Berger v. State, 399 P.3d 621

Background

Berger pled guilty pursuant to a plea agreement to third-degree sexual abuse of a minor and was placed on deferred conviction and five years’ probation under Wyoming’s first-offender statute.
About two years later the State petitioned to revoke his probation, alleging multiple supervision violations; an addendum alleged further violations.
Berger moved to withdraw his guilty plea, claiming trial counsel failed to advise him of an affirmative statutory defense (Wyo. Stat. § 6-2-308(a)), so his plea was uninformed and resulted from ineffective assistance.
After a hearing the district court denied the motion; Berger then admitted several probation violations, the court revoked probation, entered a conviction, and sentenced Berger to 3–5 years’ imprisonment.
The core legal question on appeal was whether the district court abused its discretion in denying the motion to withdraw the plea, which required assessing the ineffective-assistance claim and whether the asserted affirmative defense applied to Berger’s offense.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court abused discretion by denying motion to withdraw plea	Berger: counsel failed to advise him of an affirmative defense (reasonable belief victim was ≥16), so plea was unknowing and prejudicial	State: plea withdrawal properly denied; stricter manifest-injustice standard should apply and Berger’s claim fails on merits	Court affirmed: no abuse of discretion; motion properly denied
Whether Wyo. Stat. § 6-2-308(a) affirmative defense applied	Berger: he reasonably believed the victim was 16 (she was 16), so defense was available	State: defense applies only when criminality depends on victim being under 16, not under 17	Held: defense did not apply to the § 6-2-316(a)(iv) offense (which depends on victim <17)
Whether counsel’s omission constituted deficient performance	Berger: counsel’s failure to advise about the defense was deficient	State: no deficiency because the defense was inapplicable	Held: no deficient performance; Strickland prejudice not met
Proper standard for plea-withdrawal timing under Rule 32(d) when conviction deferred	Berger: plea withdrawal was pre-sentence because judgment was deferred under § 7-13-301, so the "any fair and just reason" standard applies	State: argued the stricter "manifest injustice" standard should apply because withdrawal was sought only after revocation petition	Held: court noted precedent supports Berger (deferred judgment = pre-sentence), but concluded motion failed under either standard

Key Cases Cited

Ortega-Araiza v. State, 331 P.3d 1189 (Wyo. 2014) (standard of review for plea-withdrawal abuse-of-discretion)
McNaughton v. State, 384 P.3d 276 (Wyo. 2016) (ineffective-assistance claims are mixed questions reviewed de novo)
Hibsman v. State, 355 P.3d 1240 (Wyo. 2015) (ineffective-assistance standard citation)
Rambo v. Rambo, 391 P.3d 1108 (Wyo. 2017) (statutory interpretation reviewed de novo)
Venard v. Jackson Hole Paragliding, LLC, 292 P.3d 165 (Wyo. 2013) (abuse of discretion definition)
Jackson v. State, 273 P.3d 1105 (Wyo. 2012) (deferred judgment under § 7-13-301 is pre-sentence for Rule 32(d))
Frame v. State, 29 P.3d 86 (Wyo. 2001) (factors for evaluating plea-withdrawal motions)
Major v. State, 83 P.3d 468 (Wyo. 2004) (discussion limiting Frame-factor review when counsel-related complaints fail)
Hirsch v. State, 135 P.3d 586 (Wyo. 2006) (Strickland test requires deficient performance and prejudice)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part ineffective assistance standard)