Gilber Aldolfo Delgado, Jr. v. The State of Wyoming

IN THE SUPREME COURT, STATE OF WYOMING
2022 WY 61APRIL TERM, A.D. 2022
May 17, 2022
GILBER ALDOLFO DELGADO, JR.,
Appellant
(Defendant),
v. S-20-0273, S-21-0208
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Uinta County
The Honorable Joseph B. Bluemel, Judge
Representing Appellant:
David McCarthy, David McCarthy, P.C., Rawlins, Wyoming.
Representing Appellee:
Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney
General; Joshua C. Eames, Senior Assistant Attorney General; Catherine M.
Mercer, Assistant Attorney General. Argument by Ms. Mercer.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, 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 typographical or other formal errors so correction may be made before final
publication in the permanent volume.
KAUTZ, Justice.
[¶1] After threatening his wife with a knife, Gilber Aldolfo Delgado, Jr., pleaded nolo
contendre (no contest) to one count of felony possession of a deadly weapon with unlawful
intent. Mr. Delgado challenges the district court’s denials of 1) his presentence motion to
withdraw his plea under Wyoming Rule of Criminal Procedure (W.R.Cr.P.) 32(d); and 2)
his subsequent motion to withdraw his plea for ineffective assistance of counsel under
Wyoming Rule of Appellate Procedure (W.R.A.P) 21. We affirm.
ISSUES
[¶2] We restate and reorder Mr. Delgado’s issues as:
1. Did Mr. Delgado establish defense counsel was ineffective for failing to
request a court-ordered mental evaluation to determine if he was
competent before he entered his no contest plea?
2. Did the district court abuse its discretion by denying Mr. Delgado’s
presentence motion to withdraw his no contest plea?
FACTS
[¶3] With Mr. Delgado’s consent, the district court used information from the affidavit
the State filed in support of the criminal information as a factual basis for his no contest
plea. See Dahl v. State, 2020 WY 59, ¶ 3, 462 P.3d 912, 913 (Wyo. 2020) (establishing
the factual basis for the defendant’s no contest pleas from the probable cause affidavit);
McEwan v. State, 2013 WY 158, ¶ 15 n.4, 314 P.3d 1160, 1165 n.4 (Wyo. 2013) (with a
no contest plea, the “factual basis is supplied by the prosecutor, often through reference to
the affidavit supporting the information” (citing Berry v. State, 2004 WY 81, ¶ 39, 93 P.3d
222, 234 (Wyo. 2004))). According to the affidavit, Uinta County Deputy Sheriff Andrew
Kopp was dispatched on November 24, 2019, to a “possible fight in progress occurring in
a vehicle.” As he was responding, Deputy Kopp learned the vehicle had “arrived at a
residence” in Evanston, so he proceeded to that location. He spoke with Mr. Delgado’s
wife who said she was driving the vehicle and Mr. Delgado was in the back seat. Their
two children and an adult female were also passengers in the vehicle. Mrs. Delgado
reported that Mr. Delgado “pull[ed] out” two knives and told her he could slit her throat
and she would suffocate on her own blood. He held one of the knives close to her neck.
Fearing he would “follow through on the threats,” both she and the adult passenger called
911. After they arrived home, Mr. Delgado hid the knives under a snowmobile and told
the children not to talk to the police.
[¶4] The State charged Mr. Delgado with one count of aggravated assault and battery for
threatening to use a drawn deadly weapon on Mrs. Delgado. See Wyo. Stat. Ann. § 6-2-
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502 (a)(iii) and (b) (LexisNexis 2021). Mr. Delgado was represented by a public defender
until his father retained private defense counsel. His father told defense counsel Mr.
Delgado was not behaving normally, was having employment problems, and seemed
depressed.
[¶5] Defense counsel met with Mr. Delgado at the jail. At that time, he was making
statements she considered delusional, including that he was going to “walk on” to the
Denver Broncos football team. Defense counsel advised Mr. Delgado to plead not guilty
by reason of mental illness (NGMI) to the aggravated assault and battery charge and to
obtain a mental evaluation to support that defense. Mr. Delgado said he had already
discussed pleading NGMI with prior counsel and he did not want to pursue that option.
Mr. Delgado entered a plea of not guilty at his arraignment. Defense counsel attended the
arraignment but did not inform the court of her concerns about Mr. Delgado’s mental health
or request a court-ordered mental evaluation.
[¶6] After he was released from jail on bond, Mr. Delgado met with defense counsel at
her office. He was no longer “in the same state he was [in] at the jail.” Defense counsel
described Mr. Delgado as “oriented to time, place. He was very coherent when he talked
to [her].” Defense counsel again brought up the subject of a NGMI plea. She had spoken
with Mrs. Delgado, who confirmed Mr. Delgado’s father’s opinion that Mr. Delgado was
suffering from a mental condition. Defense counsel had also listened to the recording of
the 911 call, which revealed Mrs. Delgado told the dispatcher Mr. Delgado was “acting out
of his mind,” was “crazy,” and needed mental help. Although Mr. Delgado was “very
agreeable” to many of her suggested defense strategies, he did not want to change his plea
to NGMI because of “the stigma that’s attached to the NGMI [plea]” and he could be
indefinitely confined in the Wyoming State Hospital if he were successful in defending on
that basis.
