Debora McEwan v. The State of Wyoming

IN THE SUPREME COURT, STATE OF WYOMING
2013 WY 158
OCTOBER TERM, A.D. 2013
December 23, 2013
DEBORA McEWAN,
Appellant
(Defendant),
v. S-12-0252
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Big Horn County
The Honorable Steven R. Cranfill, Judge
Representing Appellant:
Office of the State Public Defender: Diane M. Lozano, State Public Defender;
Elisabeth M.W. Trefonas, Assistant Public Defender
Representing Appellee:
Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy
Attorney General; Jeffrey Pope, 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] Appellant Debora McEwan was convicted of two felony counts of obtaining
public welfare benefits by misrepresentation after entering guilty pleas without admitting
guilt under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162
(1970).1 Our recent decision in Balderson v. State, 2013 WY 107, 309 P.3d 809 (Wyo.
2013), requires us to reverse McEwan’s conviction and remand with instructions to
reinstate her initial not guilty plea because the district court did not provide the required
statutory firearms advisement when she changed her plea. Any other issues relating to
the taking of a guilty plea can be addressed on remand if she chooses to enter a guilty
plea rather than go to trial.
[¶2] McEwan also claims that she was denied her constitutional and rules-based rights
to a speedy trial. We find no violation of those rights. She also claims error in the
district court’s order of restitution and the manner in which her original attorney was
replaced, but we do not rule on those issues because her conviction will be vacated and
the district court may resolve them on remand.
ISSUES
[¶3] McEwan raises five issues which, stripped to their essentials, may be stated as
follows:
1. Must her two guilty pleas be set aside because the
district court failed to give the advisements required by
W.R.Cr.P. 11 and Wyo. Stat. Ann. § 7-11-507?
2. Was she deprived of her constitutional right to a
speedy trial or the complementary right provided by
W.R.Cr.P. 48?
3. Did the district court abuse its discretion in denying
McEwan’s motion to withdraw her guilty plea?
4. Was the district court’s order relating to restitution
illegal?
1
Alford permits a court to accept a guilty plea from a defendant who, despite his denial of guilt, wishes to
obtain the benefits of a plea bargain in the face of what he views as a strong case against him. This type of
plea is discussed in greater detail below in note 4.
1
5. Did the district court commit plain error by allowing
one public defender to substitute for another in representing
McEwan?
FACTS
[¶4] In late October of 2008, an anonymous tip prompted the Wyoming Department of
Family Services (DFS) to begin a nearly one-year investigation of McEwan and her adult
son and daughter for possible welfare fraud. McEwan lived with her three minor children
in Greybull, and her adult daughter had a minor child of her own. In her application for
public assistance benefits, McEwan reported to DFS that she was self-employed and
derived her income solely from her karaoke services business.
[¶5] The investigation revealed that DFS had paid McEwan’s adult son for caring for
his adult sister’s child at times when he was working somewhere else, and when his
sister, contrary to her representations to DFS, was not working. McEwan counter-
endorsed the state warrants made payable to her son. After examining documents
submitted to DFS and the accounts owned by McEwan at Big Horn Federal Savings
Bank, particularly one listed under the name “Live Wire Entertainment,” the DFS
investigator discovered that McEwan was working for four different employers (not
including herself) under pseudonyms, and that she had deposited wages from three of the
four into her “Live Wire” account. She did not disclose those sources of income to DFS.
[¶6] At the same time, McEwan obtained food stamps and child care assistance
benefits relating to her minor children. As to the latter, the investigator obtained records
from the establishments to whom she reportedly provided karaoke services and could not
verify that McEwan was working at the times she stated in her claims for child care
assistance.
[¶7] On January 6, 2010, the Big Horn County and Prosecuting Attorney charged
McEwan with three felonies: knowingly failing to report income to obtain food stamp
benefits of $500 or more in violation of Wyo. Stat. Ann. § 42-2-112(a), (k)(i); knowingly
falsifying work hours to obtain child care assistance in violation of § 42-12-112(h), (k)(i);
and knowingly failing to report a bank account in order to obtain food stamp benefits
under § 42-2-112(a), (k)(i). She was arrested on January 11, 2010, and had her initial
appearance in circuit court two days later. That court appointed a public defender to
represent her, established bond, and set a preliminary hearing for January 20. She posted
bond on January 18.
