Leyva v. State

165 P.3d 446

2007 WY 136

Keith Allan LEYVA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 06-233.

Supreme Court of Wyoming.

August 23, 2007.

Representing Appellant: Diane M. Lozano, State Public Defender; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Senior Assistant Appellate Counsel; Kirk A. Morgan, Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General. Argument by Mr. Pauling.

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

BURKE, Justice.

[¶ 1] Mr. Leyva appeals his conviction on two felony counts, one for burglary and one for third offense illegal possession of a controlled substance. We affirm.

ISSUES

[¶ 2] Mr. Leyva and the State agree on the two issues to be resolved in this case, and we state them as follows:

1. Did the district court improperly withdraw its acceptance of Mr. Leyva's guilty plea?

2. Did the district court err in allowing evidence of uncharged misconduct to be admitted at trial?

FACTS

[¶ 3] On September 8, 2005, Rawlins police received a phone call from Kelly King, who reported that a television set had been taken from his apartment. When officers arrived at the apartment complex, they observed a parked vehicle with a television set in the front passenger seat. At the officers' request, Mr. King's son identified the television as the one taken from his father's apartment. Soon thereafter, the officers saw two individuals getting into the vehicle. The individuals turned out to be Erin Setright, who owned the vehicle, and Mr. Leyva. Ms. Setright told the officers that Mr. Leyva had the television set with him when he asked her for a ride.

[¶ 4] The officers detained Mr. Leyva on suspicion of stealing the television set. Then, after learning of an outstanding warrant, they placed Mr. Leyva under arrest. Their pat down search of Mr. Leyva revealed, among other items, a knife, a brass pipe with marijuana residue, and a plastic bag containing a minimal amount of methamphetamine residue. Mr. Leyva told the police that he had borrowed the television set from Mr. King. He also claimed that he had borrowed the pants he was wearing from Mr. King. The brass pipe was not his, he said, and must have been in the pocket when he borrowed the pants that morning. The knife was his, he admitted, but with the inconsistent explanation that he had put the knife in the pocket of the pants the night before.

[¶ 5] Mr. Leyva was charged with two felony counts, one for burglary involving the television set, and one for possession of a controlled substance (methamphetamine), third offense. Before trial, Mr. Leyva and the State reached a plea agreement, under which Mr. Leyva would plead guilty to the methamphetamine charge and the State would dismiss the burglary charge. The State also agreed to recommend a sentence of three to five years, and not to oppose probation if it was recommended in the presentence investigation report. At the change of plea hearing, the district court questioned Mr. Leyva, and found that an adequate factual basis for the plea had been established, and that the plea was entered freely and voluntarily after consultation with competent counsel. The district court took the plea agreement under advisement, ordered a presentence investigation, and delayed the sentencing until after the presentence investigation report was received.

[¶ 6] At the subsequent sentencing hearing, the district court confirmed that Mr. Leyva wished to maintain his guilty plea, then accepted the plea and pronounced a sentence of three to five years in the state penitentiary, with the recommendation that Mr. Leyva be referred to a youth offender program commonly known as "boot camp." Upon further questioning, however, Mr. Leyva indicated his belief that there had been a misunderstanding about the sentence. He expected to be put on probation, not referred to boot camp. Because of the misunderstanding, and at Mr. Leyva's request, the court allowed him to withdraw the guilty plea on the count of illegal possession of methamphetamine. Mr. Leyva's case was then set for trial on the two original counts, burglary and illegal possession of methamphetamine.

[¶ 7] During the trial, Mr. Leyva objected to the State's evidence that he was in possession of a brass pipe containing marijuana residue at the time of his arrest. The district court admitted the evidence. The jury subsequently returned a verdict of guilty on both charges. Mr. Leyva was sentenced to three to five years in the state penitentiary, with the recommendation that he be referred to boot camp. Mr. Leyva filed this timely appeal.