[¶7] Defense counsel negotiated a plea agreement with the State wherein Mr. Delgado
would plead no contest to a reduced charge of possession of a deadly weapon with “intent
to unlawfully threaten the life or physical well-being of another[.]” Wyo. Stat. Ann. § 6-
8-103 (LexisNexis 2021). The amended charge was still a felony, but unlike the original
aggravated assault and battery charge, it was not considered a violent felony and carried a
maximum sentence of five years in prison rather than 10 years. Compare § 6-8-103
(possession of a deadly weapon with unlawful intent) with § 6-2-502(b) (aggravated assault
and battery). See also, Wyo. Stat. Ann. § 6-1-104(a)(xii) (LexisNexis 2021) (“‘Violent
felony’ means murder, manslaughter, kidnapping, sexual assault in the first or second
degree, robbery, aggravated assault, strangulation of a household member, aircraft
hijacking, arson in the first or second degree, aggravated burglary, a violation of W.S. 6-
2-314(a)(i) or 6-2-315(a)(ii) or a third, or subsequent, domestic battery under W.S. 6-2-
511(a) and (b)(iii))[.]”). The parties also agreed to a prison sentence of one to three years,
suspended in favor of two years of supervised probation.
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[¶8] The district court accepted Mr. Delgado’s no contest plea. It found he knowingly
and voluntarily entered the plea after conferring “with competent counsel that he [was]
satisfied with” and he was “competent to enter into the plea agreement as well as to plead
no contest to the amended charge.” The court deferred sentencing at the request of defense
counsel. Just two days after pleading guilty, Mr. Delgado’s employer informed him he
would be terminated from his employment if he was convicted of a felony.
[¶9] In preparation for sentencing, defense counsel recommended Mr. Delgado obtain a
mental evaluation. He was evaluated by Brian Petrovich, a licensed clinical psychologist,
on March 27 and April 7, 2020. Mr. Petrovich diagnosed Mr. Delgado with moderate
alcohol use disorder and moderate major depressive disorder. After this mental evaluation
but prior to obtaining Mr. Petrovich’s report, Mr. Delgado was arrested for driving while
under the influence of alcohol. He entered an inpatient “dual diagnosis” (substance abuse
and mental health) treatment program and was diagnosed by psychiatrist Duy Pham, M.D.,
with severe alcohol use disorder and bipolar I disorder, for which he was prescribed
medication.
[¶10] After being discharged from inpatient treatment, Mr. Delgado filed a motion to
withdraw his no contest plea pursuant to W.R.Cr.P. 32(d). He maintained he should be
allowed to withdraw the plea because
[he] believe[d] at the time of the incident which resulted in this
charge . . . and [at the] change of plea hearing . . ., he was
experiencing an episode of manic behavior and did not
understand the extent of his actions, was unable to determine
right from wrong[,] and was further unable to conform his
conduct to the appropriate conduct.
He also indicated he wanted to withdraw his plea because a felony conviction would
prevent him from continuing his current employment. After a hearing, the district court
denied Mr. Delgado’s motion to withdraw his no contest plea and sentenced Mr. Delgado
to the parties’ agreed upon sentence. Mr. Delgado filed a notice of appeal, which we
docketed as S-20-0273.
[¶11] Mr. Delgado then filed a motion to withdraw his plea pursuant to W.R.A.P. 21,
which states: “Following the docketing of a direct criminal appeal, the appellant may file,
in the trial court, a motion claiming ineffective assistance of trial counsel. The motion may
be used to seek a new trial or to seek plea withdrawal.” Mr. Delgado claimed his trial
counsel was ineffective because she did not request “he be evaluated pursuant to [Wyo.
Stat. Ann. §] 7-11-303 . . . [t]o determine if he was competent to proceed prior to entering
his no contest plea.” We stayed the briefing on Mr. Delgado’s appeal in S-20-0273 pending
the district court’s decision on the Rule 21 motion. After holding a hearing on Mr.
Delgado’s Rule 21 motion, the district court issued findings of fact, conclusions of law,
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and an order denying Mr. Delgado’s motion. Mr. Delgado appealed that decision as well.
We docketed the case as S-21-0208, lifted the stay in S-20-0273, and consolidated the two
appeals for briefing and decision.
DISCUSSION
A. Denial of W.R.A.P. 21 Motion - Ineffective Assistance of Counsel
[¶12] The Sixth Amendment to the United States Constitution and Art. 1, § 10 of the
Wyoming Constitution guarantee a criminal defendant effective assistance of trial counsel.
To demonstrate defense counsel was ineffective, the appellant must show counsel’s
performance was deficient and the deficient performance prejudiced his defense. Griggs
v. State, 2016 WY 16, ¶ 36, 367 P.3d 1108, 1124 (Wyo. 2016) (citing Cooper v. State,
2014 WY 36, ¶¶ 19-20, 319 P.3d 914, 920 (Wyo. 2014), and Strickland v. Washington, 466
U.S. 668, 690-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). If the appellant fails to make
the required showing of either deficient performance or prejudice, he cannot establish
defense counsel was ineffective. Weston v. State, 2019 WY 113, ¶ 35, 451 P.3d 758, 768
(Wyo. 2019) (citing Osborne v. State, 2012 WY 123, ¶ 19, 285 P.3d 248, 252 (Wyo. 2012)).
[¶13] “‘Claims of ineffective assistance of counsel [under W.R.A.P. 21] involve mixed
questions of law and fact . . . .’” Weston, ¶ 34, 451 P.3d at 768 (quoting Hibsman v. State,
2015 WY 122, ¶ 14, 355 P.3d 1240, 1244 (Wyo. 2015)). “The district court’s ‘conclusions
of law, which include the question of whether counsel’s conduct was deficient and the
question of whether the appellant was prejudiced by that deficient conduct,’ are
reviewed de novo.” Sides v. State, 2021 WY 42, ¶ 34, 483 P.3d 128, 137 (Wyo. 2021)
(quoting Mellott v. State, 2019 WY 23, ¶ 11, 435 P.3d 376, 381-82 (Wyo. 2019), and
Griggs, ¶ 37, 367 P.3d at 1124 (some quotation marks omitted)). The district court’s
findings of fact will not be overturned on appeal unless they are clearly erroneous. Mellott,
¶ 11, 435 P.3d at 382 (citing Griggs, ¶ 37, 367 P.3d at 1124 and Cooper, ¶ 20, 319 P.3d at
920).