[¶8] On the day set for the preliminary hearing, McEwan waived the time limits
contained in Wyoming Rule of Criminal Procedure 5 and asked the circuit court to
postpone it “for a reasonable time as established by the Court.” The hearing was first
postponed to February 3 and later to March 24, 2010, when it was held and McEwan was
2
bound over to district court. The record does not reflect the reasons for the continuance
from February 3 to March 24 of 2010.
[¶9] On April 1, 2010, the county attorney requested a setting for arraignment. The
arraignment was to take place on May 18, but on May 14 defense counsel moved for a
continuance due to a scheduling conflict, and the district judge reset the hearing to June
22, 2010 at his request. Just prior to the arraignment, McEwan filed a motion to
peremptorily disqualify the assigned district court judge as then permitted by Wyoming
Rule of Criminal Procedure 21.1(a).2 The district judge was not aware when the
arraignment began that he had been disqualified, and he read McEwan her rights and
advised her of the nature of the charges against her and the maximum penalties. Before
she was asked to enter a plea, McEwan’s attorney advised the court of the peremptory
disqualification and asked that the arraignment be postponed and that another judge be
appointed. As defense counsel requested, the judge did not proceed with the arraignment,
although he could have done so before reassigning the case under Rule 21.1(a).3
[¶10] The new judge held McEwan’s arraignment on August 26, 2010. On October 5,
McEwan moved to compel discovery from DFS and requested a hearing on that motion.
On October 21, the court set the motion hearing for October 28, and on October 25, it set
McEwan’s trial as the second case stacked for trial on January 31, 2011. Two days
before a pretrial conference scheduled for January 13, McEwan moved to continue both
the conference and the trial. On January 18, the court reset the pretrial conference to
March 24 and the trial to April 11, 2011.
2
This Court suspended Rule 21.1(a) pending further review by the Permanaent Rules Advisory
Committee’s criminal division on December 4, 2012. The rule has since been repealed.
3
(a) Peremptory Disqualification. -- A judge may be peremptorily
disqualified from acting in a case in which a felony is charged by the
filing of a motion so requesting. A party may exercise the peremptory
disqualification only one time and against only one judge. The motion
shall be filed by the state at the time the indictment or information is
filed in the district court, designating the judge to be disqualified. The
motion shall be filed by the defendant in open court at arraignment,
designating the judge to be disqualified, except that a defendant who is
not represented by an attorney at arraignment may file the motion within
10 days after the arraignment. After a judge has been peremptorily
disqualified upon the motion of a party, the opposing party may file a
motion for peremptory disqualification within five days of being notified
of the identity of the judge to whom the case has been assigned. Upon
the filing of a motion for peremptory disqualification the disqualified
judge shall take no further action except to conduct the arraignment and
to assign the case to another judge.
W.R.Cr.P. 21.1(a) (repealed Nov. 26, 2013).
3
[¶11] In early March of 2011, McEwan filed a signed and witnessed waiver of her right
to a speedy trial and a motion to vacate the trial setting. The motion recited that she was
negotiating with the newly-elected county attorney for a plea agreement for herself, and if
possible, a “global” agreement also resolving similar charges against her adult children.
She anticipated that negotiations could be completed within ninety days and asked that
the pretrial conference and trial not be reset until after June 15, 2011.
[¶12] Within a week of filing that motion, defense counsel requested that McEwan be
evaluated to determine whether she was mentally fit to proceed under Wyo. Stat. Ann. §
7-11-303, and expressed his belief that she was incapable of assisting in her own defense.
The court granted the motion, and that decision suspended the proceedings until the
evaluation was completed. Wyo. Stat. Ann. § 7-11-303(a) (LexisNexis 2013). The State
Hospital submitted its finding that McEwan was in fact fit to proceed on May 13, 2011.
