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Russell v. State

Supreme Court of Wyoming

October 31, 2013

Timothy James RUSSELL, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).

Representing Appellant: W. Keith Goody, Cougar, Washington.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey Pope, Assistant Attorney General.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

Page 77

KITE, Chief Justice.

[¶ 1] Timothy James Russell was charged with one count of conspiracy to deliver methamphetamine. Pursuant to a plea agreement with the State, Mr. Russell entered a plea of nolo contendere to the charge. The district court accepted the plea and scheduled a sentencing hearing. Thereafter, Mr. Russell retained new counsel who filed a motion to withdraw the plea. After a hearing, the district court denied the motion. Mr. Russell appealed, claiming the district court abused its discretion when it denied his motion to withdraw his plea. We find no abuse of discretion and affirm.

ISSUE

[¶ 2] The issue for this Court's determination is whether the district court abused its discretion when it denied Mr. Russell's motion to withdraw his plea.

FACTS

[¶ 3] In June of 2012, the Natrona County district attorney's office charged Mr. Russell and eighteen other individuals with conspiracy to possess methamphetamine with intent to deliver in violation of Wyo. Stat. Ann §§ 35-7-1031(a)(i) and 35-7-1042 (LexisNexis 2013). Mr. Russell and the State subsequently reached a plea agreement pursuant to which Mr. Russell agreed to enter a nolo contendere plea to the conspiracy charge and the parties agreed to an eight to fourteen year prison sentence. Mr. Russell entered his plea at a hearing in September of 2012. The district court accepted the plea and scheduled the matter for sentencing.

[¶ 4] Before the sentencing, a new attorney entered an appearance on Mr. Russell's behalf and filed a motion to withdraw the nolo contendere plea. In support of the motion, counsel cited W.R.Cr.P. 32(d) and Starrett v. State, 2012 WY 133, 286 P.3d 1033 (Wyo.2012). He asserted the motion should be granted because it was made before sentence had been imposed and was for a fair and just reason in that Mr. Russell was innocent of the acts the State alleged he had committed. He further argued the district court was required under Starrett to allow Mr. Russell to withdraw his plea because it had not given the advisements required by Wyo. Stat. Ann. § 7-11-507 (LexisNexis 2013) at the plea hearing. Section 7-11-507 provides:

(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.

[¶ 5] After a hearing, the district court denied the motion. Relying on Dobbins v. State, 2012 WY 110, 298 P.3d 807 (Wyo.2012), the district court concluded the denial of a motion to withdraw a plea is proper even when a defendant provides a fair and just reason for withdrawing his plea if the advisements required by W.R.Cr.P. 11 were given before the plea was accepted. The district court reviewed the transcript of the plea hearing and concluded it had complied with Rule 11 and Mr. Russell had entered his plea voluntarily and with full knowledge of the consequences.

[¶ 6] The district court also analyzed the factors articulated in Frame v. State, 2001 WY 72, ¶ 7, 29 P.3d 86, 89 (Wyo.2001):

(1)Whether the defendant has asserted his innocence; (2) whether the government would suffer prejudice; (3) whether the defendant has delayed in filing his motion; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was present; (6) whether the original plea was knowing and voluntary; and (7) whether the withdrawal would waste judicial resources.

Page 78

The district court in essence concluded: (1) Mr. Russell had asserted his innocence; (2) the State had demonstrated some prejudice; (3) Mr. Russell did not delay in filing his motion; (4) the withdrawal would not substantially inconvenience the court; (5) close assistance of counsel was present; (6) the original plea was entered knowingly and voluntarily; and (7) judicial resources would not be wasted by allowing withdrawal.

[¶ 7] The district court also considered Mr. Russell's claim that it failed to give the advisements required by § 7-11-507. It concluded § 7-11-507 was inapplicable because Mr. Russell was already disqualified from possessing ...


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