Withdrawal of No Contest Plea

Ellen R. Castillo; Elizabeth Egbert; Brie Pileggi

doi:10.29158/JAAPL.230037L1-23

Defendant Did Not Present a Fair and Just Reason for His Withdrawal of His No Contest Plea

In Delgado v. State, 509 P.3d 913 (Wyo., 2022) the Wyoming Supreme Court considered whether the defendant could withdraw his no contest plea. The court ruled he did not have a “fair and just reason,” nor did he receive ineffective assistance of counsel. Thus, his withdrawal was not permitted.

Facts of the Case

On November 24, 2019, Gilber Aldolfo Delgado, Jr., was charged with aggravated assault and battery after threatening his wife. Mr. Delgado’s father told defense counsel Mr. Delgado was “not behaving normally” and appeared depressed. While meeting in jail, defense counsel observed the defendant making statements she believed were delusional. She advised him to pursue a not guilty by reason of mental illness (NGMI) defense, but he declined. At his first hearing, Mr. Delgado entered a plea of not guilty; his defense attorney did not mention her concerns about his mental state, nor did she request a competency evaluation.

Mr. Delgado met with his attorney again after being released on bond. His attorney observed he was no longer actively symptomatic, and she had no concerns about his competency-related abilities. Prior to their meeting, Mr. Delgado’s attorney consulted with his wife about his mental state on the day of the alleged incident and reviewed the 911 call. She again proposed an NGMI defense. Mr. Delgado again declined, citing the stigma attached to that plea, and the possibility of indefinite hospitalization. His counsel negotiated a deal involving a no contest plea for a reduced charge and a suspended prison sentence. Mr. Delgado’s plea was accepted after it was determined he entered it “knowingly and voluntarily” and with satisfactory assistance of counsel. The defense requested sentencing be deferred, pending a mental health evaluation.

Mr. Delgado was evaluated but before the report was submitted, he was charged with driving under the influence and entered an inpatient treatment program. While in treatment, he was evaluated again, and diagnosed with severe alcohol use disorder and bipolar I disorder. The presentencing mental health report was received by the court following his discharge from treatment. It noted diagnoses of moderate alcohol use disorder and moderate major depressive disorder. Mr. Delgado filed a motion to withdraw his no contest plea. He argued he could withdraw his plea because, at the time of the charge and at the time of the plea hearing, he did not understand the extent of his actions, could not determine right from wrong, and was unable to conform his conduct to the requirements of the law because of his bipolar I diagnosis. He also indicated he wanted to withdraw his plea because he could be fired following a felony conviction. His motion was denied, and he subsequently appealed. Mr. Delgado filed another motion to withdraw his plea, citing ineffective assistance of counsel. He claimed his attorney should have requested a competency evaluation prior to allowing him to enter his plea. This motion was again denied, and he appealed.

Ruling and Reasoning

The Wyoming Supreme Court ruled the district court did not err in denying Mr. Delgado’s petitions to withdraw his no contest plea. In his motion regarding ineffective assistance, Mr. Delgado argued his attorney failed to investigate an NGMI defense or to ensure he was competent before entering his plea. But the court noted Mr. Delgado opposed the NGMI defense before entering his plea. Further, the court articulated an NGMI defense cannot be imposed on a competent defendant, citing McLaren v. State, 407 P.3d 1200 (Wyo. 2017).

Regarding his competency when entering his plea, the court acknowledged Wyoming statute, which states competency should be assessed when there is “reasonable cause” to believe the defendant is “unfit to proceed.” Because his symptoms were only present while in jail and subsequently resolved, the court held a “reasonably competent attorney” would not have been expected to request a competency evaluation. Further, Mr. Delgado asserted his unwillingness to consider an NGMI plea was evidence he was incompetent. The court disagreed, citing Simmons v. Luebbers, 299 F.3d 929 (8th Cir. 2002). According to Simmons, lack of participation in an evaluation is not necessarily evidence of incompetency, absent other compelling evidence. The district court’s ruling, that Mr. Delgado’s attorney provided adequate counsel, was affirmed.

