Appeal from the District Court of Sheridan County The Honorable John G. Fenn, Judge
The opinion of the court was delivered by: Hill, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] Steven R. Kruger was charged with: (1) felony child abuse in violation of Wyo. Stat. Ann. § 6-2-503(a) (LexisNexis 2011); and (2) a misdemeanor count of endangering children in violation of Wyo. Stat. Ann. § 6-4-403(b)(iv) (LexisNexis 2011). After a mental evaluation found him competent, Kruger entered a plea of guilty to felony child abuse. Although Kruger entered a guilty plea to the misdemeanor charge at the same time, it was later dismissed pursuant to a plea agreement. Also, a criminal citation relating to being under the influence of a controlled substance involving the same series of events was dismissed as part of the plea agreement. At the scheduled sentencing Kruger sought to withdraw the guilty plea. The district court denied the motion. We affirm the district court's denial of Kruger's motion to withdraw his guilty plea to felony child abuse.
[¶2] Kruger raises one issue:
Did the trial court abuse its discretion by denying [Kruger's] motion to withdraw his guilty plea?
The State raises two issues:
Did the district court arbitrarily apply the "assertion of innocence" factor of the seven-factor Frame test, in deciding that Kruger could not withdraw his guilty plea, and was that decision otherwise reasonable?
Did the district court, by its actions and oral pronouncements, accept Kruger's guilty plea and defer only its acceptance of the plea agreement, so that Kruger was entitled to withdraw his plea only upon a showing of just cause?
[¶3] In Winsted v. State, 2010 WY 139, ¶ 6, 241 P.3d 497, 499 (Wyo. 2010) (citing Vaughn v. State, 962 P.2d 149, 151 (Wyo. 1998)), this Court stated that the standard of review for the denial of a motion to withdraw a guilty plea is abuse of discretion. In applying this standard we focus on the "reasonableness of the choice made by the trial court." If the decision below is based upon sound judgment under the circumstances and the trial court could reasonably conclude as it did, we will not disturb the decision absent a showing that some facet of the ruling is arbitrary or capricious. Rolle v. State, 2010 WY 100, ¶ 9, 236 P.3d 259, 264 (Wyo. 2010).
[¶4] An affidavit of probable cause is attached as Exhibit A to the Information and incorporated therein by reference and details the events that form the factual basis for the guilty plea:
I have been advised that on July 21, 2010 Wendy Kruger reported that her thirteen (13) year old daughter and two friends had gone missing while left in STEVEN R. KRUGER'S care. Officer Pitchford and Officer King of the Sheridan Police Department travelled to 19 North Sheridan Avenue, in Sheridan County, to make contact with KRUGER. When officers arrived on scene they heard loud music coming from inside the residence and tried to make contact with KRUGER. Officers could see KRUGER sitting cross legged on the living room floor moving violently to the heavy metal music. The officers made several attempts to speak with KRUGER, but KRUGER avoided the officers by locking the door and yelling for them to get off the property. KRUGER then strung up blankets over the windows so the officers could not see inside. Through a back window officers were able to notice that the residence had been totally ransacked. KRUGER eventually opened a window to speak with the officers and told them he had chased Wendy's daughter and her two friends out of the house and down the street.
Wendy arrived on [the] scene a short time later and told officer[s] that her daughter, BM, and two friends, CF and TM, were left in KRUGER'S care while Wendy sought medical attention for her aching back. Wendy Kruger advised that the residence was tidy and in order when she left, but upon returning the residence was in complete disarray and the children were missing. Wendy then advised that she received a telephone call shortly after contacting law enforcement informing her that the children were in the lobby of the Best Western Motel.
Officer Pitchford travelled to the Best Western Motel to spoke [sic] individually with BM, CF and TM. BM advised that KRUGER was drinking wine in the residence and offered it to the three of them. BM advised that they all took a small sip but when KRUGER offered them more, they declined. KRUGER started yelling and calling the children profane names because they refused to drink more wine. KRUGER forcefully pressured BM, CF and TM until they agreed to drink more of the wine. KRUGER then said he was going to leave the residence to get some "weed." He returned approximately twenty (20) minutes later and started smoking the Marijuana. KRUGER offered the Marijuana to BM, CF and TM, but they all declined. Their declination angered KRUGER so he again started to call them names, yell, and pressure them until they gave in to smoking the Marijuana with him. BM estimates they took three (3) to four (4) puffs of the Marijuana cigarette. KRUGER then finished drinking a second bottle of wine and started to drink mouthwash. KRUGER offered the mouthwash to CF, but CF refused to drink it. KRUGER became enraged, and struck CF on the left side of his head. KRUGER then pushed CF into the wall and grabbed TM by the throat and held TM against the couch. TM managed to get loose and run out of the house with BM. KRUGER chased after them, but they were able to escape and run down North Sheridan Avenue to Brundage Street.
Officer Pitchford spoke with TM and CF individually who confirmed BM's story. Officer Pitchford felt CF's head and found a two inch diameter bump above CF's ear consistent with having been struck by KRUGER.
Course of the Proceedings
[¶5] A criminal warrant was issued on July 22, 2010. A public defender was assigned. The initial appearance was set for July 22, 2010, at 2:00 p.m.
[¶6] A motion to suspend proceedings and for a mental evaluation was filed on August 17, 2010. An order for evaluation was entered on August 24, 2010. A request for an extension of time to do the evaluation was extended to October 12, 2010. Kruger was found competent to proceed.
[¶7] At the arraignment, held on October 21, 2010, the district court advised Kruger of the charges and of his rights. The court placed Kruger under oath and determined that Kruger was alert and competent to proceed. The court then read the charges and determined that Kruger had reviewed the charges with his attorney. The court then determined that Kruger had seen and reviewed the affidavit of probable cause with his attorney. The court asked if Kruger wanted to go through the affidavit in detail, at which time Kruger indicated that it was not necessary. The court then informed Kruger of his rights, including the right to an attorney, the right to remain silent, the right to a speedy trial, the right to a public trial, the right to cross-examine witnesses, the right to submit evidence, the right to subpoena witnesses, and the right to appeal.
[¶8] At no time during the proceeding did Kruger or his attorney raise any concern regarding a lack of understanding on the part of Kruger. At the appropriate time in the proceeding, Kruger was advised by ...