Pfeil v. State

336 P.3d 1206

2014 WY 137

Roger D. PFEIL, Appellant (Defendant)

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

No. S–14–0056.

Supreme Court of Wyoming.

Nov. 4, 2014.

Representing Appellant: Roger D. Pfeil, pro se.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General.

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

Opinion

KITE, Justice.

[¶ 1] Over sixteen years after pleading guilty to second degree murder, Roger D. Pfeil filed a pro se motion to withdraw his guilty plea, for a sentence reduction and/or to correct an illegal sentence. The district court ruled the provision of Mr. Pfeil's sentence that required him to repay the costs of his presentence confinement in county jail was illegal and vacated it, but denied the remainder of his claims.

[¶ 2] We affirm.

ISSUES

[¶ 3] The issues we must resolve in this appeal are:

1. Should Mr. Pfeil's appeal be dismissed because he failed to file a proper notice of appeal after the district court formally ruled on his motion?

2. Did the district court properly rule it did not have jurisdiction to allow Mr. Pfeil to withdraw his guilty plea even though it found an assessment included in his original sentence was illegal?

3. Did the district court properly rule it did not have jurisdiction to consider, in a motion to correct an illegal sentence, how Mr. Pfeil's sentence is being administered by the Wyoming Department of Corrections (DOC) and the Wyoming Board of Parole (BOP)?

4. Did the district court properly rule it did not have jurisdiction to consider Mr. Pfeil's motion to reduce his sentence?

FACTS

[¶ 4] In 1997, Mr. Pfeil pled guilty, pursuant to a plea agreement, to one count of second degree murder. The plea agreement included a joint sentencing recommendation of twenty-five to forty-five years in prison and “[a]ssessments to the crime Victim's Compensation Fund, fine, restitution and pre-trial costs of incarceration ... as determined by the Court.” Prior to taking his guilty plea, the district court advised Mr. Pfeil of the penalties associated with the charge, including the possibility of being assessed with presentence costs of incarceration. As the factual basis for his guilty plea, Mr. Pfeil admitted to shooting and killing Russell Patterson for having an affair with his wife and burying Mr. Patterson's body in his car at a mine near Gillette. The district judge adopted the recommended sentence and imposed fines and assessments, including $1,000 for the costs of his presentence confinement in county jail.

[¶ 5] Mr. Pfeil did not appeal his original conviction or sentence, but, over the years, he has challenged certain aspects of the rulings. In 1998, he filed a motion to withdraw his guilty plea, which the district court denied. We dismissed Mr. Pfeil's appeal of that ruling on the grounds we did not have jurisdiction over the matter.

[¶ 6] In 2013, Mr. Pfeil filed a pro se “Motion for Withdrawal of Plea, and/or Correction/Reduction of an Illegal Sentence.” The district court did not immediately rule on his motion and, eventually, Mr. Pfeil filed a notice of appeal claiming that more than ninety days had passed since he filed his motion and it was, therefore, deemed denied and subject to appeal under W.R.C.P. 6. The district court subsequently entered an order granting in part and denying in part Mr. Pfeil's request to correct an illegal sentence and stating that it did not have jurisdiction to consider his request to withdraw his guilty plea, his complaints about how the DOC and BOP were administering his sentence, or his request for a sentence reduction. Mr. Pfeil did not file another notice of appeal or amend his original notice to identify the district court's order as the one being challenged on appeal.

DISCUSSION

1. Notice of Appeal

[¶ 7] The State claims Mr. Pfeil did not invoke the appellate jurisdiction of this Court because he did not file a proper notice of appeal after the district court issued its decision. The timely filing of a correct notice of appeal is jurisdictional, and the existence of jurisdiction is a question of law reviewed de novo. W.R.A.P. 1.03 ; Hitz v. State, 2014 WY 58, ¶ 8, 323 P.3d 1104, 1106 (Wyo.2014) ; Gomez v. State, 2004 WY 15, ¶ 15, 85 P.3d 417, 420 (Wyo.2004).

[¶ 8] W.R.A.P. 2.01 provides “[a]n appeal from a trial court to an appellate court shall be taken by filing the notice of appeal with the clerk of the trial court within 30 days from entry of the appealable order.” Mr. Pfeil filed a notice of appeal when the district court did not rule on his motion to withdraw his guilty plea and/or correct or reduce his sentence within ninety days of filing. He claimed his motion was deemed denied under W.R.C.P. 6 and W.R.A.P. 2.02, and, consequently, his notice of appeal was appropriate. We have, however, expressly refused to import the ninety day “deemed denied” rule from the civil context to criminal proceedings. See DeLoge v. State, 2005 WY 152, ¶ 12, 123 P.3d 573, 578 (Wyo.2005) ; Patrick v. State, 2005 WY 32, ¶ 8, 108 P.3d 838, 841 (Wyo.2005). Thus, Mr. Pfeil was incorrect when he stated in his notice of appeal that his motion had been deemed denied after ninety days. That does not, however, answer the question of whether he properly invoked this Court's appellate jurisdiction.

