Keller v. State

551 P.3d 450

2024 WY 71

Andrew James KELLER, Appellant (Defendant),

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

S-23-0164, S-23-0281

Supreme Court of Wyoming.

July 1, 2024

Appeal from the District Court of Natrona County, The Honorable Daniel L. Forgey, Judge

Representing Appellant: Pro se.

Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen R. Jones, Senior Assistant Attorney General.

Before FOX, C.J., and BOOMGAARDEN, GRAY, FENN, and JAROSH, JJ.

JAROSH, Justice.

[¶1] Andrew James Keller pleaded guilty to one count of conspiracy to deliver methamphetamine. Mr. Keller, who appears pro se, claims the district court erred by denying his presentence motion to withdraw his guilty plea under Wyoming Rule of Criminal Procedure (W.R.Cr.P.) 32(d) and his subsequent Wyoming Rule of Appellate Procedure (W.R.A.P.) 21 motion to withdraw his guilty plea and for a new trial for ineffective assistance of counsel. His arguments largely involve assertions his public defenders had conflicts of interest and did not provide reasonably competent assistance. We affirm.

ISSUES

[¶2] To facilitate a straightforward discussion of this case, we restate and reorder Mr. Keller’s issues as:

1. Did the district court err by denying Mr. Keller’s W.R.A.P. 21 motion to withdraw his guilty plea and for a new trial because his counsel was ineffective?

2. Did the district court abuse its discretion by denying Mr. Keller’s presentence motion to withdraw his guilty plea?

FACTS

[¶3] In 2021 and 2022, the Wyoming Division of Criminal Investigation (DCI) investigated a large-scale methamphetamine and fentanyl distribution enterprise in Natrona County. Through confidential sources (CS) and confidential informants (CI),¹ DCI agents identified Mr. Keller as a drug distributor and began electronic and physical surveillance of his property in Mills. The investigation revealed Mr. Keller procured large quantities of controlled substances, which he divided into smaller amounts and sold.

[¶4] In early March 2022, law enforcement stopped and searched two vehicles leaving Mr. Keller’s property; the vehicles contained over 61 grams of methamphetamine and 23 fentanyl pills. Law enforcement later executed a search warrant on Mr. Keller’s property, where they "located thousands of dollars in United States Currency, as well as misdemeanor quantities of methamphetamine, packaging materials consistent with controlled substance … distribution, video monitoring equipment[,] and firearm ammunition." Mr. Keller was arrested and charged with two counts of felony conspiracy to deliver a controlled substance, in violation of Wyo. Stat. Ann. §§ 35-7-1042 and 35-7-1031(a)(i) (LexisNexis 2023).

[15] Mr. Keller refused appointment of counsel at his initial appearance in the Natrona County circuit court on March 21, 2022. However, two days later he filed an affidavit of indigency and requested counsel. The circuit court appointed the Natrona County Public Defender’s (NCPD) office to represent Mr. Keller, and Senior Assistant Public Defender Kurt Infanger (PD Infanger) was assigned to the case. PD Infanger represented Mr. Keller at his preliminary hearing, where he was bound over to the district court for trial on the two felony charges.

[¶6] On June 15, 2022, PD Infanger appeared with Mr. Keller at his arraignment in the district court, and Mr. Keller pleaded not guilty to both charges. Toward the end of the hearing, PD Infanger informed the district court that "Mr. Keller brought up an individual that I had represented here recently, … and I believe that could potentially create a conflict to where I don’t think it would be appropriate for me to continue on with my representation of Mr. Keller." PD Infanger planned to talk with his supervisor at the NCPD’s office later that day "about reassigning Mr. Keller’s case." He explained to the district court, the "problem [the NCPD office has] run into is there’s been such an enormous amount of people that have been charged in this grand-scheme of things that the majority of … these defendants[ ] have been assigned public defenders from outside of our jurisdiction and I anticipate that will probably take place in Mr. Keller’s case." Mr. Keller expressed his concern that information about his case was "getting outside" the NCPD’s office and asserted all the attorneys in the office had conflicts of interest. The district court acknowledged the concern and the fact that defense counsel may not have been initially aware of a conflict of interest because of the number of individuals involved in the case. However, it decided substitution of counsel would resolve any potential conflict.

