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Shawn Nathan Starrett v. the State of Wyoming

October 18, 2012

SHAWN NATHAN STARRETT, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Sweetwater County The Honorable Nena R. James, Judge

The opinion of the court was delivered by: Golden, Justice.

Before KITE, C.J., and GOLDEN,*fn1 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] This appeal presents a question of first impression whether a criminal defendant's judgment of conviction upon his plea of guilty to the felony of third degree sexual abuse of a minor must be set aside and he be permitted to plead anew because the district court failed to comply with Wyo. Stat. Ann. § 7-11-507 which states:

(a) No judgment of conviction shall be entered upon a plea of guilty or nolo contendere to any charge which may result in the disqualification of the defendant to possess firearms pursuant to the provisions of 18 U.S.C. §§ 922(g)(1),

(9) and 924(a)(2) or other federal law unless the defendant was advised in open court by the judge:

(i) Of the collateral consequences that may arise from that conviction pursuant to the provisions of 18 U.S.C. §§ 921(a)(33), 922(g)(1), (9) and 924(a)(2); and

(ii) That if the defendant is a peace officer, member of the armed forces, hunting guide, security guard or engaged in any other profession or occupation requiring the carrying or possession of a firearm, that he may now, or in the future, lose the right to engage in that profession or occupation should he be convicted.

Wyo. Stat. Ann. § 7-11-507 (LexisNexis 2011) (emphasis added).

[¶2] Shawn Nathan Starrett (Starrett) appeals the judgment of conviction entered by the district court upon his plea of guilty to third degree sexual abuse of a minor*fn2 after reaching a plea agreement with the State. In their briefing, Starrett and the State agree the district court erred when it entered the judgment of conviction upon Starrett's guilty plea without advising him in open court that his felony conviction may result in his loss of the right to possess firearms and ammunition and to engage in a profession or occupation requiring the carrying or possession of a firearm under the provisions of the federal law referenced in the above-cited statute. Starrett and the State disagree, however, about the consequences of the district court's error. Starrett contends this Court must, under de novo review, set aside the judgment of conviction and remand to the district court where he is allowed to plead anew after that court advises him as the above-cited statute directs. The State, on the other hand, maintains that, because Starrett did not object to the district court's failed advisement, this Court must affirm the judgment of conviction since Starrett has not established the plain error prejudice prong, that is to say, he has not shown that his decision to plead guilty was influenced by his belief that under his felony conviction he would remain qualified to possess firearms and ammunition and to engage in a profession or occupation requiring his carrying or possession of a firearm.

[¶3] After thoughtful consideration and as explained below, we agree with Starrett's contention that we must undertake de novo review of the issue presented; and, having applied that review, we conclude the district court must obey the legislative command of Wyo. Stat. Ann. § 7-11-507 before entering the judgment of conviction upon Starrett's plea of guilty in this case. Consequently, we herewith set aside Starrett's judgment of conviction and remand this case to the district court with instructions to advise Starrett in open court as the statute provides and allow him to plead anew.

ISSUE

[¶4] The State's issue statement adequately presents the issue before us:

When a defendant seeks to plead guilty to a felony, a court must advise him, pursuant to Wyo. Stat. Ann. ยง 7-11-507, that federal law disqualifies felons from possessing firearms. The district court never advised Starrett of this consequence when he pled guilty to felony sexual abuse of a minor. Even so, can Starrett's conviction be affirmed because ...


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