Christopher D. Balderson v. The State of Wyoming

IN THE SUPREME COURT, STATE OF WYOMING
2013 WY 107APRIL TERM, A.D. 2013
September 17, 2013
CHRISTOPHER D. BALDERSON,
Appellant
(Defendant),
v. S-12-0267
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Park County
The Honorable Steven R. Cranfill, Judge
Representing Appellant:
Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel;
David E. Westling, Senior Assistant Appellate Counsel; Wyoming Public
Defender Program
Representing Appellee:
Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy
Attorney General; Theodore R. Racines, Senior Assistant Attorney General;
Christyne Martens, Assistant Attorney General
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
DAVIS, Justice.
[¶1] After a day of jury trial, Appellant Christopher D. Balderson pled no contest to
one felony count of aggravated assault and battery and one count of misdemeanor battery.
Before taking his plea, the district court reminded him of the explanation of his
constitutional rights given at arraignment, but failed to advise him of the potential loss of
firearm rights, and any impact that loss might have on employment in occupations that
require the use of a firearm, as required by Wyoming Statute § 7-11-507. Balderson
claims that he should be permitted to withdraw his plea because he was not properly
advised. He also contends that several other errors occurred during the change of plea
and sentencing hearing.
[¶2] The State urges us to adopt a rule that would not require firearms advisements for
defendants with prior convictions which disqualify them from possessing firearms under
federal law. However, we cannot read an exception that the legislature has not enacted
into the statute, and instead hold that § 7-11-507 applies to all defendants facing a charge
which may under federal law result in loss of firearms rights and employment requiring
possession of a firearm. We therefore set Balderson’s conviction aside and remand with
instructions that his original not guilty plea be reinstated, or that he be allowed to plead
anew.
ISSUES
[¶3] Appellant summarizes the issues in this case as follows:
I. Did the trial court commit reversible error by failing to
advise Mr. Balderson of his rights as required by W.S. § 7-
11-507?
II. Did the trial court err by violating W.R.Cr.P. 11 and
W.R.Cr.P. [32] to the extent that Mr. Balderson was denied
due process of law?
We find the first issue to be dispositive, and therefore decline to address the second.
FACTS
[¶4] Appellant was charged in Park County with two felony counts of aggravated
assault and battery under Wyoming Statute § 6-2-502(a)(i) and (ii), as well as two counts
of misdemeanor battery in violation of Wyoming Statute § 6-2-501(b). The probable
cause affidavit supporting the information alleged that Balderson attacked another patron
at a bar in Powell without provocation. He was also accused of using a bar stool to strike
another customer, and then of kicking the man in the face when he was on the floor,
1
abetted by other “Maryland boys,”1 who had accompanied him to the bar. The incident
was captured on the bar’s video surveillance system.
[¶5] Balderson pled not guilty to all charges. The district judge advised him of his
constitutional rights as required by W.R.Cr.P. 11(b), and Balderson indicated that he
understood them. The advisement did not include an explanation of the effect of a felony
conviction on the right to own or possess a firearm or the effect of that loss on
employment.
[¶6] Balderson was appointed counsel, but soon discharged his public defender. He
tried to defend himself for a time, but ultimately proceeded to trial with two public
defenders representing him.
[¶7] After a day of trial involving jury selection, opening statements, and the
presentation of foundation evidence for the video to be offered the following day,
Balderson and the State arrived at a recommended plea agreement. He agreed to plead no
contest to one count of aggravated assault and battery and one count of misdemeanor
battery in exchange for a recommendation of a concurrent term of two to four years of
confinement, with credit for time served on each charge, and dismissal of the remaining
charges. He also requested and agreed to a post-sentence investigation so that he could
go to the state penitentiary sooner. See W.R.Cr.P. 32(a) (court may permit the
presentence investigation report to be filed after sentencing with the parties’ consent).
The State also agreed to withdraw a petition for revocation of probation in an unspecified
misdemeanor case not before the district court.
