Sean Logan Pettus v. The State of Wyoming

THE SUPREME COURT, STATE OF WYOMING
2022 WY 126OCTOBER TERM, A.D. 2022
October 11, 2022
SEAN LOGAN PETTUS,
Appellant
(Defendant),
v. S-22-0045
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Goshen County
The Honorable Patrick W. Korell, Judge
Representing Appellant:
Office of 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; Timothy P. Zintak*, Senior
Assistant Attorney General.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
* An Order Allowing Withdrawal of Counsel was entered on August 1, 2022.
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] Sean Pettus pled no contest to second-degree murder and guilty to one count of first-
degree arson, one count of felony theft, and two counts of felony burglary. He filed a pre-
sentence motion to withdraw his no-contest plea, which was denied. He argues the district
court abused its discretion when it denied his motion. We affirm.
ISSUE
[¶2] The dispositive issue is whether the district court abused its discretion when it
denied Mr. Pettus’s pre-sentence motion to withdraw his no-contest plea.
FACTS
[¶3] On April 20, 2021, the Torrington Police Department investigated a fire at a
commercial building occupied by a hair salon and a tattoo parlor. Sean Pettus operated the
tattoo parlor. The fire caused significant damage to both halves of the building. The Fire
Marshall determined the fire was set in the hair salon, and it appeared an accelerant had
been used. The police received a report that Mr. Pettus went to the Smoker Friendly
convenience store shortly after the fire had started where he stole a bottle of whiskey and
left behind a sweatshirt that smelled strongly of gasoline. Mr. Pettus then stole a 2007 Ford
Taurus, which had been left running a short distance away from the Smoker Friendly.
Officers later found Mr. Pettus inside the stolen vehicle. While being booked into the jail,
officers discovered several handfuls of loose change in his pants pockets, which Mr. Pettus
admitted he took from the car. The State initially charged Mr. Pettus with one count of
first-degree arson and one count of felony theft.
[¶4] While investigating the fire, officers learned Mr. Pettus’s significant other, Madison
Cook, was missing, and no one had seen or heard from her since April 18, 2021. Officers
went to the apartment where Mr. Pettus and Ms. Cook were known to reside. When no
one answered the door, the officers entered the apartment out of concern for Ms. Cook’s
safety. The officers discovered Ms. Cook was deceased. The Goshen County Coroner
ruled Ms. Cook’s death a homicide, and the cause of death was preliminarily determined
to be a combination of multiple stab wounds and asphyxiation. The autopsy also showed
blunt-force trauma to Ms. Cook’s right eye and a subdural hematoma on the upper portion
of her brain, which was consistent with trauma to the back of her head. The State
subsequently filed an Amended Information, charging Mr. Pettus with a total of five
counts: 1) murder in the first degree; 2) first-degree arson; 3) felony theft; 4) burglary,
relating to the arson charge; and 5) burglary, relating to the theft charge.
[¶5] Defense counsel filed a motion for a competency evaluation before Mr. Pettus was
arraigned. No action had been taken on the motion for a competency evaluation prior to
his arraignment. At the arraignment, the district court advised Mr. Pettus about his
constitutional and statutory rights, his presumption of innocence, the pleas that were
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available to him, and the consequences of a felony conviction. The district court also
advised Mr. Pettus about the consequences of entering a guilty or no-contest plea:
If today or at any time during these proceedings you decide to
enter a guilty plea or even a no contest plea then there is no
trial in this matter and all of those rights that I just spoke to you
about are waived and the only issue left for this court to
determine is an appropriate sentence.
The district court reviewed the Amended Information with Mr. Pettus and informed him
about the possible penalties for each charge. Before Mr. Pettus entered a plea, defense
counsel reminded the district court there was a pending motion for a competency
evaluation. The district court entered an order requiring a competency evaluation.
[¶6] The competency evaluation was completed and filed with the court. The evaluator
opined Mr. Pettus was feigning symptoms of mental illness and malingering in the hope it
would have a positive impact on his case. The evaluator diagnosed Mr. Pettus with major
depressive disorder, a severe substance use disorder, and malingering. She opined Mr.
