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Berger v. State

Supreme Court of Wyoming

August 2, 2017

THOMAS I. BERGER, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal from the District Court of Laramie County The Honorable Steven K. Sharpe, Judge

          Dion J. Custis, Dion J. Custis, PC, Cheyenne, Wyoming. Representing Appellant

          Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Joshua C. Eames, Assistant Attorney General. Representing Appellee:

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          BURKE, Chief Justice

         [¶1] Appellant, Thomas I. Berger, pled guilty to third-degree sexual abuse of a minor. He subsequently moved to withdraw his guilty plea. The district court denied the motion. Appellant contends that the district court abused its discretion in denying the motion. We affirm.

         ISSUE

         [¶2] Did the district court abuse its discretion when it denied Appellant's motion to withdraw his guilty plea?

         FACTS

         [¶3] Pursuant to a plea agreement, Appellant pled guilty to a charge of third-degree sexual abuse of a minor. The State agreed to recommend a deferred conviction and probation pursuant to Wyoming's "first offender" statute, Wyo. Stat. Ann. § 7-13-301(a) (LexisNexis 2013).[1] Consistent with the statute and the State's recommendation, the district court accepted the guilty plea without entering a conviction and imposed five years of supervised probation.

         [¶4] Nearly two years later, the State petitioned to revoke Appellant's probation. It alleged several violations of the conditions of his probation, including missing scheduled appointments, failing to report his loss of employment, and failing to keep his probation agent apprised of his whereabouts. The State later filed an addendum to the petition alleging additional probation violations.

         [¶5] Shortly thereafter, Appellant filed a motion to withdraw his guilty plea. He claimed that his defense counsel had failed to inform him of "an excellent defense to the charge" against him. For that reason, he contended he had received ineffective assistance of counsel, and was prejudiced because he would not have pled guilty if he had been aware of this affirmative defense. Following a hearing, the district court denied the motion.

         [¶6] Appellant then admitted to several of the probation violations alleged by the State. The district court revoked his probation, entered a conviction on the charge of third-degree sexual abuse of a minor, and sentenced Appellant to three to five years of incarceration. This appeal followed.

         STANDARD ...


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