[¶8] The district court held a change of plea hearing with the jury waiting in the jury
room. The prosecutor offered the affidavit of probable cause as the factual basis for the
no contest plea. The district judge did not state that he had considered probation, and he
did not offer Balderson a chance to speak in mitigation of sentence.2 Balderson was not
advised that he would lose his right to own or possess firearms and be ineligible to work
in any occupation requiring possession of a gun.
1
Balderson was evidently one of several gentlemen who came from Maryland to Powell seeking
employment, and who found both time and money to spend in local drinking establishments.
2
See W.R.Cr.P. 32(c)(1)(C) (“Before imposing sentence, the court shall also . . . . [a]ddress the defendant
personally and determine if the defendant wishes to make a statement and to present any information in
mitigation of the sentence.”); Presbury v. State, 2010 WY 32, ¶ 9, 226 P.3d 886, 888 (Wyo. 2010) (“A
criminal defendant’s right to allocution is both rule-based and constitutionally protected.”). The purpose
of a no contest or nolo contendere plea is to protect the defendant from use of the plea against him in a
later civil proceeding. 1A Charles A. Wright & Andrew D. Leipold, Federal Practice & Procedure § 175
at 191 (4th ed. 2008). We acknowledge the obvious fact that the plea would be of little value for that
purpose if the defendant admits or justifies the conduct in question and thereby creates a statement which
can be used against him in a civil action if, as here, he may face a lawsuit for personal injury damages.
2
[¶9] Defense counsel then offered a no contest plea on Balderson’s behalf, and the
court accepted the plea. The district judge did not pronounce sentence at the hearing, but
instead recited the terms of the plea agreement and later entered a written judgment and
sentence which implemented the parties’ sentencing recommendation. This appeal was
timely perfected.
STANDARD OF REVIEW
[¶10] This appeal requires us to construe a statute requiring advisement as to the
possible loss of firearms rights, and to determine whether the district court provided that
advisement. These are legal determinations to be made de novo. Starrett v. State, 2012
WY 133, ¶¶ 9, 19, 286 P.3d 1033, 1036–37, 1040 (Wyo. 2012).
DISCUSSION
[¶11] In 2009, the Wyoming Legislature passed “[a]n Act . . . requiring advisements of
potential loss of firearms rights prior to conviction upon a plea of guilty or nolo
contendere . . . .” See 2009 Wyo. Sess. Laws ch. 19, § 1 (codified at Wyo. Stat. Ann. § 7-
11-507). The statute provides as follows:
(a) No judgment of conviction shall be entered upon a plea of
guilty or nolo contendere to any charge which may result in
the disqualification of the defendant to possess firearms
pursuant to the provisions of 18 U.S.C. §§ 922(g)(1), (9) and
924(a)(2) or other federal law unless the defendant was
advised in open court by the judge:
(i) Of the collateral consequences that may arise from
that conviction pursuant to the provisions of 18 U.S.C. §§
921(a)(33), 922(g)(1), (9) and 924(a)(2); and
(ii) That if the defendant is a peace officer, member of
the armed forces, hunting guide, security guard or engaged in
any other profession or occupation requiring the carrying or
possession of a firearm, that he may now, or in the future,
lose the right to engage in that profession or occupation
should he be convicted.
Wyo. Stat. Ann. § 7-11-507 (LexisNexis 2013).
[¶12] In Starrett, supra, the appellant pled guilty to the felony of third-degree sexual
assault, but the district court did not advise him of the potential loss of his firearms rights
3
under federal law. 2012 WY 133, ¶ 5, 286 P.3d at 1035. He sought to withdraw his plea,
claiming on appeal that “we must simply obey the legislative command: because the
district court did not give him the [firearms] advisement in open court, no judgment of
conviction shall be entered upon his plea of guilty.” Id. at ¶ 10, 286 P.3d at 1037. We
reviewed § 7-11-507 using the usual principles of statutory interpretation, and also noted
that W.R.Cr.P. 32 requires a judgment of conviction upon a plea of guilty or nolo
contendere to include any “advisements required by law.” Id. at ¶¶ 9, 11, 286 P.3d at1036–37 (citations omitted).
