JASON E. MILLER, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).
from the District Court of Sheridan County The Honorable John
G. Fenn, Judge.
Representing Appellant: Office of the State Public Defender:
Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief
Appellate Counsel; Christopher G. Humphrey, Assistant
Appellate Counsel. Argument by Mr. Humphrey.
Representing Appellee: Peter K. Michael, Attorney General;
Christyne M. Martens, Deputy Attorney General; Caitlin F.
Harper, Senior Assistant Attorney General; Daniel P. Solish,
Senior Assistant Attorney General. Argument by Mr. Solish.
DAVIS, C.J., and BURKE [*] , FOX, KAUTZ and BOOMGAARDEN, JJ.
Appellant, Jason E. Miller, pled no contest to one count of
possession with intent to deliver marijuana in violation of
Wyo. Stat. Ann. § 35-7-1031(a)(ii), and one count of
felony possession of marijuana in violation of Wyo. Stat.
Ann. § 35-7-1031(c)(iii). He contends his plea was
involuntary as a result of ineffective assistance of counsel.
Appellant presents one issue:
Did the erroneous advice from Mr. Miller's fourth trial
counsel, as to whether he could challenge his convictions
after pleas of no contest, render his pleas involuntary?
On April 1, 2015, a bartender contacted the Sheridan County
Sheriff's Office to report a man in the bar attempting to
sell marijuana. A law enforcement officer responded to the
call and found Appellant in a van in the parking lot. When
Appellant rolled down the window, the officer smelled a
strong odor of marijuana. During a search of the vehicle, the
officer discovered marijuana, various drug paraphernalia, and
a plastic baggie containing suspected methamphetamine. The
officer arrested Appellant and subsequent testing of the
substance found in the plastic baggie revealed it to be
The State charged Appellant with felony possession of
marijuana, in violation of Wyo. Stat. Ann. §
35-7-1031(c)(iii); possession of marijuana with intent to
deliver, in violation of Wyo. Stat. Ann. §
35-7-1031(a)(ii); and possession of methamphetamine, in
violation of Wyo. Stat. Ann. § 35-7-1031(c)(i)(C)
(LexisNexis 2015). Appellant did not appear for his
preliminary hearing and the circuit court issued a bench
warrant for his arrest. Appellant was returned to the custody
of the State after being apprehended in Colorado, and the
court appointed him new representation by the public
defender. Appellant was arraigned on August 5, and the
district court set trial for January 25, 2016. The following
day, Appellant filed a demand for a speedy trial.
Appellant's court-appointed attorney requested a status
hearing due to Appellant's complaints about his
representation. At the hearing, Appellant fired his
court-appointed counsel, claiming a lack of communication
between them. The district court assigned new counsel to
Based on information obtained from Appellant's phone, the
State charged Appellant in a separate docket with conspiracy
to deliver marijuana, and that action was joined with the
three existing charges. In January 2016, Appellant's
third trial counsel filed a motion to continue the trial,
asserting that he did not have enough time to review
discovery provided by the State prior to the scheduled trial
date and that he would not be able to provide effective
assistance of counsel absent a continuance. The court granted
the request for a continuance and reset the trial for March
21, 2016. Appellant proceeded to file hundreds of pages of
pro se notes relating to his life in jail and his
communications with his family and his attorneys.
In January 2016, the State charged Appellant in a separate
docket with two counts of interference with a peace officer
stemming from an incident in which the State alleged he
assaulted two detention officers in the Sheridan County
Detention Center. At his arraignment, Appellant explained
that he suffered from severe anxiety, depression, and
sleeplessness. Due to his inability to listen to the district
court or communicate adequately with his counsel, the
district court ordered Appellant to undergo a competency
evaluation. The court vacated Appellant's trial pending
the results of the evaluation.
The Wyoming State Hospital submitted a report of its
evaluation on July 19, 2016, finding Appellant competent to
proceed in the case. Immediately prior to the scheduled
competency hearing, however, Appellant's counsel moved to
withdraw due to a breakdown in communications with Appellant.
The district court granted the motion.
On August 22, 2016, Appellant's fourth trial counsel
entered her appearance in the case. Shortly thereafter,
Appellant's new counsel filed a motion to suppress
evidence, a motion to dismiss for lack of a speedy trial, and
a motion to dismiss based on alleged violations of
Appellant's right to freedom of religion. Immediately
prior to the hearing on those motions, however, Appellant and
the State entered into a plea agreement. In exchange for
Appellant's pleas of no contest to the charges of felony
possession of marijuana and possession of marijuana with
intent to deliver, the State agreed to dismiss the remaining
charges and recommend a sentence of three to eight years for
the possession charge and a concurrent sentence of three to
five years for the charge of intent to deliver marijuana. The
district court accepted Appellant's pleas, dismissed the
remaining charges, and sentenced him in accordance with the
In December 2016, Appellant filed a notice of appeal from the
judgment and sentence. Eight months later, Appellant filed a
"W.R.A.P., Rule 21 Motion [to] Withdraw Pleas Based on
Ineffective Assistance of Counsel" in the district
court, and the court set the matter for hearing. Appellant
claimed his counsel had incorrectly advised him he could
pursue claims of ineffective assistance of counsel and
violation of his right to a speedy trial in an appeal if he
entered a no contest plea, and that this fact rendered his
At the Rule 21 hearing, Appellant's trial counsel
testified that Appellant stated he would agree to a three to
eight-year term of incarceration and a three to five-year
concurrent term, if he could plead no contest, be sentenced
that same day, and leave the Sheridan County Detention
Center. She told Appellant she believed that he could still
appeal the issues of speedy trial and ineffective assistance
of counsel. We will examine her testimony about the advice
she gave Appellant more closely in our discussion. Appellant
did not testify at the hearing.
Following the hearing, the district court issued an order
denying Appellant's motion. The court found Appellant did
not meet his burden of showing that, but for his
counsel's erroneous advice, he would have insisted on
going to trial. Appellant ...