Pettus was competent to proceed even though he had a serious mental illness. Defense
counsel requested a second evaluation, and the district court entered an order granting that
request. Mr. Pettus subsequently withdrew his request for a second competency evaluation,
and the State and Mr. Pettus accepted the findings of the first evaluation. After determining
Mr. Pettus was competent to proceed, the district court quashed the order requiring the
second evaluation.
[¶7] The district court held a continued arraignment and a change of plea hearing on
August 23, 2021. At this hearing, the district court reminded Mr. Pettus of what occurred
at his arraignment, and it asked Mr. Pettus if he wanted to go over everything again. Mr.
Pettus replied no. Despite this response, the district court again advised Mr. Pettus about
his rights. Mr. Pettus indicated he did not have any questions about his rights. The district
court asked Mr. Pettus whether he had had adequate time to consult with his attorneys and
if he was satisfied with their representation. Mr. Pettus answered yes to both questions.
The district court then engaged in the following colloquy with Mr. Pettus:
THE COURT: Now, Mr. Pettus, I understand you may have
entered into a plea agreement or want to enter into a plea
agreement. Is that your understanding?
THE DEFENDANT: Yes.
THE COURT: All right. Mr. Pettus, importantly, has anybody
forced or threatened you in any way to get you to plead a
certain way today?
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THE DEFENDANT: No.
THE COURT: Has anybody made any promises or
inducements to get you to plead a certain way today, other than
this plea agreement that I am about to hear?
THE DEFENDANT: No.
THE COURT: Mr. Pettus, I need to have you make eye contact
with me for a moment. Do you know of any reason at all that
this court should not proceed with this change of plea hearing
today?
THE DEFENDANT: No.
THE COURT: Very good.
The State set forth the details of the plea agreement, and defense counsel confirmed the
State accurately recited its terms. The district court advised Mr. Pettus as follows:
[THE COURT] Mr. Pettus, I want to understand this plea
agreement the same way. This is an important stage of these
proceedings. This plea agreement calls for you to plead no
contest to an amended charge in Count I, from first degree to
second degree murder. The state would rely upon an affidavit
of probable cause, which has been provided to you, to support
the facts that the state believes to be true in this matter and you
would agree by a no contest plea not to contest those facts. I
would ask you whether the state can prove those facts or
present that and whether that would be enough to convict you
beyond a reasonable doubt, but I won't ask you about any
statements in Count I.
Count II, III, IV and V, you would agree to plead guilty to and,
Mr. Pettus, I would have to hear from you what happened to
cause you to plead guilty to Counts II, III, IV and V. As part
of this plea agreement, Mr. Pettus, this is provided under Rule
11 and that particular rule is 11(e)(B), and it talks about plea
agreement procedures. Plea agreements “In General. The
attorney for the state and the attorney for the defendant or the
defendant when acting pro se,” meaning self-represented,
“may engage in discussions with a view toward reaching an
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agreement that, upon the entering of a plea of guilty or nolo
contendere” -- no contest – “to a charged offense or to a lesser
related offense, the attorney for the state will do any of the
following:”
“(B) Make a recommendation, or agree not to oppose
the defendant’s request, for a particular sentence, with
the understanding that such recommendation or request
shall not be binding upon the court.” The state can also
“Agree not to prosecute other crimes” or the court can
hear and the parties can “Agree that a specific sentence
is the appropriate disposition of this case.”
The rule then goes on to provide that the plea agreement has to
be fully disclosed to the court and if the court accepts the plea
agreement I am to inform you that the judgment and sentence
will embody the terms and dispositions required in the
agreement. The court can reject the agreement. The court can
also upon entry of a plea give you a different sentence should
the court deem appropriate.
Mr. Pettus, I told you that courts hear plea agreements all the
time and I will, certainly, strongly consider a plea agreement,
but the court reserves the right to give you any sentence the
court deems appropriate. Do you understand?
THE DEFENDANT: Yes.
THE COURT: And Count I is a significant reduction -- or a
reduction, I should say, from a first degree murder charge to a
second degree so you get the benefit of that under the plea
agreement. The plea agreement calls for you to serve a life
sentence. The plea agreement calls for the state to recommend
consecutive sentences and you agree that that is appropriate.
