Duffy v. State , 1992 Wyo. LEXIS 100 ( 1992 )

THOMAS, Justice.

The key issue in this case is whether Scott Lee Duffy (Duffy) was the victim of ineffective assistance by his appointed trial counsel who allegedly failed to advise him of the prospect of consecutive sentencing prior to the entry of his pleas of guilty. Duffy has endeavored to structure a cause célebre by claiming that the prime issue is deprivation of his right to counsel at a critical stage of the proceedings. He was brought into the presence of the court, with the prosecuting attorney present, interrogated about his prior convictions, and asked about his intention to change his plea to guilty when his attorney could not be present. Other issues asserted by Duffy are that his appellate counsel was ineffective because the deprivation of right to counsel at a critical stage of the proceedings was not raised in his initial appeal and, in an appeal from the denial of a motion to correct sentence, Duffy contends the sentences imposed were unlawful because they were disproportionate and disparate when compared to the sentences received by his accomplices.

We hold that the record does not sustain a claim of ineffective assistance of counsel with respect to the failure to advise Duffy of the prospect of consecutive sentences. Since the record demonstrates that Duffy was represented by counsel in connection with his change of pleas from not guilty to guilty, he has waived the claim of deprivation of counsel at a critical stage of the proceedings, although we note that the appearance was not truly a critical stage of the criminal proceedings. Duffy’s right to counsel under either the Constitution of the United States or the Cbnstitution of the State of Wyoming was not infringed. We hold no error occurred in the denial of his motion to correct an illegal sentence; the writ of certiorari in this case, in light of the facts disclosed by the record, was improvidently granted, and no error is sustained by either Duffy’s brief or argument. The order of the trial court is affirmed, and any additional relief is denied.

In his Brief of Appellant, Duffy makes the following formal statement of the issues:

I. Whether Mr. Duffy was denied counsel at a critical stage in the proceeding and was forced to make statements against his interest without benefit of counsel, thus violating his Fifth, Sixth, Eighth and Fourteenth Amendment rights.

II. Whether Mr. Duffy was denied effective assistance of counsel during the proceedings in violation of his Fifth, Sixth, Eighth and Fourteenth Amendment rights.

III. Whether Mr. Duffy was denied his right to equal protection of the law and his Eighth Amendment protections by the disparate treatment and disproportional sentences he received.

As Respondent and Appellee, the State of Wyoming says that these are the issues:

1. Did Appellant’s appearance, without counsel, at an aborted change of plea hearing, result in a violation of his Sixth Amendment right to counsel?

2. Was Appellant denied his right to effective assistance of counsel when he was not advised of the possibility of consecutive sentences and was appellate counsel ineffective for failing to raise this issue on appeal?

3. Was the Appellant denied equal protection and due process of law by way of a disparate and disproportionate sentence?

This is the third time Duffy has been before this court attacking his conviction of December 11, 1985 for a violation of Wyo. Stat. § 6-l-201(a) and (b)(i) (June 1983 Repl.) for being an accessory before the fact to the crime of aggravated robbery, as defined in Wyo.Stat. § 6-2-401(c)(ii) (June 1983 Repl.), and Wyo.Stat. § 6-l-303(a) (June 1983 Repl.) for conspiracy to commit burglary. In his first appeal, which we shall style Duffy I and is cited as Duffy v. State, 730 P.2d 754 (Wyo.1986), Duffy contended that the sentences that were imposed violated the indeterminate sentencing provision then in effect and found in Wyo.Stat. § 7-13-201 (1977). He also contended he was entitled to credit for time he had served in the Fremont County Jail while awaiting trial and that his sentences constituted an abuse of discretion. In that case, relief was denied as to all Duffy’s allegations of error.

In his next appeal, which we shall style as Duffy II and which is cited as Duffy v. State, 789 P.2d 821 (Wyo.1990), Duffy argued that his conviction under the statute proscribing accessory before the fact of aggravated robbery and the statute proscribing conspiracy to commit burglary subjected him to double jeopardy. He there contended he had been prejudiced by the failure of the trial court to advise him of the possibility of consecutive sentences, and he reasserted the claim that his sentences were unlawful, arguing on that occasion that the sentences imposed inhibited his right to obtain a deduction for good time in connection with service of his sentence. . As we did in the first appeal, this court affirmed the trial court in that case, finding no error in the proceedings and denying the relief sought.

The facts relating to the initial criminal offense are adequately articulated in Duffy II. We quote from that case:

The record demonstrated that Duffy, while he was incarcerated in Castle Rock, Colorado, had planned the robbery of his grandmother. He did this by telephone calls to two accomplices in Wyoming. Duffy explained to them how to gain entry into his grandmother’s house and told them where they probably would find her valuables. The entire plan was that the two fellow conspirators would burglarize the grandmother’s home, which was located in Fremont County, Wyoming, and they then would travel to Colorado to help Duffy escape from incarceration.