[¶14] Mr. Delgado asserts his counsel’s performance was deficient because she did not
adequately investigate a NGMI defense and failed to ensure he was competent to enter his
no contest plea. “To prove deficient performance, the appellant must show ‘counsel failed
to render such assistance as would have been offered by a reasonably competent
attorney.’” Weston, ¶ 36, 451 P.3d at 768 (quoting Cooper, ¶ 19, 319 P.3d at 920). We
“‘invoke[ ] a strong presumption that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable judgment. [T]he paramount
determination is whether, in light of all the circumstances, trial counsel’s acts or omissions
were outside the wide range of professionally competent assistance.’” Winters v. State,
2019 WY 76, ¶ 11, 446 P.3d 191, 199 (Wyo. 2019) (quoting Schreibvogel v. State, 2010
WY 45, ¶ 47, 228 P.3d 874, 889 (Wyo. 2010) (other citations and quotations marks
4
omitted)). See also, Neidlinger v. State, 2021 WY 39, ¶ 53, 482 P.3d 337, 352 (Wyo.
2021).
“‘[C]ounsel has a duty to make reasonable investigations or to
make a reasonable decision that makes particular
investigations unnecessary. * * * The reasonableness of
counsel’s actions may be determined or substantially
influenced by the defendant’s own statements or actions.
Counsel’s actions are usually based, quite properly, on
informed strategic choices made by the defendant and on
information supplied by the defendant. * * * [W]hat
investigation decisions are reasonable depends critically on
such information. * * * ’ Strickland v. Washington, [466 U.S.
at 691,] 104 S.Ct. at 2066.”
Keats v. State, 2005 WY 81, ¶ 20, 115 P.3d 1110, 1118 (Wyo. 2005) (quoting Asch v. State,
2003 WY 18, ¶ 40, 62 P.3d 945, 958 (Wyo. 2003) (emphasis omitted)).
[¶15] Wyo. Stat. Ann. § 7-11-304(a) (LexisNexis 2021) sets the standard for a NGMI
defense:
(a) A person is not responsible for criminal conduct if at the
time of the criminal conduct, as a result of mental illness or
deficiency, he lacked substantial capacity either to appreciate
the wrongfulness of his conduct or to conform his conduct to
the requirements of law. As used in this section, the terms
mental illness or deficiency mean only those severely
abnormal mental conditions that grossly and demonstrably
impair a person’s perception or understanding of reality and
that are not attributable primarily to self-induced intoxication
as defined by W.S. 6-1-202(b).
[¶16] We considered a defense counsel’s failure to investigate a NGMI defense in Keats,
2005 WY 81, 115 P.3d 1110. Mr. Keats was charged with arson for setting fire to his
home. Id., ¶ 3, 115 P.3d at 1113. He had a long history of mental problems and an
“inability to stabilize his moods,” with diagnoses of major depressive disorder, reality
distortion, substance use abuse, and bipolar disorder. Id., ¶¶ 4-5, 115 P.3d at 1114. Mr.
Keats and his mother expressed interest in pursuing an insanity defense, but defense
counsel recommended against it and did not have Mr. Keats evaluated under § 7-11-304.
Id., ¶¶ 6, 24, 115 P.3d at 1114. At a post-conviction hearing, a psychiatrist testified that
when Mr. Keats committed the arson he was unable, due to mental illness, to “distinguish
between right and wrong with respect to his behavior[] or to conform his behavior to the
requirements of the law.” Id., ¶ 7, 115 P.3d at 1114. We concluded defense counsel’s
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performance was deficient because, although Mr. Keats was interested in pursuing a NGMI
defense and there was ample evidence he was mentally ill at the time of the crime, defense
counsel failed to investigate it. Id., ¶ 24, 115 P.3d at 1119-20. Unlike Mr. Keats, Mr.
Delgado unequivocally opposed a NGMI defense prior to entering his no contest plea.
[¶17] In McLaren v. State, we ruled a competent criminal defendant has a due process
right to decide on his plea and defense counsel cannot usurp his choice by entering a plea
of NGMI without his consent. McLaren v. State, 2017 WY 154, ¶¶ 47-51, 62, 407 P.3d
1200, 1212-13, 1215 (Wyo. 2017), overruled on other grounds by Snyder v. State, 2021
WY 108, 496 P.3d 1239 (Wyo. 2021). See also, Pickering v. State, 2020 WY 66, ¶ 75
n.17, 464 P.3d 236, 259 n.17 (Wyo. 2020) (a NGMI plea cannot be entered by counsel over
the objection of a defendant). Thus, as long as he was competent, Mr. Delgado was entitled
to choose to plead no contest and to reject defense counsel’s advice to plead NGMI and
undergo a mental evaluation in furtherance of the defense. McLaren, ¶ 51, 407 P.3d at
1213. C.f., Follett v. State, 2006 WY 47, ¶ 8, 132 P.3d 1155, 1158 (Wyo. 2006) (“A
criminal defendant may not be tried unless he is competent, and he may not waive his right
to counsel or plead guilty unless he can do so competently and intelligently.” (quoting
Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993))) (other
citations and quotation marks omitted). The question, then, is whether defense counsel
provided deficient representation to Mr. Delgado by allowing him to enter his no contest
plea without first seeking a court-ordered competency evaluation.
