Raymond Anthony DERRERA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
No. S-13-0174
Supreme Court of Wyoming
June 13, 2014
2014 WY 77
Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Caitlin F. Young, Assistant Attorney General.
Before KITE, C.J., and HILL, BURKE, DAVIS, and FOX, JJ.
FOX, Justice.
[¶1] Raymond Derrera pled guilty to the charge of driving while under the influence of alcohol (DWUI), his fourth such offense in ten years. Mr. Derrera was convicted of a felony under the law providing that a fourth DWUI offense within ten years is a felony subject to sentence enhancement. He now appeals his felony sentence enhancement, contending that two prior DWUI convictions relied on by the district court were not constitutionally obtained and therefore should not have been relied upon for purposes of enhancing his sentence. We affirm.
ISSUES
[¶2] 1. Does Mr. Derrera‘s 2007 conviction, in which he pled guilty without counsel, constitute a violation of his Sixth Amendment right to counsel?
2. Did the district court subject Mr. Derrera to double jeopardy when it reinstated Mr. Derrera‘s 2009 DWUI after dismissing the case with prejudice?
FACTS
[¶3] On June 19, 2012, Mr. Derrera drove with a blood alcohol concentration of 0.16%. The State charged him with one count of driving under the influence of alcohol with a blood alcohol level of 0.08% or greater. This was Mr. Derrera‘s fourth offense within the previous ten years, making it a felony under
[¶4] On January 23, 2013, Mr. Derrera filed a Motion to Strike Two of Four Prior Convictions for Enhancement Purposes Thereby Reducing DWUI Charge From Felony to Misdemeanor. Specifically, his motion challenged his prior DWUI convictions in CR-2006-3226 and CR-2009-2891.
[¶5] In CR-2006-3226, Mr. Derrera was charged with misdemeanor DWUI for events occurring on November 3, 2006. On January 12, 2007, he entered into a plea agreement with the State, acknowledged that he wished to proceed without counsel, and pled guilty pro se. The circuit court set the sentencing hearing for March 7, 2007, and subsequently reset it to March 26, 2007. Mr. Derrera did not appear for the sentencing hearing on March 26, and the court issued a bench warrant for his arrest. Mr. Derrera was arrested on August 21, 2007. He appeared in court the next day, and was sentenced to six months imprisonment. At his sentencing, Mr. Derrera stated that he was represented by counsel. The court responded that there was nothing in the file to indicate this, and proceeded with sentencing.
[¶6] On October 29, 2007, counsel for Mr. Derrera filed a Motion to Vacate Judgment and Sentence, arguing that Mr. Derrera‘s constitutional right to counsel was denied when he was sentenced without his counsel present. The motion was denied at a December 5, 2007 hearing, where Mr. Derrera‘s retained counsel was present.
[¶7] In 2009, Mr. Derrera was again charged with misdemeanor DWUI. The case
THE COURT FINDS, that the State having failed to comply with the Court‘s May 19th 2009 order setting a deadline of June 1, 2009 for them to file a setting for retrial in this matter, her[e]by dismisses the aforementioned case with prejudice.
THE COURT FURTHER FINDS that [Mr. Derrera] has been prejudiced in this matter to such a degree that no other options are available to the Court absent a dismissal with prejudice.
...
NOW, THEREFORE IT IS ORDERED that the above-entitled matter shall be, and the same hereby is, Dismissed with Prejudice.
[¶8] Two months later, on August 6, 2009, the State filed a Motion to Vacate Order Dismissing Case. The State argued that it was denied an opportunity to be represented at the dismissal hearing because it was never provided with a copy of the motion and order to dismiss. They attributed this to a clerical error by the clerk of court under
[¶9] On October 16, 2009, Mr. Derrera‘s counsel filed a Petition for a Writ of Interlocutory Review of Order, or in the Alternative, Petition for a Writ of Certiorari. The district court issued its Order Denying Petition for Writ of Review on November 5, 2009, citing a failure to comply with
[¶10] During the change of plea hearing for the DWUI charge now before us, Mr. Derrera raised concerns over the 2007 and 2009 DWUI convictions. The district court reminded Mr. Derrera that by pleading guilty, he could be pleading to a felony if he had the required number of prior DWUI convictions within the specified period of time. Mr. Derrera chose to plead guilty and the court found that his plea was knowing and voluntary.
[¶11] The district court then heard argument on Mr. Derrera‘s Motion to Strike Two of Four Prior Convictions for Enhancement Purposes Thereby Reducing DWUI Charge From Felony to Misdemeanor. The court ruled that because Mr. Dererra had not appealed his earlier convictions, they could not be overturned, and it was therefore permissible to consider them for enhancement. Accordingly, the court enhanced Mr. Derrera‘s conviction to a felony, sentencing him to 16 to
[¶12] Mr. Derrera does not challenge his two other prior DWUI convictions.
STANDARD OF REVIEW
[¶13] We have held that a defendant may challenge prior convictions when they are used for purposes of sentence enhancement, under certain circumstances. When a defendant challenges a conviction underlying a finding that he is a habitual traffic offender, he must make a prima facie showing that one or more of the underlying convictions was constitutionally invalid. A prima facie showing is one which would permit the court to find that one or more of the traffic offense convictions essential to the order of revocation was not obtained in accordance with the defendant‘s constitutional rights. Once the defendant makes this showing, the prosecution must establish by a preponderance of the evidence that the conviction was constitutionally obtained. City of Laramie v. Cowden, 777 P.2d 1089, 1091 (Wyo.1989) (citations omitted) (quoting People v. Swann, 770 P.2d 411, 411, 412 (Colo. 1989)). We review constitutional questions de novo. Smith v. State, 2009 WY 2, ¶ 52, 199 P.3d 1052, 1067-68 (Wyo.2009).
