Appeal from the District Court of Laramie County The Honorable Peter G. Arnold, Judge.
The opinion of the court was delivered by: Kite, Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1] The State charged Kirt Orlando Royball, Jr. with three counts of first degree sexual assault and one count of kidnapping. The parties subsequently entered into a plea agreement in which the State agreed to amend the information to charge two counts of third degree sexual assault in place of two of the first degree sexual assault counts and dismiss the remaining sexual assault and kidnapping charges. In exchange, Mr. Royball agreed to plead guilty to the amended counts of third degree sexual assault.
[¶2] At the change of plea hearing, the district court judge made statements concerning the plea agreement which caused Mr. Royball to terminate the hearing and file a motion for change of judge on the grounds of bias or prejudice. The circuit court to which the matter was assigned denied the motion. Mr. Royball entered a conditional guilty plea, reserving his right to appeal the denial of his motion for change of judge. We affirm.
[¶3] The issue presented for our determination is whether the circuit court abused its discretion when it denied the motion for change of judge.
[¶4] The State charged Mr. Royball with three counts of first degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-302(a)(i) (LexisNexis 2007) for forcible sexual intrusion involving a 13 year old girl. The State also charged him with one count of kidnapping in violation of Wyo. Stat. Ann. § 6-2-201(a)(i), (b)(i) and (c) (LexisNexis 2007) for forcibly confining the victim during the sexual assault. The parties subsequently entered into a plea agreement in which Mr. Royball agreed to plead guilty to two counts of third degree sexual assault in exchange for the State's agreement to amend the charges to allege two counts of third degree sexual assault in place of two of the first degree sexual assault counts and dismiss the remaining count of first degree sexual assault and the kidnapping charge.
[¶5] The parties appeared at a change of plea hearing and informed the district court of the terms of the plea agreement. The district court asked the State what the victim and her family thought about the amended charges. The district court expressed concern that the victim and her family went along with the plea agreement because they thought Mr. Royball would serve 30 years in prison when that might not be the outcome. After some discussion, the district court judge stated:
I'm having trouble understanding this. I know you have the executive division's prerogative of doing as you see fit with the charging and amending that's to be done, but I don't understand how anybody can read this Affidavit of Probable Cause and believe it is appropriate to reduce two first degree rape charges to third degree sexual assault.
Defense counsel responded that she was concerned from these comments that the judge may have prejudged Mr. Royball's behavior and might impose a higher sentence based upon the affidavit supporting the original charges rather than the charges to which Mr. Royball had agreed to plead guilty. Defense counsel asked that the hearing be continued to give her the opportunity to confer with Mr. Royball.
[¶6] The following day, Mr. Royball filed a motion for change of judge pursuant to W.R.Cr.P. 21.1(b). As grounds for his motion, Mr. Royball stated:
This court has indicated by its comments that it has read the Affidavit of Probable Cause in this matter and believes that the acts therein constitute ―rape‖ and indicates an inability to understand why the Defendant is being allowed to enter pleas to lesser charges. The counts of third degree sexual assault to which the Defendant will enter his guilty plea do not contend that the sexual contact was by force or ―rape.‖ However, the court, by its comments appears to be convinced that a ―rape‖ occurred and concerned that it could be foreclosed from the opportunity of sentencing the defendant to a sentence which could merge and end up being only one of fifteen years, rather than thirty.
[¶7] Mr. Royball asserted the judge's comments demonstrated a personal bias and/or prejudice against him and an inability to perform his judicial duties impartially. He asserted that to proceed under the circumstances would deny him his constitutional and statutory rights. Mr. Royball submitted an affidavit with his motion in which he averred that he was present in the courtroom when the judge made the comments, it was evident to him the judge felt strongly that the State should not have ...