The two partners in crime went to the grandmother’s home in accordance with the plan. One waited outside in a car while the other broke a window of the home to gain entry. The grandmother was awakened by the sound of the breaking glass, and she got up and went to the place where she had heard the noise. There, she discovered the burglar reaching through the broken window and holding a pistol in his hand. He ordered the grandmother to unlock the front door and, when she complied, he entered the house and demanded that she lead him to the safe where she kept her money. The grandmother took him into the bedroom where he removed a .38 caliber pistol from a nightstand. Duffy had told him of the location of that firearm. The robber then insisted that the grandmother show him her other valuables, and she complied with that demand. She took him throughout the house, showing him whatever valuable property he asked for. The robber collected the property in a pillowcase and returned to the waiting vehicle. Police officers successfully apprehended both principals before they could carry out the plan to help Duffy escape, and both of them confessed the robbery to the investigating officers, implicating Duffy in their statements.

Duffy II, 789 P.2d at 824.

We turn first to Duffy’s stated second issue of ineffective assistance of trial counsel in connection with his plea. If that challenge were sustained, then the plea of guilty could not serve as a waiver of his claim of deprivation of counsel at a critical stage of the proceedings. It, therefore, becomes the key issue to be resolved in this case. In Duffy’s petition, in connection with the writ of certiorari that was granted, his claim of ineffective assistance of trial counsel is predicated only on the failure of trial counsel to inform him of the possibility of consecutive sentences. We consider only that claim of the failure of trial counsel because any questions relating to preparation and competence of trial counsel, apart from the failure to advise Duffy of the possibility of consecutive sentencing, must be considered res judicata pursuant to Stogner v. State, 792 P.2d 1358 (Wyo.1990). Duffy’s argument is that because his appointed trial counsel did not inform him of the possibility of consecutive sentencing, his plea of guilty was not voluntary. He contends that, had he known of the possibility of consecutive sentencing, he would not have entered a guilty plea.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh’g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984), the Supreme Court of the United States articulated the process to be invoked in considering the question of ineffective assistance of counsel. The court said that, “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. It is to be noted that the court was focused upon the impact on a trial. In that case, the Supreme Court then developed a tandem analysis for determining whether counsel’s conduct had so undermined the adversarial process that the trial could not be relied upon as having produced a just result. It required first, that the accused must demonstrate counsel’s performance was deficient. Secondly, the deficiencies demonstrated prejudiced the defendant in some manner.

For purposes of this case, we will accept, without deciding, that the failure to inform a defendant of the maximum possible sentence before he enters a plea of. guilty may be deficient performance on the part of counsel. The second step in the Strickland analysis, however, must be demonstrated, and the requisite prejudice is not present here. While counsel may not have advised Duffy of the potential of consecutive sentencing, the record demonstrates that he clearly was aware of the possibility of consecutive sentencing and, therefore, no prejudice attached to counsel’s failure. In this regard, the record of the proceedings on October 15, 1985, upon which Duffy centers his arguments concerning deprivation of counsel at a critical stage of the proceedings, the following colloquy occurred between Duffy and the trial judge:

THE COURT: Aggravated robbery is not less than five or more than twenty-five years, if I misspoke. Do you understand that?

MR. DUFFY: Yes, I do.

THE COURT: And you understand the maximum penalty for burglary is ten years?

MR. DUFFY: Yes, I do.

THE COURT: Then do you understand if you were to plead guilty you could be looking at thirty-five years maximum?

MR. DUFFY: Yes, I do.

With this information clearly emphasized to Duffy on that occasion, there is no possibility that Duffy was prejudiced by the failure of his trial attorney to reiterate that advice.

We next consider the assertion that appellate counsel was ineffective. That argument depends upon a conclusion that trial counsel was ineffective and that issue should have been raised by the appellate counsel in Duffy I. We have held that the failure of the trial attorney to advise Duffy of the possibility of consecutive sentences did not constitute ineffective assistance of counsel, the element of prejudice being absent. It follows that we cannot conclude that any failure on the part of appellate counsel in failing to assert this issue amounted to ineffective assistance.

We turn then to Duffy’s presentation of what he perceived to be the major problem in the case. Both by brief and at argument, Duffy earnestly and vigorously contended he had been deprived of the right to be represented by counsel at a critical stage of the proceedings. Neither party to this appeal considered the impact upon this case of Zanetti v. State, 783 P.2d 134 (Wyo.1989), which normally would control the disposition of this contention. The holding in Zanetti is that a claim of denial of the right to a speedy trial, a non-jurisdictional claim, is forfeited by a plea of guilty. In Zanetti, we quoted from Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), as follows:

[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea * * *.

