Appeal from the District Court of Campbell County, The Honorable Dan R. Price II, Judge.
The opinion of the court was delivered by: Hill, Justice
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1] In a change of plea hearing, Shawn Wayne Jones pleaded guilty to one count of aggravated assault and battery, in violation of Wyo. Stat. Ann. § 6-2-502(a)(ii), and five counts of felony property destruction, in violation of Wyo. Stat. Ann. § 6-3-201(a) and (b)(iii). Jones also admitted to being an habitual offender, and was sentenced to a term of incarceration of not less than twenty years nor more than forty years for the aggravated assault and battery, and not less than five years nor more than ten years for the five counts of felony property destruction, the terms to be served consecutively. Jones appealed, claiming that the award for restitution exceeded the jurisdiction of the trial court, that an amendment of the initial charge was unauthorized and thus plain error, and that the factual basis given at the change of plea hearing was inadequate. We reverse in part, and affirm in part.
[¶2] Jones presents three issues for our consideration:
I. Did the award of restitution for loss of support constitute an illegal sentence?
II. Did the unauthorized amendment of the charge against Mr. Jones leave Mr. Jones unaware of the charge to which he pled guilty and constitute plain error?
III. Was the plea supported by an adequate factual basis to prove voluntariness?
The State rephrases the issues only slightly:
1. The District Court erred when it ordered [Jones] to pay restitution for "loss of support."
2. [Jones] consented to the amended felony information and impliedly waived a preliminary hearing on the amended charge.
3. [Jones'] guilty plea was voluntarily made and the district court was presented with a sufficient factual basis to accept that plea.
[¶3] On March 10, 2007, Shawn Wayne Jones brutally beat his wife. Jones began attacking his wife while she was holding their son. Mrs. Jones attempted to escape to the child's bedroom. Jones foiled the effort and demanded that she come out. Leaving her son behind, Mrs. Jones returned to the living room and the attack resumed. Jones threw his wife onto the floor and hit her on the head multiple times with a wooden dining chair. He hit her on her face and her chest, and kicked her in the ribs. After she ran to the bedroom and crawled under the bed, Jones began tearing the bed apart. As a result of his destruction, the bed's box spring fell on top of her, but Jones continued to beat his wife with a bedpost.
[¶4] Jones' wife eventually jumped out the window and ran to a neighbor's house to call the authorities. Members of the Gillette Police Department arrived and finally had to taser Jones to gain control of him. Three days after the incident, Jones was charged with one count of aggravated assault and battery in violation of Wyo. Stat. Ann. § 6-2-502(a)(i), as an habitual offender, pursuant to Wyo. Stat. Ann. § 6-10-201(a) and (b)(ii), and five counts of felony property destruction, in violation of § 6-3-201(a) and (b)(iii).
[¶5] After his initial appearance, with his bond set at $100,000 and following his preliminary hearing, Jones was bound over to the district court on April 20, 2007. An amended felony information was filed, charging Jones with aggravated assault and battery in violation of § 6-2-502(a)(ii) instead of § 6-2-502(a)(i). Jones pled not guilty to all of the charges in June, but changed his pleas to guilty on all six counts on September 24, 2007. After a restitution hearing in which Jones was ordered to pay $22,235.87 in restitution, the district court sentenced Jones to a term of imprisonment of not less than twenty nor more than forty years for the aggravated assault and battery, to run consecutively to a term of not less than five nor more than ten years for the five counts of felony property destruction. Jones received credit for time served, and on February 1, 2008, he filed his timely notice of appeal.
[¶6] On November 8, 2007, the district court held a restitution hearing in the instant case. The State requested that the Division of Victims' Services be compensated a total of $9,265.73, of which $5,400.00 was for "loss of support" for Jones' wife. That request was granted, and the "loss of support" amount was incorporated into the district court's sentence, filed January 10, 2008.
[¶7] On December 14, 2007, this Court issued Hite v. State, 2007 WY 199, 172 P.3d 737 (Wyo. 2007). In Hite,we stated that restitution ordered for "loss of support," without more specificity, is insufficient to assure that the trial court complied with the statutory mandate, pursuant to Wyo. Stat. Ann. § 7-9-103(b), and that restitution be ordered only for "pecuniary damages" caused by a defendant's criminal conduct. Id. ¶¶ 14-16, 172 P.3d at 740-41.
