Mellott v. State

          Appeal from the District Court of Niobrara County The Honorable Patrick W. Korell, Judge

          Representing Appellant: Robert T. Moxley, Law Office of Robert T. Moxley, P.C., Cheyenne, Wyoming. Argument by Mr. Moxley.

          Representing Appellee: Peter K. Michael, Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Travis J. Kirchhefer, Senior Assistant Attorney General. Argument by Mr. Kirchhefer.

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

          OPINION

          BOOMGAARDEN, JUSTICE.

         [¶1] Appellant, Lisa L. Mellott, pled guilty to one felony count of Medicaid fraud related to improper record-keeping, ten felony counts of Medicaid fraud for making false or misleading statements in Medicaid claims when the value of the medical assistance is $500 or more, and two counts of felony forgery. Ms. Mellott appeals her judgment and sentence and the district court's denial of her W.R.A.P 21(a) motion to withdraw her pleas due to ineffective assistance of trial counsel. She argues the State unlawfully charged her with ten felony counts of submitting false statements for more than $500 of medical assistance based on the aggregated values of multiple reimbursement claims of less than $500 each. Ms. Mellott claims her trial counsel provided ineffective assistance because he did not challenge those charges and, instead, advised Ms. Mellott to accept a plea agreement under which she pled guilty to all charges. She also claims her trial counsel provided ineffective assistance by failing to fully investigate all of the charges against her. We conclude there was no factual basis for Ms. Mellott's guilty plea as to Counts 2 through 11 and her trial counsel provided ineffective assistance by advising her to accept the plea agreement. We therefore reverse and remand to the district court.

         ISSUES

         [¶2] Ms. Mellott presents the following issues:

1. Does the Wyoming Medicaid Fraud Statute-which denominates every false claim violation as a "separate offense"-allow for aggregation of multiple monthly reimbursement claims of less than $500, in order to create a felony charge for a false claim in excess of $500, extending over years of time?

2. Was there a structural error in using an "aggregated" theory of loss to achieve felony charges, that lowers the burden to demonstrate ineffective assistance of counsel?

3. Did appellant's appointed attorney, without conducting an investigation, and with inadequate legal analysis, render ineffective assistance of counsel by advising guilty pleas to all the charges lodged below?

         FACTS

         [¶3] When the alleged crimes occurred, Ms. Mellott was a registered nurse and a Medicaid provider through a home healthcare business she owned and operated. Among other services, she served as a case manager for Medicaid Waiver clients and submitted claims for payment to the state Medicaid office for the services she provided.

         [¶4] On December 18, 2015, the State charged Ms. Mellott with a total of fifteen felony counts related to her actions as a Medicaid provider. Through an amended information, the State later altered its factual allegations, but did not substantively change the number of counts or the applicable statutes. Count 1 alleged Ms. Mellott violated Wyo. Stat. Ann. § 42-4-111(e)(iii) (LexisNexis 2017) by knowingly failing to maintain adequate records of Medicaid claims of a value greater than $5, 000. Counts 2 through 11 accused her of violating Wyo. Stat. Ann. § 42-4-111(a) and (b)(i) by knowingly making a false statement or misrepresentation or knowingly failing to disclose a material fact in providing medical assistance to ten clients identified in the information by their initials.^[1] The time periods stated in those ten counts ranged between 25 and 66 months. The State alleged Ms. Mellott submitted claims for payment for services that she had not actually provided, specifically, required home visits. Finally, Counts 12 through 15 alleged Ms. Mellott forged two of her clients' signatures on client choice of service and client responsibility forms, in violation of Wyo. Stat. Ann. § 6-3-602(a)(ii) and (b) (LexisNexis 2017).

         [¶5] Ms. Mellott was assigned a public defender (trial counsel), and on June 22, 2016, she changed her pleas to guilty on her trial counsel's advice and pursuant to an oral plea agreement. Under the agreement, Ms. Mellott would plead guilty to all charges, but could argue for any sentence she saw fit. In exchange, the State would recommend a sentence of 3 to 6 years of imprisonment for the inadequate record-keeping charge (Count 1) and concurrent sentences for the false statement and forgery charges (Counts 2 through 11 and Counts 12 through 15, respectively) of 3 to 6 years of imprisonment. The State would recommend suspending the concurrent sentences for Counts 2 through 15 in favor of 6 years of probation, which would run consecutive to the sentence for Count 1. The State also would request restitution in the amount of $107, 632.18. Ms. Mellott pled guilty to Counts 1 through 11 and Counts 14 and 15, but she expressed concerns to her trial counsel that she could not truthfully plead guilty to Counts 12 and 13. The State agreed to dismiss those two counts and the district court accepted Ms. Mellott's guilty pleas.

         [¶6] At the beginning of its September 27, 2016, sentencing hearing, the district court revisited the plea colloquy to ensure there was a factual basis to support Ms. Mellott's guilty plea as to Counts 5 through 7. The court then sentenced Ms. Mellott to 18 to 24 months of confinement for Count 1 and concurrent suspended sentences of 3 to 6 years of confinement for Counts 2 through 11, 14, and 15.

