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Steffey v. State

Supreme Court of Wyoming

October 8, 2019

KIRK ERWIN STEFFEY, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal 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 Counsel.

          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.

          Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

          KAUTZ, JUSTICE

         [¶1] 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 reverse.

         ISSUES

         [¶2] The issues on appeal are:

1. Was Mr. Steffey's no contest plea knowing and voluntary?
2. Did the district court abuse its discretion in denying Mr. Steffey's motions to withdraw his no contest plea?

         FACTS

         The Offense Conduct

         [¶3] 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, and bloodshot.

         [¶4] 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.[1] 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.

         [¶5] 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.

         The Amended Charge and Mr. Steffey's No Contest Plea

         [¶6] 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.[2] 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 trial.

         [¶7] 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)).[3] 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.

         Mr. Steffey's First Motion to Withdraw His Plea

         [¶8] 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.[4] 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.[5] 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.

         [¶9] 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.

         [¶10] 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. 2016)]."

         Mr. Steffey's Second Motion to Withdraw His Plea

         [¶11] 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.

         [¶12] 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, [6] 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.

         [¶13] 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.

         [¶14] 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 issue, ...


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