from the District Court of Sweetwater County The Honorable
Richard L. Lavery, Judge
Representing Appellant: Office of the Public Defender: Diane
Lozano, State Public Defender; Kirk A. Morgan, Chief
Appellate Counsel; Desiree Wilson, Senior Assistant Appellate
Representing Appellee: Bridget L. Hill, Wyoming Attorney
General; Jenny L. Craig, Deputy Attorney General; Christyne
M. Martens, Senior Assistant Attorney General; Timothy P.
Zintak, Assistant Attorney General.
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
Kirk Erwin Steffey pled no contest to driving under the
influence of alcohol to a degree which rendered him incapable
of safely driving. See Wyo. Stat. Ann. §
31-5-233(b)(iii)(A) (LexisNexis 2017). Prior to sentencing,
he twice moved to withdraw his plea. The district court
denied both motions and sentenced Mr. Steffey to 4-7 years in
prison. Mr. Steffey claims his plea was not knowing or
voluntary and the district court abused its discretion in
denying his motions to withdraw his plea. We agree and
The issues on appeal are:
1. Was Mr. Steffey's no contest plea knowing and
2. Did the district court abuse its discretion in
denying Mr. Steffey's motions to withdraw his no
Around 10:30 a.m. on March 23, 2017, Mr. Steffey ran a red
light and collided with two pickup trucks. He did not stop
after the accident. Shortly thereafter, Deputy Morrell with
the Rock Springs Police Department located Mr. Steffey's
vehicle as it was pulling into a residential driveway. Mr.
Steffey exited his vehicle and began to approach the
residence. Deputy Morrell stopped him and placed him in the
back of his patrol car. Mr. Steffey told Deputy Morrell he
had consumed a few beers approximately 45 minutes earlier.
Officer Miles arrived on the scene and talked with Mr.
Steffey. Officer Miles smelled alcohol on Mr. Steffey's
breath and noticed Mr. Steffey's eyes were red, watery,
The officers transported Mr. Steffey to the Sweetwater County
Detention Center where Officer Miles performed the horizontal
gaze nystagmus test on Mr. Steffey. The results indicated Mr.
Steffey was under the influence of alcohol. Officer Miles did
not conduct any other field sobriety tests because Mr.
Steffey said he was physically incapable of performing them
due to a recent knee surgery. Mr. Steffey consented to a
breathalyzer test, which revealed a blood alcohol content
(BAC) of 0.137%. The officers administering the test,
however, failed to observe Mr. Steffey the requisite 15
minutes prior to administering the test.
Mr. Steffey told the officers he was traveling to Walmart to
purchase groceries. He claimed to have not seen the red light
because he was using Google Maps on his cell phone and not
paying attention. He left the scene because he did not have a
valid driver's license and did not want to go to jail.
Amended Charge and Mr. Steffey's No Contest Plea
The State charged Mr. Steffey with driving or having physical
control of a vehicle with a BAC of 0.08% or more (his fourth
offense in ten years), a felony, in violation of §
31-5-233(b)(i) and (e), as well as several
misdemeanors. Mr. Steffey pled not guilty, and the trial
court scheduled a pretrial conference and trial. On July 21,
2017, Mr. Steffey moved for a continuance of the July 25,
2017, pretrial conference and the August 14, 2017, trial
claiming, inter alia, he needed additional time
"to follow up on some of the discovery obtained by
defense subpoenas, specifically to analyze the maintenance
records of the breathalyzer at the Sweetwater County
Detention Center." The court rescheduled the pretrial
conference to August 10, 2017, but it did not continue the
Sometime prior to August 10, 2017, the State learned it could
no longer rely on Mr. Steffey's breathalyzer test results
because the officers administering the test failed to observe
him for the requisite 15 minutes prior to administering it.
As a result, on August 10, 2017, the State moved to amend the
charge from driving while under the influence of alcohol
based on a BAC of .08% or more (§ 31-5-233(b)(i) and
(e)) to driving while under the influence of alcohol to a
degree which rendered him incapable of safely driving (§
31-5-233(b)(iii)(A)). The district court granted the motion and
the State filed an amended information, all on August 10,
2017. That same day, the court held the pretrial conference,
which turned into a change of plea hearing. Pursuant to a
plea agreement, which was never reduced to writing, Mr.
Steffey pled no contest to the amended charge and to two
misdemeanors. In exchange for his plea, the State dismissed
the remaining misdemeanor counts and agreed to recommend a
sentence of no more than 4-7 years in prison and to allow Mr.
Steffey to argue for a sentence of probation.