[¶18] The standard for competency to proceed in a criminal case is set out in Wyo. Stat.
Ann. § 7-11-302 (LexisNexis 2021):
(a) No person shall be tried, sentenced or punished for the
commission of an offense while, as a result of mental illness or
deficiency, he lacks the capacity, to:
(i) Comprehend his position;
(ii) Understand the nature and object of the proceedings
against him;
(iii) Conduct his defense in a rational manner; and
(iv) Cooperate with his counsel to the end that any
available defense may be interposed.
[¶19] Under Wyo. Stat. Ann. § 7-11-303(a) and (b) (LexisNexis 2021), “[i]f it appears at
any stage of a criminal proceeding . . . there is reasonable cause to believe the accused has
a mental illness or deficiency making him unfit to proceed,” a mental health examination
is required. We have interpreted § 7-11-303 as placing “great responsibility” on the
prosecutor, defense counsel, and the district court to ensure a defendant is fit to proceed.
deShazer v. State, 2003 WY 98, ¶ 26, 74 P.3d 1240, 1251 (Wyo. 2003), overruled on other
grounds by Snyder v. State, 2021 WY 108, 496 P.3d 1239 (Wyo. 2021). See also, Potter
v. State, 2007 WY 83, ¶ 20, 158 P.3d 656, 661-62 (Wyo. 2007) (the district court and
6
counsel have an obligation to raise the issue of a criminal defendant’s competence to
proceed when warranted). If the defendant is not fit, the proceedings are suspended
pending mental health treatment to restore his competency. Sections 7-11-303(g)(i)(B)(II),
(D), and (g)(ii). See also, W.R.Cr.P. 12(c) (“If it appears at any stage of a criminal
proceeding by motion or upon the court’s own motion, that there is reasonable cause to
believe that the defendant has a mental illness or deficiency making the defendant unfit to
proceed, all further proceedings shall be suspended and an examination ordered as required
by W.S. 7-11-301, et seq.”). Once the defendant regains competency, “the criminal
proceeding shall be resumed.” Section 7-11-303(g)(ii). See also, § 7-11-303(g)(i)(C) (if a
defendant is deemed fit, “the court shall proceed with the trial or any other procedures as
may be necessary to adjudicate the charges”). Thus, the concept of fitness or competence
to proceed in court is fluid.
[¶20] Mr. Delgado compares his case to deShazer. There, we concluded defense counsel’s
performance was deficient, in part, because he failed to request the court suspend the trial
and order Mr. deShazer to be evaluated for competence. deShazer, ¶ 31, 74 P.3d at 1252-
53. Defense counsel informed the district court during the trial that Mr. deShazer was
“extremely depressed” and was “unable to concentrate or do the things necessary to get
ready for trial.” Id., ¶ 21, 74 P.3d at 1249. He expressed concern that Mr. deShazer “was
not ‘capable’ of assisting counsel in his defense nor was he ‘capable’ of testifying in his
own defense[.]” Id. A psychiatrist who evaluated Mr. deShazer for the defense during a
weekend break in the trial informed the court that Mr. deShazer “lacked the mental capacity
to assist in some respects with his defense[.]” Id., ¶ 23, 74 P.3d at 1250. Under those
circumstances, Mr. deShazer’s counsel performed deficiently by not requesting a court-
ordered evaluation of his competence. Id., ¶ 31, 74 P.3d at 1252-53.
[¶21] Defense counsel for Mr. Delgado faced a much different situation than Mr.
deShazer’s counsel. Although Mr. Delgado made delusional statements while in jail, those
symptoms of incompetence did not persist. The district court appropriately found:
[Defense counsel’s] concern was about her client’s mental
health at the time of the offense, not whether he was able to
understand his circumstances and assist in his defense. By the
time he was released on bond and met with [defense counsel]
at her office, [Mr.] Delgado’s mental condition had changed.
He understood what [defense counsel] recommended and he
reviewed discovery with her, including the 911 tapes. He was
cooperative with any strategy that she presented in defending
him except getting an evaluation and pursuing the NGMI plea.
There was no evidence that, at any point between when Mr. Delgado was released from
jail and when he entered his no contest plea, defense counsel had reasonable cause to
believe Mr. Delgado had a mental illness or deficiency which undermined his capacity to
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comprehend his position, understand the proceedings against him, conduct his defense in
a rational manner, or cooperate with defense counsel. See § 7-11-302(a).
[¶22] Mr. Delgado claims the fact that he refused to follow defense counsel’s advice to
enter a NGMI plea is evidence he lacked competence. He cites no authority for his
assertion. In Simmons v. Luebbers, 299 F.3d 929, 934 (8th Cir. 2002), the Eighth Circuit
ruled defense counsels’ performance was acceptable even though they did not take
additional steps to investigate Mr. Simmons’ fitness after prior evaluations failed to
conclusively establish his competence. Simmons, 229 F.3d at 933-34. Defense counsels’
decision not to request additional evaluations was reasonable because Mr. Simmons had
refused to cooperate with evaluators in previous attempts to have him evaluated. Id.
Furthermore, defense counsel did not observe any signs Mr. Simmons was incompetent
such as unusual behavior or difficulty communicating. Id. The Eighth Circuit’s ruling
establishes that a defendant’s refusal to obtain a mental evaluation suggested by counsel is
not necessarily evidence of incompetence. See Fautenberry v. Mitchell, 515 F.3d 614, 625
(6th Cir. 2008) (“Counsels’ inability to discover or establish organic brain damage [was]
directly attributable to [the defendant’s] refusal to cooperate, rather than any insufficiency
in the investigation”). Mr. Delgado’s refusal to cooperate in pursuing a NGMI defense,
without other evidence of incompetency, did not obligate defense counsel to request an
evaluation.
