               IN THE SUPREME COURT, STATE OF WYOMING

                                        2014 WY 77

                                                            APRIL TERM, A.D. 2014

                                                                   June 13, 2014


RAYMOND ANTHONY DERRERA,

Appellant
(Defendant),

v.                                                   S-13-0174

THE STATE OF WYOMING,

Appellee
(Plaintiff).


                    Appeal from the District Court of Natrona County
                      The Honorable Catherine E. Wilking, Judge

Representing Appellant:
      Raymond A. Derrera, pro se.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Caitlin F. Young, Assistant Attorney General.

Before KITE, C.J., and HILL, BURKE, DAVIS, and FOX, JJ.



NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
Fox, Justice.

[¶1] Raymond Derrera pled guilty to the charge of driving while under the influence of
alcohol (DWUI), his fourth such offense in ten years. Mr. Derrera was convicted of a
felony under the law providing that a fourth DWUI offense within ten years is a felony
subject to sentence enhancement. He now appeals his felony sentence enhancement,
contending that two prior DWUI convictions relied on by the district court were not
constitutionally obtained and therefore should not have been relied upon for purposes of
enhancing his sentence. We affirm.

                                                 ISSUES

[¶2] 1. Does Mr. Derrera’s 2007 conviction, in which he pled guilty without counsel,
constitute a violation of his Sixth Amendment right to counsel?

       2. Did the district court subject Mr. Derrera to double jeopardy when it
reinstated Mr. Derrera’s 2009 DWUI after dismissing the case with prejudice?

                                                      FACTS

[¶3] On June 19, 2012, Mr. Derrera drove with a blood alcohol concentration of 0.16%.
The State charged him with one count of driving under the influence of alcohol with a
blood alcohol level of 0.08% or greater. This was Mr. Derrera’s fourth offense within the
previous ten years, making it a felony under Wyo. Stat. Ann. § 31-5-233(e) (LexisNexis
2013).1 Mr. Derrera pled not guilty at his arraignment on August 30, 2012.

[¶4] On January 23, 2013, Mr. Derrera filed a Motion to Strike Two of Four Prior
Convictions for Enhancement Purposes Thereby Reducing DWUI Charge From Felony
to Misdemeanor. Specifically, his motion challenged his prior DWUI convictions in CR-
2006-3226 and CR-2009-2891.

[¶5] In CR-2006-3226, Mr. Derrera was charged with misdemeanor DWUI for events
occurring on November 3, 2006. On January 12, 2007, he entered into a plea agreement
with the State, acknowledged that he wished to proceed without counsel, and pled guilty
pro se. The circuit court set the sentencing hearing for March 7, 2007, and subsequently
reset it to March 26, 2007. Mr. Derrera did not appear for the sentencing hearing on

1
    Wyo. Stat. Ann. § 31-5-233(e) provides in part:

                  On a fourth offense resulting in a conviction or subsequent conviction
                  within ten (10) years for a violation of this section or other law
                  prohibiting driving while under the influence, he shall be guilty of a
                  felony and fined not more than ten thousand dollars ($10,000.00),
                  punished by imprisonment for not more than seven (7) years, or both.


                                                      1
March 26, and the court issued a bench warrant for his arrest. Mr. Derrera was arrested
on August 21, 2007. He appeared in court the next day, and was sentenced to six months
imprisonment. At his sentencing, Mr. Derrera stated that he was represented by counsel.
The court responded that there was nothing in the file to indicate this, and proceeded with
sentencing.

[¶6] On October 29, 2007, counsel for Mr. Derrera filed a Motion to Vacate Judgment
and Sentence, arguing that Mr. Derrera’s constitutional right to counsel was denied when
he was sentenced without his counsel present. The motion was denied at a December 5,
2007 hearing, where Mr. Derrera’s retained counsel was present.