[¶ 9] W.R.A.P. 2.07 dictates the contents of a notice of appeal:

(a) The notice of appeal shall:

(1) Specify the party or parties taking the appeal;

(2) Identify the judgment or appealable order, or designated portion appealed; ...

(3) Name the court to which the appeal is taken.

(4) Be accompanied by the certificate or endorsement required by Rule 2.05.

* * *

(c) In a criminal case, the notice of appeal shall have as an appendix the judgment and sentence or other dispositive order.

Mr. Pfeil's pro se notice of appeal stated:

TO THE CLERK OF THE 6th JUDICIAL DISTRICT COURT:

NOTICE IS HEREBY GIVEN that Appellant, Roger D. Pfeil, appeals to the Supreme Court of the State of Wyoming the deemed denied decision of the 6th Judicial District Court pursuant to Rule 6(c)(2) Wyoming Rules of Civil Procedure for failure of the Court to determine Appellant's Motion within 90 days after filing in the Court on or about July 17, 2013, thus denying Appellant's Motion for Correction of an Illegal Sentence on or about October 15, 2013....

Appellant further certifies that all relevant portions of the transcript of evidence deemed necessary for this appeal have been ordered and proper arrangements for payment of the transcript have been made pursuant to Appellant [']s Motion to Proceed in Forma Pauperis, herein included.

[¶ 10] The State claims Mr. Pfeil's notice of appeal failed to comply with Rule 2.07(a)(2) because he did not identify and attach the order appealed. At the time he filed his notice, there was no order to appeal, so it was impossible to specifically identify or attach it. We addressed a similar problem in McWilliams v. Wilhelm, 893 P.2d 1147, 1148 (Wyo.1995), where the appellant filed a notice of appeal of the jury's verdict before the district court entered a judgment on the verdict. In that case, we held the notice of appeal was sufficient under Rule 2.07(a)(2) because it identified the jury's verdict which was, in effect, a designated portion of the judgment. Id.

[¶ 11] Obviously, it would have been preferable if Mr. Pfeil had amended his notice of appeal to comply with the rule after the district court entered its order; however, that error should not result in dismissal of his appeal. The McWilliams decision supports a conclusion that the notice of appeal in this case complied with the rule requiring identification of the portion of the order appealed. Mr. Pfeil's notice of appeal identified the motion upon which the eventual order was based and challenged the district court's denial of the motion. See also Serna v. State, 2013 WY 87, ¶ 7, 305 P.3d 1142, 1143 (Wyo.2013) (pro se litigants are entitled to some leniency from the stringent standards applied to formal pleadings drafted by counsel); Hayzlett v. Hayzlett, 2007 WY 147, ¶ 14, 167 P.3d 639, 643 (Wyo.2007) (notice of appeal was sufficient even though the pro se appellant failed to attach the required appendix).

[¶ 12] The Tenth Circuit Court of Appeals interpreted F.R.A.P. 3(c)(1)(B) which is similar to W.R.A.P. 2.07(a)(2) and stated that “[e]ven if a notice fails to properly designate the order from which the appeal is taken, this Court has jurisdiction if the appellant's intention was clear.” Fleming v. Evans, 481 F.3d 1249, 1253–54 (10th Cir.2007), citing United States v. Morales, 108 F.3d 1213, 1222–23 (10th Cir.1997). Mr. Pfeil's clear intention was to appeal the district court's denial of his motion and the State does not suggest otherwise. His notice, though technically defective, served the purpose of providing notice to other parties and the court. Smith v. Barry, 502 U.S. 244, 248, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992). See also Varnadore v. Novak, 41 Wyo. 494, 499, 287 P. 438, 440 (1930) (discussing the notification purposes of a notice of appeal under statutes predating the Wyoming Rules of Appellate Procedure). Mr. Pfeil's notice of appeal was sufficient to invoke this Court's appellate jurisdiction.

2. Motion to Withdraw Guilty Plea

[¶ 13] Mr. Pfeil filed a motion to withdraw his guilty plea and/or correct his sentence on the grounds he was improperly assessed $1,000 for the costs of his presentence confinement in county jail. The district court concluded that Mr. Pfeil's sentence was illegal to the extent it required him to reimburse county jail expenses and vacated that portion of his sentence. It concluded, however, that it did not have jurisdiction to allow him to withdraw his guilty plea after his conviction and sentence had become final. Mr. Pfeil claims the district court violated his constitutional right to due process when it refused to allow him to withdraw his guilty plea after ruling...