Appeal from the District Court of Park County The Honorable Steven R. Cranfill, Judge.
The opinion of the court was delivered by: Burke, Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1] Appellant, Donna Marie Rodriguez, challenges the district court's order revoking her probation and imposing the original prison sentence. She contends that her plea admitting the State's allegations was obtained in violation of her right to counsel. We find that Ms. Rodriguez was not properly advised of her right to be represented by an attorney, and that she did not voluntarily, knowingly, and intelligently waive her right to counsel. We reverse and remand for further proceedings.
[¶2] Did Ms. Rodriguez waive her right to be represented by counsel during her probation revocation proceedings?
[¶3] Ms. Rodriguez was charged with accessory after the fact to escape in violation of Wyo. Stat. Ann. § 6-5-202 (LexisNexis 2007).*fn1 Counsel was appointed to represent her. She pled guilty pursuant to a plea agreement. The district court sentenced her to two to three years of incarceration but suspended that sentence and placed Ms. Rodriguez on probation.
[¶4] Approximately eight months later, the State filed a petition to revoke her probation. A bench warrant was issued and Ms. Rodriguez was arrested on May 7, 2009. An initial hearing was held before the district court on May 11, 2009. At that hearing, Ms. Rodriguez admitted the allegations in the petition. The court revoked her probation and orally imposed the original two to three year prison sentence. Ms. Rodriguez was not represented by counsel at that hearing.
[¶5] On May 14, 2009, the State filed a Request for Sentencing Hearing and counsel was subsequently appointed to represent Ms. Rodriguez. She then filed a Motion to Withdraw Admission to Probation Revocation, asserting that the plea had been obtained in violation of her right to counsel. The district court held a hearing addressing both the motion to withdraw and the State's sentencing request on June 17, 2009. At the conclusion of the hearing, the district court denied the motion to withdraw the plea and imposed the original sentence. A Sentence Order was entered on July 10, 2009 and the Order Denying Defendant's Motion to Withdraw Admission to Probation Revocation was entered on July 15, 2009. Ms. Rodriguez filed a timely appeal.
[¶6] Whether an individual has been denied the right to counsel is a constitutional issue that we review de novo. Wilkie v. State, 2002 WY 164, ¶ 4, 56 P.3d 1023, 1024 (Wyo. 2002).
[¶7] The State contends that Ms. Rodriguez "was advised of her right to counsel, voluntarily waived that right, and chose to admit the allegations against her without the assistance of counsel." Ms. Rodriguez disagrees.
[¶8] The right to counsel in probation revocation proceedings is specifically provided for in the Wyoming Rules of Criminal Procedure:
Any probationer. who is alleged to have violated the terms of a probation order, for which violation incarceration is provided by law, and who is financially unable to obtain adequate representation is entitled to appointed counsel if, after being informed of the right, requests that counsel be appointed to represent him/her.
W.R.Cr.P. 44(a)(2). We have also recognized that appointment of counsel for probationers who cannot afford an attorney is constitutionally protected. Pearl v. ...