[¶13] On June 29, 2011, another public defender entered his appearance and identified
himself as the substitute for McEwan’s original public defender. That same day, he filed
demands for discovery, for notice of the prosecutor’s intent to introduce uncharged
misconduct evidence, and for a speedy trial. On September 27, 2011, the district court
acted on McEwan’s motion to reset her trial after June 15, 2011, and scheduled a pretrial
conference on December 15, 2011, and trial on January 9, 2012, when it would be second
on the trial stack. On December 16, 2011, the court rescheduled the pretrial conference
to May 24, 2012, and trial first on the trial stack for June 4, 2012 on its own motion. The
record contains no contemporaneous complaint from McEwan regarding the schedule
established by the court’s September 27 and December 16 orders.
[¶14] On May 24, 2012, a letter in which McEwan indicated by her signature that she
had accepted a plea agreement offered by the prosecutor was filed. The State agreed to
dismiss the charge relating to concealment of income in order to obtain food stamps, in
exchange for which McEwan agreed to enter an Alford guilty plea to the remaining two
charges. The State also agreed to cap its sentencing argument to ask for concurrent
sentences of no more than four to six years on those charges, and to dismiss pending
felony probation revocation proceedings against her. McEwan was free to argue for a
lesser sentence and probation. She agreed to pay restitution on all three of the original
charges.
[¶15] McEwan changed her plea to guilty as required by the agreement the same day it
was filed.4 During that hearing she indicated that she understood the agreement and the
4
The record is somewhat vague as to whether a plea was actually entered. McEwan’s counsel was asked
how she “would” plead, and counsel said she “would plead” guilty on an Alford basis. One could argue
that this was an expression of a future intent that never came to fruition. However, the parties did not
raise this issue. We note that Wyoming Rule of Criminal Procedure 11 requires the court to personally
address the defendant, which the court did. However, it did not ask her how she pled. The better practice
would be to ask the defendant to state his or her plea rather than to allow counsel to do so.
4
advisements given her by the court, and that she was satisfied with her attorney’s
representation.
[¶16] A presentence investigation report was completed on June 10, 2012, and the court
set McEwan’s sentencing for August 2. The sentencing hearing began with an oral
motion by McEwan’s attorney to withdraw her guilty plea. Counsel explained that
McEwan “feels” she was confused and did not fully understand what was going on and
what she was agreeing to at the time she changed her plea, that she felt coerced by a
threat that the prosecutor might bring additional charges against her and her two adult
children, and that she “has the feeling that her speedy trial rights have been violated.”
The district court denied the motion. McEwan was sentenced to concurrent terms of
three to five years.
DISCUSSION
The Change of Plea and the Motion to Withdraw Guilty Plea
[¶17] McEwan’s first and third claims of error are overlapping arguments relating to the
district court’s alleged failure to comply with Wyo. Stat. Ann. § 7-11-507 and some of
the dictates of Wyoming Rule of Criminal Procedure 11 when taking her guilty plea or at
There also appeared to be confusion as to the nature of an Alford plea as compared to a no contest
or nolo contendere plea. A no contest plea cannot be used against a defendant in other civil or criminal
proceedings. W.R.E. 410, 803(22). A factual basis is not taken under oath from the defendant as in the
case of a guilty plea, because the statements could be used as admissions by a party opponent in other
proceedings under Wyoming Rule of Evidence 801(d)(2). 1A Charles A. Wright & Andrew D. Leipold,
Federal Practice & Procedure § 175 at 190-91 (4th ed. 2008); Balderson v. State, 2013 WY 107, ¶ 8 n.2,
309 P.3d 809, 811 n.2 (Wyo. 2013). The factual basis is supplied by the prosecutor, often through
reference to the affidavit supporting the information. Berry v. State, 2004 WY 81, ¶ 39, 93 P.3d 222, 234
(Wyo. 2004).
On the other hand, an Alford plea is a guilty plea. N. Carolina v. Alford, 400 U.S. 25, 31, 91 S.
