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Sena v. State

June 30, 2010


Appeal from the District Court of Laramie County, The Honorable Michael K. Davis, Judge.

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

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

[¶1] Michael Angelo Sena, Jr., claims the district court did not follow the required procedures when it accepted his plea of no contest to a charge of battery. We conclude that the procedural requirements were met, and affirm.


[¶2] The issue stated by Mr. Sena is "Whether the trial court failed to comply with the procedural requirements of Rule 11 of the Wyoming Rules of Criminal Procedure."


[¶3] On August 15, 2008, an information was filed against Mr. Sena, charging him with "Battery -- Third Offense Domestic," in violation of Wyo. Stat. Ann. § 6-2-501(b) and (f)(ii) (LexisNexis 2007).*fn1 According to the affidavit of probable cause filed in support of the information, Mr. Sena‟s girlfriend was giving him a ride in her car. He was extremely intoxicated. While they were stopped at an intersection, Mr. Sena started punching her and pulling her hair. She opened the driver‟s door, and fell from the car. Mr. Sena fell on top of her, hitting and biting. She escaped, ran to a hiding place, and called the police.

[¶4] The responding officer found her still in hiding. He observed that she was extremely upset, and had "numerous abrasions, cuts, and bite marks over her body." He found Mr. Sena passed out in the car, with scratches on his face and blood on his hands. The officer placed him under arrest. He and his girlfriend were taken to the hospital for medical attention. Mr. Sena was then taken to jail.

[¶5] On September 18, 2008, Mr. Sena entered a plea of not guilty, and was released on bond pending trial. On February 18, 2009, Mr. Sena appeared before the court on a motion to modify his bond. At the start of this hearing, defense counsel told the court that Mr. Sena was prepared to change his plea to no contest. As defense counsel explained, "the reason for the no contest plea," as opposed to a guilty plea, "is that he was highly intoxicated on the night and day that this occurred and has a very limited memory of what occurred." Defense counsel informed the court that there was a "limited" plea agreement: there was no agreement as to sentencing, but the prosecution agreed not to object to Mr. Sena‟s request to be released on bond until sentencing, allowing him to participate in a residential treatment program.

[¶6] The court advised Mr. Sena of his rights, and engaged him in a colloquy to determine whether the requirements for accepting the no contest plea were met. This colloquy is at the heart of Mr. Sena‟s appeal, and additional details will be considered in the discussion below. The court found that there was a sufficient factual basis for accepting the no contest plea, and that the plea was made voluntarily and knowingly. It then accepted Mr. Sena‟s no contest plea. It ordered a Presentence Investigation Report, and told Mr. Sena that after the report was filed, he would be sentenced at the court‟s discretion. In accordance with Mr. Sena‟s request, and without objection from the prosecution, the court released Mr. Sena on bond. Conditions of his bond included no contact with his girlfriend and successful completion of the residential treatment program.

[¶7] Mr. Sena enrolled in the treatment program, but was soon terminated from it because he had contacted his girlfriend. His bond was revoked, and he was sent to jail pending sentencing. At the sentencing hearing on July 2, 2009, Mr. Sena‟s defense counsel noted that Mr. Sena had already spent approximately ten months in jail on this charge, and urged the court to sentence him to time served, followed by enrollment in a residential treatment program, then intensive supervised probation. The prosecution emphasized Mr. Sena‟s lengthy criminal record, which included several prior convictions for batteries against girlfriends, and advocated a sentence of three to five years imprisonment. The court stated that it had reviewed all of the sentencing alternatives, but found that other options "are not appropriate and that it is necessary to impose a sentence of incarceration." Mr. Sena received a sentence of thirty to sixty months imprisonment, with credit for time already served. Mr. Sena appealed.


[¶8] Mr. Sena‟s broad contention that the court did not comply with W.R.Cr.P. 11 is divided into three specific issues. First, he claims that the court did not properly advise him of the elements of the crime charged. Second, he maintains that the court did not tell him whether he could or could not withdraw the plea. Third, he asserts that the court did not advise him that his sentence could be affected by the Addicted Offender Accountability Act. The State counters that the district court met all of the requirements of Rule 11, with "every "i‟ dotted and every "t‟ crossed."

[¶9] Rule 11 sets forth procedures "for courts to use in determining that a defendant‟s plea is intelligent, knowing and voluntary and entered with an understanding of the consequences." Thomas v. State, 2007 WY 186, ¶ 9, 170 P.3d 1254, 1257 (Wyo. 2007). The general purpose of the rule is "to assist the district judge in making the constitutionally required determination that a defendant‟s guilty plea is truly voluntary." Britain v. State, 497 P.2d 543, 545 (Wyo. 1972) (interpreting former ...

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