Elton HENRY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
No. S-15-0102.
Supreme Court of Wyoming.
Dec. 16, 2015.
2015 WY 156
785
[¶26] In sum, we conclude that
[¶27] Affirmed.
Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Joshua C. Eames, Assistant Attorney General.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
KAUTZ, Justice.
[¶ 1] Pursuant to a plea agreement with the State of Wyoming, Elton Henry pleaded no contest to one count of first degree sexual abuse of a minor and one count of second degree sexual abuse of a minor, both felonies. He challenges his convictions on appeal, claiming the district court did not properly advise him that his future employment opportunities could be affected by loss of the privilege to possess firearms. We conclude he waived his right to appeal this issue in his plea agreement and, in any event, the district court‘s advisement was sufficient.
[¶ 2] We affirm.
[¶ 3] Mr. Henry presents the following issue on appeal:
- Did the trial court commit reversible error by failing to advise Mr. Henry of his rights as required by W.S. § 7-11-507?
The State raises an additional issue, which we rephrase:
- Did Mr. Henry waive his right to appeal a claimed error in advisements in his plea agreement?
FACTS
[¶ 4] The underlying facts of this case are not directly relevant to the issues on appeal. In summary, the State charged Mr. Henry with nine felony counts of sexual abuse of his two young grandchildren. The State and Mr. Henry entered into a written plea agreement in which he pleaded no contest to one count of first degree sexual abuse of a minor under
[¶ 5] Prior to accepting his no contest pleas, the district court advised Mr. Henry in open court that the legal consequences of pleading no contest were the same as pleading guilty. The court also explained:
THE COURT: There are a number of important consequences that result from pleading guilty to a felony. A felony conviction may deprive you of certain rights, such as the right to vote, to hold public office, or sit on a jury, and could affect your ability to obtain certain employment or licenses.
A felony conviction may affect your right to own or possess firearms or explosive devices. You should assume that you may never be allowed to have a gun.
[¶ 6] At sentencing, the district court rejected Mr. Henry‘s request for a suspended sentence. It ordered him to serve twenty-five to thirty years in prison on the first degree conviction and eighteen to twenty years in prison on the second degree conviction, with the terms to run concurrently. Mr. Henry filed a timely notice of appeal.
DISCUSSION
1. General Law on the Firearms Advisement
[¶ 7] Mr. Henry claims his convictions are invalid because the district court failed to comply with
(a) No judgment of conviction shall be entered upon a plea of guilty or nolo contendere to any charge which may result in the disqualification of the defendant to possess firearms pursuant to the provisions of
18 U.S.C. §§ 922(g)(1) , (9) and924(a)(2) or other federal law unless the defendant was advised in open court by the judge:(i) Of the collateral consequences that may arise from that conviction pursuant to the provisions of
18 U.S.C. §§ 921(a)(33) ,922(g)(1) , (9) and924(a)(2) ; and(ii) That if the defendant is a peace officer, member of the armed forces, hunting guide, security guard or engaged in any other profession or occupation requiring the carrying or possession of a firearm, that he may now, or in the future, lose the right to engage in that profession or occupation should he be convicted.
[W]e must apply our de novo standard of review to the issue before us because that issue requires our interpretation and application of a statute. We hold that
Wyo. Stat. Ann. § 7-11-507 is clear and unambiguous; therefore, we must simply give effect to its plain meaning. We hold that, because the legislature has used the word “shall” in its language, “[n]o judgment of conviction shall be entered upon a plea of guilty . . . unless the defendant was advised in open court by the judge,” this Court accepts the provision as mandatory and has no right to make the law contrary to what the legislature prescribed. The word “shall” in this statute intimates an absence of discretion. The advisement inWyo. Stat. Ann. § 7-11-507 is required, andW.R.Cr.P. 32(b)(1)(E) mandates that the judgment of conviction upon Starrett‘s plea of guilty must include that advisement. The district court‘s failure to give Starrett that required advisement was a Rule 32 error. Consistent with our precedent dealing with Rule 32 error, we hold that the district court‘s failure to include in Starrett‘s judgment of conviction upon his plea of guilty the advisement required byWyo. Stat. Ann. § 7-11-507 requires us to set aside Starrett‘s judgment of conviction and remand to that court with directions that he be permitted to plead anew.
