Lewis v. State

2020 WY 110

JOSHUA J. LEWIS, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).

S-18-0258

S-20-0025

SUPREME COURT, STATE OF WYOMING

APRIL TERM, A.D. 2020

August 25, 2020

Appeal from the District Court of Campbell County

The Honorable John R. Perry, Judge

Representing Appellant:

Office of the Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; H. Michael Bennett, Senior Assistant Appellate Counsel. Argument by Mr. Bennett.

Representing Appellee:

Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General; Darrell D. Jackson, Director, Mackenzie Morrison, Student Director, and Christian D. Ryan, Student Intern, Prosecution Assistance Program, University of Wyoming, College of Law. Argument by Mr. Ryan.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

FOX, Justice.

[¶1] A jury convicted Joshua Lewis of aggravated assault and battery and found him subject to Wyo. Stat. Ann. § 6-10-201's habitual criminal sentencing enhancement. The district court imposed the mandatory life sentence required by the sentencing enhancement. Mr. Lewis filed a W.R.A.P. 21 motion for a new trial, arguing that he had received ineffective assistance of counsel. Mr. Lewis asserted that, had his trial counsel effectively communicated to him that a life sentence would be mandatory upon conviction, he would have accepted the State's plea offer of 27 to 30 years imprisonment. The district court concluded Mr. Lewis did not receive ineffective assistance of counsel and denied his Rule 21 motion. We affirm.

ISSUE

[¶2] Did the district court err by denying Mr. Lewis' motion for a new trial based on ineffective assistance of counsel?

FACTS

[¶3] Mr. Lewis stabbed Nicholas Thompson in the abdomen outside the Fireside bar in Gillette, Wyoming. The two did not know each other, nor did any of their companions, and no witnesses reported any sort of altercation between them. Mr. Lewis simply walked up to Mr. Thompson and pulled him in for what looked like a "bro hug." When Mr. Lewis pulled away, Mr. Thompson realized he had been stabbed. Mr. Thompson told a coworker who had entered the bar just ahead of him that he had been stabbed, and someone called the police while Mr. Thompson sat down in a booth near the door.

[¶4] Meanwhile, Mr. Lewis and his two friends, Nathaniel Lunen and Allison "Russia" Klueber,¹ hurried back to their vehicle. Officer Jeremy Traverse pulled the group over shortly after they left the Fireside parking lot and ordered them out of the vehicle. Officer Traverse found a folding knife on the floor of the vehicle with what "appeared to be some sort of sheen on it."

[¶5] The State charged Mr. Lewis with one count of aggravated assault and battery and sought a habitual criminal sentencing enhancement under Wyo. Stat. Ann. § 6-10-201, which states:

(a) A person is an habitual criminal if:

(i) He is convicted of a violent felony; and(ii) He has been convicted of a felony on two (2) or more previous charges separately brought and tried which arose out of separate occurrences in this state or elsewhere.

(b) An habitual criminal shall be punished by imprisonment for:

(i) Not less than ten (10) years nor more than fifty (50) years, if he has two (2) previous convictions;

(ii) Life, if he has three (3) or more previous convictions for offenses committed after the person reached the age of eighteen (18) years of age.

(LexisNexis 2019). The State alleged that Mr. Lewis had three or more previous felony convictions and, thus, qualified for a mandatory life sentence if convicted.

[¶6] Before trial, Mr. Lewis filed a Motion Requesting Reduced Enhancement, arguing that he was not eligible for the sentencing enhancement because two of his prior felony charges "were resolved as part of the same written plea agreement" and, thus, had not been "separately brought and tried." The State responded that the enhancement applied to Mr. Lewis, regardless of the plea agreement, because the "previous felony convictions arose from separate conduct occurring months apart; had been charged separately in different informations; resulted in separate sentences; and would have been tried in separate trials if [Mr. Lewis] had not plead guilty." The district court denied Mr. Lewis' motion, concluding that he was subject to the enhancement under Wyo. Stat. Ann. § 6-10-201(b)(ii).