[¶23] Because Mr. Delgado rejected a NGMI plea, defense counsel negotiated a plea
agreement with the State which allowed Mr. Delgado to: 1) plead no contest to unlawful
possession of a deadly weapon, which was a nonviolent felony with a lower maximum
sentence than the original aggravated assault charge; and 2) receive a suspended sentence.
To obtain those favorable terms from the State, defense counsel cited Mr. Delgado’s family
obligations, prior work history, former good standing in the community, and concerns
about his mental health at the time of the incident. Thus, defense counsel made effective
use of Mr. Delgado’s mental condition, while representing him within the confines of his
instructions.
[¶24] In sum, although defense counsel potentially could have requested Mr. Delgado be
evaluated for competence to proceed when he was making delusional statements at the jail,
that circumstance was short-lived. From the time he was released on bond through his no
contest plea, there was no indication Mr. Delgado lacked the capacity to rationally decide
whether to follow or reject defense counsel’s advice to plead NGMI. Given competency
is fluid, Mr. Delgado has not established defense counsel failed to perform as a reasonably
competent attorney by not requesting an evaluation before he entered his no contest plea
to the lesser charge. See Weston, ¶ 36, 451 P.3d at 768 (“To prove deficient performance,
the appellant must show counsel failed to render such assistance as would have been
offered by a reasonably competent attorney.”) (citation and quotation marks omitted);
Winters, ¶¶ 11-12, 446 P.3d at 199 (we consider whether trial counsel’s acts or omissions
were outside the wide range of professionally competent assistance) (citation and quotation
8
marks omitted). Because Mr. Delgado failed to demonstrate defense counsel’s
performance was deficient, the district court correctly denied his motion to withdraw his
plea under W.R.A.P. 21.
B. Denial of Motion to Withdraw No Contest Plea Under W.R.Cr.P. 32(d)
[¶25] W.R.Cr.P. 32(d) governs presentence motions to withdraw guilty or no contest
pleas: “If a motion for withdrawal of a plea of guilty or nolo contendere is made before
sentence is imposed, the court may permit withdrawal of the plea upon a showing by the
defendant of any fair and just reason.” “‘The defendant has the burden of establishing a
fair and just reason’” to withdraw a plea under W.R.Cr.P. 32(d). Wanberg v. State, 2020
WY 75, ¶ 15, 466 P.3d 269, 273 (Wyo. 2020) (quoting Steffey v. State, 2019 WY 101, ¶
30, 449 P.3d 1100, 1107-08 (Wyo. 2019)) (other citations omitted).
[¶26] In determining whether the district court erred by denying a Rule 32(d) motion to
withdraw, this Court treats no contest pleas like guilty pleas. Winsted v. State, 2010 WY
139, ¶ 7, 241 P.3d 497, 499 (Wyo. 2010) (citing Major v. State, 2004 WY 4, ¶ 11, 83 P.3d
468, 472 (Wyo. 2004)). We review the district court’s denial of a defendant’s Rule 32(d)
motion to withdraw his plea for abuse of discretion. Wanberg, ¶ 14, 466 P.3d at 273
(citations omitted)). See also, Steffey, ¶ 38 n.11, 449 P.3d at 1110 n.11 (“‘A defendant has
no absolute right to withdraw a plea of guilty before sentence is imposed, and where the
strictures of W.R.Cr.P. 11 have been met, and the defendant intelligently, knowingly, and
voluntarily entered into his plea of guilty, the district court’s decision to deny such a motion
is within its sound discretion.’” (quoting Frame v. State, 2001 WY 72, ¶ 7, 29 P.3d 86, 89
(Wyo. 2001)) (emphasis and other citations omitted). The core of our inquiry is the
reasonableness of the district court’s decision. Russell v. State, 2013 WY 137, ¶ 9, 312
P.3d 76, 78 (Wyo. 2013) (citing Jackson v. State, 2012 WY 56, ¶ 6, 273 P.3d 1105, 1107
(Wyo. 2012)). “‘A court abuses its discretion only when it could not reasonably decide as
it did.’” Wanberg, ¶ 14, 466 P.3d at 273 (quoting Steffey, ¶ 18, 449 P.3d at 1105). In
conducting our review, we accept the district court’s findings of fact unless they are clearly
erroneous. Russell, ¶ 9, 312 P.3d at 78 (citing Dobbins v. State, 2012 WY 110, ¶ 30, 298
P.3d 807, 815 (Wyo. 2012)).
[¶27] We have identified a nonexclusive list of seven factors, often referred to as the
Frame factors, to assist courts in determining whether a defendant has established a fair
and just reason to withdraw his plea. Wanberg, ¶ 16, 466 P.3d at 273 (citing Frame, ¶ 7,
29 P.3d at 89). The factors are:
“(1) Whether the defendant has asserted his innocence; (2)
whether the government would suffer prejudice; (3) whether
the defendant has delayed in filing his motion; (4) whether
withdrawal would substantially inconvenience the court; (5)
whether close assistance of counsel was present; (6) whether
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the original plea was knowing and voluntary; and (7) whether
the withdrawal would waste judicial resources.”
Id. (quoting Frame, ¶ 7, 29 P.3d at 89) (other citations omitted). “‘No single factor is
dispositive, and the ultimate determination on the motion is based upon whether the
defendant has carried his burden of establishing a fair and just reason for withdrawal.’”
Russell, ¶ 20, 312 P.3d at 82 (quoting Dobbins, ¶ 53, 298 P.3d at 822, and Major, ¶ 14, 83
P.3d at 473) (emphasis omitted).
