Cothren v. State

310 P.3d 908

Jerele Craig COTHREN, Jr., Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–12–0270.

Supreme Court of Wyoming.

Oct. 10, 2013.

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Christyne Martens, Assistant Attorney General. Argument by Ms. Martens.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

DAVIS, Justice.

[¶ 1] Appellant Jerele Cothren returns to this Court to challenge an amended judgment and sentence issued by the District Court for the Seventh Judicial District following remand for resentencing. We find that the sentence imposed on remand is still illegal for reasons discussed below, and reverse and remand for entry of an amended sentence.

ISSUES

[¶ 2] Cothren raises four issues, which we restate as follows:

1. Did the district court abuse its discretion in refusing to allow Cothren to withdraw his guilty plea?

2. Did the district court err when it declined to retroactively reject the plea agreement it had accepted two years earlier, and to sentence Cothren anew while holding the State to its agreement to dismiss thirteen of fourteen charges?

3. Did the district court err by attempting to cure the illegality of Cothren's sentence without adjusting its length on the basis of his efforts to reform himself while in prison?

4. Did the district court improperly grant Cothren credit for time served or otherwise impose an illegal sentence?

FACTS

[¶ 3] As we noted in Cothren's first appeal, Cothren v. State, 2012 WY 102, 281 P.3d 352 (Wyo.2012)( Cothren I ), the sentence in this case is one of four imposed for unrelated crimes by three district courts between 2007 and 2010. In 2007, he was sentenced to two to four years of incarceration on a conviction for larceny by bailee in Natrona County. The Natrona County district court suspended Cothren's term of incarceration in favor of three years of supervised probation. Id. at ¶ 3, 281 P.3d at 353–54. In early 2009, the district court in Sheridan County sentenced him to seven concurrent prison terms of five to eight years for six counts of forgery and one count of identity theft. Id. [¶ 4] Later that year, Cothren was sentenced to a two-to-five-year term of imprisonment for livestock rustling in Platte County, which the district court there suspended in favor of a term of five years of supervised probation, which was to begin after Cothren served the Sheridan County sentence. In May of 2010, his probation in the first Natrona County case was revoked and the district court imposed the term of two to four years of imprisonment which had been suspended. Id. As discussed below, although the record is not clear, the parties agree that the sentence on the first Natrona County case was to run consecutively to the Sheridan County case after probation was revoked.

[¶ 5] On August 6, 2010, the Natrona County District Court sentenced Cothren to a term of eight to ten years imprisonment for forgery. The court ordered that sentence to run concurrently with the Sheridan County sentence and consecutively to the sentence in the first Natrona County case and the Platte County sentence. Id.

[¶ 6] The judgment and sentence in Cothren's present case, the second Natrona County conviction, was filed on May 3, 2011. On June 20, 2011, Cothren filed a motion asking the district court to correct his sentence, which he claimed was illegal. In his motion, and at the hearing on that motion, he suggested that the sentences in both the first Natrona County case and the Platte County case were to run consecutively to the Sheridan County sentence. He argued that the second Natrona County sentence could not simultaneously be consecutive to the first Natrona County sentence and concurrent with the Sheridan County sentence, and that the second Natrona County sentence could not simultaneously be concurrent with the imposed Sheridan County sentence and consecutive to the probationary period of the Platte County sentence. Id. at ¶ 5, 281 P.3d at 354. Cothren abandoned the first argument and proceeded solely on the second in his appeal from the denial of that motion, and this Court limited its consideration to that issue in Cothren I.

[¶ 7] We remanded the case to the district court to correct a sentence that we held to be illegal in two respects. It was impossible to serve that sentence both concurrently with the Sheridan County sentence and consecutively to the Platte County probation that was consecutive to the Sheridan County sentence, and it was unlawful to have Cothren serve his second Natrona County sentence in two installments separated by the Platte County probation. Id. at ¶ 14, 281 P.3d at 356.