Zanetti, 783 P.2d at 138.

For purposes of invocation of the forfeiture rule, there is no logical distinction between a right to a speedy trial and a right to counsel. Both of these individual rights are encompassed in the same provision in both the state and the federal constitutions.¹ Since we have ruled that there was no ineffective assistance of counsel in connection with the entry of the guilty plea by Duffy, forfeiture is an appropriate resolution. An alternative disposition could be achieved under the doctrine of waiver on the ground that the improper denial of counsel is a non-jurisdictional defect. Dav-ila v. State, 831 P.2d 204 (Wyo.1992).

Nevertheless, because of the critical nature of the claim, we examine its validity. The material facts relating to this claim by Duffy begin with the change of plea hearing set for October 15, 1985. The only stated purpose of that hearing was to receive a change of plea from Duffy. Present in the courtroom were the trial judge, the prosecuting attorney, and Duffy. Because of a scheduling conflict, the assistant public defender assigned to Duffy’s case was not present, although that attorney had filed a motion for a continuance of the hearing. Initially, the motion for continuance was denied by the trial judge, and the judge then asked Duffy some preliminary questions relating to his educational background, his prior criminal record, and whether he understood the charges against him. It was at that time the trial judge-informed Duffy of the potential consequences of entering a guilty plea, specifically telling Duffy he could face a maximum of thirty-five years in prison.

The critical dialogue between the trial judge and Duffy with respect to this issue is:

THE COURT: Okay. Now, the first thing I want to know, Mr. Duffy, is, you know, you have the right to have a lawyer present, your lawyer present with you when you change your plea; do you understand that?

MR. DUFFY: Yes, I do.

THE COURT: Knowing that, is it your desire to waive or give up the right to have your attorney present so we can get this change of plea over with?

MR. DUFFY: No, your Honor. I talked to my lawyer last week and she wants to hold off. I’m not going to change my plans. I don’t plan on waiting down the line and changing back for jury trial, you know, but I want my lawyer here with me when I do change my plea.

THE COURT: All right. In other words, it’s your desire to plead guilty whether we do it now or later.

MR. DUFFY: Yeah, now or later. I’m not going to change my mind.

THE COURT: And you’re going to plead guilty; is that correct?

MR. DUFFY: Yes, I am. * * *.

The essence of Duffy’s argument is that this dialogue with the trial court, in the absence of his counsel, amounted to a violation of his right under the Sixth Amendment to the Constitution of the United States to counsel and the same right as preserved in Article 1, Section 10, of the Constitution of the State of Wyoming. In a number of cases before the Supreme Court of the United States, the right to counsel under the Sixth Amendment has been analyzed and articulated. That court has recognized that the period from arraignment to trial constitutes “perhaps the most critical period of proceedings.” Powell v. State of Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 59, 77 L.Ed. 158 (1932). Because of the critical nature of this period, the right to counsel must be satisfied. In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the Court established a two-stage process to be invoked to determine whether a proceeding is “critical,” and whether prejudicial error could flow from it. The Court there stated that the confrontation between the Court and a defendant, without counsel, must be analyzed to determine whether it creates “potential substantial prejudice to defendant’s rights.” Wade, 388 U.S. at 227, 87 S.Ct. at 1932. The succeeding step of the analysis is invoked to determine if the presence of counsel either would, or potentially could, protect the rights of the accused.

The defendant’s rights are jeopardized if the defendant makes some sort of admission against penal interest, loses a potential defense, or furnishes a plea of guilty or nolo contendere. We essentially have adopted the tests articulated in Powell and Wade. In Hoskins v. State, 552 P.2d 342, reh’g denied, 553 P.2d 1390 (Wyo.1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977), the Court gave instructions to a deadlocked jury, after it had been advised by the jury that it could not reach a verdict. Defense counsel was not present when those instructions were given, and this Court analyzed the instructions to determine if they were prejudicial to the defendant. The Court concluded that they were not prejudicial and, based upon this conclusion, held that the absence of counsel did not prejudice the defendant because there was, “[n]o way in which the defendant was or could have been prejudiced by the absence of counsel.” Hoskins, 552 P.2d at 351.

In Duffy’s case, he answered questions at the proceeding on October 15,1985, regarding his prior convictions, his age, and his educational background. None of the information that Duffy furnished to the Court was prejudicial. In fact, the trial court would have received all of this information in connection with a pre-sentence report prepared pursuant to Wyo.R.Crim.P. 33(c)(2). None of the questions from the judge related to the specific crime at issue, or any potential defenses Duffy might have utilized in a trial. Prior to making any inquiry as to Duffy’s plea, the trial judge clearly informed Duffy of his right to have counsel present before he changed his plea, and Duffy did not waive that right. No plea was entered at the proceeding about which complaint was made. After Duffy refused to enter a plea, the questions of the trial judge related only to his intention to enter a guilty plea. The trial judge was attempting to determine whether he should allocate calendar time for a four-day jury trial in December, or whether time for a change of plea hearing would be adequate. The net effect was that the change of plea hearing was continued until Duffy’s counsel could be present.

