Montenegro-Noyola v. State , 2014 Wyo. LEXIS 186 ( 2014 )

IN THE SUPREME COURT, STATE OF WYOMING
2014 WY 164October Term, A.D. 2014
December 17, 2014
JESUS MONTENEGRO-NOYOLA,
Appellant
(Defendant),
v. S-14-0214
THE STATE OF WYOMING,
Appellee
(Plaintiff).
ORDER AFFIRMING THE DISTRICT COURT’S “SENTENCE”
[¶1] This matter came before the Court upon its own motion following notification
that Appellant has not filed a pro se brief within the time allotted by this Court. Pursuant
to a plea agreement, Appellant entered (1) an unconditional guilty plea to one count of
felony possession of cocaine and (2) an unconditional “no contest” plea to one count of
felony interference with a peace officer. Wyo. Stat. Ann. § 35-7-1031(c)(ii) and § 6-5-
204(b). This is Appellant’s direct appeal from the resulting convictions. On September
30, 2014, Appellant’s court-appointed appellate counsel filed a “Motion to Withdraw as
Counsel,” pursuant to Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18
L.Ed.2d 493 (1967). Following a careful review of the record and the “Anders brief”
submitted by counsel, this Court, on October 21, 2014, entered its “Order Granting
Permission for Court-Appointed Counsel to Withdraw.” That Order notified Appellant
the District Court’s June 3, 2014, “Sentence” would be affirmed unless, on or before
December 8, 2014, Appellant filed a brief that persuaded this Court the captioned appeal
is not wholly frivolous. Now, taking note that Appellant, Jesus Montenegro-Noyola, has
not filed a brief or other pleading within the time allotted, the Court finds that the district
court’s “Sentence” should be affirmed, with the following correction. Although
Appellant was given an adequate firearms advisement (as required by Wyo. Stat. Ann. §
7-11-507(a)), neither the district court’s “Judgment Upon Plea of Guilty” nor its
“Sentence” includes a reference to the firearms advisement, contrary to W.R.Cr.P.
32(b)(1)(E) and Starrett v. State, 2012 WY 133, ¶¶ 11-12, 19, 286 P.3d 1033, 1037-38,
1040 (Wyo. 2012). It is, therefore,
[¶2] ORDERED that the district court’s June 3, 2014, “Sentence” be, and the same
hereby is, affirmed, subject to this correction: the district court shall enter an amended
“Sentence,” which shall include the firearms advisement required by Wyo. Stat. Ann. §
7- 11-507(a) and W.R.Cr.P. 32(b)(1)(E).
[¶3] DATED this 17th day of December, 2014.
BY THE COURT:
/s/
E. JAMES BURKE
Chief Justice