[¶8] The facts of Hite are similar to the facts of this case regarding restitution. The record here, as in Hite,is insufficiently specific to permit the conclusion that the "loss of support" portion of the restitution ordered here comported with the statutory definition of "pecuniary damages." Hite controls the disposition of this issue, and thus we remand this issue to the district court for the limited purpose of conducting a new, more specific restitution hearing.
[¶9] In his second issue on appeal, Jones claims that the amended felony information was never properly authorized and that he never received a preliminary hearing on the amended aggravated assault and battery charge. Jones asserts that because of this, he was never adequately informed that he would be called to account for using a "deadly weapon" against his wife and, therefore, was unable to consider whether the instrument he used against her fit the definition of "deadly weapon" pursuant to § 6-2-502(a)(ii).
[¶10] We review this question of law under the plain error standard. "When an issue is not raised at trial, the burden is upon the appellant to establish that plain error occurred." Britton v. State, 976 P.2d 669, 671 (Wyo. 1999) (citations omitted). Under the plain error standard, the appellant must show (1) a clear record of the alleged error; (2) the violation of a clear and unequivocal rule of law; (3) denial of a substantial right; and (4) material prejudice. Reece v. State, 2008 WY 121, ¶ 8, 193 P.3d 274, 276 (Wyo. 2008).
[¶11] In analyzing Jones' claim that he was not properly advised of the charges against him, we first look to the record to determine whether it is clear regarding the incident which is alleged as error. While there was no ruling by the circuit court on the State's Motion for Leave to File Amended Felony Information, and it does not appear that a preliminary hearing was held on the amended charge, it is clear that an amended felony information exists. From the record, it is also clear that the court, and the parties, proceeded according to that information, and not the original.
[¶12] Having determined that the first prong of the plain error standard is met, we look next to the second prong: whether Jones showed that there was a violation of a clear and unequivocal rule of law. Jones argues that this prong is met because, first, the court did not authorize the charge to be changed, and second, because Jones never received a detailed explanation of the new charge. However, it is our conclusion that no clear violation of law occurred because Jones waived any objection to the lack of a preliminary hearing or advisement of the implications of the amended information.
[¶13] This Court was presented with a similar situation in Mickelson v. State, 2008 WY 29, ¶ 2, n.1, 178 P.3d 1080, 1081 (Wyo. 2008). There, the original felony information filed in circuit court charged the appellant only with aggravated assault and battery. On that charge, he received a preliminary examination and was bound over for trial in district court on that charge only. However, he was arraigned in district court on a second amended information that charged two counts: aggravated assault and battery, and possession, manufacture or disposition of a deadly weapon with unlawful intent. As we stated in Mickelson, ¶ 2, n.1, 178 P.3d at 1081, this type of change "concerns us" because:
Wyo. Stat. Ann. § 7-8-105 (LexisNexis 2007), Wyo. Stat. Ann. §5-9-132(b)(LexisNexis 2007), W.R.Cr.P. 3(c), and W.R.Cr.P. 5(c) contain clear requirements for a preliminary examination, and allow amendment of an information only in limited circumstances. . [However],
"the time to object to defects in the preliminary hearing is before arraignment and trial, and "unless some reason is shown why counsel could not have discovered and challenged the defect before trial, it will generally be assumed that any objections to the preliminary proceedings were considered and waived, and no post-conviction remedies will be available."
Trujillo v. State, 880 P.2d 575, 582-83 (Wyo. 1994) (quoting Blue v. United States, 342 F.2d 894, 900-01 (D.C. Cir. 1964)
[¶14] As we stated in Mickelson, neither the preliminary examination requirement, nor the amendment process, is jurisdictional, inasmuch as both can be waived by failure to raise the issue before trial. Furthermore, an information may be amended pursuant to W.R.Cr.P. 3(e), which states:
(e) Amendment of information or citation. -- Without leave of the court, the attorney for the state may amend an information or citation until five days before a preliminary examination in a case required to be tried in district court or until five days before trial for a case not required to be tried in ...