[¶ 9] In Balderson v. State, 2013 WY 107, ¶ 14, 309 P.3d 809, 812 (Wyo.2013), we explained there are two distinct advisements required by
[¶ 10] Furthermore, the advisements are compulsory even though the defendant may not actually be affected by the particular consequences. In McEwan v. State, 2013 WY 158, ¶ 19, 314 P.3d 1160, 1166 (Wyo. 2013), we reversed the defendant‘s conviction because she was not given the firearms advisements when she pleaded guilty to obtaining welfare benefits by misrepresentation. The Court reached that conclusion even though Ms. McEwan had previously lost her firearms privileges as the result of a felony conviction and “she was not employed in an occupation that required her to carry a firearm, and we ha[d] no reason to believe that she [had or ever would] have aspirations to obtain such a job.” Id.
2. Waiver
[¶ 11] The State claims Mr. Henry waived, in his plea agreement, the right to appeal the district court‘s failure to give the firearms advisement. In Bush v. State, 2003 WY 156, ¶ 16, 79 P.3d 1178, 1181 (Wyo.2003), we stated that “a defendant may waive his right to appeal, so long as that waiver is knowing and voluntary.” See also United States v. Hernandez, 134 F.3d 1435, 1437 (10th Cir.1998). In other cases, however, we have noted the waiver of the right to appeal has limited application when the district court‘s alleged error undermines the validity of the guilty plea itself. See Noel v. State, 2014 WY 30, ¶ 16, 319 P.3d 134, 141-42 (Wyo. 2014).
- whether the disputed appeal falls within the scope of the waiver of appellate rights;
- whether the defendant knowingly and voluntarily waived his appellate rights; and
- whether enforcing the waiver would result in a miscarriage of justice[.]
Id. By ensuring the waiver is knowing and voluntary and does not result in a miscarriage of justice, the Hahn test protects against the concerns voiced in Noel.
[¶ 13] Under the first element of the Hahn test, we must determine the scope of Mr. Henry‘s waiver of his right to appeal. We review plea agreements de novo and interpret them using general contract principles. Schade v. State, 2002 WY 133, ¶ 5, 53 P.3d 551, 554 (Wyo.2002); Noel, ¶ 17, 319 P.3d at 142. Ambiguities in a waiver of appellate rights will be interpreted against the State; however, a defendant will be held to the clear terms of a lawful plea agreement. Hahn, 359 F.3d at 1325, 1328.
[¶ 14] In Wyoming, questions about the meaning of a plea agreement have typically arisen in the context of a defendant‘s claim that the State breached the terms of the agreement. Schade, supra. See also Fernandez v. State, 2006 WY 8, 126 P.3d 111 (Wyo.2006). However, Knox v. State, 848 P.2d 1354 (Wyo.1993), addressed whether the defendant waived the right to claim a violation of the Interstate Agreement on Detainers Act (IAD) when he entered his guilty plea. There was apparently no written plea agreement but, after reviewing the agreement as recited by the parties at the change of plea and sentencing hearings, we concluded Mr. Knox had not waived that right. Id. at 1356-58.
[¶ 15] In the case at bar, the scope of Mr. Henry‘s waiver of his rights is set out in the written plea agreement, which states in relevant part:
THE DEFENDANT agrees and understands that by entering this agreement and by entering the above plea(s) that the Defendant is giving up . . . the right to appeal any charges, means by which evidence/statements were obtained, and defects in charging documents or jurisdiction. By entering this plea(s) the Defendant represents to the Court and agrees that this agreement is being done knowingly and voluntarily. . . . The Defendant understands that this plea(s) may result in negative consequences regarding the ability to own or possess a firearm. . . . By entering this plea(s) the defendant waives any future objection to this agreement, plea(s) and conviction(s) due to the effects this matter has upon any rights mentioned herein. Further, the Defendant gives up the right to appeal any terms or conditions expressly stated as part of this agreement.
[¶ 16] The scope of the waiver was extensive. The waiver language in the plea agreement included relinquishment of his right to appeal and any objections to the “[plea] agreement, plea(s) and convictions.” This language plainly foreclosed objections on appeal about the procedures used by the district court in accepting his pleas and entering the convictions. The advisements required under
[¶ 17] The waiver also specifically included notification of possible negative consequences of the pleas on his right to possess firearms. This Court has recognized and enforced specific waivers included in plea agreements in past cases. In Beck v. State, 2005 WY 56, ¶ 12, 110 P.3d 898, 901 (Wyo. 2005), we upheld the defendant‘s express waiver of the right to argue his convictions merged for purposes of sentencing. We said: “A criminal defendant may waive any personal right ‘so long as there is no violation of public policy[,] . . . the public‘s interests
[¶ 18] Under the second element of the Hahn test, we consider whether the waiver was knowing and voluntary. The Hahn court identified two factors to determine whether the appellate waiver was knowing and voluntary. “First, we examine whether the language of the plea agreement states that the defendant entered the agreement knowingly and voluntarily. Second, we look for an adequate . . .
