Joseph Sena v. The State of Wyoming

THE SUPREME COURT, STATE OF WYOMING
2022 WY 98APRIL TERM, A.D. 2022
August 17, 2022
JOSEPH SENA,
Appellant
(Defendant),
v.
S-21-0082, S-21-0083, S-21-0279
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Laramie County
The Honorable Peter H. Froelicher, Judge
Representing Appellant:
Office of the Public Defender: Diane M. Lozano, State Public Defender; Kirk A.
Morgan, Chief Appellate Counsel; Robin S. Cooper, Senior Assistant Appellate
Counsel.
Representing Appellee:
Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua
C. Eames*, Senior Assistant Attorney General; Catherine M. Mercer, Assistant
Attorney General.
* An Order Allowing Withdrawal of Counsel was entered on August 1, 2022.
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
any typographical or other formal errors so that correction may be made before final publication in the
permanent volume.
FENN, Justice.
[¶1] Joseph Sena challenges the district court’s decision denying his post-sentence
motions to withdraw his no contest pleas in two separate dockets, Docket Nos. 34-682 and
34-683. In Docket No. 34-682, he was charged with one count of burglary. In Docket No.
34-683, he was charged with one count of attempted murder in the first degree and one
count of aggravated assault. Pursuant to a global plea agreement, Mr. Sena entered a plea
of no contest to attempted voluntary manslaughter and burglary. The State subsequently
dismissed the charge of aggravated assault and jointly recommended a sentence. On
appeal, Mr. Sena challenges the State’s comments at sentencing concerning the availability
of its witnesses. We affirm.
ISSUES
[¶2] We state the issue as follows:
I. Did the district court abuse its discretion when it denied
Mr. Sena’s motions to withdraw his no contest pleas?
FACTS
[¶3] Joseph Sena pled no contest to charges in two separate dockets, Docket No. 34-682
and 34-683. 1 In Docket No. 34-682, Mr. Sena pled no contest to one count of burglary for
acts he committed on October 8, 2017. In Docket No. 34-683, he pled no contest to one
count of attempted voluntary manslaughter for acts he committed on January 17, 2019. For
both dockets, Mr. Sena agreed the district court could rely on the affidavits of probable
cause to provide a factual basis for his pleas. 2
[¶4] In Docket No. 34-682, the State charged Mr. Sena with one count of burglary.
According to the Affidavit of Probable Cause, the Cheyenne Police Department received a
report of a home invasion burglary on October 8, 2017. It was reported that the owner and
her two children arrived home and heard a loud banging on the front door. The owner
stated there was a louder bang and three males entered her residence. One of the men
claimed to have a gun and asked for “Travis.” The owner responded that she did not know
Travis and threatened to kill the men. The men left with items from inside the home. The
1
In a separate docket, Docket No. 33-609, the State filed a petition to revoke Mr. Sena’s probation on his
conviction for property destruction. Mr. Sena admitted to the revocation at the change of plea hearing. The
district court revoked Mr. Sena’s probation and imposed the underlying sentence of two to four years to
run concurrently with Docket Nos. 34-682 and 34-683. Mr. Sena does not appeal the probation revocation.
2
A district court is not required to “obtain a factual basis when accepting a plea of [no contest] so long as
the charging document contains an accurate and complete statement of all the elements of the crime
charged.” Berry v. State, 2004 WY 81, ¶ 39, 93 P.3d 222, 234 (Wyo. 2004) (quoting Peitsmeyer v. State,
2001 WY 38, ¶ 7, 21 P.3d 733, 734 (Wyo. 2001)).
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owner reported her purse was taken from her bedroom and two decorative knives were
missing from her living room wall. The children found her purse a short distance away
and the three men were seen leaving in a silver sedan near where the purse was located.
[¶5] The owner witnessed one of the men holding the glass pane from her screen door.
Investigating officers seized the glass pane and submitted it to the Wyoming State Crime
Laboratory for forensic analysis. The State Crime Lab found 15 latent prints and identified
prints belonging to the owner and Mr. Sena.