Ct. 160, 164, 27 L. Ed. 2d 162 (1970); 5 Wayne R. LaFave, et al., Crim. Proc. § 21.4(f) (3d ed. 2007). It
differs from a conventional guilty plea because the defendant denies his guilt and therefore does not
supply a satisfactory basis for the plea, but instead seeks to obtain the benefit of a plea bargain to avoid a
potentially harsher penalty than he might receive if he goes to trial and is convicted. Id. Courts
considering the issue have held that an Alford plea has the same preclusive effect in subsequent civil
litigation as an ordinary guilty plea. Zurcher v. Bilton, 379 S.C. 132, 136, 666 S.E.2d 224, 227 (2008);
United States v. In, 83 Fed. R. Serv. 168 (D. Utah 2010). Since the plea is admissible in other
proceedings, it would be good practice to confirm with the defendant seeking to enter an Alford guilty
plea that she understands the right to a jury trial, believes that the State can produce the evidence it claims
it can, understands that a conviction may be used against her in other proceedings, and wishes the court to
accept a guilty plea and impose sentence in order to obtain more favorable treatment under a plea
agreement than she expects if the case goes to trial and there is a conviction.
5
prior proceedings. 5 With respect to her first claim, she argues that the court failed to
advise her that a guilty plea to the felonies with which she was charged might result in
the loss of her right to possess firearms and her ability to hold or obtain a job that
required carrying and using firearms. As to Rule 11, McEwan asserts that the court failed
to (1) address her personally to confirm that her plea was voluntary, rather than the result
of some form of coercion or promises made apart from the plea agreement; and (2) advise
her of her plea options and explain the effect of each. As to her first claim, she asks this
Court to vacate her convictions so that her original not guilty pleas would be reinstated.
[¶18] In her third claim of error, McEwan argues that the district court abused its
discretion when it denied her motion to withdraw her guilty pleas because it failed to
comply with Wyo. Stat. Ann. § 7-11-5076 and some of the requirements of Wyoming
Rule of Criminal Procedure 11.
[¶19] We will reverse and remand with directions to set McEwan’s convictions aside
and to reinstate her not guilty pleas because the district court did not give the advisements
required by Wyo. Stat. Ann. § 7-11-507. We acknowledge that, unlike the situation with
the appellant in Balderson v. State, 2013 WY 107, 309 P.3d 809 (Wyo. 2013), there is
absolutely no doubt that McEwan has prior felony convictions – in fact, she was on
felony probation when she committed the offenses in this case. We also know that she
was not employed in an occupation that required her to carry a firearm, and we have no
5
McEwan directs us to a number of Rule 11 directives that were not followed at the change of plea
hearing, but candidly suggests that most of those deficiencies were likely rendered harmless by the advice
she received from the court during her arraignment and earlier proceedings.
6
Section 7-11-507 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).
6
reason to believe that she has or ever will have aspirations to obtain such a job.
However, as we explained in Balderson:
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. Unlike the State, we interpret the
word “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.
Id. at ¶ 19, 309 P.3d at 813 (footnote omitted). We emphasized that the legislature
required judges to do no more than read an advisement when accepting a guilty plea to
crimes that could lead to loss of firearms and employment that required carrying firearms.
We also pointed out that the advisement would have to be given in all felony
prosecutions, meaning that it could simply be read in all district court cases. Id. at ¶ 22,
309 P.3d at 814. Finally, we noted that if the legislature intended that failure to give the
advisement would not invalidate a guilty plea if the defendant had already lost his or her
firearms privileges, it could legislatively overrule Balderson. Id. at ¶ 24, 309 P.3d at 814.
[¶20] Because we find that McEwan’s guilty plea must be set aside due to lack of a
firearms advisement, we find it unnecessary to address her claims that the provisions of
Rule 11 of the Wyoming Rules of Criminal Procedure were not complied with. If she
decides to plead guilty after remand rather than go to trial, we are confident that any
deficiencies claimed here will be avoided. Giving the required advisements and
otherwise complying with Rule 11 may appear to be a tedious and repetitive process for
trial judges, and we acknowledge that defendants are often inattentive and disinterested in
the advisements. However, engaging them in dialogue as the rule requires creates a
record establishing that the right to trial by jury and other rights associated with it have
been relinquished knowingly and voluntarily, and it must be followed.
