Turner v. State

327 P.3d 100

Robert Daniel TURNER, Appellant (Defendant),

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

No. S–13–0103.

Supreme Court of Wyoming.

June 13, 2014.

Representing Appellant: Robert D. Turner, pro se.

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

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

KITE, Chief Justice.

[¶ 1] Robert Daniel Turner pled guilty to one count of solicitation to commit property destruction. He appeals, pro se, from the judgment and sentence entered by the district court, claiming the district court did not have subject matter jurisdiction to prosecute him because he was in West Virginia at the time of the alleged solicitation and he did not receive effective assistance of counsel. We conclude the factual basis for his guilty plea established the district court had subject matter jurisdiction over the matter and he has not shown ineffective assistance of counsel.

[¶ 2] We affirm.

ISSUES

[¶ 3] Mr. Turner presents the following issues on appeal:

I. Did the State have subject matter jurisdiction to prosecute Appellant for the charges specified in the charging Information?

II. Was Appellant's representation by trial counsel so ineffective that it rendered Appellant's guilty plea involuntary?

The State presents essentially the same issues, although phrased in more detail.

FACTS

[¶ 4] During August and September 2012, Mr. Turner, who was in West Virginia, agreed over the telephone to pay an “associate” $650 to set fire to a vehicle which belonged to his former girlfriend and was located in Natrona County, Wyoming. The associate spoke with law enforcement and took part in a recorded telephone conversation with Mr. Turner about the plan. The associate did not damage the vehicle, and Mr. Turner was arrested when he returned to Wyoming.

[¶ 5] Mr. Turner pled guilty to one felony count of solicitation to commit property damage in excess of $1,000. In exchange for his guilty plea, the State dismissed two other felony charges—solicitation to commit first degree arson and solicitation to commit third degree arson. At his change of plea hearing, Mr. Turner stated that he was satisfied with his trial counsel and provided a factual basis for his guilty plea.

[¶ 6] The district court held a sentencing hearing in which it considered the presentence investigation report, the evidence in the case, the intended victim's testimony, Mr. Turner's statement, and the parties' arguments. The State argued Mr. Turner should receive a sentence of seven to ten years in prison, while defense counsel argued for probation. The district court found that probation was not appropriate and sentenced Mr. Turner to serve a term of eight to ten years in prison.

[¶ 7] Mr. Turner was unhappy with the sentence and filed a notice of appeal. The district court allowed his trial counsel to withdraw and appointed new counsel to represent him on appeal. Mr. Turner filed a pro se motion to correct an illegal sentence on grounds not associated with this appeal, and the district court denied the motion. Mr. Turner requested that the case be remanded to the district court for a hearing under W.R.A.P. 21 regarding the effectiveness of trial counsel. This Court denied the request for a remand because Mr. Turner did not make a sufficient showing of ineffective assistance. Thereafter, Mr. Turner's appellate counsel moved to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), on the basis that the appeal was not meritorious. We granted the motion, and Mr. Turner filed his appellate brief pro se.

DISCUSSION

[¶ 8] Mr. Turner pled guilty to solicitation to commit property destruction and he did not file a motion to withdraw his guilty plea. “[A]n unconditional guilty plea waives all non-jurisdictional defenses, including claims based on the alleged deprivation of constitutional rights. The only claims not waived by an unconditional guilty plea are those that address the jurisdiction of the court or the voluntariness of the plea.” Kitzke v. State, 2002 WY 147, ¶ 8, 55 P.3d 696, 699 (Wyo.2002) (citations omitted).

1. Jurisdiction

[¶ 9] Mr. Turner claims the district court did not have subject matter jurisdiction to prosecute him. Subject matter jurisdiction is essential to prosecution of a crime and may not be waived. Rios v. State, 733 P.2d 242, 244 (Wyo.1987). Jurisdiction is a question of law that may be raised any time and is subject to de novo review on appeal. Dawes v. State, 2010 WY 113, ¶ 10, 236 P.3d 303, 306 (Wyo.2010). See also Innis v. State, 2003 WY 66, ¶ 8, 69 P.3d 413, 417 (Wyo.2003).

[¶ 10] The State charged Mr. Turner with solicitation to commit property damage valued at $1,000 or more, in violation of Wyo. Stat. Ann. §§ 6–1–302(a) and 6–3–201(a) and (b)(iii) (LexisNexis 2013). Section 6–1–302(a) states:

(a) A person is guilty of solicitation to commit a felony if, with intent that a felony be committed, he commands, encourages or facilitates the commission of that crime under circumstances strongly corroborative of the intention that the crime be committed but the solicited crime is not attempted or committed.

