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Barnes v. State1/8/1998
Appellant Russell Barnes received supervised, conditional probation and a deferred judgment and sentencing under WYO. STAT. § 7-13-301 for two counts of aggravated assault. After the State petitioned to revoke his probation, Barnes petitioned to withdraw his guilty pleas. The district court denied that motion, and Barnes appeals.
We affirm the district court's order.
ISSUES
Barnes presents these issues:
1. At an arraignment pursuant to W.S. § 7-13-301 (Wyoming's "first-offender statute"), the District Court instructed counsel for Mr. Barnes to elicit a factual basis for proposed pleas to two charges of aggravated assault. In the colloquy between Mr. Barnes and his counsel, it was clear that Mr. Barnes did not understand the nature of aggravated assault to include a threat of physical injury in accordance with Johnston v. State, 747 P.2d 1132, 1134 (Wyo. 1987). His pleas were accepted anyway. Should the District Court have granted Mr. Barnes' motion to allow withdrawal of his pleas to correct this error?
2. The District Court accepted proposed pleas of guilty to two charges of aggravated assault. In Dickson v. State, 903 P.2d 1019, 1025 (Wyo. 1995), this Court held that W.S. § 7-13-301 should "not be invoked in any instance in which more than one charge is being resolved." Should the District Court have granted Mr. Barnes' motion to allow withdrawal of his pleas to correct this error?
The State restates the issues to be:
I. Did the District Court abuse its discretion when it refused to allow appellant to withdraw his guilty pleas?
II. Did the District Court properly sentence appellant pursuant to Wyo. Stat. § 7-13-301 and not abuse its discretion when it denied appellant's motion to withdraw guilty pleas for alleged errors in applying the first offender statute?
FACTS
On July 30, 1994, Barnes' wife returned home from a movie to find her husband in the basement and playing music loudly. The couple argued over the volume of the music, and Barnes assaulted his wife. Their daughter reported that she saw her father holding her mother's head down with a gun pointed at her head. She screamed at him, and Barnes released his wife, who promptly left with her children and went to the police station. When the police arrived, Barnes showed them that he had a gun and demanded the police take off their guns. The police refused, and eventually Barnes allowed them in for an interview. The police left, took written statements from the wife and daughter, and returned to arrest Barnes. Barnes had a pistol in his hand when he was informed he would be arrested. He pointed it at two police officers and stated that he was not going to jail, and if they tried to take him, all would leave in body bags. He again refused to put down the gun and ran to a bedroom, slamming the door shut behind him. One police officer opened it and found Barnes aiming the gun at the officer. Barnes continued to state that he was not going to jail and that the only way they were all leaving was in body bags. This continued for several more minutes until police convinced Barnes to surrender.
Barnes was charged with three counts of aggravated assault for threatening to use a drawn deadly weapon on his wife and the two officers. He entered into a plea agreement which dismissed the first count and was placed on five years supervised probation under WYO. STAT. § 7-13-301, the first-time offender statute, which defers judgment and sentencing. The agreement also required him to meet several conditions during probation, including receiving substance abuse rehabilitation treatment, abstaining from alcohol
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