[¶ 8] Cothren moved to withdraw his guilty plea, which would effectively negate what the parties regard as a plea based on a joint sentencing recommendation under W.R.Cr.P. 11(e)(1)(B). The plea agreement resulted in the dismissal of thirteen additional felony forgery counts. However, Cothren's counsel asked the district court to treat his existing guilty plea to one count of forgery as a “cold plea,” or a plea made without a plea agreement. This might arguably allow Cothren to keep the benefit of the plea agreement (the dismissal of thirteen felony charges), while permitting him to argue for a lesser sentence on the one remaining count.

[¶ 9] Cothren also requested an updated presentence investigation report which he anticipated would reflect successful efforts at rehabilitation while in prison. The district court declined to order an updated presentence investigation, but it allowed Cothren to testify as to his rehabilitation at the resentencing hearing. It also allowed Cothren to call his sister, the victim of the forgery, to testify in favor of probation.

[¶ 10] The record reflects that the district judge in Natrona County was advised by the district judge in Platte County that he had discharged Cothren from his Platte County probation before the resentencing hearing.¹ Cothren also testified that he had been paroled from his Sheridan County sentence to serve the incarceration required by his first Natrona County sentence.

[¶ 11] The district court declined to allow Cothren to withdraw his guilty plea, noting that it could not rationally hold the State to the dismissal of thirteen felonies while leaving him free to argue for a lesser sentence. It expressed its appreciation for Cothren's efforts at rehabilitation, but imposed a sentence of not less than eight nor more than ten years of incarceration, which was the same term of confinement as in the original sentence. The sentence was to run concurrently with the Sheridan County sentence and consecutively to the first Natrona County conviction, as had been the case under the first sentence. The court awarded Cothren 680 days of credit against his sentence for a period commencing at the time it imposed the original sentence in this case on August 6, 2010. This appeal was timely perfected.

DISCUSSION

Denial of Motion to Withdraw Guilty Plea

[¶ 12] The standard that district courts must apply when ruling on motions to withdraw guilty pleas is set forth in W.R.Cr.P. 32(d):

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.

We review a district court's determination of a motion to withdraw a guilty plea for an abuse of discretion. McCard v. State, 2003 WY 142, ¶¶ 7–8, 78 P.3d 1040, 1042–43 (Wyo.2003). When conducting this inquiry, this Court focuses on the reasonableness of the district court's conclusion and whether it was based on “sound judgment with regard to what is right under the circumstances.” Jackson v. State, 2012 WY 56, ¶ 6, 273 P.3d 1105, 1107 (Wyo.2012). The district court's ruling will not be disturbed unless some part of it is arbitrary and capricious. Id.

[¶ 13] Appellant argues that the Court should apply the presentencing “any fair and just reason” standard because he believes that there was no sentence after the case was remanded. The State argues that the post-sentence “manifest injustice” standard applies. We decline to engage in a detailed analysis of this issue, as the district court's decision can be affirmed under either standard.

[¶ 14] The most obvious problem with Cothren's effort to “withdraw” his guilty plea is that he did not actually ask the Court to do that at the hearing on the motion. Cothren did file a written motion seeking to withdraw his plea because the plea bargain could not be performed. However, at the scheduled sentencing hearing, his attorney indicated that “[w]hat we would like to do is essentially consider this entire situation as a cold plea now; that his guilty plea would stand; that—and I think especially in light of the recent changes that just occurred, that it would make sense to order a new Presentence Investigation Report on Mr. Cothren.”

[¶ 15] In other words, Cothren asked to maintain his guilty plea, which he evidently believed would allow him to argue for a shorter sentence than the one he had agreed to, while also preventing the State from refiling the thirteen felony charges it had dismissed. This was not truly a motion to withdraw a plea of guilty and return to square one, but rather an effort to keep the benefit of the plea agreement while avoiding its burdens. This alone would have rendered the trial court's decision an exercise of sound discretion under either the “fair and just reason” or “manifest injustice” standard.

[¶ 16] Cothren also failed to provide a fair and...