         [¶7] Ms. Mellott timely appealed the judgment and sentence.^[2] Ms. Mellott also moved under W.R.A.P. 21(a) to withdraw her pleas based on the ineffective assistance of her trial counsel.^[3] First, Ms. Mellott asserted her trial counsel was ineffective because he did not challenge the legality of the State's basis for Counts 2 through 11, the ten false statement charges under Wyo. Stat. Ann. § 42-4-111(a) and (b)(i). She claimed the State improperly aggregated the values of numerous Medicaid claims by client to reach the value of $500 necessary to charge Ms. Mellott with felony violations of Wyo. Stat. Ann. § 42-4-111(a). As a result, the district court arguably accepted her guilty plea as to felony Counts 2 through 11 without a sufficient factual basis under W.R.Cr.P. 11(f). Second, Ms. Mellott claimed her trial counsel was ineffective because he failed to adequately investigate the case before recommending that Ms. Mellott accept the plea agreement.

         [¶8] At the evidentiary hearing on the W.R.A.P. 21 motion, the district court heard the parties' arguments and testimony from Ms. Mellott, her trial counsel, and several other witnesses. The district court also received exhibits, including a spreadsheet from the State listing information from a database on the Medicaid claims related to the charges against Ms. Mellott.

         [¶9] In the district court's decision letter incorporated into its order denying Ms. Mellott's W.R.A.P. 21 motion, the court characterized the dispositive issue as: "Whether assistance provided by Appellant's trial counsel was ineffective so as to allow Appellant to withdraw her plea pursuant to W.R.A.P. 21." The district court considered and rejected Ms. Mellott's argument that Wyo. Stat. Ann. § 42-4-111 prohibited the aggregation of individual claims to support Counts 2 through 11; accordingly, the court determined trial counsel was not ineffective for failing to raise that argument. The district court also found trial counsel was not deficient in investigating the case. Having concluded that trial counsel's performance was not deficient, the district court did not evaluate whether Ms. Mellott was prejudiced by trial counsel's performance.

         [¶10] Ms. Mellott timely appealed the district court's denial of her W.R.A.P. 21 motion. See W.R.A.P. 21(e). That appeal was consolidated with her appeal of the judgment and sentence. See id.

         STANDARD OF REVIEW

         [¶11] Though Ms. Mellott asserts jurisdictional and structural error arguments, she describes her consolidated appeal as "primarily" an appeal from the denial of her motion to withdraw her pleas due to ineffective assistance of counsel.^[4] The district court's order denying Ms. Mellott's W.R.A.P. 21 motion involves mixed questions of law and fact. Griggs v. State, 2016 WY 16, ¶ 37, 367 P.3d 1108, 1124 (Wyo. 2016) (citing Osborne v. State, 2012 WY 123, ¶ 17, 285 P.3d 248, 252 (Wyo. 2012)). "The district court's 'conclusions of law, which include the question of whether counsel's conduct was deficient and the question of whether the appellant was prejudiced by that deficient conduct,' are reviewed de novo." Id. (citing Strandlien v. State, 2007 WY 66, ¶ 20, 156 P.3d 986, 992 (Wyo. 2007)). However, "[w]e defer to the district court's findings of fact unless they are clearly erroneous." Griggs, ¶ 37, 367 P.3d at 1124 (quoting Cooper v. State, 2014 WY 36, ¶ 20, 319 P.3d 914, 920 (Wyo. 2014)). We review the district court's interpretation of statutes de novo. Berger v. State, 2017 WY 90, ¶ 7, 399 P.3d 621, 623 (Wyo. 2017) (citing Rambo v. Rambo, 2017 WY 32, ¶ 6, 391 P.3d 1108, 1110 (Wyo. 2017)).

         DISCUSSION

         [¶12] Ms. Mellott moved to withdraw her guilty pleas under W.R.A.P. 21(a), ^[5] which provides in relevant part:

Following the docketing of a direct criminal appeal, the appellant may file, in the trial court, a motion claiming ineffective assistance of trial counsel. The motion may be used . . . to seek plea withdrawal. . . . The motion shall contain nonspeculative allegations of facts which, if true, could support a determination that counsel's representation was deficient and prejudiced the appellant. . . .

         [¶13] We glean the following from Ms. Mellott's brief on appeal: First, Ms. Mellott argues the ten felony charges of making false statements or misrepresentations when providing medical assistance under the Medicaid program (Counts 2 through 11) violated Wyo. Stat. Ann. § 42-4-111(d). She alleges the State did not comply with that statutory provision because the State aggregated the values of numerous Medicaid claims by client to reach the threshold value of $500 necessary to charge Ms. Mellott with ten felony violations of Wyo. Stat. Ann. § 42-4-111(a). She next argues the State's statutory violation constituted jurisdictional and structural error in the proceedings and that her guilty plea as to Counts 2 through 11 was invalid because, without aggregating multiple Medicaid claims, the evidence in the record did not support her felony convictions under Counts 2 through 11. She further argues her trial counsel provided ineffective assistance by recommending that she plead guilty to all charges instead of challenging the legality of, or factual basis for, Counts 2 through 11.^[6] Because Ms. Mellott's claims all arise from her interpretation of Wyo. Stat. Ann. § 42-4-111(a), (b), and (d), we begin by construing those statutory provisions.

