Appeal from the District Court of Albany County The Honorable Jeffrey A. Donnell, Judge
The opinion of the court was delivered by: Kite, Chief Justice.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, 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] Kiet Hoang Nguyen challenges the judgment and sentence entered after he pleaded guilty to one count of larceny. He claims that the factual basis provided by the State for his guilty plea did not meet the elements of larceny, specifically the "taking" requirement. Apparently recognizing the factual basis did not establish the crime of larceny, the State argues that his conviction should, nevertheless, be affirmed because Mr. Nguyen understood his conduct was criminal and he waived any challenge to the sufficiency of the evidence when he pleaded guilty.
[¶2] We conclude the district court committed plain error by entering judgment on Mr. Nguyen's guilty plea when it was not supported by a sufficient factual basis. Consequently, we reverse.
[¶3] Mr. Nguyen presents the following issue on appeal:
Did the trial court err when it accepted Mr. Nguyen's guilty plea without obtaining a sufficient factual basis to support the offense of larceny?
The State phrases the issue differently:
Requiring a district court to accept a factual basis for a guilty plea ensures a defendant understands his conduct was criminal and is not misled into waiving substantial rights. The factual basis for Kiet Nguyen's guilty plea showed he deposited potentially forged checks from accounts with insufficient funds and then withdrew some of the money before the bank knew. Was there a sufficient factual basis for Nguyen to understand his conduct was criminal?
[¶4] Mr. Nguyen was charged with one count of larceny in violation of Wyo. Stat. Ann. § 6-3-402(a) (LexisNexis 2011). He and the State negotiated a plea agreement in which the State agreed to dismiss three forgery charges in a different case and recommend probation at the sentencing hearing in exchange for Nguyen's guilty plea to the larceny charge.
[¶5] At his arraignment, the district court advised Mr. Nguyen of his rights and the rights he would be waiving should he plead guilty. It also went over the charge and the potential penalties with him and informed him that it did not have to accept the recommended sentence and could sentence him in accordance with the maximum penalties under the statute. Mr. Nguyen expressed his approval of the plea agreement, stated he understood his rights and the rights he would be waiving, and pleaded guilty to the larceny charge. The State provided a factual basis for the guilty plea, Mr. Nguyen and defense counsel agreed the factual basis correctly stated their understanding of the State's evidence, and the district court accepted the factual basis for Mr. Nguyen's guilty plea.
[¶6] The district court ordered a presentence investigation report (PSI) and substance abuse evaluation. At the sentencing hearing, the district court determined probation was not appropriate in light of the PSI which showed Mr. Nguyen had an extensive history of criminal convictions for various types of thefts and planned to leave Wyoming if granted probation. The court sentenced him to serve a term of incarceration of four to nine years ...