[¶13] We allowed the appellant in that case to withdraw his plea because the district
court failed to provide the required advisement:
Wyo. Stat. Ann. § 7-11-507 is clear and unambiguous . . . .
The advisement in Wyo. Stat. Ann. § 7-11-507 is required,
and W.R.Cr.P. 32(b)(1)(E) mandates that the judgment of
conviction upon Starrett’s plea of guilty must include that
advisement. The district court’s failure to give Starrett that
required advisement was a Rule 32 error . . . [which] requires
us to set aside Starrett’s judgment of conviction and remand
to that court with directions that he be permitted to plead
anew.
Id. at ¶ 19, 286 P.3d at 1040.3
[¶14] Balderson pled no contest to one count of aggravated assault and battery, which is
a felony with a maximum term of ten years imprisonment. See Wyo. Stat. Ann. § 6-2-
502(b) (LexisNexis 2013). A conviction of this offense would obviously disqualify him
from possessing firearms under federal law because it is a crime “punishable by
imprisonment for a term exceeding one year.” See 18 U.S.C. § 922(g)(1) (2012).
Consequently, the district court was required to advise him that he would lose the right to
possess firearms, and that he could not be employed or continue to be employed in
occupations that would require him to possess or carry a firearm. § 7-11-507.
[¶15] However, the State claims that the district court did not err when it failed to advise
Balderson of the potential loss of his firearms rights because he had already lost them.
Relying on the word “may” in § 7-11-507(a) and (a)(ii), the State argues that the statute
only requires advisement to defendants whose right to possess firearms could actually be
lost by virtue of a guilty or no contest plea and conviction, and not of those who are
already disqualified from possessing firearms by previous convictions. The State claims
3
In the later case of Lunden v. State, 2013 WY 35, 297 P.3d 121 (Wyo. 2013), we held that the appellant
waived any claim that his plea had to be set aside because it was not raised on direct appeal. Id. at ¶¶ 8–
11, 297 P.3d at 123–24. Mr. Balderson has properly raised this issue on direct appeal.
4
that Balderson was already disqualified from possessing firearms by two previous
convictions reflected in the post-sentence investigation report, and that the district court
was not therefore required to advise Balderson of any potential loss of firearms rights.
[¶16] The post-sentence investigation report is not as clear as the State believes it to be.
Balderson had pled guilty to a charge of second degree assault in Maryland, but he had
not been sentenced as of the date of his change of plea in Park County. Moreover, in the
place in which the agent was to indicate whether the crime was a misdemeanor or felony,
the report indicates that the answer is “unknown.”
[¶17] As to the second conviction, the post-sentence investigation report describes it as
misdemeanor malicious destruction of property. However, the report also indicates that
Balderson was to serve two to three years of incarceration, and that he was paroled after
serving a portion of that sentence. A crime allowing a sentence of over one year of
incarceration would, as noted above, result in loss of the right to own or possess firearms
under federal law, and the term “parole” is associated with a prison sentence. Paul F.
Cromwell, et al., Probation and Parole in the Criminal Justice System 151 (2d ed. 1985).
The report thus contains conflicting information.
[¶18] A district judge does not generally need to know whether a defendant has prior
felonies or misdemeanor domestic violence convictions when a guilty or no contest plea
is taken, unless the nature of the offense makes such a conviction an element.4
Information concerning prior convictions typically becomes available when a presentence
investigation is completed and a sentencing hearing is held, often weeks after the change
of plea. The only proof that Balderson had prior felony convictions is a report which was
not available to the district judge at the change of plea/sentencing hearing because the
parties agreed to a post-sentence investigation report. Nothing else in this record
provides any information concerning his criminal history.