[¶6] In Docket No. 34-683, the State charged Mr. Sena with two counts: Count 1)
attempted murder in the first degree; and Count 2) aggravated assault. According to the
Affidavit of Probable Cause, on January 17, 2019, the Cheyenne Police Department
received a report of a stabbing, and officers were dispatched to the scene. At the scene,
officers contacted the victim and his girlfriend. The officers observed multiple stab
wounds and cuts on the victim’s body and had him transported to the hospital. Officers
interviewed the victim’s girlfriend. She reported seeing a gold-colored car in the alley
when she and the victim pulled into the driveway. She stated the gold-colored car pulled
out of the alley, drove past her residence, turned around, and parked in the street. She
stated two men exited the vehicle and approached the victim and began stabbing him. She
identified Mr. Sena and Isaac Garcia as the suspects. At the hospital, the victim also
identified Mr. Sena and Isaac Garcia as the men who attacked and stabbed him.
[¶7] A relative of the next-door neighbor witnessed the attack and spoke with officers at
the scene. Officers were later able to obtain video surveillance from the neighbors’ house.
The video captured the attack.
[¶8] On July 28, 2020, Mr. Sena entered into a global plea agreement pursuant to Rule
11(e)(1)(B) of the Wyoming Rules of Criminal Procedure (“W.R.Cr.P”). In Docket No.
34-683, Mr. Sena agreed to plead guilty to an amended charge of attempted voluntary
manslaughter in exchange for the State dismissing the aggravated assault charge. The State
further agreed to recommend a sentence of not less than ten nor more than twelve years of
incarceration to run concurrently with the burglary and a separate probation revocation. In
Docket No. 34-682, Mr. Sena agreed to plead guilty to burglary in exchange for the State
recommending a sentence of not less than three nor more than five years of incarceration
to run concurrently with the attempted voluntary manslaughter and his probation
revocation.
[¶9] At the change of plea hearing held on July 30, 2020, defense counsel stated Mr.
Sena requested to plead no contest to the charges instead of guilty. The State agreed to the
no contest pleas and later filed an amended plea agreement to reflect the change. Mr. Sena
entered no contest pleas to burglary and attempted voluntary manslaughter.
[¶10] Four months later, the district court held a sentencing hearing on November 18,
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2020. In support of the plea agreement, the State discussed problems with witness
cooperation. It argued under the circumstances it was best to take Mr. Sena out of the
community for ten to twelve years, “given the issues [it] had with witnesses who were
simply afraid to testify.” Defense counsel took issue with the State’s argument and claimed
the State was “flagrantly violating the spirit of the plea agreement by attacking [Mr. Sena]
as some type of dangerous individual and all but inviting the Court to impose a sentence
greater than that agreed to by the State.” The State reiterated that it believed the plea
agreement was appropriate and stated its comments “made a record that [the State has]
issues with the witnesses . . . that make it appropriate to impose” the agreed-upon sentence.
The State also clarified its comments by stating it “made the record of [its] discussions with
law enforcement . . . regarding the plea agreement.”
[¶11] The district court accepted the plea agreement and sentenced Mr. Sena to three to
five years for the burglary charge in Docket No. 34-682 to run concurrently with Docket
No. 34-683 and a probation revocation. The district court sentenced Mr. Sena to a period
of ten to twelve years for the attempted voluntary manslaughter charge in Docket No. 34-
683 to run concurrently with Docket No. 34-682 and the probation revocation.
[¶12] Almost a month after the sentence was imposed, Mr. Sena filed a motion to allow
substitution of counsel in both dockets. He also filed motions requesting to withdraw his
pleas of no contest. Mr. Sena contended the State admitted at the sentencing hearing that
it withheld information about the availability of witnesses in order to induce him to enter
into the plea agreement. He further contended his previous defense counsel was ineffective
because he did not investigate the availability of the State’s witnesses.
[¶13] At the motions to withdraw hearing held on January 11, 2021, defense counsel did
not introduce any evidence and instead presented argument consistent with the written
motions to withdraw. In an oral ruling, 3 the district court denied Mr. Sena’s motions to
withdraw and found Mr. Sena did not demonstrate any necessity to correct a manifest
injustice. Mr. Sena timely filed a notice of appeal in both dockets.
[¶14] On May 28, 2021, Mr. Sena filed a motion in both dockets arguing ineffective
assistance of counsel pursuant to Wyoming Rule of Appellate Procedure 21. This Court
stayed briefing until further notice. In his motion, Mr. Sena claimed his trial counsel “was
ineffective for failing to properly investigate the availability of witnesses and counsel Mr.