[¶28] The district court evaluated Mr. Delgado’s motion to withdraw his guilty plea using
the Frame factors. It ruled Factors 2, 4, and 7 were irrelevant to its determination. As to
the remaining factors, the district court ruled Mr. Delgado did not assert his innocence
(Factor 1); he delayed in filing his motion to withdraw (Factor 3); he had the close
assistance of counsel in making his plea (Factor 5); and he entered into his no contest plea
knowingly and voluntarily (Factor 6). Mr. Delgado does not claim the district court abused
its discretion by assigning no weight to Factors 2, 4, and 7. Instead, he argues the district
court abused its discretion when it improperly evaluated the other factors and determined
he did not present a fair and just reason to withdraw his no contest plea.
Factor 1 – Assertion of Innocence
[¶29] The district court ruled Mr. Delgado had not asserted he was innocent of the crime
because he agreed, at his change of plea hearing, that the allegations in the affidavit
supporting the criminal information established a factual basis for his no contest plea. Mr.
Delgado correctly points out that his admission to the underlying allegations does not
control the question of whether he asserted his innocence. His argument is that, regardless
of whether the allegations are true or his actions met the elements of the crime, his mental
illness was a complete defense under § 7-11-304(a), which relieves a person of
responsibility for his criminal conduct if, “as a result of mental illness or deficiency, he
lacked substantial capacity either to appreciate the wrongfulness of his conduct or to
conform his conduct to the requirements of law.” Id.
[¶30] We, therefore, consider whether Mr. Delgado properly asserted in his motion to
withdraw his plea that he was not guilty by reason of mental illness. To do so, he was
obligated to present nonspeculative, credible evidence of his defense. Russell, ¶¶ 22-23,
312 P.3d at 82-83 (citing United States v. Byrum, 567 F.3d 1255, 1264-1265 (10th Cir.
2009) (the “mere assertion of a legal defense is insufficient; the defendant must present a
credible claim of legal innocence” (other citations and quotation marks omitted), and
United States v. Ludwig, 972 F.2d 948, 951 (8th Cir. 1992) (“a mere assertion of innocence,
absent a substantial supporting record, will not be sufficient to overturn a denial of a motion
to withdraw”)).
10
[¶31] In Haddock v. State, 909 P.2d 974, 975-76 (Wyo. 1996), Mr. Haddock sought to
withdraw his guilty pleas to fraudulent use of his parents’ credit card and a check on the
grounds he was incompetent when he entered his pleas and/or that he was not guilty by
reason of mental illness. The evidence in support of his motion to withdraw included a
probation agent’s report that Mr. Haddock was suffering from extreme stress and
psychological difficulties when the agent interviewed him for the presentence
investigation. Id. at 976. Mr. Haddock believed law enforcement had surgically placed a
device in his leg to track him and it was causing unusual magnetic occurrences. Id. He
also said he took his parents’ credit card and the check “so that he could force [them] to
give him certain family information.” Id. We ruled the evidence of Mr. Haddock’s state
of mind during the presentence investigation did not pertain to his competence when he
entered his pleas or when he committed his crimes. Id. Moreover, the testimony about his
unusual motives for committing the crimes did not support a mental illness or deficiency
defense. Id. Mr. Haddock, therefore, failed to present reliable evidence of his innocence
to support his motion to withdraw his pleas. Id. See also, Wilkening v. State, 2005 WY
127, ¶¶ 18-21, 120 P.3d 680, 685-87 (Wyo. 2005) (the district court did not err by denying
the defendant’s request to change his plea to NGMI based only upon his attorney’s
assertion the defendant was suffering from “methamphetamine psychosis” when he
committed the crime).
[¶32] The evidence presented by Mr. Delgado in support of his motion to withdraw his no
contest plea is similarly speculative. Mr. Delgado asserted that he “believe[d], at the time
of the incident which resulted in his charge[,] . . . he was experiencing an episode of manic
behavior and did not understand the extent of his actions, was unable to determine right
from wrong and was further unable to conform his conduct to the appropriate conduct.”
Mr. Delgado’s opinion, alone, merely asserts a legal defense and does not constitute a
credible claim of legal innocence. Without reliable evidence, his subjective belief about
his mental state was insufficient to support his motion to withdraw his plea. See Haddock,
909 P.2d at 976; Wilkening, ¶¶ 18-21, 120 P.3d at 686-87.
[¶33] The psychological reports submitted by Mr. Delgado in support of his motion to
withdraw did not provide credible evidence of a NGMI defense. While they indicated he
may have been suffering from a mental illness when he committed the crime, the presence
of a mental illness, alone, is insufficient to release him from criminal responsibility for his
actions. In accordance with § 7-11-304(a), Mr. Delgado was obligated to establish his
mental illness or deficiency deprived him of the capacity to understand the wrongfulness
of his conduct or to conform his conduct to the law.
[¶34] Psychologist Petrovich diagnosed Mr. Delgado with alcohol use disorder and
depression. Mr. Delgado claims the Petrovich report supports a NGMI plea because it said
he was, at the time of the evaluation in March and April 2020, in a “significant depressive
state.” The report stated his “depressive experience [was] creating a mental dullness, where
he will tend to be unresponsive to others, may have some underlining (sic) distrust of [his]
11
own psychological functioning due to being overly distracted, lacking judgment at times,
and reports of problems with memory.” However, as in Haddock, the psychological report
did not pertain to his mental state at the time he committed the crime. Additionally, there
is nothing in the report indicating Mr. Delgado was, as a result of his mental illness, unable
to appreciate the wrongfulness of his conduct or conform his actions to the law at the time
of the offense. In fact, the report stated Mr. Delgado’s evaluation results did “not indicate
any antisocial personality disorder traits [or] any problems with overall anger reactivity or
any overcontrolled hostile thoughts. It [was] more likely that he [became] significantly
irritated and then [could] at times, become more impulsive in his reaction.” Moreover, the
report indicated that Mr. Delgado’s criminal actions may have led to his mental illness
rather than vice versa. It stated Mr. Delgado’s “increase in depression is likely a direct
result of the incident where he and his wife became argumentative and determined (sic) to
a physical altercation that resulted in him . . . facing legal problems.”