And, Mr. Pettus, any deficiencies or issues that have arisen to
date that could cause an appeal, you agree to waive any of those
issues to date. So essentially the clock would be starting new
and the court would if it accepts the plea agreement enter your
pleas. I would order a presentence investigation report. You
would be ordered to cooperate in that report and we would be
back here in about 60 days. You do not give up your right to
appeal any sentence from this court should you deem
appropriate. Do you understand?
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THE DEFENDANT: Yes.
[¶8] The district court asked Mr. Pettus if he had consulted with his attorneys about the
consequences of the plea agreement. Mr. Pettus replied yes. The district court then
informed Mr. Pettus about the elements of and possible penalties for the amended charge
of second-degree murder. The district court informed Mr. Pettus “[t]he recommendation
pursuant to the plea agreement is . . . that the court consider a life sentence with potential
consecutive sentences on Counts II, III, IV and V.” Mr. Pettus accepted the sentencing
recommendation. The district court asked Mr. Pettus if he had any questions for the court,
and Mr. Pettus indicated he did not. The district court asked Mr. Pettus if he wanted to
speak with his attorneys before entering his pleas, and Mr. Pettus replied no.
[¶9] Mr. Pettus then pled no contest to amended Count I and guilty to Counts II-V. As
to Count I, the district court asked Mr. Pettus if he contested the facts set forth in the
affidavit of probable cause, and Mr. Pettus indicated he did not contest those facts. Mr.
Pettus admitted the State would be able to prove those facts at trial, and those facts would
be sufficient to prove his guilt beyond a reasonable doubt. The district court accepted his
no-contest plea to Count I. Mr. Pettus then provided factual bases for Counts II-V. The
district court asked Mr. Pettus if he knew of any reason the district court should not accept
his pleas, and he responded no. Mr. Pettus indicated no one forced or threatened him to
enter the pleas, and other than the plea agreement, no one made any promises or offered
inducements to get him to enter his pleas. Mr. Pettus again indicated he was satisfied with
his attorneys’ representation and had sufficient time to talk to his attorneys before entering
his plea. The district court found Mr. Pettus voluntarily entered his pleas and he provided
sufficient factual bases for the guilty pleas. The district court entered the guilty pleas and
the no-contest plea on the record.
[¶10] On October 8, 2021, Mr. Pettus filed a pro se motion to withdraw his no-contest
plea. He alleged he made the decision to enter the no-contest plea due to ineffective
assistance of counsel. He asserted he had been misinformed about his right to appeal the
no-contest plea. He also alleged he had new evidence–which contradicted previous
information regarding his whereabouts for the days in question–that was unknown at the
time of the plea. He asked the district court to allow him to withdraw his plea and begin
the process of proving his innocence. The “new evidence” Mr. Pettus spoke of was in the
form of an unsworn letter from a neighbor who claimed Mr. Pettus had been staying with
him during the time the murder was alleged to have taken place. This letter contradicted
statements Mr. Pettus made to law enforcement about where he was during that period.
[¶11] On October 14, 2021, one of Mr. Pettus’s attorneys withdrew and new counsel
entered an appearance on his behalf. On November 3, 2021, defense counsel filed a motion
to vacate the sentencing hearing and reset it after the district court disposed of the pro se
motion to withdraw the no-contest plea. The district court vacated the sentencing hearing
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and set a hearing on the pro se motion for November 19, 2021. On November 16, 2021,
defense counsel filed a motion to withdraw the no-contest plea. That motion indicated Mr.
Pettus felt inadequately informed regarding his appellate rights, which meant he had not
knowingly entered his plea, and he wished to assert his innocence. It did not reassert Mr.
Pettus’s claim about newly discovered evidence.
[¶12] At the hearing on the motion to withdraw the no-contest plea, defense counsel
argued Mr. Pettus wanted to assert his factual innocence, the State would not be prejudiced
by any delay caused by allowing him to withdraw his no-contest plea, and he had not
received close assistance of counsel because he was not properly informed about the
appellate rights he was waiving by entering a no-contest plea. The district court asked
defense counsel to clarify how Mr. Pettus had been improperly advised about his appellate
rights. Defense counsel stated that both a no-contest plea and a guilty plea retain the same
issues on appeal, asserting “the distinction between a guilty plea and a no contest plea I
think are minimal if at all existent, but essentially it’s factual innocence, Your Honor.”
