement,...