DISCUSSION

1. Did the district court improperly withdraw its acceptance of Mr. Leyva's guilty plea?

[¶ 8] In reviewing a district court's decision to accept or reject a guilty plea, this Court generally applies an abuse of discretion standard. Herrera v. State, 2003 WY 25, ¶ 10, 64 P.3d 724, 727 (Wyo.2003). In this case, however, Mr. Leyva made no objection to the district court's decision, and the State urges us to apply a plain error standard. All of the Wyoming cases we have found on this issue involve appeals of a trial court's denial of a defendant's motion to accept or withdraw a plea. Because such a denial is necessarily contrary to the defendant's motion, none of these cases involves a defendant's failure to object, and none applies the plain error standard of review. However, in analogous cases involving sentencing under a plea agreement, we have applied the plain error standard when the defendant did not enter any objection. See, e.g., Meyers v. State, 2005 WY 163, ¶ 16, 124 P.3d 710, 716 (Wyo.2005). We find the plain error standard appropriate, because Mr. Leyva's lack of objection deprived the district court of an opportunity to consider or correct the alleged error. In the unusual circumstances of this case, we will review for plain error, using a familiar three-step process:

"First, the record must be clear as to the incident which is alleged as error. Second, the party claiming the error amounted to plain error must demonstrate that a clear and unequivocal rule of law was violated. Finally, that party must prove a substantial right has been denied him and, as a result, he has been materially prejudiced."

Id. (quoting Wilks v. State, 2002 WY 100, ¶ 7, 49 P.3d 975, 981 (Wyo.2002)).

[¶ 9] To resolve this issue, it is necessary to review the record in some detail and place the events in context. Approximately six months after he was arrested, Mr. Leyva and the State reached a plea agreement. At a change of plea hearing held on March 21, 2006, the district court was advised that Mr. Leyva had agreed to plead guilty to the charge of third offense possession of methamphetamine, and in return, the State had agreed to dismiss the burglary charge. The State had also agreed to recommend a three to five year sentence, and not to oppose probation if that was recommended in the presentence investigation report. After questioning Mr. Leyva, the district court found that an adequate factual basis for the plea had been established, and that the plea was being entered freely and voluntarily after consultation with competent counsel. The district court took the plea under advisement, and said it would sentence Mr. Leyva after receiving the presentence investigation report.

[¶ 10] Two months later, the presentence investigation report was complete, and a sentencing hearing was held. The district court noted that the State had agreed not to oppose probation if the presentence investigation report recommended it. However, the report recommended referral to boot camp. It recommended probation only if the district court rejected the boot camp recommendation. The district court told Mr. Leyva that it would accept the boot camp recommendation:

The Court fully intends to sentence Mr. Leyva to not less than 3 nor more than 5 years in prison with a recommendation to boot camp. I want to make sure that doesn't surprise Mr. Leyva. I want to make sure that . . . doesn't give him the opportunity today to withdraw his plea of guilty and request a jury trial.

The district court then questioned Mr. Leyva, who initially said that he was not surprised by the sentence, that he believed the State was still honoring the terms of the plea agreement, and that he did not want to withdraw his guilty plea. The district court then pronounced a sentence of three to five years, with a recommended referral to boot camp.

[¶ 11] Even after pronouncing sentence, however, the district court still had doubts about Mr. Leyva's concession that his sentence conformed to the plea agreement. The district court made one more attempt at clarification:

THE COURT: Let's take this bull by the horns, Mr. Leyva, and I am going to give you an opportunity right now, one time, to withdraw your plea of guilty and we will have a jury trial and we will do this sentencing all over again if you are convicted at your jury trial.

Take a moment, discuss that with [defense counsel].

[Defense counsel]?

[DEFENSE COUNSEL]: Thank you for the additional time, Your Honor. Mr. Leyva informs me that there's been a misunderstanding. . . .

Is that correct?

THE DEFENDANT: Yes, sir.

THE COURT: And that he does not wish to proceed further pursuant to the plea agreement; is that correct?

THE DEFENDANT: Yes.

THE COURT: Which means you will be going to trial probably on two counts; is that correct?

THE DEFENDANT: Yes.

THE COURT: So the deal is off. Mr. Leyva wants his jury trial to two potential charges. The first is felony—third offense possession of meth and the second is burglary.

THE DEFENDANT: Yes, sir.

[¶ 12] Mr. Leyva contends on appeal that it was improper for the district court to withdraw its acceptance of the guilty plea after it had accepted the plea and pronounced...