THOMAS I. BERGER, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).
from the District Court of Laramie County The Honorable
Steven K. Sharpe, Judge
J. Custis, Dion J. Custis, PC, Cheyenne, Wyoming.
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:
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
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.
Did the district court abuse its discretion when it denied
Appellant's motion to withdraw his guilty plea?
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). 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.
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.
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.
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