[¶35] Dr. Pham, the psychiatrist who diagnosed Mr. Delgado with bipolar I disorder, also
did not link Mr. Delgado’s mental illness to a lack of capacity to distinguish right from
wrong or an inability to control his actions at the time of the crime. Dr. Pham’s evaluation
stated Mr. Delgado reported past symptoms consistent with a bipolar manic state, including
periods of little sleep while still feeling energetic, “overtly goal-directed behavior[,] and
grandiosity including belief that he could” play professional sports. With regard to the link
between his bipolar disorder and his criminal actions, however, the psychiatrist stated Mr.
Delgado “has significant legal issues at this point[;] however[,] the jail time may or may
not have been directly related to a manic episode.” Although the report indicated he could
be more impulsive during manic episodes, it did not state he lost the ability to control his
behavior.
[¶36] The mental health evaluations did not provide reliable evidence that Mr. Delgado
was not guilty because of his mental illness. His conclusory statement that he believed he
was in a manic episode when he threatened Mrs. Delgado with the knife did not establish
he was unable to appreciate the wrongfulness of his conduct or conform his behavior to the
law. Therefore, while we do not agree with the district court’s rationale, we do agree that
Mr. Delgado did not properly assert his innocence and Factor 1 weighs against allowing
him to withdraw his plea.
Factor 3 – Delay in Filing Motion to Withdraw Plea
[¶37] The district court ruled the third Frame factor weighed slightly against allowing Mr.
Delgado to withdraw his plea because he delayed in notifying the court of his “intent to
withdraw [the] plea herein related to both concerns[,] employment as well as diagnosis of
a mental illness.” Mr. Delgado pleaded no contest to the reduced charge on February 25,
2020. He became aware of the effect a felony conviction would have on his employment
just two days later, on February 27, 2020, but he waited to file his motion to withdraw his
plea until June 4, 2020, which was only one week before his scheduled sentencing.
12
[¶38] We have concluded similar delays weighed against allowing withdrawal of pleas.
In Van Haele v. State, 2004 WY 59, ¶ 33, 90 P.3d 708, 717 (Wyo. 2004), the district court
correctly found the defendant delayed in filing a motion to withdraw his plea by waiting
for two months after entering his plea and until the district court announced at his
sentencing it intended to approve the parties’ plea agreement. In McCard v. State, 2003
WY 142, ¶ 11, 78 P.3d 1040, 1043 (Wyo. 2003), we agreed with the district court that the
defendant unduly delayed in filing his motion to withdraw his no contest plea by waiting
until three months after he entered it and just three days before sentencing. To the extent
Mr. Delgado’s motion to withdraw was based upon the employment consequences of his
plea, we agree with the district court that Mr. Delgado unduly delayed in filing it.
[¶39] However, Mr. Delgado’s primary argument in favor of allowing him to withdraw
his plea was he was not criminally responsible for his conduct because of his bipolar
condition. He was diagnosed as bipolar on April 29, 2020, and was released from treatment
on May 27, 2020. Defense counsel received the mental evaluation with the bipolar
diagnosis at the end of May or the beginning of June. Mr. Delgado filed his motion to
withdraw his plea a few days later, on June 4, 2020. Even though the district court found
Mr. Delgado did not have “any idea of the issue of manic depressive or bipolar disorders
until [he was] in treatment,” it ruled he delayed in filing his motion to withdraw. We
conclude differently. The record shows he acted promptly in meeting with his attorney and
filing his motion once he was released from treatment and the mental illness evaluation
became available. Because he delayed in filing a motion to withdraw his plea for
employment reasons, but he did not delay in filing his motion to withdraw based upon his
mental diagnosis, we conclude Factor 3 is neutral – it neither supports nor weighs against
granting the motion.
Factor 5 – Close Assistance of Counsel
[¶40] As we explained in detail above, Mr. Delgado’s counsel was effective. However,
under our case law, although ineffective assistance of counsel may provide a fair and just
reason to withdraw a no contest plea, counsel does not have to be constitutionally
ineffective to fail the Frame requirement of close assistance of counsel. Compare Ortega-
Araiza v. State, 2014 WY 99, ¶ 25, 331 P.3d 1189, 1198-99 (Wyo. 2014) (“‘the claim of
ineffective assistance of counsel does constitute a fair and just reason to grant [a] motion
to withdraw’” (quoting Brock v. State, 981 P.2d 465, 469-70 (Wyo. 1999)), with Steffey, ¶
33, 449 P.3d at 1108-09 (“While ineffective assistance of counsel ‘may constitute a fair
and just reason to grant a motion to withdraw,” Frame, ¶ 8, 29 P.3d at 89, we have never
held that a defendant must satisfy the Strickland standard in order to establish the fifth
Frame factor.”). Instead, the close assistance of counsel factor under Frame requires
“counsel’s assistance to be adequate and available.” Steffey, ¶ 35, 449 P.3d at 1109 (citing
Doles v. State, 2002 WY 146, ¶ 22, 55 P.3d 29, 33 (Wyo. 2002)) (other citations omitted).
