Appeal from the District Court of Park County The Honorable Steven R. Cranfill, 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] Pursuant to a plea agreement, Steve Edward Dobbins pleaded no contest to one count of sexual assault in the first degree, a felony, in violation of Wyo. Stat. Ann. § 6-2-302(a)(iii). In this consolidated appeal, Dobbins contends that the district court should have permitted him to withdraw his plea, both before and after sentencing.*fn1 Specifically, Dobbins complains that he should have been allowed to withdraw his plea of no contest prior to being sentenced because he did not have close assistance of counsel and that he had a fair and just reason to withdraw his plea. Dobbins also argues that he should have been allowed to withdraw his plea of no contest after sentencing because the district court failed to properly advise him as required by W.R.Cr.P. 11, resulting in manifest injustice. According to Dobbins, the district court abused its discretion in denying his pre-sentence and post-sentence motions to withdraw his no contest plea, and that the error of the district court was not harmless. We affirm the denial of both of Dobbins' motions to withdraw his no contest plea, and we affirm the judgment and sentence.
[¶2] The issue, as phrased by Dobbins, is as follows:
Should [Dobbins] be allowed to withdraw his plea because (1) the trial court erred in its advisements to [him], at arraignment and at the change of plea hearing; and (2) the trial court abused its discretion in denying [Dobbins'] presentence motion to withdraw his plea?
[¶3] In an information filed in the circuit court on May 7, 2009, Dobbins was charged with one count of sexual assault in the first degree in violation of Wyo. Stat. Ann. § 6-2-302(a)(iii) and one count of sexual intrusion as defined by Wyo. Stat. Ann. § 6-2-301(a)(vii) with a descendant in violation of Wyo. Stat. Ann. § 6-4-402(a)(b).*fn2
According to an affidavit of probable cause filed with the circuit court on May 7, 2009 (attached to and incorporated within the information), on July 23, 2008 while being detained in a detention center on a different matter, the victim, Dobbins' daughter, alleged to a police sergeant that Dobbins had been having sexual intercourse with her and had been sexually assaulting her "for some time" and that the "last incident occurred three (3) to five (5) days ago." "A rape examination was not feasible at this time due to the interval between her report and the last incident." The victim was released from the detention center and moved in with an aunt, with whom she lived for approximately two weeks before leaving to move back in with Dobbins.
[¶4] On August 15, 2008 a deputy with the sheriff's office responded to a report of sexual assault and during his interview with the victim, was informed that "at approximately 0530 hours and again at approximately 1030 hours, while she was sleeping naked in the bed with [Dobbins] and being in the state of drunkenness, [Dobbins] engaged in sexual intercourse with her."
[¶5] Furthermore, the victim indicated "that she ha[d] been having sexual intercourse with [Dobbins] for approximately two (2) months," and that "the sexual intercourse [was] not consensual; and [occurred] when she [was] in a state of drunkenness and she [was] unable to stop [Dobbins'] advances." Following the interview, the victim was transported to a hospital emergency room and examined by a physician who subsequently performed a rape examination on her.
[¶6] According to the affidavit of probable cause, on November 18, 2008 the testifying deputy received and reviewed the analysis of the August 15, 2008 rape examination samples from the victim "and learned that the samples revealed the presence of seminal fluid and sperm cells." On November 25, 2008 a body intrusion search and seizure warrant was executed on the body of Dobbins, and on January 22, 2009 the testifying deputy learned that "the laboratory examination of the DNA evidence obtained in this investigation identified both DNA strands of [the victim] and Steve Dobbins." Additionally, forensic testing "had confirmed that the additional DNA present, in the form of male semen, found on the vaginal swabs taken from [the victim] was, in fact, a DNA match to Steve Dobbins" and that the forensic scientist who conducted the testing "concluded that Steve Dobbins had, in fact, had sexual intercourse with, i.e.: vaginal penetration, and had ejaculated within [the victim's] vagina."
[¶7] Pursuant to warrant, Dobbins was arrested and charged with one count of first degree sexual assault and incest. Dobbins requested and was appointed a public defense attorney. After being rescheduled twice, a preliminary hearing was held on May 6, 2009 at which time the court determined that "probable cause exist[ed] to support the charges filed" and the case was transferred to the district court for further proceedings.
[¶8] On May 26, 2009 Dobbins was arraigned in the district court and entered pleas of not guilty to both charges.*fn3 At the arraignment the following colloquy took place:
COURT: The purpose of this arraignment is to advise you of the charges, the potential penalties, make sure you understand both of them, and then determine whether or not you are ready to enter a plea.
Your constitutional rights are as follows:
To these charges you may plead guilty; not guilty; not guilty by reason of mental illness or deficiency; or, with the consent of the Court, no contest or nolo contendere.