The Speedy Trial Questions
[¶21] McEwan also asserts she was denied the constitutional right to a speedy trial under
the Sixth Amendment to the United States Constitution as well as her speedy trial rights
7
under Wyoming Rule of Criminal Procedure 48. With regard to the constitutional right
to speedy trial, we review de novo, taking into account and balancing the length of the
delay, the reason for the delay, her assertion of that right, and any prejudice she suffered
from the delay. None of these factors is alone sufficient to establish a constitutional
violation. Rather, they must be considered together with other relevant circumstances,
and with the goal of determining whether the delay was so unreasonable as to
substantially impair McEwan’s right to a fair trial. Walters v. State, 2004 WY 37, ¶¶ 9,
10, 87 P.3d 793, 795 (Wyo. 2004); Barker v. Wingo, 407 U.S. 514, 530, 533, 92 S. Ct.
2182, 2192-93, 33 L. Ed. 2d 101 (1972).
[¶22] From the time charges were first brought against McEwan until she entered her
guilty plea 870 days elapsed. However, during a considerable portion of that time the
district court had before it a waiver of speedy disposition and, except for a perfunctory
written demand for a speedy trial filed by her substitute counsel nearly two-thirds of the
way through that period, she never actively sought a trial date. To the contrary, she
contributed to the delay.
[¶23] Between the filing of the charges against her on January 6, 2010, until her attorney
filed his demand on June 29, 2011 – a period of 540 days – McEwan waived her right to
a speedy preliminary hearing and obtained a continuance of that hearing, and twice
obtained continuances of her arraignment, the second of which was prompted by her
peremptory challenge of the district judge first assigned to her case and her request that
he not arraign her, even though Rule 21.1(a) would have allowed him to do so. Two
weeks before her first trial date of January 31, 2011, she obtained a continuance until
April 11 and, on March 2 and March 10, 2011, waived her right to a speedy trial and
sought a trial no earlier than June 15, 2011, so that she could pursue plea negotiations
with the State.
[¶24] By March 15, 2011, her interactions with her first attorney led him to suspect that
McEwan might be suffering from a mental problem that adversely affected her ability to
assist in her own defense, and he therefore asked that she be evaluated to determine if she
was fit to proceed under Wyo. Stat. Ann. § 7-11-303. The delays directly attributable to
her requests and the fitness evaluation during the 540 days between the filing of charges
and the entry of her second attorney totaled 334 days.
[¶25] When McEwan’s substitute counsel appeared and demanded a speedy trial, he also
filed motions that had to be resolved before a new trial date could be set. Nowhere in the
record is there any indication that the new attorney abandoned the plea negotiations
begun by McEwan’s first appointed lawyer, which had been the reason he sought a
continuance. Despite demanding a speedy trial, he did not object or ask for an earlier
setting when, on September 27, 2011, the district court set McEwan’s trial for January 9,
2012.
8
[¶26] Trying to determine the reasons for additional delays of the trial would be an
exercise in speculation, because the record tells us nothing. However, we think it fair to
say that if McEwan had not earlier repeatedly asked to be taken off the district court’s
trial stack, and if she had not peremptorily challenged one of the two judges of the Fifth
Judicial District, McEwan could have gone to trial much sooner. She must be held to
have indirectly caused or significantly contributed to the overall length of the delay
preceding the entry of her guilty plea.
[¶27] Perhaps more importantly, McEwan has failed to show that she was prejudiced by
any delay preceding her plea. Such prejudice can take the form of unusual pretrial
anxiety, lengthy pretrial incarceration, or impairment of her defense. Boucher v. State,
2011 WY 2, ¶ 17, 245 P.3d 342, 351 (Wyo. 2011). Neither McEwan’s brief nor the
record hint at any unusual anxiety. She was incarcerated for no more than a week after
she was arrested and so was free on bond for almost all of the time she now claims
imposed an unreasonable delay.
