BROWN, Chief Justice.
This appeal is taken from the judgment and sentence rendered in a guilty plea hearing. After negotiating a plea agreement with the state, appellant William Percival was sentenced to a term in the state penitentiary. At the sentencing hearing, the court accepted appellant’s plea of guilty, along with the plea agreement that the sentences run concurrently, but rejected the recommendation that appellant be given credit for time already spent in the county jail. Appellant’s only contention on appeal is stated as:
“Whether the court must advise the appellant he has no right to withdraw his plea if the court does not accept a plea bargain recommendation.”
We will affirm.
In October of 1985, appellant, while intoxicated, beat and robbed an elderly gentleman. While awaiting trial on a charge of aggravated robbery, appellant escaped from the Park County jail. He stole food, clothes, and a horse during his two-and-one-half days at large, after which he was apprehended without incident. The aggravated robbery and escape charges were consolidated for subsequent proceedings and for the purposes of this appeal. Appellant originally pled' not guilty by reason of mental deficiency to the charge of aggravated robbery, and not guilty to the escape charge. He later changed the aggravated robbery plea to nolo contendere, the record not being entirely clear as to whether it was part of the plea bargain. Pursuant to a plea agreement with the state, he changed his plea on the escape charge to guilty. The state in turn agreed that the sentences [559]*559would run concurrently, that no additional charges arising from the escape would be brought and that the state would recommend appellant be given credit for thirteen months in the Park County jail. Appellant was told that the bargain was not binding upon the court, but if the court did not accept any part of the agreement, appellant would be given the opportunity to withdraw his plea. After the court received the presentence investigation report, including evidence of prior convictions, appellant was sentenced to a term of not less than ten nor more than fifteen years for the aggravated robbery charge and not less than two nor more than three years for the escape charge, said sentences to run concurrently. The court did not give appellant credit for the thirteen months spent in the Park County jail as recommended by counsel.
Rule 15(e)(1), Wyoming Rules of Criminal Procedure, provides that the attorney for the state and the attorney for the defendant may reach an agreement that, upon the entry of a plea of guilty or nolo contendere, the attorney for the state may do any of the following:
“(i) Move for dismissal of other charges; or
“(ii) 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; or
"(in) Agree that a specific sentence is the appropriate disposition of this case.”
Rule 11, Federal Rules of Criminal Procedure, designates these same three provisions as A, B and C, which classifications will be used for the purposes of this opinion. The plea bargain entered into in the present case is a combination of all three provisions. The state’s agreement not to bring additional charges against appellant appears to be a type (A) bargain. Although appellant was never actually charged with the crimes he committed while at large, the state could just as well have brought the charges and then agreed to dismiss them in exchange for the guilty plea rather than agreeing not to bring the charges in the first place. The concurrent sentencing bargain is a type (C) agreement, a specific type of sentence agreed by both parties to be appropriate for disposition of the case.
In the third agreement the state recommended appellant be given credit for jail time. This is a type (B) recommendation of a particular sentence. It can only be a type (B) and not a type (C) since it was a recommendation rather than an agreement. A type (B) agreement is somewhat confusing for it states that “such recommendation or request shall not be binding upon the court.” This language in (B) infers that (A) and (C) are binding upon the court. The confusion stems from other subsections, along with the common understanding that no part of the plea bargain is binding upon the court until it is accepted. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); and United States v. McGovern, 822 F.2d 739, 743 (8th Cir.1987), cert, denied — U.S. -, 108 S.Ct. 352, 97 L.Ed.2d-(1987). The only interpretation which therefore gives meaning to all parts of the rule without contradiction, is that the court is not bound by any part of the plea bargain until such time as it accepts the bargain, thereby agreeing to be bound by it. If the court does not accept the plea agreement, the defendant must be given an opportunity to change his plea to not guilty. If the court accepts the plea bargain, it is bound by (A) and (C). A type (B) recommendation, however, is not binding upon the court even after acceptance of the plea, since it is only a recommendation of a particular sentence or a commitment not to oppose defendant’s request.
“A (B) type of plea agreement is clearly of a different order than the other two, for an agreement to recommend or not to oppose is discharged when the prosecutor performs as he agreed to do. By comparison, critical to a type (A) or (C) agreement is that the defendant receive the contemplated charge dismissal or agreed-to sentence. * * * ” Rule 11, F.R.Cr.P. (notes of Advisory Committee on Rules-1979 amendment).
