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McEwan v. State

Supreme Court of Wyoming

December 23, 2013

Debora McEWAN, Appellant, Defendant,
v.
The STATE of Wyoming, Appellee, Plaintiff.

Page 1161

[Copyrighted Material Omitted]

Page 1162

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Elisabeth M.W. Trefonas, Assistant Public Defender.

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.

DAVIS, Justice.

[¶ 1] Appellant Debora McEwan was convicted of two felony counts of obtaining public welfare benefits by misrepresentation after entering guilty pleas without admitting guilt under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).[1] Our recent decision in Balderson v. State, 2013 WY 107, 309 P.3d 809 (Wyo.2013), requires us to reverse McEwan's conviction and remand with instructions to reinstate her initial not guilty plea because the district court did not provide the required statutory firearms advisement when she changed her plea. Any other issues relating to the taking of a guilty plea can be addressed on remand if she chooses to enter a guilty plea rather than go to trial.

Page 1163

[¶ 2] McEwan also claims that she was denied her constitutional and rules-based rights to a speedy trial. We find no violation of those rights. She also claims error in the district court's order of restitution and the manner in which her original attorney was replaced, but we do not rule on those issues because her conviction will be vacated and the district court may resolve them on remand.

ISSUES

[¶ 3] McEwan raises five issues which, stripped to their essentials, may be stated as follows:

1. Must her two guilty pleas be set aside because the district court failed to give the advisements required by W.R.Cr.P. 11 and Wyo. Stat. Ann. § 7-11-507?
2. Was she deprived of her constitutional right to a speedy trial or the complementary right provided by W.R.Cr.P. 48?
3. Did the district court abuse its discretion in denying McEwan's motion to withdraw her guilty plea?
4. Was the district court's order relating to restitution illegal?
5. Did the district court commit plain error by allowing one public defender to substitute for another in representing McEwan?

FACTS

[¶ 4] In late October of 2008, an anonymous tip prompted the Wyoming Department of Family Services (DFS) to begin a nearly one-year investigation of McEwan and her adult son and daughter for possible welfare fraud. McEwan lived with her three minor children in Greybull, and her adult daughter had a minor child of her own. In her application for public assistance benefits, McEwan reported to DFS that she was self-employed and derived her income solely from her karaoke services business.

[¶ 5] The investigation revealed that DFS had paid McEwan's adult son for caring for his adult sister's child at times when he was working somewhere else, and when his sister, contrary to her representations to DFS, was not working. McEwan counter-endorsed the state warrants made payable to her son. After examining documents submitted to DFS and the accounts owned by McEwan at Big Horn Federal Savings Bank, particularly one listed under the name " Live Wire Entertainment," the DFS investigator discovered that McEwan was working for four different employers (not including herself) under pseudonyms, and that she had deposited wages from three of the four into her " Live Wire" account. She did not disclose those sources of income to DFS.

[¶ 6] At the same time, McEwan obtained food stamps and child care assistance benefits relating to her minor children. As to the latter, the investigator obtained records from the establishments to whom she reportedly provided karaoke services and could not verify that McEwan was working at the times she stated in her claims for child care assistance.

[¶ 7] On January 6, 2010, the Big Horn County and Prosecuting Attorney charged McEwan with three felonies: knowingly failing to report income to obtain food stamp benefits of $500 or more in violation of Wyo. Stat. Ann. § 42-2-112(a), (k)(i); knowingly falsifying work hours to obtain child care assistance in violation of § 42-12-112(h), (k)(i); and knowingly failing to report a bank account in order to obtain food stamp benefits under § 42-2-112(a), (k)(i). She was arrested on January 11, 2010, and had her initial appearance in circuit court two days later. That court appointed a public defender to represent her, established bond, and set a preliminary hearing for January 20. She posted bond on January 18.

[¶ 8] On the day set for the preliminary hearing, McEwan waived the time limits contained in Wyoming Rule of Criminal Procedure 5 and asked the circuit court to postpone it " for a reasonable time as established by the Court." The hearing was first postponed to February 3 and later to March 24, 2010, when it was held and McEwan was bound over to district court. ...


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