[¶13] The State argued the district court thoroughly advised Mr. Pettus of the
consequences of his no-contest plea, and it had taken great pains to ensure the plea was
knowingly and voluntarily entered. Mr. Pettus had sufficient time to discuss the plea with
his attorneys, and he was satisfied with his attorneys’ representation. The State asserted
Mr. Pettus failed to produce any evidence to establish he did not understand the plea
agreement, and it intended to put on “some evidence” to support denying the motion.
[¶14] Defense counsel argued advisements under Rule 11 of the Wyoming Rules of
Criminal Procedure (W.R.Cr.P.) do not include an advisement regarding appellate rights,
and the task of giving such an advisement fell upon either the district court or counsel. He
asked the district court to find there was a fair and just reason to allow Mr. Pettus to
withdraw his plea. The district court gave Mr. Pettus the opportunity to present evidence
in support of his motion, but he declined to do so.
[¶15] The district court allowed the State to put on evidence in opposition to the motion.
Without any objection from defense counsel, the State played a video recording of a visit
Mr. Pettus had with someone while he was in jail. In this recording, Mr. Pettus states he
was going to try to withdraw his plea on the grounds of ineffective assistance of counsel,
but he was not sure this would be successful because his attorneys told him not to enter the
no-contest plea. The State argued this proved Mr. Pettus had a working relationship with
his previous attorneys, and he knowingly and voluntarily entered the no-contest plea
against the advice of counsel. The State called the probation officer who wrote the
presentence investigation in Mr. Pettus’s case. He testified that while preparing the report,
he asked Mr. Pettus to explain his understanding of the plea agreement. Mr. Pettus told
the probation officer:
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[Mr. Pettus] was to plead no contest to murder in the second
degree and guilty to the remaining counts. That in exchange for
his—those pleas he would receive a life sentence for the
murder in the second degree count and he would receive a total
of 50 years in prison consecutively to that from the remaining
counts.
The probation officer did not recall discussing Mr. Pettus’s understanding of his appellate
rights.
[¶16] The district court gave defense counsel the opportunity to make a closing argument,
but he chose to rest on his previous argument. The State argued Mr. Pettus fully understood
the plea agreement and chose to enter the plea against the advice of his attorneys. The
State asked the district court to find there was no fair and just reason to allow Mr. Pettus to
withdraw his no-contest plea.
[¶17] The district court took a brief recess to consider the motion. The district court
reviewed the transcript of Mr. Pettus’s arraignment and found the advisements it had given
him at that hearing comported with W.R.Cr.P. 11. The district court also reviewed the
transcript of the change of plea hearing and found Mr. Pettus had stated he consulted with
counsel about the plea, he was satisfied with his attorneys’ representation, and he did not
need more time to discuss the plea deal with counsel. The district court found that while
Mr. Pettus had not expressly waived his appellate rights, he had not reserved any issues for
appeal. Mr. Pettus could still appeal his sentence, any issues relating to the district court’s
jurisdiction over his case, and whether his plea was voluntary. The district court stated it
was Mr. Pettus’s burden to prove he received ineffective assistance of counsel. The district
court found:
[T]oday was the time, Mr. Pettus, for you to present evidence
of the basis for you to withdraw your plea and you did not do
so. You chose not to present evidence today. The court is left
then with the only evidence about any of your representation
from two parts. One, you told me you were satisfied with
counsel who provided you representation at the time you
changed your plea. And two, according to your own words
monitored by video and audio, your attorneys gave you advice
potentially not to change your plea at that time. And it tells the
court that you conscientiously, on your own, made a decision
to change your plea and to plead no contest. That those facts
were supported by an affidavit of Officer Wakamatsu, and you
agreed and stipulated the state could present that evidence and
that that would prove you guilty beyond a reasonable doubt if
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the state were able to present that at trial. And you told me they
would be able to.