[560]*560As noted by the Advisory Committee, the federal rule had been the cause of some confusion leading to inconsistent results. The federal rule was amended in 1979 to make it clear that a type (B) plea bargain is a recommendation only, and is not binding upon the court even after acceptance of the plea. Further, should the court reject the recommendation, defendant nevertheless has no right to withdraw his plea. Before the federal rule was amended, it simply stated that “the court may accept or reject the agreement.” The amended rule speaks in more specific terms of each provision of the bargain. It states that the court may accept or reject a type (A) or type (C) agreement. Regarding a type (B) agreement the rule states in relevant part:
“ * * * If the agreement is of the type specified in subdivision (e)(1)(B), the court shall advise the defendant that if the court does not accept the recommendation or request the defendant nevertheless has no right to withdraw his plea.” Rule 11(e)(2), F.R.Cr.P.
Rule 15, W.R.Cr.P. has not been amended to include this provision. Appellant argues nevertheless, that the intent of this court is to follow the federal rules as amended, and he therefore had a right to be advised that he could not withdraw his guilty plea if the court did not follow the recommendation. Appellant argues that in Keller v. State, Wyo., 723 P.2d 1244
Free access — add to your briefcase to read the full text and ask questions with AI
BROWN, Chief Justice.
This appeal is taken from the judgment and sentence rendered in a guilty plea hearing. After negotiating a plea agreement with the state, appellant William Percival was sentenced to a term in the state penitentiary. At the sentencing hearing, the court accepted appellant’s plea of guilty, along with the plea agreement that the sentences run concurrently, but rejected the recommendation that appellant be given credit for time already spent in the county jail. Appellant’s only contention on appeal is stated as:
“Whether the court must advise the appellant he has no right to withdraw his plea if the court does not accept a plea bargain recommendation.”
We will affirm.
In October of 1985, appellant, while intoxicated, beat and robbed an elderly gentleman. While awaiting trial on a charge of aggravated robbery, appellant escaped from the Park County jail. He stole food, clothes, and a horse during his two-and-one-half days at large, after which he was apprehended without incident. The aggravated robbery and escape charges were consolidated for subsequent proceedings and for the purposes of this appeal. Appellant originally pled' not guilty by reason of mental deficiency to the charge of aggravated robbery, and not guilty to the escape charge. He later changed the aggravated robbery plea to nolo contendere, the record not being entirely clear as to whether it was part of the plea bargain. Pursuant to a plea agreement with the state, he changed his plea on the escape charge to guilty. The state in turn agreed that the sentences [559]*559would run concurrently, that no additional charges arising from the escape would be brought and that the state would recommend appellant be given credit for thirteen months in the Park County jail. Appellant was told that the bargain was not binding upon the court, but if the court did not accept any part of the agreement, appellant would be given the opportunity to withdraw his plea. After the court received the presentence investigation report, including evidence of prior convictions, appellant was sentenced to a term of not less than ten nor more than fifteen years for the aggravated robbery charge and not less than two nor more than three years for the escape charge, said sentences to run concurrently. The court did not give appellant credit for the thirteen months spent in the Park County jail as recommended by counsel.
Rule 15(e)(1), Wyoming Rules of Criminal Procedure, provides that the attorney for the state and the attorney for the defendant may reach an agreement that, upon the entry of a plea of guilty or nolo contendere, the attorney for the state may do any of the following:
“(i) Move for dismissal of other charges; or
“(ii) 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; or
"(in) Agree that a specific sentence is the appropriate disposition of this case.”
Rule 11, Federal Rules of Criminal Procedure, designates these same three provisions as A, B and C, which classifications will be used for the purposes of this opinion. The plea bargain entered into in the present case is a combination of all three provisions. The state’s agreement not to bring additional charges against appellant appears to be a type (A) bargain. Although appellant was never actually charged with the crimes he committed while at large, the state could just as well have brought the charges and then agreed to dismiss them in exchange for the guilty plea rather than agreeing not to bring the charges in the first place. The concurrent sentencing bargain is a type (C) agreement, a specific type of sentence agreed by both parties to be appropriate for disposition of the case.
