429 P.3d 53
Wyo.2018Background
- Joshua R. Popkin, a licensed psychologist, pled no contest to two counts of second-degree sexual assault by a person in a position of authority based on alleged sexual conduct with two former counseling patients.
- Affidavits of probable cause alleged Popkin kissed and had sex with one victim during sessions, provided marijuana oil and alcohol, and engaged in sexual conduct while serving as their counselor.
- Popkin entered a plea agreement in which he pled no contest to two counts; the court accepted the pleas but imposed a harsher sentence than the State recommended.
- Popkin filed postconviction motions and appeals arguing the alleged facts did not constitute the crime because a psychologist was not a “position of authority” under the statute in force at the time (2016).
- The district court denied relief and the Wyoming Supreme Court consolidated Popkin’s appeals to resolve whether his no-contest pleas waived the challenge and whether the facts alleged could establish the statutory “position of authority.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the alleged facts constituted the crime of 2nd-degree sexual assault by a person in a position of authority | Popkin: a clinical psychologist is not a person in a position of authority under the statute, so facts are legally insufficient | State: the plea waived non-jurisdictional challenges; statute has been broadly construed to include many care providers | Waived by plea; court did not reach merits because issue is non-jurisdictional |
Key Cases Cited
- Faubion v. State, 233 P.3d 926 (Wyo. 2010) (statute construed broadly to include care providers)
- Solis v. State, 315 P.3d 622 (Wyo. 2013) (position-of-authority is mixed law and fact)
- Baldes v. State, 276 P.3d 386 (Wyo. 2012) (caregiver found in position of authority)
- Hagen v. State, 336 P.3d 1219 (Wyo. 2014) (no contest plea waives all issues except jurisdiction and voluntariness)
- Ochoa v. State, 848 P.2d 1359 (Wyo. 1993) (same waiver principle for nolo contendere pleas)
- Class v. United States, 138 S. Ct. 798 (2018) (guilty plea does not bar claim where court lacked power to enter conviction)