[¶14] We do not have the complete record in the 2007 and 2009 proceedings. We have previously stated, “[i]t is the appellant‘s burden to bring a complete record to this Court” for review. Painovich v. Painovich, 2009 WY 116, ¶ 9, 216 P.3d 501, 504 (Wyo. 2009) (citing Beeman v. Beeman, 2005 WY 45, ¶ 10, 109 P.3d 548, 551 (Wyo.2005)). For the purposes of this appeal, we only consider those facts contained in the record presented to us by Mr. Derrera.
DISCUSSION
I. Does Mr. Derrera‘s 2007 conviction, in which he pled guilty without counsel, constitute a violation of his Sixth Amendment right to counsel?
[¶15] Mr. Derrera contends that his 2007 DWUI conviction cannot be used for felony enhancement purposes because he did not validly waive his right to counsel during his plea hearing or sentencing.4
[¶16] The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.”
[¶17] The Sixth Amendment, however, also guarantees the right of every citizen to proceed without counsel and to conduct his own defense. Faretta v. California, 422 U.S. 806, 832, 95 S.Ct. 2525, 2539-40, 45 L.Ed.2d 562 (1975). “A criminal defendant may waive his right to counsel so long as the ... court ensures that it is ‘an intentional relinquishment or abandonment of a known right or privilege.‘” Vargas v. State, 963 P.2d 984, 989-90 (Wyo.1998) (quoting United States v. Willie, 941 F.2d 1384, 1388 (10th Cir.1991)).
[¶18] During the plea hearing, Mr. Derrera exercised his Sixth Amendment right to represent himself, waiving his right to counsel. We first determine whether the defendant‘s waiver was voluntary when deciding whether a defendant has entered a valid waiver of counsel. Bolin v. State, 2006 WY 77, ¶ 31, 137 P.3d 136, 146 (Wyo.2006). If we conclude the waiver was voluntary, we next look to whether the defendant waived the right knowingly and intelligently. Id. “A waiver of the right to counsel is knowing and intelligent if the record shows the defendant senses the magnitude of his undertaking and the risks inherent in proceeding pro se.” Craft v. State, 2011 WY 142, ¶ 11, 262 P.3d 1253, 1256 (Wyo.2011) (citing Trujillo v. State, 2 P.3d 567, 571 (Wyo.2000)). We have stated that, “[i]deally, the trial judge should conduct a thorough and comprehensive formal inquiry of the defendant on the record to demonstrate that the defendant is aware of the nature of the charges, the range of allowable punishments and possible defenses, and is fully informed of the risks of proceeding pro se.” Van Riper v. State, 882 P.2d 230, 234 (Wyo.1994) (quoting Willie, 941 F.2d at 1388).
[¶19] The record shows that when Mr. Derrera entered his pro se guilty plea, he signed a statement of his constitutional rights, which, among other things, advised him of his right to counsel. The hearing transcript also indicates that the presiding judge diligently reviewed Mr. Derrera‘s constitutional rights, specifically his right to the advice of an attorney, prior to accepting his guilty plea. Mr. Derrera stated that he would proceed without counsel. Furthermore, Mr. Derrera indicated the voluntary nature of his plea when he responded in the negative to the following questions: “Did anybody promise you anything to get you to plead guilty?” and “Did anybody force or coerce you to plead guilty?” We find that the trial judge‘s colloquy met the plea advisement requirements of
[¶20] Mr. Derrera further argues he was the victim of unfair bartering with the prosecutor at the preliminary hearing, agreeing to plead guilty to allow him to return home immediately, without jail time. He suggests that this was coercive despite not having made an objection at the time of the plea. Mr. Derrera‘s regret over his decision presents an insufficient reason to revisit and revise the 2007 conviction. His hindsight does not change the fact that at the time of the plea hearing, he waived his right to counsel
[¶21] Because of the procedurally and constitutionally sound methods by which Mr. Derrera waived his counsel and entered his guilty plea, we find that Mr. Derrera has failed to meet his prima facie burden and we find no basis to disturb the 2007 conviction.
2. Did the district court subject Mr. Derrera to double jeopardy when it reinstated Mr. Derrera‘s 2009 DWUI after dismissing the case with prejudice?
[¶22] Mr. Derrera argues his 2009 conviction is invalid because the district court lost jurisdiction to reinstate the case after it had already been dismissed with prejudice. He argues that reinstating his case violated the double jeopardy protections of the Fifth and Fourteenth Amendments.
[¶23] The Fifth Amendment to the United States Constitution and
[¶24] With respect to the State‘s failure to timely refile, our limited record indicates that the State was not provided a copy of the motion and order to dismiss, and therefore was not provided an opportunity for a hearing on the motion.7
[¶25] The Wyoming Rules of Criminal Procedure do not specifically address the reopening of a case following dismissal with prejudice.8 Nevertheless, the State points us to
CONCLUSION
[¶27] We find that Mr. Derrera‘s underlying convictions were constitutionally obtained, and we therefore affirm his enhanced sentence.