Appeal from the District Court of Converse County The Honorable John C. Brooks, Judge
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] Pursuant to a plea agreement, Christina Clark pled guilty to two counts of third degree sexual abuse of a minor. The district court sentenced her to two concurrent terms of six to ten years in prison. She appealed from the judgment and sentence, claiming her guilty pleas were not voluntary and she is entitled to a new sentencing hearing because the district court failed to mention probation in the written judgment and sentence. We affirm but remand for entry of an amended judgment.
[¶2] Ms. Clark presents the following issues for this Court's determination:
I. Did the district court err in accepting appellant's guilty plea, as there was not an adequate foundation established to ensure that it was a voluntarily and informed decision?
II. Is reversal for a new sentencing required under the rule mandated in Trumbull v. State, 2009 WY 103, 214 P.3d 978 (Wyo. 2009)?
[¶3] The State asserts the district court properly accepted Ms. Clark's guilty pleas after receiving sufficient information to ensure they were the product of a voluntary and informed decision. The State also contends the district court appropriately considered probation as an alternative sentence as required by Trumbull and its failure to so state in the written judgment was merely a clerical error requiring remand to correct the omission.
[¶4] In May of 2010, Ms. Clark was charged with six counts of third degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-316(a)(ii) (LexisNexis 2011). The information alleged that on May 11, 2010, Ms. Clark, then age 34, engaged in sexual activity with a 16 year old female while in a position of authority over the victim. The probable cause affidavit alleged that Ms. Clark was the victim's legal guardian.
[¶5] After her arrest, Ms. Clark's attorney filed a motion requesting the district court to order her to be evaluated at the Wyoming State Hospital pursuant to Wyo. Stat. Ann. § 7-11-303 (LexisNexis 2009) to determine whether she suffered from a mental illness or deficiency.*fn1 The district court granted the motion and Ms. Clark was transported to the Wyoming State Hospital. The forensic psychologist who evaluated Ms. Clark concluded she was competent. Before the court and counsel were aware of the finding, Ms. Clark entered pleas of guilty by reason of mental illness. The parties subsequently reached a plea agreement pursuant to which Ms. Clark agreed to plead guilty to two counts and the State agreed to dismiss the other four counts and accept the sentencing recommendations contained in the pre-sentence investigation report (PSI). The district court sentenced Ms. Clark to six to ten years in prison. Although the district court considered and rejected probation at the sentencing hearing, the judgment and sentence does not reflect that it did so as required by W.R.Cr.P. 32.
[¶6] We review claims concerning the voluntariness of a guilty plea de novo. Sena v. State, 2010 WY 93, ¶ 9, 233 P.3d 993, 996 (Wyo. 2010). We also review de novo the question of whether a district court's judgment and sentence comply with the requirements of W.R.Cr.P. 32. Washington v. State, 2011 WY 132, ¶ 12, 261 P.3d 717, 721 (Wyo. 2011).
[¶7] Ms. Clark contends that during her change of plea hearing, the district court did not obtain sufficient information to ensure that her guilty pleas were informed and voluntary. W.R.Cr.P. 11 sets forth the procedures for courts to follow in determining whether a defendant's plea is voluntary and entered with an understanding of the charges and penalties, his or her rights and the consequences of pleading guilty. The Rule provides in relevant part: (b) Advice to defendant. -- . . . before accepting a plea of guilty . . . to a felony . . . the court must address the defendant personally in open court and, unless the defendant has been previously advised by the court on the record and in the presence of counsel, inform the defendant of, and determine that the defendant understands, the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law and other sanctions which could attend a conviction . . . .
(2) The defendant has the right to be represented by an attorney at every stage of the proceeding and, if necessary, one will be appointed to represent the defendant;
(3) The defendant has the right to plead not guilty or to persist in that plea if it has already been made, the right to be tried by a jury and at that trial the right to the assistance of counsel, the right to confront and cross-examine adverse witnesses, the right to court process to obtain the testimony of other witnesses, and the right against compelled self-incrimination;
(4) If a plea of guilty . . . is accepted by the court there will not be a further trial of any kind, so that by pleading guilty . . . the ...