Appeal from the District Court of Laramie County The Honorable Thomas T.C. Campbell, Judge Representing Appellant:
The opinion of the court was delivered by: Kite, Chief 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 typographical or other formal errors so correction may be made before final publication in the permanent volume.
[¶1] Victor Everett Jackson pled guilty to one count of third degree sexual assault in exchange for the State's agreement to request probation under Wyo. Stat. Ann. § 7-13-301 (LexisNexis 2009). The district court placed him on supervised probation for five years. Six months later, the State filed a petition to revoke his probation but proceedings on the petition were delayed. A year later, Mr. Jackson filed a motion to withdraw his guilty plea asserting that the victim of the assault had identified someone else as the perpetrator. The district court denied the motion and entered an order revoking probation. The district court entered judgment and imposed a sentence of four to five years. Mr. Jackson appealed, claiming the district court abused its discretion in denying his motion to withdraw his guilty plea. We affirm.
[¶2] Mr. Jackson claims the district court abused its discretion and violated his right to due process when it denied his motion to withdraw his guilty plea. The State responds that the district court properly exercised its discretion when it denied the motion.
[¶3] Mr. Jackson was arrested in July of 2007 on two counts of third degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-303(a)(v) (LexisNexis 2005) and § 6-2-304(a)(iii) (LexisNexis 2003). The affidavit of probable cause alleged that, two years earlier, when Mr. Jackson was sixteen years old, he had sexual contact with a five year old girl. At his arraignment, Mr. Jackson pled not guilty to the charges. He subsequently filed a motion to transfer the case to juvenile court. After a hearing, the district court denied the motion to transfer.
[¶4] The parties reached a plea agreement pursuant to which Mr. Jackson agreed to plead guilty to one count of third degree sexual assault and the State agreed to dismiss the second count and recommend disposition of the case under § 7-13-301.*fn1 The district court convened a hearing at which time Mr. Jackson entered a plea of guilty to one count of third degree sexual assault. The district court asked who would present the factual basis for the plea and the prosecutor stated that he would. He then recited the evidence the State intended to present at trial. The court asked defense counsel if he was satisfied the evidence would be as stated by the prosecutor; defense counsel stated that he was. Several months later, the district court entered a judgment and sentence placing Mr. Jackson on probation for five years pursuant to § 7-13-301.
(a) If a person who has not previously been convicted of any felony is charged with or is found guilty of or pleads guilty or no contest to . . . any felony except murder, sexual assault in the first or second degree, aggravated assault and battery or arson in the first or second degree, the court may, with the consent of the defendant and the state and without entering a judgment of guilt or conviction, defer further proceedings and place the person on probation for a term not to exceed five (5) years upon terms and conditions set by the court. . .
[¶5] Six months later, the State filed a petition for revocation of probation asserting that Mr. Jackson had violated the terms of his probation in several ways. For various reasons, no proceedings occurred with respect to the petition and, a year later, Mr. Jackson filed a motion to withdraw his guilty plea. He alleged the victim had recanted her statement that he assaulted her and named another individual as the assailant. He attached to his motion a three page statement written by the victim in 2010, three years after the assault, in which she asserted she was coerced into naming Mr. Jackson as the assailant when in fact someone else had assaulted her. He asserted this was new evidence that he could not have discovered earlier. After a hearing, the district court denied the motion, finding that the evidence was not newly discovered, but was known to Mr. Jackson at the time his conviction was deferred and he was placed on probation because a similar statement made by the victim's mother was contained in the pre-sentence investigation report (PSI) which he had received prior to the deferral. Subsequently, the district court revoked Mr. Jackson's probation and imposed a sentence of four to five years with a recommendation for boot camp. Mr. Jackson appealed.
[¶6] We review a district court's decision to deny a motion to withdraw a guilty plea for an abuse of discretion. Winsted v. State, 2010 WY 139, ¶ 6, 241 P.3d 497, 499 (Wyo. 2010). In determining whether there has been an abuse of discretion, we focus on the "reasonableness of the choice made by the trial court." Id., quoting Vaughn v. State, 962 P.2d 149, 151 (Wyo. 1998). If the trial court could reasonably conclude as it did and the ruling is one based on sound judgment with regard to what is right under the circumstances, it will not be disturbed absent a showing that some facet of the ruling is arbitrary or capricious. Id.
(b) If the court finds the person has fulfilled the terms of probation and that his rehabilitation has been attained to the satisfaction of the court, the court may at the end of five (5) years, or at any time after the expiration of one (1) year from the date of the original probation, discharge the person and dismiss the proceedings against him.
(c) If the defendant violates a term or condition of probation at any time before final discharge, the court may:
(i) Enter an adjudication of guilt and conviction and proceed to impose sentence upon the defendant if he previously pled guilty to or was found guilty of the original charge for which probation was granted under this section; or
(ii) Order that the trial of the original charge proceed if the defendant has not previously pled or been found guilty.
(d) Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for any purpose.
[¶7] In asserting error in the denial of his motion to withdraw his guilty plea, Mr. Jackson argues first that the requirements of W.R.Cr.P. 11 were not satisfied before he entered his initial plea at the ...