In the third agreement the state recommended appellant be given credit for jail time. This is a type (B) recommendation of a particular sentence. It can only be a type (B) and not a type (C) since it was a recommendation rather than an agreement. A type (B) agreement is somewhat confusing for it states that “such recommendation or request shall not be binding upon the court.” This language in (B) infers that (A) and (C) are binding upon the court. The confusion stems from other subsections, along with the common understanding that no part of the plea bargain is binding upon the court until it is accepted. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); and United States v. McGovern, 822 F.2d 739, 743 (8th Cir.1987), cert, denied — U.S. -, 108 S.Ct. 352, 97 L.Ed.2d-(1987). The only interpretation which therefore gives meaning to all parts of the rule without contradiction, is that the court is not bound by any part of the plea bargain until such time as it accepts the bargain, thereby agreeing to be bound by it. If the court does not accept the plea agreement, the defendant must be given an opportunity to change his plea to not guilty. If the court accepts the plea bargain, it is bound by (A) and (C). A type (B) recommendation, however, is not binding upon the court even after acceptance of the plea, since it is only a recommendation of a particular sentence or a commitment not to oppose defendant’s request.
“A (B) type of plea agreement is clearly of a different order than the other two, for an agreement to recommend or not to oppose is discharged when the prosecutor performs as he agreed to do. By comparison, critical to a type (A) or (C) agreement is that the defendant receive the contemplated charge dismissal or agreed-to sentence. * * * ” Rule 11, F.R.Cr.P. (notes of Advisory Committee on Rules-1979 amendment).
[560]*560As noted by the Advisory Committee, the federal rule had been the cause of some confusion leading to inconsistent results. The federal rule was amended in 1979 to make it clear that a type (B) plea bargain is a recommendation only, and is not binding upon the court even after acceptance of the plea. Further, should the court reject the recommendation, defendant nevertheless has no right to withdraw his plea. Before the federal rule was amended, it simply stated that “the court may accept or reject the agreement.” The amended rule speaks in more specific terms of each provision of the bargain. It states that the court may accept or reject a type (A) or type (C) agreement. Regarding a type (B) agreement the rule states in relevant part:
“ * * * If the agreement is of the type specified in subdivision (e)(1)(B), the court shall advise the defendant that if the court does not accept the recommendation or request the defendant nevertheless has no right to withdraw his plea.” Rule 11(e)(2), F.R.Cr.P.
Rule 15, W.R.Cr.P. has not been amended to include this provision. Appellant argues nevertheless, that the intent of this court is to follow the federal rules as amended, and he therefore had a right to be advised that he could not withdraw his guilty plea if the court did not follow the recommendation. Appellant argues that in Keller v. State, Wyo., 723 P.2d 1244 (1986), this court followed Rule 11, F.R.Cr.P. as amended, even though corresponding Rule 15, W.R.Cr.P. had not been amended. A casual reading of Keller v. State, supra, however, does not support such a conclusion. Rule 11, F.R.Cr.P. is not so much as mentioned in the entire text of Keller, nor is any other federal rule mentioned. The only reference to Rule 11, F.R.Cr.P. is found in a footnote which advises the reader that Rule 11, F.R.Cr.P., has been amended to require that certain advice be given the defendant. The Keller court did not rely upon the amended federal rule to reach its decision but upon the plain and ordinary meaning of the Wyoming rule. Even had the court adopted the amended federal rule in Keller, a one-time situation is no indication that the court will do likewise in another. We are not persuaded we should follow Rule 11, F.R.Cr.P., as amended. We adhere to the plain language of Rule 15, W.R.Cr.P.
Appellant also contends that he was misled by the court when he was told that if the court did not accept the plea bargain after receiving the presentence investigation report, he would be given the opportunity to withdraw his plea and enter a plea of not guilty and proceed to trial. Appellant maintains that he was never expressly given such opportunity. He may be correct since the court accepted the plea bargain and therefore was not required to permit a change of plea. See Rule 15(e)(3), W.R.Cr.P. The rule only requires that the defendant be given an opportunity to change his plea if the court does not accept the plea bargain. In the present case, the court went beyond its duty by informing appellant that if the court did not accept any part of the plea bargain, appellant would be given an opportunity to change his plea.
The purpose of Rule 15, W.R.Cr.P., is to allow the judge to determine whether the defendant entered a voluntary plea with a full understanding of the consequences. Keller v. State, supra. In this case, the court complied with all provisions of Rule 15, W.R.Cr.P., and appellant was afforded the terms of his plea agreement. The court’s rejection of the recommendation was within the discretion of the judge. Appellant fully understood that the maximum possible penalty for aggravated robbery is twenty-five years, and he received a maximum of fifteen years. Appellant was not misled or tricked in any manner.
Affirmed.
URBIGKIT, J., filed a dissenting opinion.