[¶1] Aрpellant, Thomas L Berger, pfed guilty to third-degree sexual abuse of a minor. He subsequently moved to withdraw his guilty plea. The district court denied the motion. Appellant сontends that the district court abused its discretion in denying the motion. We affirm.
ISSUE
[¶2] Did the district court abuse its discretion when it denied Appellant’s motion to withdraw his guilty plea?
FACTS
[¶3] Pursuant to a plea agreemerit, Appellant pled guilty to a charge of third-degree sexual abuse of a minor. The State agreed to recommend a deferrеd conviction and probation pursuant to Wyoming’s “first offender” statute, Wyo. Stat. Ann. § 7-13-301(a) (Lexis-Nexis 2013).
Nearly two years later, the State petitiоned to revoke Appellant’s probation. It alleged several violations of the conditions of his probation, including missing scheduled appointments, failing to report his loss of
[¶5] Shortly thereafter, Appellant filed a motion to withdraw his guilty plea. He claimed that his defense counsel had failed tо inform him of “an excellent defense to the charge” against him. For that reason, he contended he had received ineffective assistance of cоunsel, and was prejudiced because he would not have pled guilty if he had been aware of this affirmative defense. Following a hearing, the district, court denied thе motion.
[¶6] Appellant then admitted to several of the probation violations alleged by the State. The district court revoked his probation, entered a сonviction on the charge of third-degree sexual abuse of a minor,- and sentenced Appellant to three to five years of incarceration. This aрpeal followed.
STANDARD OF REVIEW
[¶7] The ultimate question in this case is whether the district court erred in denying Appellant’s motion to -withdraw his guilty plea. “We review the district court’s determinаtion on that issue for an abuse of discretion.” Ortega-Araiza v. State,
DISCUSSION
[¶8] Appellant pled guilty to the crime set forth in Wyo. Stat. Ann. § 6-2-316(a)(iv). That statute provides, in relevant рart:
[A]n actor commits the crime of sexual abuse of a minor in the third degree if: .. >
(iv) Being seventeen (17) years of age or older, the actor knowingly takes immodest, immоral or indecent liberties with a victim who is less than seventeen (17) years of age and the victim is at' least four (4) years .younger than the actor.
When entering his guilty plea, Aрpellant informed the district court that he was twenty-three years of age, that he had sexual intercourse with a sixteen-year-old, and that he was aware of her age.
[¶9] He now claims, as he did in the motion to withdraw his plea, that-a statutory affirmative defense was available to, him. Wyo. Stat. Ann. § 6-2-308(a) provides in pertinent part thаt “if criminality of conduct in this article depends on a victim being under sixteen (16) years of age, it. is an affirmative defense that the actor reasonably believed that the victim was sixteen (16) years' of, age or older.” He asserts that he reasonably believed his victim was sixteen years old because she was, in fact, sixteen years old. He contends that his counsel did not inform him of this potential defense when advising him to plead guilty, that this failure constituted ineffective assistance of counsel, and that he was prejudiced “because it was unquestionably clear that the defendant would not have [pled] guilty but for counsel’s erroneous advice.”
[¶10] W.R.Cr.P. 32(d) establishes twо different standards for deciding motion's to withdraw guilty pleas:
If a motion for withdrawal of a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason. At any later time, a plea may be set aside only to correct manifest injustice.
The parties disagree over which standard the district court should have applied in this
[The appellant’s] motion to withdraw his plea came only after the State had moved to revoke the diversion agreement. [He] thus knew, when he sought withdrawal of his plea that he wаs facing a stiffen punishment for the felony offense than he originally contemplated when he entered the guilty plea. The higher burden of the manifest injustice standard is thus appropriate, since it is a deterrent to defendants testing the waters for possible punishments and acting out of disappointment in the eventual punishment imposed. •
State v. Barney,
[¶11] Our precedent supports Appellant’s position. As we set forth in Jackson v. State,
[A]t the time [the appellant] moved to withdraw his guilty plea, he had not been sentenced within the meaning of Rule 32(d); rather, the district court had deferred a judgment of guilt and conviction and placed him on probation under § 7-13-301. Therefore, the district court had tbe discretion to permit him to withdraw his plea upon a showing of any fair and just reason.
In this case,.the district court determined that Appellant’s motion to withdraw his guilty plea failed under both standards. The court specifically addressed the factors we set forth in Frame v. State,
[¶12] The affirmative defense set forth in Wyo. Stat. Ann. § 6-2-308(a) applies “if criminality of conduct in this article depends on a victim being under sixteen (16) years of age.” Appellant pled guilty to the crime set forth in Wyo. Stat. Ann. § 6-2-316(a)(iv), in which criminality depends on a “victim who is less than seventeen (17) years of age.” The affirmative defense does not apply to the crime to which Appellant pled guilty.
[¶13] Because the affirmative defense does not apply, it was unnecessary for counsel to inform Appellant of it; In order to succeed on a claim of ineffective assistanсe of counsel, an appellant must demonstrate both that counsel’s performance was deficient and that prejudice resulted. Hirsch v. State,
[¶14] Because cоunsel’s performance was not deficient, the district court could reasonably deny Appellant’s motion to withdraw his guilty plea. The district court did not abuse its discretiоn.
[¶15] Affirmed.
Notes
. That statute, in relevant part, provides:
If a person who has not previously been convicted of any felony is charged with or is found guilty of or pleads guilty or no contest to ... any felony ,.. the court may, with thе consent of the defendant and the state and without entering a judgment of guilt .or conviction, defer further proceedings and place the person on probation for a term not to exceed five (5) years upon terms and conditions set by the court.