[¶7] On July 1, 2022, PD Infanger moved to withdraw, and Damon DeBernardi, a contract public defender from Rock Springs (PD DeBernardi), entered his appearance on behalf of Mr. Keller. A few weeks later, the parties entered into a plea agreement whereby Mr. Keller agreed to plead guilty to one count of conspiracy to deliver methamphetamine in exchange for the State dismissing the other count, and the parties agreed to a "five-year cap" on Mr. Keller's sentence. The plea agreement included a "cold plea" provision, which stated that if Mr. Keller violated the law or any condition of his bond, the State would no longer be bound by the agreement, the court could sentence up to the maximum penalty, and Mr. Keller would not be allowed to withdraw his plea.

[¶8] The district court held Mr. Keller’s change of plea hearing on September 21, 2022. Mr. Keller stated he understood the plea agreement and entered into it "willingly, knowingly, and voluntarily." He said he had discussed the agreement with PD DeBernardi and was satisfied with his representation. Mr. Keller also provided a factual basis for his guilty plea. After the district court accepted Mr. Keller’s plea, PD DeBernardi persuaded the court to reduce Mr. Keller’s bond. Mr. Keller posted bond later that day and was released pending sentencing. A few months later, the State filed a motion to revoke Mr. Keller’s bond after he was arrested and charged with three additional drug crimes related to his conduct while out on bond (Second Case). The State also sought to invoke the "cold plea" provision of the plea agreement in this case.

[¶9] On March 1, 2023, PD DeBernardi informed the court that his public defender contract was expiring, necessitating substitution of counsel for Mr. Keller. Two weeks later, Marty Scott with the NCPD’s Office (PD Scott) entered his appearance. At a hearing on April 26, 2023, PD Scott informed the district court that Mr. Keller was not satisfied with his representation. Mr. Keller felt PD Scott had a conflict of interest because he had represented "the informants," although Mr. Keller did not identify any such informants. PD Scott said he was not "aware of any particular conflict [in] this case" and believed he could represent Mr. Keller at sentencing. The district court did not address the issue at that time.

[¶10] Mr. Keller subsequently filed a pro se motion requesting a change of representation from PD Scott. He said "[i]f the [NCPD’s] [o]ffice is my only option [for appointed counsel,] I request to be acknowledged as a PRO-SE Attorney." The district court held a hearing on Mr. Keller's motion on May 15, 2023. Mr. Keller denied he ever requested a court-appointed attorney and asked to represent himself. He argued the entire NCPD’s office was conflicted and should never have been appointed to represent him because attorneys in the office also represented people who were informants in the conspiracy case against him. He also asserted the attorneys were sharing confidential information with one another and "leaking" it to the "informants" and DCI.

[¶11] PD Scott replied that Mr. Keller declined court-appointed representation in the Second Case, not this one. However, given Mr. Keller was unequivocally stating he no longer wanted a public defender in this case, PD Scott said the district court should allow him to represent himself. Addressing Mr. Keller’s conflict of interest claim, PD Scott stated that although the NCPD’s office had a policy "to very meticulously avoid any conflict of interest," the identities of some of the CSs and CIs were unknown to it. As a result, an appointed attorney could have a conflict without realizing it. PD Scott explained that if a public defender became aware of a conflict of interest while representing a client, the practice was to "immediately withdr[a]w and [be] replaced with another attorney within our office who did not have that conflict." PD Scott expressly denied the public defenders improperly shared confidential information about their clients with others. The NCPD office supervisor and the State Public Defender also testified about office policies to ensure conflict-free representation of indigent defendants. All three public defenders stated they did not believe PD Scott had a conflict of interest which would prevent him from representing Mr. Keller at his sentencing.

[¶12] The district court ruled:

On this record, I don’t see a sufficient basis that would require me to substitute a different public defender for you at this time. I don’t see a sufficient, ethical issue that’s been specifically identified that would require me to do that. … [T]he law does not allow you to pick your public defender. … So there would not be … a different public defender[ ] assigned to your case. That would leave you with continuing with your existing representation or deciding to represent yourself[.]

[¶13] Mr. Keller elected to proceed pro se, and the district court conducted a hearing under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), to ensure he "intentionally, knowingly, and voluntarily waiv[ed] his right to counsel, and to advise him ‘of the dangers and disadvantages of self-representation, so that the record … establish[ed] that he kn[ew] what he [was] doing and...