         I. Statutory Construction - Legislative Intent to Criminalize Individual Claims for Payment

         [¶14] In Counts 2 through 11, the State charged Ms. Mellott with violating Wyo. Stat. Ann. § 42-4-111(a), which provides: "No person shall knowingly make a false statement or misrepresentation or knowingly fail to disclose a material fact in providing medical assistance under this chapter." The State alleged Ms. Mellott committed a total of ten violations, each one reaching the threshold for felony punishment under Wyo. Stat. Ann. § 42-4-111(b), which states:

A person violating subsection (a) of this section is guilty of:

(i) A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10, 000.00), or both, if the value of medical assistance is five hundred dollars ($500.00) or more; or

(ii) A misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if the value of medical assistance is less than five hundred dollars ($500.00).

         [¶15] Ms. Mellott argues the State improperly reached the $500 felony threshold in each count by "aggregating" the payment values she requested in numerous, separately-filed Medicaid claims submitted for each client over a course of years. Each count specified a different client regarding whom Ms. Mellott allegedly filed unlawful claims and the applicable period-ranging from 25 to 66 months-during which Ms. Mellott allegedly submitted the unlawful claims. She argues the State could not base each charge-or her conviction for each charge-on the sum value of all alleged unlawful claims for a client because the State must charge each such claim separately to comply with Wyo. Stat. Ann. § 42-4-111(d), which plainly states: "Each violation of subsection (a) of this section is a separate offense." Under Ms. Mellott's interpretation, each Medicaid claim allegedly breaching Wyo. Stat. Ann. § 42-4-111(a) is a separate "violation" of that provision, and Wyo. Stat. Ann. § 42-4-111(d) explicitly requires the State to charge "each violation" as "a separate offense." She argues the claims at issue were "essentially monthly" in nature and were for less than $500 of medical assistance. Based on this position, Ms. Mellott concludes the State could only charge her with misdemeanors under Wyo. Stat. Ann. § 42-4-111(b)(ii) and she could not be convicted of felonies under Wyo. Stat. Ann. § 42-4-111(b)(i).

         [¶16] The State contends it properly charged Ms. Mellott because the State has discretion to charge violations of Wyo. Stat. Ann. § 42-4-111(a) as either single offenses or a continuous offense. In denying the W.R.A.P. 21 motion, the district court agreed with the State's interpretation and concluded the legislature intended to criminalize fraudulent claims for medical assistance as they relate to individual clients and not to monthly claims.

         [¶17] Essentially, the parties dispute the "unit of prosecution" in Wyo. Stat. Ann. § 42-4-111(a), (b), and (d). See Tucker v. State, 2010 WY 162, ¶ 42, 245 P.3d 301, 312 (Wyo. 2010) (citing United States v. Weathers, 186 F.3d 948, 952 (D.C. Cir. 1999), cert. denied, 529 U.S. 1005, 120 S.Ct. 1272, 146 L.Ed.2d 221 (2000)) (in analyzing a double jeopardy claim, "[w]here two violations of the same statute rather than two violations of different statutes are charged, courts determine whether a single offense is involved . . . by asking what act the legislature intended as the 'unit of prosecution' under the statute."). Ms. Mellott argues the legislature intended that the State must charge each allegedly unlawful Medicaid claim independently from other claims. The State, in contrast, argues the legislature allowed the State discretion to bring charges based on the client associated with a series of alleged violations.

         [¶18] Our primary consideration in interpreting statutes is determining legislative intent, and we first look to the plain and ordinary meaning of the words to determine if the statute is ambiguous. Riddle v. State, 2017 WY 153, ¶ 10, 407 P.3d 392, 394 (Wyo. 2017) (citations omitted). "We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe all parts of the statute in pari materia." Anderson v. State, 2018 WY 6, ¶ 12, 408 P.3d 1148, 1151 (Wyo. 2018) (citation omitted). "When a statute is sufficiently clear and unambiguous, we give effect to the plain and ordinary meaning of the words and do not resort to the rules of statutory construction." Id. (citation omitted).

         [¶19] Reading the relevant provisions of Wyo. Stat. Ann. § 42-4-111 in pari materia, we conclude the statute unambiguously establishes the unit of prosecution for false statement charges. Under Wyo. Stat. Ann. § 42-4-111(d), "Each violation of subsection (a) of this section is a separate offense." (Emphasis added.) Therefore, the Wyoming Legislature expressly intended a "violation" to be the unit of prosecution under Wyo. Stat. Ann. § 42-4-111(a). A person violates Wyo. Stat. Ann. § 42-4-111(a) by "knowingly mak[ing] a false statement or misrepresentation or knowingly fail[ing] to disclose a material fact in ...