Sena accordingly.” The district court held an evidentiary hearing and subsequently denied
the Rule 21 motion, holding Mr. Sena failed to show defense counsel’s performance was
deficient. It found:
3
The district court asked the State to prepare a written order based upon its oral ruling. The record does
not contain a written order or any indication the State submitted a proposed written order.
3
[Defense counsel’s] investigation of State witnesses’
availability and willingness to testify at trial was reasonable
based upon the strength of the evidence. There was video
surveillance footage identifying Mr. Sena. [The victim’s
girlfriend] and her children were under subpoena, and the
victim . . . was in custody in Larimer County Colorado. In
other words, the strength of this evidence then suggested to
[defense counsel] that no further inquiry into the availability of
the State’s witnesses was needed.
Additionally, the district court held Mr. Sena suffered no prejudice and determined:
Remarks made by [the State] at the sentencing hearing
indicated that while the State had some difficulty with its
witnesses, there was no indication that the State would have no
witnesses available and willing to testify should the matter
proceed to trial. In addition, [the investigator with the public
defender’s office] testified she had maintained contact with
[the victim’s girlfriend]. [The victim coordinator] testified she
maintained contact with [the victim’s girlfriend], and [the
victim’s girlfriend] and her two children, who were
eyewitnesses to the stabbing, were under subpoena.
Importantly, and as [defense counsel] testified, no prejudice
resulted to Defendant because regardless of witness
availability, video surveillance footage captured Mr. Sena’s
role in stabbing [the victim].
[¶15] On September 17, 2021, Mr. Sena timely filed a third notice of appeal, appealing
the district court’s decision on his Rule 21 ineffective assistance of counsel claim. This
Court lifted the stay and consolidated all three appeals.
DISCUSSION
[¶16] Mr. Sena appeals the district court’s denial of his motions to withdraw his pleas of
no contest in Docket Nos. 34-682 and 34-683. He contends he was aggrieved by the State’s
comments at sentencing on witness cooperation. In his motions, Mr. Sena asserted the
State withheld information about witness availability to induce him to enter his no contest
pleas. He further alleged his counsel was ineffective for failing to investigate the
availability of witnesses to testify on behalf of the State.
[¶17] Mr. Sena challenges only “the district court’s decision to deny his motions to
withdraw his pleas.” He does not brief or present any argument to contest the district
court’s decision concerning his ineffective assistance of counsel claim. Given that he
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declined to structure an argument on his ineffective assistance of counsel claim, we limit
our review to the district court’s decision on his motions to withdraw and do not consider
any argument that his counsel was ineffective. See Hardison v. State, 2022 WY 45, ¶ 23
n.4, 507 P.3d 36, 46 n.4 (Wyo. 2022) (declining to consider an issue not addressed in
appellant’s brief); Byerly v. State, 2019 WY 130, ¶ 110, 455 P.3d 232, 259 (Wyo. 2019)
(declining to consider a claim of ineffective assistance of counsel when appellant failed to
properly structure an argument).
[¶18] The withdrawal of a no contest plea is governed by W.R.Cr.P. 32(d). See Sides v.
State, 2021 WY 42, ¶ 20, 483 P.3d 128, 134 (Wyo. 2021). Rule 32(d) provides:
(d) Plea withdrawal. — 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. At any later time,
a plea may be set aside only to correct manifest injustice.
Mr. Sena filed his motion after sentencing, so he must demonstrate manifest injustice.
W.R.Cr.P. 32(d); Sides, ¶ 20, 483 P.3d at 134.
Manifest injustice contemplates a situation that is unmistakable
or indisputable, was not foreseeable, and affects the substantial
rights of a party. The rule is, in part, intended to address a
fundamental defect which inherently results in a complete
miscarriage of justice or an omission inconsistent with the
rudimentary demands of fair procedure.
Chapman v. State, 2013 WY 57, ¶ 57, 300 P.3d 864, 875 (Wyo. 2013) (quoting Follett v.