Regarding the denial of motion to withdraw his no contest plea, the court emphasized defendants can withdraw guilty or no contest pleas if there is a “fair and just reason.” In Frame v. State, 29 P.3d 86 (Wyo. 2001), seven factors were identified to assist in determining whether a defendant may withdraw a plea. Under the assertion of innocence factor, Mr. Delgado argued he was NGMI upon withdrawing his plea, and a mental illness defense is a complete defense. In contrast, the court found the evaluations Mr. Delgado submitted to substantiate this defense did not provide credible evidence he was NGMI. This action did not constitute a proper assertion of innocence. Addressing the factor of delay in filing the motion, the court concluded that, although Mr. Delgado did delay in withdrawing his plea for employment reasons, he did not delay in withdrawing his plea upon being diagnosed with bipolar I. As to the close assistance of counsel factor, the court referenced its rationale regarding the defendant’s assertion he received ineffective assistance of counsel. Regarding the knowing and voluntary plea factor, the court noted Mr. Delgado never provided evidence he was unable to understand or consent to his plea. Overall, the court ruled that the district court did not err in denying Mr. Delgado’s plea withdrawal.

Discussion

This case joins many other cases in addressing a defendant’s claim of ineffective assistance of counsel. In U.S. v. DeCoster, 487 F.2d 1197 (D.C. Cir. 1973), the court chose not to define ineffective assistance of counsel, stating each case must be assessed independently. The court said that a reasonable legal route in one case may be inappropriate or ineffective in another. Further, it indicated that defining “ineffective counsel” too specifically would interfere with counsel’s independence, which implicates a constitutionally protected right. Since this holding, factors such as conflict of interest, misadvisement about possible sentences, failure to advise defendant to take a plea deal, failure to raise a statute of limitations defense, failure to call eyewitnesses to testify, failure to investigate mitigating evidence, and prohibiting a defendant from testifying have been deemed ineffective assistance in some cases. In Strickland v. Washington, 466 U.S. 668 (1984), the U.S. Supreme Court clarified that to prove ineffective counsel, the claimant must show deficient attorney performance that directly affected the outcome of the case. When assessing deficient performance, the court must consider whether the counsel’s actions were reasonable, compared with “prevailing professional norms” (Strickland, p 688).

In Mr. Delgado’s case, the court relied on Keats v. State, 115 P.3d 1110 (Wyo. 2005). In Keats, the court held counsel provided ineffective assistance because Mr. Keats expressed interest in pursuing an NGMI defense, which was not explored, despite the defendant’s being symptomatic at the time of the offense and having a history of mental illness. The Delgado court distinguished Mr. Delgado’s case from Keats, as he opposed the NGMI defense. The court previously held defendant preferences can restrict viable actions counsel can take. Indeed, an NGMI defense cannot be imposed on a competent defendant.

Regarding the district court’s denial of Mr. Delgado’s motion to withdraw his no contest plea, the court considered if Mr. Delgado presented a “fair and just reason” to permit withdrawal. As part of this consideration, the court considered whether Mr. Delgado received “close assistance of counsel” when withdrawing his plea. Here, the court clarified “close assistance” and “ineffective assistance” are distinct concepts. It posits “constitutionally ineffective” counsel is not required to fail the “close assistance” factor under Frame. To meet Frame’s “close assistance” factor, counsel need merely be “adequate and available.” The court provides some guidance as to what constitutes a violation of this concept (e.g., refusing to meet with the defendant, ignoring the defendant’s requests, being generally unavailable, having a contentious relationship with the defendant, failing to communicate with the defendant). These concepts are important for forensic mental health evaluators to be familiar with because they can be relevant in assessments of trial and other criminal competencies. In particular, understanding the legal framework for lawyers’ “close assistance” and “ineffective assistance” is useful to understand what courts expect in the attorney-client relationship.