Zanetti v. State

Decision Date22 November 1989
Docket NumberNo. 88-281,88-281
PartiesWilliam Martin ZANETTI, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

John A. Zebre and John W. James, Rock Springs, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne and Paul S. Rehurek, Sr. Asst. Attys. Gen., for appellee.

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

MACY, Justice.

Appellant William Martin Zanetti pleaded nolo contendere to three counts of second-degree sexual assault. After being sentenced, Appellant filed motions with the district court for withdrawal of his plea, reduction of his sentence, and correction of the record. The district court denied the motions, and Appellant appealed to this Court.

We affirm but strike that portion of the sentence which conditions Appellant's release from parole upon the payment of restitution.

Appellant raises the following issues:

I

Whether Appellant has demonstrated with particularity the District Court unilaterally changed the terms of the plea bargain agreement.

II

Whether Appellant has met his burden of showing that manifest injustice has resulted from his plea.

A. District Court's finding that Appellant's reason for appeal to the Supreme Court and his motions filed after the appeal are based solely on Appellant being unhappy with his sentence was erroneous.

B. Appellant's "Motion to Withdraw" a plea of nolo contendere was based on a number of issues giving rise to "manifest injustices."

1. Plea agreement violation.

2. Innocence as issue on motion to withdraw nolo contendere pleas.

3. Misunderstanding as to consequences of plea; Mootness/Res Judicata.

4. Excessive sentencing/Mootness.

5. Presence of defense on the merits.

III

Whether the District Court, Third Judicial District, improperly failed to grant Appellant's Motion to Correct the Record.

In his supplemental brief, Appellant added the following issue:

I. Whether under the circumstances of the case Appellant was denied the right to a speedy trial.

Facts

On October 16, 1986, a criminal complaint and warrant was filed against Appellant, charging him with three counts of immoral or indecent acts in violation of Wyo.Stat. § 14-3-105 (1977) and ten counts of second-degree sexual assault in violation of Wyo.Stat. § 6-2-303(a) (1977). Appellant pleaded not guilty to all counts on March 11, 1987. At the arraignment, the court mistakenly informed Appellant that the maximum sentence for second-degree sexual assault was ten years per count. 1

Appellant entered into a plea agreement with the county attorney's office. The agreement provided that Appellant would plead nolo contendere to three counts of second-degree sexual assault in exchange for the dismissal of the remaining ten charges. In addition, Appellant agreed to pay $13,831.96 to the Wyoming Department of Public Assistance and Social Services and an undetermined amount to the alleged victims for expenses incurred in filing the criminal actions, insurance deductible payments, airline tickets, accrued medical bills, and child care expenses. The parties agreed that the State would rely upon the presentence report and not make a sentencing recommendation.

On June 14, 1988, Appellant changed his plea to nolo contendere on three counts of second-degree sexual assault, stating, "I deny the charges, Your Honor, for expediency reasons only. My plea is being--my plea is based upon the need of defense, to defend myself in the civil--the civil case filed against me." At that time, the district court informed Appellant of the correct maximum punishment for second-degree sexual assault. The court also explained to Appellant that, by pleading nolo contendere, he was admitting all the essential facts of the charges and that he was waiving his rights to remain silent, to a trial, and to confront and cross-examine witnesses. The court informed Appellant that it would ask him questions about the offenses and that any responses could be used in a prosecution for perjury or false statement. The court determined that the plea was voluntary and deferred making the decision as to whether to accept or reject the agreement. During the following dialogue, the State deferred the dismissal of the remaining charges:

COURT: You've dismissed the other 10?

MISS KEARNS: Yes, Your Honor, without prejudice.

COURT: I would suggest that you make that dismissal conditional. That is, if I accept them--

MISS KEARNS: We haven't formerly dismissed on the record today and there's been no written dismissal and the State would defer the actual dismissal until after the sentencing.

MR. ZEBRE: I don't think that was part of the plea bargain agreement, Your Honor.

COURT: I haven't accepted--

MR. ZEBRE: I understand what the Court is saying, but I'm just saying it is my understanding that the dismissal was to be conditioned upon the nolo plea today. So if the Court wants to defer action on everything that's fine, because--

COURT: Assuming I reject any such thing. I assume you'll reject his nolo contendere plea, as I've told you. And he wants to withdraw his plea, then he'd still have 13 counts sitting there.

