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Neidlinger v. State

April 27, 2010

TERRY E. NEIDLINGER, SR., APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Laramie County The Honorable Thomas T.C. Campbell, Judge.

The opinion of the court was delivered by: Burke, Justice.

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

[¶1] Appellant, Terry Neidlinger, Sr., appeals the district court's "Order Denying Defendant's Motion to Withdraw No Contest Plea." He contends that the district court abused its discretion in denying the motion. We conclude that the district court lacked subject matter jurisdiction to consider the motion and dismiss the appeal.

ISSUE

[¶2] Mr. Neidlinger presents one issue:

Did the trial court abuse its discretion when it determined that manifest injustice did not exist permitting Appellant to withdraw his no contest plea after sentencing?

FACTS AND PROCEEDINGS

[¶3] In February 2006, Mr. Neidlinger was charged with two counts of taking indecent liberties with a minor and one count of third-degree sexual assault. In August of 2006, he pled "no contest" to one count of indecent liberties. In exchange for the plea, the other two charges were dismissed. The district court sentenced him to three to five years of incarceration. The sentence was suspended and Mr. Neidlinger was placed on probation. Mr. Neidlinger filed a notice of appeal challenging the Judgment and Sentence. That appeal was docketed in this Court as No. 06-0292.

[¶4] Mr. Neidlinger was ordered to complete sex offender treatment as a condition of his probation, but he was terminated from the treatment program. In February 2007, the district court revoked his probation and reinstated the underlying prison sentence. Mr. Neidlinger filed a second notice of appeal challenging the probation revocation. That appeal was docketed in this Court as No. 07-0062. The two appeals were consolidated and determined in Neidlinger v. State, 2007 WY 204, 173 P.3d 376 (Wyo. 2007). In that decision, we affirmed the conviction for indecent liberties and reversed the probation revocation. Id., ¶¶ 9, 13, 173 P.3d at 378-79. On remand, the district court re-imposed probation.

[¶5] In August of 2008, Mr. Neidlinger filed a motion seeking discharge from probation. The matter was set for hearing, but the district court continued the hearing because Mr. Neidlinger was in federal custody, charged with falsely asserting he was a U.S. Marshal. The State again moved to revoke Mr. Neidlinger's probation.

[¶6] In February of 2009, after Mr. Neidlinger was convicted on the federal charge, the district court held a hearing on the motion for discharge from probation and the State's petition for revocation. On March 4, 2009, the district court issued an Order Denying Early Discharge from Probation and an Order Revoking Probation and Imposing Sentence. On February 4, 2009, Mr. Neidlinger filed a Motion to Withdraw No Contest Plea. The district court held a hearing on the motion on February 26, 2009. The district court entered an Order Denying Defendant's Motion to Withdraw No Contest Plea on March 9, 2009. Mr. Neidlinger filed a timely notice of appeal.

DISCUSSION

[¶7] Initially we note that, in his brief, Mr. Neidlinger states: "This case is an appeal from the Order Denying Early Discharge from Probation, Order Revoking Probation and Imposing Sentence, and Order Denying Defendant's Motion to Withdraw No Contest Plea." Despite this assertion, Mr. Neidlinger focuses his argument solely on the Order Denying Defendant's Motion to Withdraw No Contest Plea. To the extent that he challenges the other orders, he presents no argument whatsoever. We therefore summarily affirm the Order Denying Early Discharge from Probation and the Order Revoking Probation and Imposing Sentence.

[ΒΆ8] Mr. Neidlinger's primary argument concerning the denial of his motion to withdraw is that the trial court did not advise him that a plea of no contest was the functional equivalent of a guilty plea. He claims that because this distinction was not clearly explained, his plea was not voluntary. The State disputes Mr. Neidlinger's claim, but first asks us to determine whether the district court had subject matter jurisdiction to entertain the motion. Whether subject matter ...


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