[¶28] She has made little effort to show that the passage of time impaired her ability to
present a defense at trial. Although she asserts in her appellate brief – in almost as few
words – that essential witnesses became unavailable or passed away, she concedes that
this is not a matter of record and fails to identify those witnesses, the nature of their
anticipated testimony, or when they became unavailable. For all of these reasons, we
conclude McEwan was not deprived of her Sixth Amendment right to a speedy trial.
[¶29] We draw a similar conclusion concerning the speedy trial requirements of
Wyoming Rule of Criminal Procedure 48. That rule requires that a defendant be brought
to trial within 180 days following her arraignment unless the trial is continued for reasons
excluded by rule.7 Continuances permissible under the rule include those granted on the
7
Wyoming Rule of Criminal Procedure 48 states in pertinent part:
(b) Speedy trial. –
(1) It is the responsibility of the court, counsel and the defendant to
insure that the defendant is timely tried.
(2) A criminal charge shall be brought to trial within 180 days following
arraignment unless continued as provided in this rule.
(3) The following periods shall be excluded in computing the time for
trial:
(A) All proceedings related to the mental illness or deficiency of
the defendant;
(B) Proceedings on another charge;
(C) The time between the dismissal and the refiling of the same
charge; and
9
defendant’s motion and those granted on the court’s own motion, if the latter are required
in the due administration of justice, and the defendant, after notice, has not objected and
shown in writing how the delay may prejudice her defense. W.R.Cr.P. 48(b)(1) and (4).
[¶30] McEwan’s Rule 48 argument proceeds from the faulty premise that her
arraignment took place on June 22, 2010. That was indeed the day initially set for
arraignment, and the day on which she first appeared before the district court to be
arraigned. The first trial date set was January 31, 2011, and this would of course have
been more than 180 days after June 22, 2010. McEwan argues that her rights were
therefore violated, even if she waived her Rule 48 right to speedy trial after January 31,
2011.
[¶31] However, although the court advised her of her rights and the nature of the charges
against her on June 22, 2011, it did not take her plea that day because she peremptorily
challenged the assigned judge and her attorney asked that the arraignment be continued.
A new judge was then assigned and held the arraignment on August 26, 2010.
(D) Delay occasioned by defendant’s change of counsel or
application therefor.
(4) Continuances exceeding 180 days from the date of arraignment may
be granted by the trial court as follows:
(A) On motion of defendant supported by affidavit; or
(B) On motion of the attorney for the state or the court if:
(i) The defendant expressly consents;
(ii) The state’s evidence is unavailable and the prosecution has
exercised due diligence; or
(iii) Required in the due administration of justice and the
defendant will not be substantially prejudiced; and
(C) If a continuance is proposed by the state or the court, the
defendant shall be notified. If the defendant objects, the defendant must
show in writing how the delay may prejudice the defense.
(5) Any criminal case not tried or continued as provided in this rule shall
be dismissed 180 days after arraignment.
(6) If the defendant is unavailable for any proceeding at which the
defendant’s presence is required, the case may be continued for a
reasonable time by the trial court but for no more than 180 days after the
defendant is available or the case further continued as provided in this
rule.
(7) A dismissal for lack of a speedy trial under this rule shall not bar the
state from again prosecuting the defendant for the same offense unless
the defendant made a written demand for a speedy trial or can
demonstrate prejudice from the delay.
10
[¶32] The sine qua non of an arraignment is the taking of a plea. The purpose of an
arraignment is “to inform the accused of the charge against him and obtain an answer
from him.” 1A Wright, supra, § 161; see also W.R.Cr.P. 10; 5 LaFave, supra, § 21.4(a);
22 C.J.S. Criminal Law § 478 (updated 2013); 21 Am. Jur. 2d Criminal Law § 545
(updated 2013). A plea was not asked of or taken from McEwan until August 26, 2010,
because her attorney asked that it not be, and that is consequently the date on which she
was arraigned.