THE COURT: With respect to the agreement itself, did you read it?
THE DEFENDANT: Oh, several times.
THE COURT: And did you sign it?
THE DEFENDANT: Yes, ma‘am.
THE COURT: This is your signature I see on the third page?
THE DEFENDANT: Yes, ma‘am.
THE COURT: Did you review it, before signing it, with [defense counsel]? Before you signed, did you have an opportunity to speak with [defense counsel]?
THE DEFENDANT: Yes, ma‘am.
THE COURT: And did you have an opportunity to ask him any questions you may have had regarding the agreement?
THE DEFENDANT: Yes, ma‘am.
THE COURT: And did he answer those questions to your satisfaction?
THE DEFENDANT: Yes, ma‘am.
THE COURT: Are you satisfied with [defense counsel‘s] representation of you?
THE DEFENDANT: Definitely, ma‘am.
THE COURT: Did anyone force you to sign the plea agreement?
THE DEFENDANT: No, ma‘am.
THE COURT: Did you do it voluntarily?
THE DEFENDANT: Yes, ma‘am.
THE COURT: And you understand it, correct?
THE DEFENDANT: Yes, ma‘am.
As this colloquy demonstrates, Mr. Henry repeatedly stated that he had read and understood the terms of the agreement.
[¶ 19] We would next consider whether the district court complied with
[¶ 20] The final Hahn element is whether enforcement of the waiver would result in a miscarriage of justice. The factors considered in determining if there is a miscarriage of justice were set forth in United States v. Elliott, 264 F.3d 1171, 1173 (10th Cir.2001):
Appellate waivers are subject to certain exceptions, including [1] where the district court relied on an impermissible factor such as race, [2] where ineffective assistance of counsel in connection with the negotiation of the waiver renders the waiver invalid, [3] where the sentence exceeds the statutory maximum, or [4] where the waiver is otherwise unlawful.
To warrant relief under the fourth factor, the error must seriously undermine the fairness, integrity or public reputation of judicial proceedings. Hahn, 359 F.3d at 1327, citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 128 L.Ed.2d 508 (1993).
[¶ 21] In the case at bar, there are no assertions that the district court relied on race or any other improper factor, Mr. Hen-
3. Sufficiency of Firearms Advisement
[¶ 22] Dismissal of the appeal is the typical remedy when a defendant waives his right to appeal. Hahn, 359 F.3d at 1328. Nevertheless, in the interest of completeness, we will briefly address the sufficiency of the district court‘s advisements under the statute. As noted above, our precedent has interpreted
There are a number of important consequences that result from pleading guilty to a felony. A felony conviction may deprive you of certain rights, such as the right to vote, to hold public office, or sit on a jury, and could affect your ability to obtain certain employment or licenses.
A felony conviction may affect your right to own or possess firearms or explosive devices. You should assume that you may never be allowed to have a gun.
[¶ 23] Obviously, the district court did not advise Mr. Henry word for word from the statute and the advisement was a bit confusing because it referred to the employment consequences of his convictions before telling him of the possibility of losing the firearm privilege. However, prior to the change of plea hearing, Mr. Henry had been advised of the firearms consequences of his convictions in the plea agreement, which he stated he had read and understood. Common sense would have told him that the employment consequences referred to by the district court at the change of plea hearing could be associated with his loss of firearms privileges.
[¶ 24] While our precedent is clear that the advisements are compulsory, we have not required the district courts to recite them verbatim from the statute. See, e.g., Parks, Cobb, Pedraza, supra (stating district courts’ advisements that the defendants could lose the “right to own and possess certain types of weapons,” “the right to possess firearms under federal law,” or “your right to bear arms by federal law” likely satisfied
[¶ 25] Affirmed.
Notes
(a) An actor commits the crime of sexual abuse of a minor in the first degree if:
(i) Being sixteen (16) years of age or older, the actor inflicts sexual intrusion on a victim who is less than thirteen (13) years of age[.]
(a) Except under circumstance constituting sexual abuse of a minor in the first degree as defined by W.S. 6-2-314, an actor commits the crime of sexual abuse of a minor in the second degree if:
(ii) Being sixteen (16) years of age or older, the actor engages in sexual contact of a victim who is less than thirteen (13) years of age[.]
(b) Judgment.—
(1) . . . [J]udgment of conviction upon a plea of guilty or nolo contendere shall include:
. . .
(E) Any other advisements required by law or that the court deems appropriate.