13
[¶41] Mr. Delgado does not assert his attorney refused to meet with him, ignored any of
his requests, or was otherwise unavailable to assist him like in Steffey, ¶ 36, 449 P.3d at
1109. He also does not claim his relationship with defense counsel was contentious or
lacked communication like in Major, ¶ 17, 83 P.3d at 474. His argument is that defense
counsel failed to adequately address his mental state. As we explained above, the facts do
not support his claim that defense counsel should have requested a court-ordered
competency evaluation. Defense counsel adequately assisted Mr. Delgado by trying to
persuade him to plead NGMI. Failing that, she negotiated a favorable plea agreement. The
district court’s conclusion that Mr. Delgado did not establish he lacked the close assistance
of counsel is supported by the record. The court properly determined that Factor 5 weighed
against allowing him to withdraw his no contest plea.
Factor 6 – Knowing and Voluntary Plea
[¶42] Like a guilty plea, a no contest plea must be entered by a defendant knowingly and
voluntarily. Steffey, ¶ 19, 449 P.3d at 1105; Dobbins, ¶¶ 30, 62, 298 P.3d at 815, 824. For
a plea to be knowing, the court must properly advise the defendant and ensure he
understands the “nature of the plea, the penalties, including the potential maximum
sentence[] associated with the charge he would be pleading to, the rights he would be
relinquishing, and the consequences if the court accept[s] the plea.” Major, ¶ 23, 83 P.3d
at 479 (citing W.R.Cr.P. 11). Under W.R.Cr.P. 11(d), a plea is voluntary when it is
“‘entered by one fully aware of the direct consequences,
including the actual value of any commitments made to him by
the court, prosecutor, or his own counsel, [is not] induced by
threats (or promises to discontinue improper harassment),
misrepresentation (including unfulfilled or unfulfillable
promises), or . . . by promises that are by their nature improper
as having no proper relationship to the prosecutor’s business
(e.g. bribes).’”
Dobbins, ¶ 62, 298 P.3d at 824 (quoting Major, ¶ 11, 83 P.3d at 472, and Brady v. United
States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970)) (other citations
omitted).
[¶43] The district court stated in its order denying Mr. Delgado’s motion to withdraw his
plea that it had reviewed the pleadings, the change of plea hearing transcript, the evidence
proffered by the parties, and the arguments of counsel. It found that, when Mr. Delgado
changed his plea: 1) he was “properly advised of the charges, consequences of conviction
and his rights in relation to this matter”; 2) he was “competent, cooperative, articulate and
cogent in his responses to the [c]ourt and aided his counsel throughout the proceeding”;
and 3) he did not demonstrate or raise any concern about “manic behavior or [an] inability
to comprehend the nature and content of the proceeding.”
14
[¶44] Mr. Delgado does not assert the district court failed to follow the Rule 11 procedure
at his change of plea hearing, and the record confirms the court complied with the rule.
The court carefully reviewed with Mr. Delgado the amended charge, the terms of the plea
agreement, the court’s ability to accept or reject the agreement, the rights he would waive
if he pleaded no contest, and the potential consequences of his plea. Mr. Delgado
repeatedly stated he understood the terms of the plea agreement and the consequences of
pleading no contest. Mr. Delgado also does not claim the prosecutor or his attorney
improperly induced him to enter a no contest plea. When the district court questioned him
on that very issue at the change of plea hearing, he denied any such pressure.
[¶45] Mr. Delgado argues, instead, it was unreasonable for the district court to find he was
competent to plead by relying on its “subjective review” of the change of plea hearing
transcript. Mr. Delgado provides no authority to support his position that it was improper
for the court to review the hearing transcript. In fact, the change of plea transcript often
plays an important role in determining whether a defendant should be allowed to withdraw
his plea. See, e.g., Steffey, ¶¶ 21-28, 449 P.3d at 1105-07 (reviewing the transcript of the
change of plea proceedings); Kruger v. State, 2012 WY 2, ¶ 39, 268 P.3d 248, 256 (Wyo.
2012) (quoting the district court’s recount of what took place at the change of plea hearing);
Major, ¶ 18, 83 P.3d at 474-77 (providing a detailed description of the testimony at the
change of plea hearing).
[¶46] Moreover, Mr. Delgado did not provide any evidence showing he was unable to
understand or consent to the plea. Mr. Delgado specifically denied at the change of plea
hearing that he suffered from “any disability, disorder, [or] ailment” which would prevent
him from being able to understand and participate in the proceeding. As we explained
earlier, the record shows Mr. Delgado suffered from mental illness; however, neither the
mental evaluations nor any other evidence provided by Mr. Delgado indicated he was
incompetent under § 7-11-302 when he entered his no contest plea. The simple fact he
declined to follow his attorney’s original advice to plead NGMI does not change the
outcome. The totality of the circumstances shows Mr. Delgado entered his plea knowingly
and voluntarily.
[¶47] Although our analysis of the Frame factors differs slightly from the district court’s,
we conclude it acted within its sound discretion by denying Mr. Delgado’s Rule 32(d)
motion to withdraw his plea. Given Mr. Delgado did not adequately profess his innocence,
entered his no contest plea knowingly and voluntarily and with the close assistance of
counsel, and the other factors do not weigh in favor of or against his motion, the district
court properly concluded Mr. Delgado did not present a fair and just reason to withdraw
his no contest plea.
CONCLUSION
15
[¶48] Because Mr. Delgado did not show defense counsel performed deficiently by failing
to properly investigate a NGMI defense or have him evaluated for competence prior to
entering his no contest plea, the district court did not err by denying his W.R.A.P. 21
motion to withdraw his plea on grounds of ineffective assistance of counsel. The district
court also correctly exercised its discretion in denying Mr. Delgado’s Rule 32(d) motion
to withdraw his no contest plea because he did not present a fair and just reason for
withdrawal.
[¶49] Affirmed.
16