[¶33] The 180-day limit contained in Rule 48 would therefore have expired on February
22, 2011, and McEwan would have had her trial within that period if it had taken place as
scheduled on January 31, 2011. However, on January 11, 138 days after her arraignment,
she moved to continue the trial, and the district court subsequently rescheduled it for
April 11. On March 2, she waived her right to a speedy trial, and eight days later she
moved for another continuance to a date no earlier than June 15. The court granted that
motion and reset McEwan’s trial for January 9, 2012. Neither she nor her new attorney
objected to that setting, even though they had filed a demand for a speedy trial on June
29, 2011.8 The court then continued the trial to June 4, 2012 on its own motion, and
again McEwan did not object or attempt to show how further delay might prejudice her.
Before the rescheduled trial took place, she changed her plea.
[¶34] Disregarding the continuances which were properly granted under Rule 48, only
138 of the permissible 180 days elapsed after McEwan’s arraignment. After that point in
time, she signed a valid waiver of her speedy trial rights. She was not therefore denied
her right to speedy trial under the rule.
Restitution
[¶35] McEwan claims that the district court erred by ordering restitution which the
Department of Corrections may withdraw from her prison earnings. Since we remand
with instructions to vacate her convictions, we need not address this issue in detail, but
point out what we believe to be statutory provisions that govern collection of restitution
from defendants incarcerated in institutions operated by the Department of Corrections.
[¶36] When it set the amount of restitution owed by McEwan during her sentencing
hearing, the district court said, “Of course, none of that is going to be due until she’s
released.” The judgment and sentence awarded restitution without this limitation, and
McEwan now claims that this omission improperly allows the Department of Corrections
to make restitution payments from her inmate account and renders the written sentence
illegal.
8
Under Rule 48(b)(7), such a demand by itself does not affect the propriety of a subsequent continuance.
It only becomes relevant if a prosecution is dismissed under the rule and the prosecutor then attempts to
reprosecute the defendant.
11
[¶37] Unless the district court found that McEwan was unable to pay restitution, it was
required to set the total amount she must repay DFS, and its order to that effect
constituted a judgment upon which DFS could execute. Wyo. Stat. Ann. § 7-9-103(b),
(d) (LexisNexis 2013). However, the legislature has empowered district courts to order a
payment plan only when they place a defendant on probation. Wyo. Stat. Ann. § 7-9-
104(a) (LexisNexis 2013). If a defendant is sent to prison and performs work, the
Department of Corrections is required to place the first $1,000 of her pay in her personal
savings account at the institution where she is held. After that amount has accumulated,
the Department is required to use an inmate’s wages to pay restitution and other court-
ordered financial obligations. Wyo. Stat. Ann. § 7-16-205(a)(i), (v) (LexisNexis 2013).
We are confident the district court will consider these provisions if McEwan is convicted
after remand and incarcerated.
Substitution of Counsel
[¶38] McEwan also argues that her first public defender did not properly withdraw from
her case, that the substitution of her second public defender was therefore also improper,
and that she was prejudiced by the substitution because it delayed her case and adversely
affected the preparation of her defense. While the record suggests that the requirements
of Uniform Rule of District Court 102 were not strictly complied with, McEwan’s not
guilty plea will be restored, and issues relating to her representation in the future can be
addressed by the trial court. We will not therefore address them here.
CONCLUSION
[¶39] We reverse McEwan’s conviction and remand with instructions to reinstate her not
guilty plea because the district court did not advise her at the time of taking her guilty
plea that a felony conviction would prevent her from possessing firearms and being
employed in professions that require the carrying of a firearm. Because McEwan may
choose to go to trial or enter a guilty plea on remand, this Court will not address other
issues she raises relating to the district court’s advice to and colloquy with her at the time
of taking her plea, issues regarding the denial of her motion to withdraw her plea,
restitution, or substitution of counsel. We find no violation of the Sixth Amendment right
to a speedy trial or of the speedy trial provisions of Wyoming Rule of Criminal Procedure
48.
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