Miller v. State

          Appeal 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.

          Before DAVIS, C.J., and BURKE ^[*] , FOX, KAUTZ and BOOMGAARDEN, JJ.

          BURKE, JUSTICE.

         [¶1] 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. We affirm.

         ISSUE

         [¶2] 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?

         FACTS

         [¶3] 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 methamphetamine.

         [¶4] 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^[1] 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.

         [¶5] 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 represent Appellant.

         [¶6] 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.

         [¶7] 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.

         [¶8] 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.

         [¶9] 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 State's recommendation.

         [¶10] 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 pleas involuntary.

         [¶11] 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.

         [¶12] 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 ...