State, 2006 WY 47, ¶ 19, 132 P.3d 1155, 1161 (Wyo. 2006)). Mr. Sena “bears the burden
of demonstrating manifest injustice.” Deloge v. State, 2005 WY 152, ¶ 16, 123 P.3d 573,
578–79 (Wyo. 2005) (quoting Ingersoll v. State, 2004 WY 102, ¶ 19, 96 P.3d 1046, 1051–
52 (Wyo. 2004)).
[¶19] In support of the plea agreement, the State discussed at sentencing Mr. Sena’s
history of violence and the impact on the witnesses. It stated:
Mr. Sena’s history of violence predates the allegations in
Docket 34-683, which is obviously the most serious docket that
we have in front of us today. And he’s well-known for that
history of violence. So much so that the State is in a
circumstance where [the victim] never appeared in my office.
He left to go to Mexico for a long period of time without
returning phone calls from the State. He was never under
5
subpoena.
....
We had two other witnesses who lived next door and they
caught this attack on videotape. They moved out of state across
the country to get away from Mr. Sena. Third eyewitness, [the
victim’s] girlfriend, also moved out of state to get away from
Mr. Sena; although, she was very cooperative with the
prosecution in connection with this case.
So in addition to the issue with those eyewitnesses, Mr. Sena’s
previous girlfriend who the fight was over did not want to
testify against him because she’s afraid of him due to his
history of violence. One of the aggravated assault cases that
was not bound over at prelim, she was the victim in.
. . . I’d also like to note that in this attack there were two little
children present. The one, who was [the victim’s] - - she calls
him father, although, it’s not his biological child - - reported in
her forensic interview that Mr. Sena tried to cut out her daddy’s
throat. So she was in a vehicle right next to this attack while it
was happening. And another very young child was also in the
vehicle but was in a car seat and so luckily for him wasn’t able
to get up and sort of see what was going on through the
window.
So for that reason, . . . Mr. Sena is not a candidate for
supervised probation in this case. Ten to 12 years is
appropriate. It gets him out of this community for a significant
period of time. It was in connection with law enforcement that
I agreed to this plea agreement given the amount of law
enforcement resources that are dedicated to dealing with Mr.
Sena. They agreed that it was best for our community to take
him out of the community for its safety for 10 to 12 years,
especially given the issues that we had with witnesses who
were simply afraid to testify.
[¶20] Mr. Sena argues “counsel for the State announced [at sentencing] the plea agreement
was so very favorable to Defendant because the State had no witnesses to present its case,
. . . that all of the witnesses refused to appear and that the State could not subpoena them.”
He contends the State withheld information that none of the eyewitnesses wished to testify
in order to induce him to plead. At the hearing, the district court asked defense counsel
6
how Mr. Sena intended to prove the State did not have witnesses available and could not
meet their burden if the case went to trial. Defense counsel asserted the sentencing
transcript was enough to meet Mr. Sena’s burden of proving manifest injustice. After
hearing argument, the district court held:
THE COURT: . . . I have in fact reviewed the sentencing
transcript. And I can tell you that my reading of the sentencing
transcript does not indicate that the State said they could not
prove their case and that they couldn’t get the witnesses to
come and testify.
The State did indicate that there were difficulties with some
witnesses, including [the victim]. But it did not state in any
clear manner that it couldn’t prove its case. I took it as an
explanation as to why the agreement was the way it was, at
least in part. But my reading of the sentencing statement by
[the State] does not indicate that they couldn’t prove their case.
To the contrary, [the State] indicates, [w]e had two other
witnesses who live next door and they caught this attack on
videotape. They moved out of state across the country to get
away from Mr. Sena. The third eyewitness, [the victim’s]
girlfriend, also moved out of state to get away from Mr. Sena.
Although, she was very cooperative with the prosecution in
connection with this case.
So to me, the sentencing clearly indicates that the State had
witnesses, would be able to get witnesses, and could prove
their case. I think it was just interpreted somewhat differently
than what was stated.
In addition, the Court has reviewed the entry of the two no
contest pleas in these cases, which were done previously.
Reviewed the transcript from that. I believe that Mr. Sena
entered his no contest pleas voluntarily, knowingly, and he was
given all of the advisements that were necessary prior to
entering those no contest pleas.
