[Copyrighted Material Omitted]
Appeal from the District Court of Sheridan County. The Honorable John G. Fenn, Judge.
For Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.
For Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Darrell D. Jackson, Faculty Director, David E. Singleton, Student Director, and Katie J. Koski, Student Intern, of the Prosecution Assistance Program. Argument by Ms. Koski.
Before BURKE, C.J., and HILL, KITE[*], DAVIS, and FOX, JJ.
[¶1] Andrew Deeds was initially charged with seven counts of first-degree sexual abuse of a minor, but entered guilty pleas to five counts of second-degree sexual abuse of a minor. The district court sentenced him to five consecutive sentences of no less than twelve years and no more than eighteen years, and ordered that Mr. Deeds be given credit for 721 days of presentence confinement, without specifying how those days should be applied to his sentence. On appeal, Mr. Deeds contends that the prosecutor breached the plea agreement and committed prosecutorial misconduct when she referred to elements of first-degree sexual abuse of a minor and presented unreliable allegations at the sentencing hearing. We affirm on those issues. We remand to the district court to specify how Mr. Deeds' presentence confinement should be applied to his sentence, in compliance with Wyoming Rule of Criminal Procedure 32(c)(2)(F).
[¶2] 1. Did the prosecutor breach the plea agreement when she referred at sentencing to elements of a crime to which Mr. Deeds did not plead?
2. Did the prosecutor engage in misconduct that denied Mr. Deeds due process when she referred to elements of the no-longer-charged offense at sentencing?
3. Did the prosecutor engage in misconduct that denied Mr. Deeds due process when she presented undocumented information of bragging, for the first time, during the sentencing hearing?
4. Was the sentence's reference to credit for presentence confinement sufficiently specific to comply with W.R.Cr.P. 32(c)(2)(F)?
[¶3] Andrew Deeds was charged with seven counts of first-degree sexual abuse of a minor. Wyo. Stat. Ann. § 6-2-314(a)(i) (LexisNexis 2013). The State and Mr. Deeds agreed to a plea agreement to reduce the charges to five counts of second-degree sexual abuse of a minor. Wyo. Stat. Ann. § 6-2-315(a)(ii) (LexisNexis 2013). They also agreed that sentencing would be open to argument at the sentencing hearing. The plea agreement, which was not reduced to writing, was presented by the prosecutor and agreed to by Mr. Deeds' counsel.
[PROSECUTOR]: This plea agreement anticipates an amendment of the charge from first degree -- or sexual abuse of a minor in the first degree to sexual abuse of a minor in the second degree, five counts of that, which is a felony, punishable for not more than 20 years, and a fine of not more than $10,000, or both, for each count. So that's basically changing it from first to second and dropping two counts, and I have the Second Amended Information for the Court.
THE COURT: Thank you.
. . . .
THE COURT: All right. Thank you. Any further terms?
[PROSECUTOR]: No, Your Honor. We'd just argue sentencing to the Court. That would be our plea agreement.
THE COURT: All right. Thank you. [Addressing defense counsel], has she accurately set forth the terms of the plea agreement?
[DEFENSE COUNSEL]: Yes, Your Honor, that's correct.
[¶4] Before accepting Mr. Deeds' guilty plea, the district court questioned him about the factual basis for it. The district court asked Mr. Deeds whether he performed sexual intercourse or digital penetration on the victim. Mr. Deeds replied that he had not, and that the contact with the victim consisted of " just primarily -- just touching."
[¶5] The district court then asked the prosecutor whether there were any additional facts pertinent to the plea agreement. The prosecutor replied, " I guess for purposes of second degree we don't need to -- but she provided information about intrusion, and he, at that time, confirmed that and confirmed that there were about ten times[.]" The district court then asked Mr. Deeds, " You talked to law enforcement after this and admitted to this conduct; is that correct?" Mr. Deeds replied, " Yes, ...