The district court analyzed the seven factors set forth in Frame v. State, 2001 WY 72, ¶ 7,
29 P.3d 86, 89 (Wyo. 2001). After weighing those factors, the district court found Mr.
Pettus failed to establish a basis to withdraw his no-contest plea, and it denied his motion.
[¶18] At Mr. Pettus’s request, the district court proceeded to sentencing that day.
Consistent with the plea agreement, Mr. Pettus received the following sentences, which
were to be served consecutively: Count I, life according to law; Count II, 14-20 years in
prison; Count III, 5-10 years in prison; Count IV, 5-10 years in prison; and Count V, 5-10
years in prison. This appeal timely followed.
DISCUSSION
[¶19] A defendant does not have an absolute right to withdraw his plea before sentencing,
and the district court is vested with discretion to determine whether to grant or deny a
motion to withdraw a plea. Delgado v. State, 2022 WY 61, ¶ 26, 509 P.3d 913, 922–23
(Wyo. 2022); Russell v. State, 2013 WY 137, ¶ 12, 312 P.3d 76, 78–79 (2013).
Withdrawal of a plea before sentencing is governed by
W.R.Cr.P. 32(d) which states: “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.”
Wanberg v. State, 2020 WY 75, ¶ 15, 466 P.3d 269, 273 (Wyo. 2020). “A fair and just
reason includes inadequate plea colloquies, newly discovered evidence, intervening
circumstances, or other reasons that did not exist when the defendant entered his plea.”
Winsted v. State, 2010 WY 139, ¶ 16, 241 P.3d 497, 501 (Wyo. 2010) (citing United States
v. Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir. 2004)). “[A] change of mind or belated
misgivings about entering a plea do not constitute a fair and just reason for allowing a plea
withdrawal.” Russell, 2013 WY 137, ¶ 24, 312 P.3d at 83 (citing Winsted, ¶ 16, 241 P.3d
at 501).
[¶20] “‘The defendant has the burden of establishing a fair and just reason’ to withdraw a
plea under W.R.Cr.P. 32(d).” Delgado, 2022 WY 61, ¶ 25, 509 P.3d at 922 (quoting
Wanberg, ¶ 15, 466 P.3d at 273). “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.” Id. at ¶ 26, 509 P.3d at 922–23 (citing Winstead, ¶ 7, 241 P.3d at 499). We review
the district court’s denial of a motion to withdraw a no-contest plea for an abuse of
discretion. Id. (citing Wanberg, ¶ 14, 466 P.3d at 273). “The core of our inquiry is the
reasonableness of the district court’s decision.” Id. (citing Russell, ¶ 9, 312 P.3d at 78). “A
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court abuses its discretion only when it could not reasonably decide as it did.” Id. (quoting
Wanberg, ¶ 14, 466 P.3d at 273).
Frame Factors
[¶21] “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.” Id. at ¶ 27, 509 P.3d at 923 (citing Wanberg, ¶ 16,
466 P.3d at 273). Those 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
the original plea was knowing and voluntary; and (7) whether
the withdrawal would waste judicial resources.
Id. (quoting Wanberg, ¶ 16, 466 P.3d at 273. These factors are not exclusive or exhaustive,
and they “do not provide a numerical calculation indicating when a ‘fair and just reason’
exists for withdrawal of a plea.” Wanberg, ¶ 16, 466 P.3d at 273.
Our intention in setting out the list of factors in Frame was to
provide guidance to the trial courts in making the
determination of whether a defendant has presented a fair and
just reason in support of the motion to withdraw his guilty
plea . . . . 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.
Id. (quoting Major v. State, 2003 WY 4, ¶ 14, 83 P.3d 468, 473 (Wyo. 2004)).
[¶22] The district court made findings on all seven Frame factors. Mr. Pettus does not
challenge any of the district court’s factual findings. Instead, he challenges the district
court’s ultimate decision to deny his motion. He asserts the district court erred when it
placed most of the weight on the sixth factor, whether the plea was knowing and voluntary,
and the fifth factor, whether he had received close assistance of counsel. Finally, he asserts
the district court erred when it did not consider his claim about newly discovered evidence.