[¶19] Section 7-11-507 provides that “[n]o judgment of conviction shall be entered upon
a plea of guilty or nolo contendere to any charge which may result in the disqualification
of the defendant to possess firearms . . . unless the defendant was advised in open court
by the judge.” § 7-11-507 (emphasis added). The use of the word “charge” indicates to
us that the legislature intended to require that the advisement be given if the charge is one
which could result in loss of firearms privileges. 5 Unlike the State, we interpret the word
4
Examples include felon in possession of a firearm or third-offense domestic battery. See Wyo. Stat.
Ann. §§ 6-2-501(b), (e), (f)(ii); 6-8-102 (LexisNexis 2013).
5
We construe the phrase “may result in the disqualification of the defendant to possess firearms,” as a
modifier for the immediately preceding phrase, which is simply “any charge.” We recently explained the
general rule for interpretation of modifying clauses in Waid v. State ex rel. Department of Transportation,
996 P.2d 18 (Wyo. 2000):
5
“may” to instruct courts to give the advisement if it is possible for a conviction of the
crime charged to result in the loss of firearms rights. If the legislature had intended the
advisement to be given only if a defendant had not already lost his firearms privileges, it
could easily have said so, but did not.
[¶20] It is not always clear whether a given conviction will result in the loss of the right
to possess a firearm, and trial judges can hardly be expected to tailor advisements to
comply with this complex and difficult area of federal law when they accept a plea.6 In
addition, the federal government has the power to restore firearms ownership privileges,
and even if a judge knows that there has been a conviction, he or she may not know
whether firearms privileges have been restored. See 18 U.S.C. § 925(c) (2012)
(procedure for restoration of firearms rights); 27 C.F.R. § 478.11 (federal firearms
disability relieved if the conviction has been expunged, set aside, pardoned, or if the
individual’s civil rights have been restored, unless state law or the pardon, expungement,
or restoration of civil rights provides otherwise); Daniel Brenner, The Firearm Owners’
Protection Act and the Restoration of Felons’ Right to Possess Firearms: Congressional
Intent Versus Notice, 2008 U. Ill. L. Rev. 1045 (circuit split “regarding whether a pardon,
expungement, or restoration reinstates the entirety of a former felon’s civil rights when an
applicable state law provides that felons may not possess firearms or ammunition.”);
Ryan Laurence Nelson, Rearming Felons: Federal Jurisdiction Under 18 USC § 925(C),
2001 U. Chi. Legal F. 551, 551–52 (circuit split on whether federal district courts have
jurisdiction to review firearms restatement requests).
[¶21] The reasoning behind the State’s position is not without its attraction–it is
certainly fair to ask what difference the advisement would make in the case of a
Referential and qualifying words and phrases, where no contrary
intention appears, refer solely to the last antecedent. The last antecedent
is the last word, phrase, or clause that can be made an antecedent without
impairing the meaning of the sentence. Thus a proviso usually is
construed to apply to the provision or clause immediately preceding it.
Id. at 23 (quoting 2A Sutherland Statutory Construction § 47.33 at 270 (5th ed. 1992)) (internal quotation
marks omitted). See also Peterson v. Wyoming Game & Fish Comm’n, 989 P.2d 113, 119 (Wyo. 1999)
(qualifying phrase in peace officer statutes modified immediately preceding phrase).
6
See, e.g., Lee G. Lester, Small v. United States: Defining “Any” As A Subset of “Any”, 40 U. Rich. L.
Rev. 631, 632 (2006) (“The current language in [18 U.S.C.] § 922(g)(1) has undergone a lengthy and
confusing history.”); Nelson Lund, The Ends of Second Amendment Jurisprudence: Firearms Disabilities
and Domestic Violence Restraining Orders, 4 Tex. Rev. L. & Pol. 157, 164 n.12 (1999) (describing
federal gun rights legislation as “very lengthy and complex”); Emily J. Sack, Confronting the Issue of
Gun Seizure in Domestic Violence Cases, 6 J. Center for Families, Child. & Cts. 3, 4 (2005) (“Numerous
constitutional challenges have been mounted to both sections 922(g)(8) and 922(g)(9) on several different
grounds.”); Brad Thoenen, Multiple Convictions for Single Acts of Possession - the Eighth Circuit Finally
Gets It Right, 72 Mo. L. Rev. 265, 284 (2007) (describing some courts as “bewildered” by the scope and
purpose of 18 U.S.C. § 922(g)).