For those reasons, the Court denies the motion to allow him to
withdraw because there has not been demonstrated that it’s
necessary to correct a manifest injustice based upon case law
and Rule 32 of Wyoming Rules of Criminal Procedure.
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[¶21] “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.” Delgado v. State, 2022 WY
61, ¶ 26, 509 P.3d 913, 922–23 (Wyo. 2022) (citing Winsted v. State, 2010 WY 139, ¶ 7,
241 P.3d 497, 499 (Wyo. 2010). The “district court has discretion in determining whether
a party has proved manifest injustice” pursuant to Rule 32(d). Follett, 2006 WY 47, ¶ 19,
132 P.3d at 1162 (quoting Ingersoll, 2004 WY 102, ¶ 19, 96 P.3d at 1051–52). We will
not disturb the district court’s decision absent an abuse of that discretion. Id. “The core of
our inquiry focuses upon the reasonableness of the district court’s decision” and we will
affirm that decision “unless the court acted in a manner exceeding the bounds of reason
and could not rationally conclude as it did.” Russell v. State, 2013 WY 137, ¶ 9, 312 P.3d
76, 78 (Wyo. 2013); Dobbins v. State, 2012 WY 110, ¶ 29, 298 P.3d 807, 815 (Wyo. 2012)
(quoting Van Haele v. State, 2004 WY 59, ¶ 15, 90 P.3d 708, 713 (Wyo. 2004)). “The
findings of fact leading to denial of a motion to withdraw a plea are subject to the clearly
erroneous standard of review.” Russell, ¶ 9, 312 P.3d at 78.
[¶22] Review of the record before us establishes the district court did not abuse its
discretion and could rationally conclude as it did. After reviewing the sentencing
transcript, a reasonable interpretation of the record is that the State proposed a plea
agreement because witnesses were afraid to testify, not that they were unwilling or unable
to testify. The record does not support a claim that the State could not prove its case and
had no witnesses to testify, or that it induced Mr. Sena to enter into a plea agreement. On
the contrary, the record establishes in Docket No. 34-682 the State had the clerk of court
issue subpoenas for 16 witnesses, which included a mother and her two minor children that
were in the home when the burglary took place. The State further had a subpoena issued
for Wyoming State Crime Laboratory Forensic Analyst, Mary Symons. Ms. Symons
completed forensic testing on a glass pane removed from the home and identified
fingerprints on the glass pane that belonged to Mr. Sena.
[¶23] The record for Docket No. 34-683 establishes the State had the clerk of court issue
subpoenas for 36 witnesses. Two witnesses were personally served by the district
attorney’s office and were eyewitnesses to the attempted voluntary manslaughter. One of
those witnesses was the victim’s girlfriend, and, in front of law enforcement, she identified
Mr. Sena in a photo lineup as the assailant. The State indicated during sentencing that this
witness “was very cooperative with the prosecution.” The other eyewitness under
subpoena was a minor child that underwent a forensic interview. For this witness, the State
provided notice it anticipated calling the minor as a fact witness. Additionally, the entire
attack was recorded on a time-stamped video, which law enforcement provided to the State
to use as evidence. The video shows Mr. Sena attacking and stabbing the victim. Although
the victim was not under subpoena, the sentencing transcript indicates the State anticipated
the victim was going to call into the sentencing hearing to appear as a witness, and while
he did not appear, the transcript reveals he personally provided the State with his medical
bills for restitution owed by Mr. Sena. The sentencing transcript supports the State was in
contact with the victim and the victim was cooperating.
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[¶24] Considering the record on appeal, Mr. Sena’s argument does not give rise to a
“fundamental defect” resulting in “a complete miscarriage of justice” or an “omission
inconsistent with the rudimentary demands of fair procedure.” See Chapman, 2013 WY
57, ¶ 57, 300 P.3d at 875. The record supports the district court’s finding that Mr. Sena
did not meet his burden of establishing a manifest injustice. There is nothing in the record
to indicate the State did not have witnesses or that it could not prove its case. Instead, the
record suggests the witnesses were afraid to testify, which is partially the reason the State
agreed to the underlying plea agreement. Having carefully examined the record before us,
we hold Mr. Sena has not demonstrated the district court abused its discretion when it
denied his motions to withdraw his no contest pleas.
[¶25] Affirmed
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