In our view, the questions with respect to Duffy’s intention were not prejudicial for at least two reasons. The first is that Duffy did enter a guilty plea, with counsel present, a full month after the hearing on October 15, 1985. Duffy had ample time to confer with counsel and consider the implications of his decision and, as we have indicated, the applicable rule results in forfeiture of his claim of deprivation of counsel on October 15, 1985. The second reason is that no statement as to Duffy’s intention to make a particular pleading resulted in any advantage to the State or to the trial court. Duffy was in no way prevented from maintaining his plea of not guilty, and the exacting procedures articulated in Wyo.R.Crim.P. 15, which must be complied with before a plea of guilty is considered binding, afford ample protection. Had Duffy chosen not to enter a plea of guilty at some later time and persisted in his plea of not guilty, he would have enjoyed all constitutional rights afforded a defendant in a criminal case.

Duffy contends that any proceeding occurring between arraignment and trial must be considered a critical stage of the proceedings and any contact between the accused and the State is a per se violation of his right to counsel. Duffy describes any critical stages as those in which the defendant must deal with the government or the court. The argument presented by Duffy, however, ignores the analysis that is demanded under Powell, Wade, and Hos-kins. We do not, in any way, condone proceedings between the State and the accused at which the accused is not represented by counsel. Any such proceeding must be analyzed pursuant to those cases upon future review. In every case, the issue could be easily avoided. In this instance, however, the elements of a critical stage of the proceeding as defined in Wade are not present and, consequently, we are satisfied that Duffy’s constitutional rights were not violated even if the forfeiture doctrine were not invoked.

The final issue asserted by Duffy in this case is that the sentence he was given was disproportionate in comparison to the sentences his accomplices received. In Duffy I, the issue of an unlawful sentence was presented, and we upheld that sentence as being “well within the bounds of reason under the circumstances.” Duffy I, 730 P.2d at 758. In contending in Duffy I that the sentence was unlawful, no argument was presented that it was unlawful because disproportionate or disparate in comparison to the sentences of Duffy’s accomplices. In our view, a contention in one case that the sentence is unlawful, followed by a contention that it is disproportionate in another, simply shifts the focus of the attack from the sentence itself to a comparison of Duffy’s sentences with other sentences. In Pote v. State, 733 P.2d 1018 (Wyo.1987), we refused to permit an appellant to circumvent the doctrine of res judi-cata by simply shifting the focus of his attack.

Furthermore, even if Duffy had presented evidence relating to the sentences of his accomplices in the first appeal, that would not have changed the outcome. The sentencing system in vogue in Wyoming necessarily vests a substantial degree of discretion in the trial court. The trial judge must weigh the severity of each individual’s involvement in the crime, his or her criminal history, and the defendant’s needs with respect to rehabilitation. Roose v. State, 753 P.2d 574 (Wyo.1988). Because our sentencing system affords this discretion to the trial court, we do not find that discretion to be abused simply because sentences of different lengths are given to one or more co-defendants.

We think the explanation of the propriety of Duffy’s sentence, in Duffy I, is apropos:

The sentences imposed in this case were well within the bounds of reason under the circumstances. Appellant had committed five prior felonies and was serving time for his most recent crime when he planned the armed robbery of his grandmother. Apparently his prior prison stays had no rehabilitative effect, and the district court correctly concluded that he represented a continuing threat to others. The aggravated robbery and burglary which he planned were serious crimes that involved threatened violence to a particularly vulnerable victim. There were no mitigating factors.

It is perfectly clear why appellant received the most severe sentences that could have been legally imposed — he earned them.

Duffy I, 730 P.2d at 758.

After a complete evaluation of the record in this case, we are satisfied that the writ of certiorari was improvidently granted. The proceedings complained of did not infringe upon the constitutional rights of Duffy, and the rulings of the trial court are affirmed. The order denying the motion to correct an unlawful sentence also is affirmed.

1 . In all criminal prosecutions the accused shall have the right to defend in person and by counsel, to demand the nature and cause of the accusation, to have a copy thereof, to be confronted with the witnesses against him, to have compulsory process served for obtaining witnesses, and to a speedy trial by an impartial jury of the county or district in which the offense is alleged to have been committed.

Wyo.Const. art. 1, § 10 (emphasis added).

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,

* * * and to have the Assistance of Counsel for his defense.

U.S. Const, amend. VI (emphasis added).