CHEYENNE – An aggravated assault case’s sentencing has been remanded back to Laramie County District Court because the court’s oral sentencing differed from its written sentencing, according to a Wyoming Supreme Court opinion issued Monday.
The case, Gregory Clyde Wanberg v. The State of Wyoming, was heard in front of Judge Steven Sharpe. At Wanberg’s sentencing hearing, the district court imposed a three- to five-year prison sentence suspended for three years of probation, but a month later the district court’s written sentencing ordered Wanberg to five years of probation.
The high court ultimately found the sentence needs to be corrected because the oral sentence doesn’t match up with the written sentence. In its opinion, the high court also analyzed whether or not Wanberg could withdraw his no contest plea. The victim in Wanberg’s case had recanted their statements in an affidavit to Wanberg’s attorney.
For the plea issue, Wanberg alleged the district court abused its discretion when it denied a plea withdrawal. The Supreme Court affirmed the district court’s decision not to allow the plea withdrawal, but for different reasons.
For its opinion, the Supreme Court examined whether or not the district court abused its discretion for denying Wanberg’s motion to withdraw his plea, and whether or not the district court’s sentence required remand due to the written and oral discrepancies.
The high court has held that in instances where the oral sentence differs from the written sentence, the oral sentence overrules the written sentence. Wanberg alleged his sentence was illegal due to this, but the high court said an illegal sentence is one that exceeds statutory limitations, imposes double-jeopardy or violates the constitution/law. The Supreme Court said Wanberg’s sentence wasn’t illegal, but needs to be corrected due to the sentencing discrepancy.
The Supreme Court made it clear that the term of five years of probation isn’t illegal because it doesn’t exceed statutory limitations, but since it is greater than the three years issued in the oral hearing, it needs to be remanded for correction.
When determining whether a plea can be withdrawn, a court must consider seven factors. These factors must be considered under the lens of whether or not the defendant has a “fair and just” reason for withdrawing their plea.
“(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.”
The district court found the government wouldn’t be prejudiced with Wanberg’s plea withdrawal, but did find Wanberg delayed in withdrawing his plea. It came to light that Wanberg’s counsel knew the victim in the case recanted their statements five months before he entered his motion.
The district court found that Wanberg withdrawing his plea would inconvenience the court, but the Supreme Court noted that the district court didn’t indicate whether or not the inconvenience had a bearing on Wanberg’s plea withdrawal being “fair and just.”
“Withdrawal of a plea almost always results in some ‘inconvenience’” to the court’s schedule. “Here, Mr. Wanberg claimed the victim had recanted. If that was true, it is difficult to see how the court’s schedule had anything to do with Mr. Wanberg’s reason for withdrawing his plea being fair and just. This factor should not have weighed against Mr. Wanberg,” the Supreme Court stated.
The district court also found that Wanberg had proper assistance of counsel when he made his no contest plea. This means that Wanberg should have been able to adequately consider if the state could have proved its case against him, regardless if the victim later recanted.
The Supreme Court also stated Wanberg didn’t claim he didn’t make his plea knowingly and voluntarily. Since Wanberg didn’t know the victim would recant at the time of his plea, this does have some weight as being a “fair and just reason for withdrawing his plea,” the high court stated.
The district court also said it would be a “tremendous waste of judicial resources” for a trial for Wanberg. Because of this, the court concluded the victim’s recantation wouldn’t be believable, and a jury would reject it. But this finding isn’t appropriate because the district court never evaluated the victim’s testimony, the Supreme Court said.
The high court found that the district court incorrectly applied the fourth and seventh factors, but, despite this, the Supreme Court still found the denial to withdraw the no contest plea was correct because the “defendant completely failed to meet his burden.”