Section 6–3–201 states in relevant part:

(a) A person is guilty of property destruction and defacement if he knowingly defaces, injures or destroys property of another without the owner's consent.

(b) Property destruction and defacement is:

....

(iii) A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the cost of restoring injured property or the value of the property if destroyed is one thousand dollars ($1,000.00) or more.¹

[¶ 11] In a multi-faceted argument, Mr. Turner claims the district court did not have subject matter jurisdiction over the offense because: 1) the recorded telephone conversation demonstrated that the associate solicited him to commit the crime, rather than the other way around; and 2) he was in West Virginia at the time of the telephone call and his conduct did not produce an unlawful effect in Wyoming.

[¶ 12] Given Mr. Turner's unconditional guilty plea, we will only address his second argument. His first argument involves an alternative interpretation of the evidence and such arguments were waived by the guilty plea.² With regard to his second point, Wyoming courts have jurisdiction over a defendant's conduct if it produced or was intended to produce an unlawful effect within the state. Dawes, ¶¶ 10–15, 236 P.3d at 306–07. Our jurisprudence provides various examples of Wyoming courts properly exercising jurisdiction over crimes committed while the defendant was outside of the state. In Dawes, the defendant was in California when he wrote unauthorized checks on a bank account located in Wyoming. In Rios, 733 P.2d at 249–50, the defendant committed the crime of interference with child custody when he, while in another state, refused to return the child to the custodial parent in Wyoming. Marquez v. State, 12 P.3d 711, 715 (Wyo.2000), involved a conspiracy to deliver illegal drugs to Wyoming. The Wyoming court had jurisdiction even though the defendant conspired in New Mexico and was arrested in Colorado before entering Wyoming. Hopkinson v. State, 632 P.2d 79, 100 (Wyo.1981), involved a situation similar to the case at bar although, in that case, the underlying crime was actually committed. Mr. Hopkinson committed the crime of accessory to murder in Wyoming by placing telephone calls from California instructing others to commit the crime in this state. Id.

[¶ 13] Mr. Turner's claim that he did not commit a crime in Wyoming is readily dispelled by his testimony at the change of plea hearing, which focused on the location of the various actors:

THE COURT: Mr. Robert Turner, as to Count Three in the Information, how do you plead, sir?

THE DEFENDANT: Guilty, ma'am.

THE COURT: Were you in Natrona County on or about August 1st of 2012, through September 6th of 2012?

THE DEFENDANT: Yes, actually.

(A discussion was held off the record between [defense counsel] and the defendant.)

[THE PROSECUTOR]: If I could help, Your Honor.

THE COURT: Please.

[THE PROSECUTOR]: He was actually soliciting the commission of the crime over the phone. At the time, he was in West Virginia, but the property and the torch-man [associate], for lack of a better word, were in Natrona County.

THE COURT: Do you agree with that, Mr. Turner?

THE DEFENDANT: Yes, ma'am....

THE COURT: All right. And it does indicate[ ] in Count Three that you solicited another to commit felony property damage; do you agree that you did that, sir?

THE DEFENDANT: Yes, ma'am.

THE COURT: And do you agree that the value of the property was $1,000 or more?

THE DEFENDANT: Yes, ma'am.

THE COURT: Why don't you just in your own words tell me what happened, sir.

THE DEFENDANT: Regrettably, I called an associate, friend, kinda, and asked him to damage a vehicle and—for a fee. And in the process, it was discussed that no one be around, near, or in the vehicle when it was done. It's really pretty much that simple. I mean, it's—regrettably, that's what happened.

THE COURT: And whose vehicle are we talking about, sir?

THE DEFENDANT: It was ..., an ex-girlfriend.

THE COURT: And were you upset with her and is that why you were asking this individual to damage her property?

THE DEFENDANT: Actually, yes. Being heartbroken, betrayed....

THE COURT: Okay. And you agree that you solicited him over the phone? You asked him to commit the property damage; you were on the phone when you did that?

THE DEFENDANT: Yes, ma'am.

THE COURT: And you said for a fee. What was the fee?

THE DEFENDANT: $650, ma'am.

[¶ 14] Mr. Turner's testimony at the change of plea hearing established that he solicited another to commit a crime in Wyoming. Like Hopkinson, he made the arrangements...