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David Kenneth Mercer v. the State of Wyoming

April 11, 2012

DAVID KENNETH MERCER, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Albany County The Honorable Jeffrey A. Donnell, Judge

The opinion of the court was delivered by: Burke, 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] Pursuant to a plea agreement, David Kenneth Mercer pleaded no contest to three felony counts of sexual abuse of a minor. After he was sentenced, Mr. Mercer appealed, asserting that the prosecutor breached the plea agreement. We find no breach of the agreement and affirm.

ISSUE

[¶2] Mr. Mercer presents one issue: Did the State breach its plea agreement at sentencing when it misstated facts and argued for a harsh sentence based on Mr. Mercer's alleged failure to accept personal responsibility?

FACTS

[¶3] Mr. Mercer was charged with four counts of first degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-314(a)(iii) (LexisNexis 2009), and two counts of second degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-315(a)(iv). He pleaded not guilty, and a jury trial was scheduled. A month before the trial date, the State moved to amend the charges. The key amendment was the addition of allegations that Mr. Mercer had previously been convicted of a similar crime, and pursuant to the enhanced sentencing provisions of Wyo. Stat. Ann. § 6-2-306(e), was subject to sentences of life without parole on each of the counts charged.

[¶4] The district court granted the State's motion to amend. Soon after, Mr. Mercer reached a plea agreement with the State. As the prosecutor explained during the change of plea hearing, the State agreed to dismiss the amended Information and proceed under the original Information, the effect being that the State would not seek mandatory life sentences for Mr. Mercer. Mr. Mercer agreed to plead no contest to two counts of first degree sexual abuse of a minor and one count of second degree sexual abuse of a minor. The State agreed to dismiss the remaining counts. There was no agreement regarding sentencing. Mr. Mercer confirmed his understanding of the plea agreement. The district court reconfirmed that Mr. Mercer would plead no contest to the charges rather than guilty.

[¶5] Mr. Mercer entered his pleas to the three counts. Because he pleaded no contest rather than guilty, the district court did not ask him questions to establish the factual basis for the pleas.*fn1 Instead, it asked the prosecutor to "explain what you would intend to show if this went to trial." The prosecutor did so, and defense counsel corroborated that the prosecutor's representation was consistent with what "we believe the evidence to be." Mr. Mercer also expressed his understanding of the evidence that the State would present at trial. The district court accepted Mr. Mercer's pleas, and delayed sentencing pending completion of a presentence investigation report.

[¶6] At the sentencing hearing, the district court heard statements from witnesses for Mr. Mercer, and a statement from Mr. Mercer himself. The defense attorney asked the district court to consider, in lieu of imprisonment, requiring Mr. Mercer to undergo treatment for substance abuse and psychological and emotional issues, or in the alternative, for the minimum sentences on the first degree counts and probation on the second degree count. The prosecutor requested the maximum sentence of 45 to 50 years on each of the two first degree sexual assault charges and 18 to 20 years on the second degree charge.

[¶7] The district court sentenced Mr. Mercer to 20 to 35 years imprisonment on each of the first degree counts, with the sentences to be served consecutively. It sentenced him to 10 to 15 years imprisonment on the third count, suspended in lieu of 10 years of supervised probation, to be served consecutively to the sentences on the first two counts. In this appeal, Mr. Mercer contends that his sentences must be reversed, and that he must be allowed to withdraw his pleas of no contest, because the State breached the plea agreement.

STANDARD OF REVIEW

[¶8] The question of whether the State violated a plea agreement is one we usually review de novo. Ford v. State, 2003 WY 65, ¶ 8, 69 P.3d 407, 410 (Wyo. 2003); Schade v. State, ...


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