You are presumed to be innocent. That presumption followed you into this hearing, and it would remain with you throughout a trial. At a trial, the State has to prove your guilt beyond a reasonable doubt. They can bring in witnesses and evidence to do so, and you have the right to confront and cross-examine those witnesses. You have the right to bring in your own. You have the right to use the subpoena power of the Court to compel their attendance. You may testify if you wish, but you are not required to.
I'll advise you not to incriminate yourself by answering any questions. If you are asked any questions, please confer with [your attorney] before you provide any answers, because those answers can and may be used against you.
You have the right to a speedy and public jury trial within 180 days of today.
You have the right to legal representation at every stage of the proceedings, either at your own expense or the Court will appoint one for you if you wish.
And finally, you have the right to appeal all errors of law.
Those are your constitutional rights, sir. Do you understand them?
COURT: Do you have any questions at all about them?
COURT: Okay. Have you seen the felony Information in your case?
DOBBINS: Not -- not all of it, no. I mean, what I heard in the courtroom.
COURT: All right. Have you had a chance to confer with [your attorney]?
DOBBINS: I haven't a lot. I mean, I talked to him a little bit on the phone, yeah.
COURT: All right. And are you satisfied with his representation of you thus far?
[¶9] The court then asked the prosecutor to "go through what these charges [were] and the potential penalties." The prosecutor read the felony information pertaining to Counts I and II, including the minimum and maximum penalties provided by law for each charge. The prosecutor continued:
If convicted of a felony, Mr. Dobbins would lose some of his civil rights.
In addition, he would be assessed a $150 crime victim compensation surcharge. $75 public defender -- or, excuse me -- $75 Addicted Offender Accountability Act assessment, as well as a Wyoming Supreme Court Automation Fee of $10.
[¶10] The arraignment proceeding continued:
COURT: All right. Thank you.
Mr. Dobbins, do you have any questions at all about the charges?
DOBBINS: Basically, is it [sic] my understanding that I'm being accused of rape, two charges of rape? Or that's the way I understand it.
DEFENSE COUNSEL: Your Honor, if I can address that.
Mr. Dobbins, the first count is one of first-degree sexual assault, which is oftentimes referred to as a rape charge. The second count is one of incest, which is having sexual intercourse with a blood relative, basically. Okay? Do you understand the difference?
DOBBINS: Yeah. To some extent, yeah.
COURT: Do you understand what the potential penalties are?
COURT: All right. Do you have any questions at all? DOBBINS: No, no.
[¶11] Dobbins proceeded to enter pleas of not guilty to both Count I and Count II. After which, the following discussion was held:
DEFENSE COUNSEL: Yes, Your Honor. And I'd also like to, I guess, clarify the record on a couple of respects, just so it's clear.
Mr. Dobbins, when the judge asked you earlier about your criminal Information, that is the document that I believe you received a copy of that sets forth what the charges are.
DOBBINS: Oh. Oh. The one -- okay. Yeah. I guess I did get -- yeah, the paperwork, yeah.
DEFENSE COUNSEL: All right. So you've read that and you've reviewed it?
DEFENSE COUNSEL: And, Mr. Dobbins, my investigator has met with you a couple of times; is that correct?
DOBBINS: One time that I remember, but I mean, yeah, the one time.
[¶12] Following the arraignment, a jury trial was scheduled to begin on September 28, 2009 but upon motion by Dobbins, the trial was vacated and reset for December 2, 2009. Between the May 26, 2009 arraignment and December of 2009, Dobbins, through his defense counsel, filed five motions with the court including his Motion for Continuance; Motion for Disclosure or Rule 404(b) Evidence and Motion for Exclusion of Same; Defendant's Pretrial Memorandum; Motion for Daubert Hearing and/or Motion in Limine; and Motion for Change of Venue and/or Motion in Limine.
[¶13] On November 20, 2009 at what was originally planned as a motion hearing, Dobbins came before the district court for a change of plea. At the change of plea hearing and after swearing in Dobbins as a witness and determining that he was not under the influence of alcohol, drugs, or medication and that he did not have any type of mental or physical impairment that would affect his ability to understand the proceedings or otherwise participate in the hearing, the court and Dobbins had the following dialogue:
COURT: Okay. Do you understand that when you change your plea, that you waive the rights that were explained to you at your arraignment? Your constitutional right to a speedy and a public jury trial, to the State having the burden of proof, having to prove your guilt beyond a reasonable doubt, your right to not testify if you wish, your right to appeal any errors of law to the Wyoming Supreme Court. Do you understand that?
[¶14] Dobbins, by and through his attorney, proceeded to inform the court that a plea agreement had been reached and that Dobbins would be entering a plea of no-contest to Count I of the felony information and that the State would be dismissing Count II with prejudice. There was no agreement as to sentencing, so Dobbins would be allowed to present "any and all evidence in mitigation and argue sentencing at that time, as would the State."
[¶15] The court and Dobbins then had the following discussion:
COURT: All right. Mr. Dobbins, is that your ...