A. First Factor – Assertion of Innocence and Newly Discovered Evidence
[¶23] Mr. Pettus argues the district court erred when it did not consider his claim about
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newly discovered evidence mentioned in his pro se motion. Although his brief does not
state which of the Frame factors this claim falls under, the State characterized it as falling
under the first factor, his assertion of innocence.
[¶24] Newly discovered evidence can constitute a fair and just reason to allow a defendant
to withdraw his plea. Winsted, 2010 WY 139, ¶ 16, 241 P.3d at 501 (citing Ortega–Ascanio,
376 F.3d at 883). However, “an assertion of innocence does not by itself establish a fair
and just reason for allowing plea withdrawal.” Russell, 2013 WY 137, ¶ 20, 312 P.3d at
82. Mr. Pettus was obligated to present nonspeculative, credible evidence of his innocence.
Delgado, ¶ 30, 509 P.3d at 923–24 (citing Russell, ¶¶ 22–23, 312 P.3d at 82–83); see also
United States v. Byrum, 567 F.3d 1255, 1264–65 (10th Cir. 2009) (“the defendant must
present a credible claim of legal innocence”).
[¶25] Where a defendant fails to offer evidence to support his claim of innocence, it is
proper for a court to deny the motion to withdraw a no-contest plea. Russell, ¶ 22, 312 P.3d
at 82. The district court gave Mr. Pettus the opportunity to present evidence in support of
his motion. Mr. Pettus declined this invitation and chose not to testify, call any other
witnesses, or offer any affidavits setting forth credible new evidence of his innocence.
Therefore, Mr. Pettus “completely failed to meet his burden” of establishing this “new
evidence” was a fair and just reason to withdraw his no-contest plea. Wanberg, 2020 WY
75, ¶ 25, 466 P.3d at 275.
B. Factor 5 – Close Assistance of Counsel
[¶26] The district court determined Mr. Pettus received close assistance of counsel and
chose to plead no contest against the advice of counsel. Mr. Pettus argues the district court
erred when it found he received close assistance of counsel because it focused on whether
“he was advised about the mere entry of a no contest plea by counsel rather than on [his]
claims in his motion that he felt that his defense counsel did not fully advise [him] about
the consequences of a no contest plea.” He asserts although he entered his no-contest plea
against the advice of counsel, he did so because his attorney advised him a no-contest plea
would allow him to assert his factual innocence on appeal. The State asserts Mr. Pettus’s
allegation regarding incorrect advice about his appellate rights does not fall under the close
assistance of counsel prong, but it is instead more consistent with a claim of ineffective
assistance of counsel. Mr. Pettus’s pro se motion also characterized his claim as one of
ineffective assistance of counsel.
[¶27] “While ineffective assistance of counsel ‘may constitute a fair and just reason to
grant a motion to withdraw,’ we have never held that a defendant must satisfy the
Strickland standard in order to establish the fifth Frame factor.” Steffey v. State, 2019 WY
101, ¶ 33, 449 P.3d 1100, 1108–09 (Wyo. 2019)) (internal citation omitted). While the
Strickland test requires a defendant to prove his counsel’s performance was deficient and
it caused prejudice, the fifth Frame factor requires “counsel’s assistance to be adequate
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and available.” Id. at ¶¶ 34–35, 449 P.3d at 1109. A review of the record shows Mr. Pettus
failed to establish either that he did not receive close assistance of counsel or that his
counsel was ineffective.
[¶28] Mr. Pettus did not put on any evidence to show his attorney refused to meet with
him, ignored any of his requests, was otherwise unavailable to assist him, or his relationship
with counsel was contentious or lacked communication. Delgado, 2022 WY 61, ¶ 41, 509
P.3d at 926 (citing Steffey, ¶ 36, 449 P.3d at 1109; Major, ¶ 17, 83 P.3d at 474). The only
evidence the district court had to consider regarding close assistance of counsel was Mr.
Pettus’s statements at the change of plea hearing and on the video that was admitted into
evidence at the hearing. This evidence established Mr. Pettus had adequate time to consult
with his attorneys about the consequences of entering the no-contest plea, he was satisfied
with his attorneys’ representation, and he entered his no-contest plea against the advice of
counsel. The district court reasonably concluded Mr. Pettus received close assistance of
counsel. See Delgado, ¶ 41, 509 P.3d at 926.