Steffey's First Motion to Withdraw His Plea
On November 30, 2017, Mr. Steffey moved to withdraw his plea
under Rule 32 of the Wyoming Rules of Criminal Procedure
(W.R.Cr.P.), arguing his plea was not knowing or
voluntary. He asserted his innocence and claimed to
have "been rushed through the criminal justice
system" and "not [to have] had the opportunity to
review the entire discovery in [his] case." He also
alleged his counsel learned about the faulty breathalyzer
test the day before the pretrial conference. Rather than
discuss it with him first, however, counsel approached the
prosecutor, seeking a better deal. The prosecutor refused the
request, instead amending the charge. Mr. Steffey argued
counsel should not have talked with the prosecutor about the
faulty test without first informing him, and had counsel not
talked with the prosecutor, he would have filed a motion to
suppress and would have proceeded to trial. He further
claimed he learned of the faulty breathalyzer test and the
amended charge less than 15 minutes prior to the change of
plea hearing, which was insufficient time for him to
understand the amended charge.
After holding a hearing, the district court denied the motion
to withdraw the plea. Because Mr. Steffey had not alleged the
plea colloquy was inadequate under W.R.Cr.P. 11, the court
analyzed whether Mr. Steffey had established a "fair and
just reason" to withdraw his plea under W.R.Cr.P. 32(d),
using the factors we outlined in Frame v. State,
2001 WY 72, ¶ 7, 29 P.3d 86, 89 (Wyo. 2001). The
district court concluded four of the factors weighed in favor
of Mr. Steffey being allowed to withdraw his plea-withdrawal
of the plea would not prejudice the State, Mr. Steffey did
not delay in seeking to withdraw his plea, withdrawal of the
plea would not substantially inconvenience the court, and
withdrawal would not waste judicial resources. The other
three factors, however, weighed against withdrawal-Mr.
Steffey's plea was knowing and voluntary, it was made
with the close assistance of counsel, and Mr. Steffey had
made only a bare assertion of innocence.
With regard to the potential suppression issue concerning the
faulty administration of the breathalyzer test, the court
concluded that while Mr. Steffey suggested counsel should not
have discussed the issue with the prosecutor, he had failed
to show how that discussion affected his plea or how it would
have benefitted him at trial, as the State had already
anticipated amending the charge and the faulty test could not
have been used as a defense to the amended charge. It also
found Mr. Steffey had not raised the issue during the change
of plea hearing even though he was aware of it prior to the
hearing. The court decided Mr. Steffey's motion to
withdraw "'reflected no more than a desire to pursue
a last, desperate defense tactic that would have had nothing
to do with guilt or innocence.' [United States
v.] Graf, 827 F.3d [581, ] 584 [(7th Cir.
Steffey's Second Motion to Withdraw His Plea
On January 16, 2018, Mr. Steffey, now represented by newly
retained counsel, filed a second motion to withdraw his no
contest plea. This time, he claimed his plea was not knowing
and voluntary because his prior counsel had not advised him
of the consequences of his plea and had told him he would
receive probation. He also stated he had yet to receive or
review the discovery in his case.
At the hearing on the motion, Mr. Steffey expounded on his
claims. He explained he arrived for the pretrial conference
approximately 15 minutes early. He had not intended on
changing his plea. After going through security at the
courthouse, defense counsel ushered him into a conference
room and informed him of the faulty breathalyzer test, the
amended charge, and the proposed plea agreement. With respect
to the plea agreement, counsel told him the State could not
seek an imprisonment term beyond 4-6 years,  but the ultimate
sentence was left to the court's discretion. However,
counsel also told him he was "almost certain" he
would receive probation because he had a job, and it had been
five years since his last drunk driving conviction. Mr.
Steffey claimed his entire discussion with counsel lasted
5-10 minutes. He testified this was insufficient time for him
to understand the amended charge and plea agreement prior to
having to enter his plea.
Mr. Steffey also complained he only spoke with his prior
counsel four times before entering his plea, and he felt
counsel did not have enough time for him. He again criticized
his prior counsel for speaking with the prosecutor about the
faulty breathalyzer test without first discussing it with
him. Had counsel informed him first, he claimed he would have
proceeded to trial and relied on the faulty test as a
defense. Mr. Steffey's testimony went uncontradicted
because the State failed to call his prior counsel as a
witness or otherwise rebut his testimony.
The district court denied the second motion to withdraw. It
determined the same four Frame factors favored
allowing Mr. Steffey to withdraw his plea, but the same three
factors continued to weigh against allowing him to withdraw.
As for his failure to receive discovery, the court decided
Mr. Steffey had failed to explain what discovery he had not
received (other than the discovery related to the suppression