6
defendant with prior felony convictions. Moreover, defendants with multiple felony
convictions have probably been advised as to the loss of firearms privileges before. That
is not the point–the legislature directed that no judgment of conviction be entered without
advisement as to the potential loss of firearms privileges and its effect on employment in
occupations requiring an employee to possess a gun.
[¶22] It is both simple and routine to read the required firearms advisement to every
defendant who is charged with “a crime punishable by imprisonment for a term
exceeding one year” or a “misdemeanor crime of domestic violence.” See 18 U.S.C. §
922(g)(1), (g)(9) (2012). District courts deal with felonies, meaning that the advisement
can simply be given in every district court criminal case in which a guilty or no contest
plea is offered.7 See Wyo. Const. art. 5 § 10; Wyo. Stat. Ann. § 5-9-129 (LexisNexis
2013). Reading the advisement places the onus on a defendant to determine whether he
wishes to enter a plea knowing that he may lose his right to own or possess firearms and
to work in any occupation in which he might have to possess or carry a gun.
[¶23] We presume the legislature to adopt legislation which is reasonable and logical.
Vineyard v. Jenkins, 983 P.2d 1234, 1237 (Wyo. 1999). Requiring judges to advise
defendants that a conviction may result in loss of firearms rights, regardless of a
particular defendant’s criminal history, is a reasonable and logical means to assure that
the policy behind the statute is implemented, and to avoid the complications of after-the-
fact justifications for having failed to give the advisement.
[¶24] We therefore conclude that the firearms advisement was mandatory in this case, as
it was in Starrett, because “exceptions not made by the legislature in a statute cannot be
read into it.” Starrett, ¶ 9, 286 P.3d at 103 (quoting Hede v. Gilstrap, 2005 WY 24, ¶ 6,
107 P.3d 158, 163 (Wyo. 2005)). See also United States v. Nat’l City Lines, 80 F. Supp.
734, 741 (S.D. Cal. 1948) (“[A] statute general in its language is to be given general
application. No exceptions will be read into a statute of such character.”) (footnote
omitted). If the Wyoming Legislature decides that failure to give the required advisement
if a defendant may already be disqualified to own or possess firearms should not prevent
the entry of a plea of guilty or no contest, it can legislatively overrule this decision by
amending the statute.
[¶25] The district court’s failure to advise Balderson as required by statute requires us to
set aside the judgment of conviction and remand to that court for further proceedings
7
The determination is somewhat more difficult in the circuit courts, where a charge of simple battery
committed on a household member or spouse may be considered an act of domestic violence by federal
authorities. See 18 U.S.C. 922(g)(9) (2012); Elizabeth S. Saylor, Federalism and the Family After
Morrison: An Examination of the Child Support Recovery Act, the Freedom of Access to Clinic Entrances
Act, and A Federal Law Outlawing Gun Possession by Domestic Violence Abusers, 25 Harv. Women’s
L.J. 57, 130 (2002) (noting the difficulty in some cases in determining whether an offense was a domestic
violence misdemeanor pursuant to 18 U.S.C. § 922(g)(9)).
7
consistent with this opinion. We need not address Balderson’s other claims of error
during the change of plea hearing, as we have decided that he may withdraw his no
contest plea if he wishes. If he decides to plead guilty or no contest rather than go to trial
after remand, a new plea will have to be taken. We presume that the district court will
comply with W.R.Cr.P. 11 and 32 and § 7-11-507 if that occurs.
CONCLUSION
[¶26] The district court failed to advise Balderson of the potential loss of his firearms
rights under federal law as required by § 7-11-507, as well as the impact that might have
on employment. We therefore reverse his conviction and remand for further proceedings
consistent with this opinion.
8