[¶29] To succeed on a claim of ineffective assistance of counsel, Mr. Pettus had the burden
of proving both that his former attorneys’ performance was deficient, and he was
prejudiced as a result. Steplock v. State, 2022 WY 12, ¶ 20, 502 P.3d 930, 936-37 (Wyo.
2022) (quoting Neidlinger v. State, 2021 WY 39, ¶ 53, 482 P.3d 337, 351–52 (Wyo. 2021)).
A no-contest plea “waives all issues but those related to jurisdiction and voluntariness of
the plea.” Popkin v. State, 2018 WY 121, ¶ 12, 429 P.3d 53, 55 (Wyo. 2018) (quoting
Hagen v. State, 2014 WY 141, ¶ 9, 336 P.3d 1219, 1222 (Wyo. 2014)). If Mr. Pettus’s
former attorneys advised him he could raise his factual innocence on appeal, such advice
would have been erroneous and might have been sufficient to prove the deficient
performance prong of the ineffective assistance of counsel test. However, although the
district court gave Mr. Pettus the opportunity to present evidence to support his claims, he
chose not to do so. He did not offer his own testimony or that of any other witness to show
the erroneous advice had been given or that it was the impetus for his decision to change
his plea. Mr. Pettus also failed to offer any evidence to show he would have obtained a
more favorable result by going to trial, which is required to satisfy the prejudice prong of
the Strickland test. Steplock, ¶ 20, 502 P.3d at 937 (quoting Neidlinger, ¶ 53, 482 P.3d at
351–52). The district court had no evidence from which it could conclude Mr. Pettus
received ineffective assistance of counsel, and it did not abuse its discretion when it denied
his motion to withdraw his no-contest plea on that basis.
C. Factor 6 – Knowing and Voluntary Plea
[¶30] A no-contest plea must be entered knowingly and voluntarily. Delgado, 2022 WY
61, ¶ 42, 509 P.3d at 926 (citing Steffey, 2019 WY 101, ¶ 19, 449 P.3d at 1105; Dobbins v.
State, 2012 WY 110, ¶ 62, 298 P.3d 807, 824 (Wyo. 2012)).
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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
accepts the plea.”
Id. (quoting Major v. State, 2003 WY 4, ¶ 23, 83 P.3d at 478-79). “We look to the totality
of the circumstances to determine whether a plea was knowing and voluntary.” Steffey,
2019 WY 101, ¶ 19, 449 P.3d at 1105 (citing Major, ¶ 11, 83 P.3d at 472).
[¶31] Mr. Pettus asserts his plea was “unknowing” because his former attorneys
inadequately informed him about the consequences entering a no-contest plea would have
on his appellate rights. Because Mr. Pettus chose not to present any evidence at the hearing
on his motion, the only evidence the district court had before it was his statements at the
change of plea hearing that he understood the consequences of entering a no-contest plea,
and his statements on the video indicating he entered his no-contest plea against the advice
of his attorneys. The district court had no evidence from which it could conclude Mr.
Pettus had not been properly advised about his appellate rights, or that such an erroneous
advisement prompted him to enter his plea. The record supports the district court’s finding
that Mr. Pettus voluntarily entered his no-contest plea, and the district court did not abuse
its discretion when it found this factor weighed against granting the motion to withdraw
his no-contest plea.
[¶32] Mr. Pettus had the burden of establishing a fair and just reason to withdraw his plea.
Delgado, 2022 WY 61, ¶ 25, 509 P.3d at 922 (quoting Wanberg, 2020 WY 75, ¶ 15, 466
P.3d at 273). The district court thoroughly considered all the Frame factors and determined
he failed to meet that burden. Given the facts and circumstances presented at the hearing,
the district court’s decision to deny his motion was reasonable. Winsted, 2010 WY 139,
¶ 17, 241 P.3d at 502.
CONCLUSION
[¶33] The district court correctly exercised its discretion in denying Mr. Pettus’s
W.R.Cr.P. 32(d) motion because he failed to meet his burden of establishing there was a
fair and just reason to allow him to withdraw his no-contest plea. Affirmed.
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