Roberto Olague v. The State of Wyoming ( 2023 )

IN THE SUPREME COURT, STATE OF WYOMING
2023 WY 91April Term, A.D. 2023
September 20, 2023
ROBERTO OLAGUE,
Appellant
(Defendant),
v. S-23-0134, S-23-0135
THE STATE OF WYOMING,
Appellee
(Plaintiff).
ORDER AFFIRMING THE DISTRICT COURT’S JUDGMENTS
[¶1] This matter came before the Court upon its own motion following filing of
Appellant’s Pro Se Supplemental Brief. Pursuant to a plea agreement, Appellant resolved
the two district court cases that give rise to the captioned consolidated appeals. In S-23-
0134, Appellant challenges the district court’s January 31, 2023, Judgment and Sentence
entered in docket 2021-CR-35-00667. In that docket, Appellant entered an unconditional
“no contest” plea to one count of felony theft. Wyo. Stat. Ann. § 6-3-402. On that
conviction, the district court imposed a two to four-year sentence, which was suspended in
favor of three years of probation. In S-23-0135, Appellant challenges the district court’s
January 31, 2023, Judgment and Sentence entered in docket 2022-CR-35-00776. In that
docket, Appellant entered an unconditional “no contest” plea to one count of unauthorized
use of a vehicle, a misdemeanor. Wyo. Stat. Ann. § 31-11-102. On that conviction, the
district court imposed a sentence of credit for time served.
[¶2] On July 21, 2023, 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). This Court subsequently entered an Order Granting Motion
for Extension of Time to File Pro Se Brief. This Court ordered that, on or before September
7, 2023, Appellant was permitted to file with this Court a pro se brief specifying the issues
he would like the Court to consider in this appeal. This Court also provided notice that,
after the time for filing a pro se brief expired, this Court would make its ruling on counsel’s
motion to withdraw and, if appropriate, make a final decision on this appeal. Appellant
subsequently filed his Pro Se Supplemental Brief.
[¶3] Now, following a careful review of that brief, the records, and the Anders brief
submitted by appellate counsel, this Court finds appellate counsel’s motion to withdraw
should be granted and the district court’s judgments should be affirmed. Regarding any
speedy trial claim, this Court notes Appellant’s unconditional no contest pleas waived such
a non-jurisdictional claim. Kitzke v. State, 2002 WY 147, ¶¶ 8-9, 55 P.3d 696, 699 (Wyo.
2002) (“Analysis of these claims must begin with the observation that an unconditional
guilty [or no contest] plea waives all non-jurisdictional defenses, including claims based
on the alleged deprivation of constitutional rights. . . . Non-jurisdictional defects include
the use of inadmissible evidence, the use of unlawfully obtained statements, a claim that a
grand jury was improperly convened and conducted, and a claim of violation of the right
to speedy trial.”) It is, therefore,
[¶4] ORDERED that the Wyoming Public Defender’s Office, court-appointed counsel
for Appellant Roberto Olague, is hereby permitted to withdraw as counsel of record for
Appellant; and it is further
[¶5] ORDERED that, in docket S-23-0134, the Laramie County District Court’s January
31, 2023, Judgment and Sentence be, and the same hereby is, affirmed; and it is further
[¶6] ORDERED that, in docket S-23-0135, the Laramie County District Court’s January
31, 2023, Judgment and Sentence be, and the same hereby is, affirmed.
[¶7] DATED this 20th day of September, 2023.
BY THE COURT:
/s/
KATE M. FOX
Chief Justice