Davila v. State

831 P.2d 204, 1992 Wyo. LEXIS 55, 1992 WL 80090

• Court: Wyoming Supreme Court
• Decided: April 23, 1992
• Docket: 90-226
• Status: Published

Opinions

GOLDEN, Justice.

Rudy Davila appeals from his conviction on a charge of burglary in violation of Wyo.Stat. § 6-3-301(a) and (b) (June 1988). The district court entered its judgment and sentence after accepting Davila’s plea of nolo contendere.

Davila states these issues;

I. The failure of the county court to conduct a valid preliminary hearing, in which appellant was afforded counsel of his choice ■ because he was deemed to have waived his right to counsel by his actions, resulted in a loss of jurisdiction and voided the order binding the appellant over for trial.

II. Did the county court’s denial of appellant’s request for a continuance to retain counsel of his choice violate his sixth and fourteenth amendment rights to have counsel present at a critical stage of the criminal proceedings under the federal constitution and a similar right under Article I § 6 & § 10 of the state constitution.

III. Did appellant’s actions, requesting a continuance four days before the date set for the preliminary hearing, constitute a waiver of the right to have counsel represent him at the preliminary hearing?

The state addresses each of Davila’s issues, and adds another:

Appellant waived any irregularities in the conduct of the preliminary hearing when he entered a plea of nolo conten-dere which was accepted by the district court.

The issue presented by the state resolves this case. We affirm.

FACTS

Davila was initially charged with two felonies: aiding and abetting another in the commission of auto burglary, and conspiracy to commit auto burglary. His initial appearance was held on March 2,1990. He was accompanied by attorney Walter A. Murray, Jr., who stated that he appeared only for purposes of bond. The court informed Davila of his right to a preliminary hearing and right to counsel. He told the court that he would retain his own attorney. On March 5,1990, a preliminary hearing was set for March 20, 1990.

On March 16, 1990, Davila filed a pro se motion to continue the preliminary hearing to enable him to finalize an agreement with his attorney of choice, Walter A. Murray, Jr. The county court denied Davila’s motion on March 19, 1990, and Davila appeared at the preliminary hearing the next day without counsel. He was bound over for trial in district court.

On March 30, 1990, Davila filed an affidavit in forma pauperis in the district court and an attorney was appointed to represent him. Murray subsequently entered an appearance as Davila’s counsel on April 26, 1990. On May 7, 1990, Murray filed a motion on Davila’s behalf to dismiss the information on the ground that Davila was denied his right to representation at the preliminary hearing. The court denied the motion after a hearing on June 1, 1990.

On July 20,1990, Davila changed his plea on the burglary count to nolo contendere. As part of the plea agreement the state then moved to dismiss the conspiracy count. The court dismissed the conspiracy count and accepted Davila’s nolo conten-dere plea on the burglary charge. He received a sentence which ran concurrently with a term being served on another sentence resulting from probation revocation.

DISCUSSION

This case is resolved by the state’s argument that Davila’s nolo contendere plea waives all nonjurisdictional defenses, including his claim that he was denied counsel at the preliminary hearing. Because his plea constitutes a waiver it is not necessary or appropriate for this court to consider whether, on these facts, the county court should have afforded Davila representation at his preliminary hearing.

A plea of nolo contendere has the same effect in criminal cases as a guilty plea. Zanetti v. State, 783 P.2d 134, 139 (Wyo.1989). As a guilty plea waives all nonjurisdictional defenses, Sword v. State, 746 P.2d 423, 425 (Wyo.1987), so does a plea of nolo contendere. Zanetti, 783 P.2d at 139. Thus, unless Davila’s claim was jurisdictional, it has been waived by his plea.

Jurisdictional claims involve “the very power of the State to bring the defendant into court to answer the charge brought against him.” Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628, 636 (1974). Jurisdictional defects include: unconstitutionality of the statute defining the crime pled to, Armijo v. State, 678 P.2d 864, 867-68 (Wyo.1984) failure of the indictment or information to state an offense, and double jeopardy. Tompkins v. State, 705 P.2d 836, 840 (Wyo.1985), cert. denied sub nom., Tompkins v. Wyoming, 475 U.S. 1052, 106 S.Ct. 1277, 89 L.Ed.2d 585 (1986).

Nonjurisdictional defects, on the other hand, are those “objections and defenses which would not prevent a trial.” Sword, 746 P.2d at 426. Even constitutional challenges to pretrial proceedings fall into this category. Zanetti, 783 P.2d at 138.

When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.

Id. at 138 (quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973)). This court’s jurisprudence provides several examples of nonju-risdictional defects: use of inadmissible evidence (claim of unlawful search and seizure, Tompkins, 705 P.2d at 839-40) (claim of unlawfully obtained statements, Vallo v. State, 726 P.2d 1045 (Wyo.1986)); claim that grand jury was improperly convened and conducted, Sword, 746 P.2d at 426; and claim of violation of the right to speedy trial, Zanetti, 783 P.2d at 138.

Davila’s claim that he was improperly denied counsel at his preliminary hearing is nonjurisdictional. Denial of the right to representation does not implicate “the very power of the state to bring the defendant into court to answer the charge brought against him,” Blackledge, 417 U.S. at 30, 94 S.Ct. at 2103, 40 L.Ed.2d at 636, and would not have prevented a trial. The district court had jurisdiction to proceed to trial and, in fact, had it granted Davila’s motion to dismiss, the state could have refiled and proceeded with a new preliminary hearing and trial. As a result, Davi-la’s plea of nolo contendere waived his claim that he was denied counsel at his preliminary hearing.

Davila’s conviction is affirmed.