[¶7] In exchange for a guilty plea, the State offered to seek the lesser sentencing enhancement under Wyo. Stat. Ann. § 6-10-201(b)(i) and to recommend a sentence of 27 to 30 years imprisonment. Mr. Lewis rejected the offer, and the case proceeded to trial. The jury convicted Mr. Lewis of aggravated assault and battery and found that he had previously been convicted of three felonies, thus qualifying for the habitual criminal enhancement under Wyo. Stat. Ann. § 6-10-201(b)(ii). Before sentencing, Mr. Lewis personally sent the district court several letters requesting leniency. At sentencing, the district court explained that the habitual criminal statute is "obligatory" and that it had no discretion to impose any sentence other than life imprisonment. Thus, the court sentenced Mr. Lewis to a term of life.

[¶8] Mr. Lewis filed a notice of appeal and, later, a motion for new trial based on ineffective assistance of counsel under W.R.A.P. 21.² Mr. Lewis argued that he had been "deprived of the effective assistance of counsel because his trial attorney failed to ensure that [he] understood the nature of the charge and potential punishment against him as well as the functioning of the enhanced sentencing scheme for a habitual criminal." He asserted that "[b]ut for trial counsel's deficient performance in explaining the risk of rejecting a plea agreement, [he] would not have gone to trial." This Court stayed the briefing in Mr. Lewis' appeal pending resolution of the motion.

[¶9] At the Rule 21 hearing, Mr. Lewis' trial counsel testified that he had discussed the sentencing enhancement with Mr. Lewis "at great length" and that he "urged him to accept the plea bargain, and [Mr. Lewis] declined to do so on several occasions." He explained to Mr. Lewis that it was "very, very, very risky" to reject the plea because the "offer would allow him to avoid the possibility . . . of a life sentence." When Mr. Lewis told his counsel that the judge would make the final decision on his sentence, counsel corrected him, saying "that if we have a habitual offender, . . . the Judge essentially has . . . no discretion." His attorney further testified that Mr. Lewis believed the sentencing enhancement did not apply to him and that this belief did not change even after he explained the court's ruling to him. According to his counsel, after the court denied the Motion Requesting Reduced Enhancement, Mr. Lewis' focus shifted to whether "the State had enough evidence to convict him." In particular, Mr. Lewis

seemed to focus more on Ms. Klueber, one of the State's witnesses that the State was having a lot of trouble - - they couldn't find her at first, and she was expressing some reluctance to testify and there [were] some doubts about what she would say and he seemed to focus more on hopes that Ms. Klueber's testimony would exonerate him in some way.

Finally, his counsel felt confident that Mr. Lewis was competent throughout the proceedings and "seemed to be fully capable" of understanding them.

[¶10] Dr. Amanda Turlington, a clinical psychologist who evaluated Mr. Lewis at his request, testified that Mr. Lewis had cognitive limitations resulting in "his failure to truly understand many aspects of [his criminal proceedings], including but not limited to enhancements which supported a life sentence in prison." She also testified that Mr. Lewis continued to believe that the sentencing enhancement did not apply to him and that he was "upset about having been convicted based upon the evidence that was presented at trial," which he believed was insufficient.

[¶11] Mr. Lewis also testified. He explained how he interpreted the sentencing enhancement and that he still believed it did not apply to him. He acknowledged that his counsel had told him his interpretation of the enhancement was incorrect and that he had seen the court's order denying his request to reduce the enhancement. However, he asserted that he "was never told it was [a] mandatory life sentence" and that his belief that the judge could impose a lesser sentence was a factor in his decision to reject the plea offer. Finally, he testified that he had understood the proceedings and had never been incompetent.

[¶12] Nevertheless, at the Rule 21 hearing, Mr. Lewis asserted that trial counsel had failed to take his cognitive limitations into account when advising him whether he should accept the State's plea offer. In response, the State introduced evidence suggesting that Mr. Lewis rejected the plea agreement because he believed he would not be convicted, not because of a misunderstanding about the sentencing enhancement. For example, Mr. Lewis wrote numerous emails while in the Campbell County Detention Center expressing the belief that the State did not have enough evidence to convict him:

• April 21, 2018 email to Marissa Bloom: "my lawyer came up here and said that the knife they found in my car did not have any blood on it[,] sooo technically they dont even got a weapon anymore . . . ."

• April 21, 2018 email to Ashley Benefiet: "my lawyer came up the knife they found in my car had no blood on it soo now they dont got a weapon, good news . . . ."

• April 21, 2018 email to Alyssa Orcutt: "guess the knife they found in the car had

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