MR. ZEBRE: I understand that, Your Honor.

The district court sentenced Appellant to three concurrent terms of not less than fourteen years nor more than eighteen years in the Wyoming State Penitentiary. In addition, the court ordered Appellant to pay a $50 surcharge on each count to the Wyoming Crime Victim's Compensation Fund, $13,831.96 to the Wyoming Department of Public Assistance and Social Services, and an undetermined amount to each of the three alleged victims. The judgment stated that Appellant's restitution would be reduced by the amount of any civil damages awarded against Appellant and arising out of the same charges. The judgment included a provision which conditioned Appellant's release from parole upon his payment of restitution. It also acknowledged that the ten remaining charges had been dismissed.

Appellant thereafter filed motions for withdrawal of his plea, reduction of his sentence, and correction of the record. The district court heard evidence in support of the motions and denied the motions on February 22, 1989. This appeal followed.

Appellant's issues can be consolidated and addressed in the following four categories: withdrawal of a nolo contendere plea; excessive sentencing; correction of the record; and the right to a speedy trial.

Withdrawal of a Nolo Contendere Plea

W.R.Cr.P. 15 defines the district court's authority to accept guilty and nolo contendere pleas. 2 Before accepting a nolo contendere plea, the court must inform the defendant of the charges against him and determine that he understands the consequences of his plea. The court must also find that the plea is voluntary. 3 If a plea agreement is involved, the court may defer its decision to accept or reject the agreement until it has considered the presentence report. Id.; Angerhofer v. State, 758 P.2d 1041 (Wyo.1988).

W.R.Cr.P. 33(d) delineates when a plea may be withdrawn. 4 That rule provides:

Withdrawal of plea of guilty or nolo contendere.--A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment o[f] conviction and permit the defendant to withdraw his plea.

The standards are different for presentence and postsentence withdrawals. A defendant seeking to withdraw before sentencing must present the court with a plausible reason for withdrawal. Chorniak v. State, 715 P.2d 1162 (Wyo.1986); Ecker v. State, 545 P.2d 641 (Wyo.1976). After sentencing, the defendant must justify the withdrawal by showing a manifest injustice. Hicklin v. State, 535 P.2d 743, 79 A.L.R.3d 1050 (Wyo.1975). This Court explained the reason for the different standards in Hicklin:

"[W]ithdrawal of a guilty plea after sentence is conditioned by [W.R.Cr.P. 33(d) ] upon a showing of 'manifest injustice.' This distinction rests upon practical considerations important to the proper administration of justice. Before sentencing, the inconvenience to court and prosecution resulting from a change of plea is ordinarily slight as compared with the public interest in protecting the right of the accused to trial by jury. But if a plea of guilty could be retracted with ease after sentence, the accused might be encouraged to plead guilty to test the weight of potential punishment, and withdraw the plea if the sentence were unexpectedly severe. The result would be to undermine respect for the courts and fritter away the time and painstaking effort devoted to the sentencing process."

Id. 535 P.2d at 749 (quoting Kadwell v. United States, 315 F.2d 667, 670 (9th Cir.1963) (emphasis in original and footnotes omitted)).

The denial of a motion to withdraw a plea is an exercise of the district court's discretion. United States v. Rivera-Ramirez, 715 F.2d 453 (9th Cir.1983), cert. denied 467 U.S. 1215, 104 S.Ct. 2657, 81 L.Ed.2d 364 (1984); United States v. Kobrosky, 711 F.2d 449 (1st Cir.1983). See also Murphy v. State, 592 P.2d 1159 (Wyo.1979). Absent an abuse of that discretion, we will not disturb the result. We have previously stated that judicial discretion is "a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously." Martin v. State, 720 P.2d 894, 897 (Wyo.1986). Further, Appellant has the burden of establishing that a manifest injustice existed. Angerhofer, 758 P.2d 1041; Chorniak, 715 P.2d 1162.

Appellant has attempted to demonstrate the existence of a manifest injustice with a multitude of contentions ranging from noncompliance with the plea agreement to the district court's failure to inform Appellant...

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