[¶7] In 2009, Mr. Derrera was again charged with misdemeanor DWUI. The case
proceeded to a jury trial on May 19, 2009. At trial, Mr. Derrera’s counsel objected to the
State’s expert witness because the State had not provided Mr. Derrera with the expert’s
curriculum vitae. The judge, sua sponte, declared a mistrial and ordered the State to
request another setting for trial within two weeks. Two weeks elapsed without any action
by the State. On June 8, 2009, Mr. Derrera’s counsel filed a Motion to Dismiss and
Assessment of Public Defender Fees. The next day, the circuit court granted the motion
and dismissed the case with prejudice. In its order dismissing the case, the court wrote:

                    THE COURT FINDS, that the State having failed to
             comply with the Court’s May 19th 2009 order setting a
             deadline of June 1, 2009 for them to file a setting for retrial in
             this matter, her[e]by dismisses the aforementioned case with
             prejudice.

                    THE COURT FURTHER FINDS that [Mr. Derrera]
             has been prejudiced in this matter to such a degree that no
             other options are available to the Court absent a dismissal
             with prejudice.

             ....

                   NOW, THEREFORE IT IS ORDERED that the
             above-entitled matter shall be, and the same hereby is,
             Dismissed with Prejudice.

[¶8] Two months later, on August 6, 2009, the State filed a Motion to Vacate Order
Dismissing Case. The State argued that it was denied an opportunity to be represented at
the dismissal hearing because it was never provided with a copy of the motion and order
to dismiss. They attributed this to a clerical error by the clerk of court under W.R.Cr.P.
36. In response, on September 4, 2009, Mr. Derrera’s counsel filed a Motion to Dismiss
Based on Violation of Double Jeopardy Provisions of Wyoming and United States


                                             2
Constitutions. The circuit court held a hearing on both motions on September 21, 2009.
At the hearing, the court reversed its order to dismiss with prejudice, allowing the State
two weeks from September 21, 2009, within which to refile the misdemeanor DWUI
charge. On October 2, 2009, the State refiled the charge in docket number CR-2009-
2891. Mr. Derrera ultimately entered a guilty plea in that action.

[¶9] On October 16, 2009, Mr. Derrera’s counsel filed a Petition for a Writ of
Interlocutory Review of Order, or in the Alternative, Petition for a Writ of Certiorari.
The district court issued its Order Denying Petition for Writ of Review on November 5,
2009, citing a failure to comply with Wyoming Rules of Appellate Procedure, Rule
13.03,2 as well as failing to provide sufficient support to grant a writ pursuant to Rule
13.02.3 Mr. Derrera did not appeal.

[¶10] During the change of plea hearing for the DWUI charge now before us, Mr.
Derrera raised concerns over the 2007 and 2009 DWUI convictions. The district court
reminded Mr. Derrera that by pleading guilty, he could be pleading to a felony if he had
the required number of prior DWUI convictions within the specified period of time. Mr.
Derrera chose to plead guilty and the court found that his plea was knowing and
voluntary.

[¶11] The district court then heard argument on Mr. Derrera’s Motion to Strike Two of
Four Prior Convictions for Enhancement Purposes Thereby Reducing DWUI Charge
From Felony to Misdemeanor. The court ruled that because Mr. Dererra had not
appealed his earlier convictions, they could not be overturned, and it was therefore
permissible to consider them for enhancement. Accordingly, the court enhanced Mr.
Derrera’s conviction to a felony, sentencing him to 16 to 24 months in the state
penitentiary. Mr. Derrera timely filed his pro se appeal.

[¶12] Mr. Derrera does not challenge his two other prior DWUI convictions.




2
  W.R.A.P. 13.03(a) states, “[a] petition for a writ of review must be filed with the reviewing court within
15 days after entry of the order from which relief is sought.” Mr. Derrera’s petition was filed 25 days
after the September 21, 2009 order of the court.
3
  W.R.A.P. 13.02 provides,

                [a] writ of review may be granted by the reviewing court to review an
                interlocutory order of a trial court in a civil or criminal action, or from an
                interlocutory order of an administrative agency, which is not otherwise
                appealable under these rules, but which involves a controlling question
                of law as to which there are substantial bases for difference of opinion
                and in which an immediate appeal from the order may materially
                advance resolution of the litigation.


                                                      3
                                  STANDARD OF REVIEW

[¶13] We have held that a defendant may challenge prior convictions when they are used
for purposes of sentence enhancement, under certain circumstances.

               When a defendant challenges a conviction underlying a
               finding that he is a habitual traffic offender, he must make a
               prima facie showing that one or more of the underlying
               convictions was constitutionally invalid. A prima facie
               showing is one which would permit the court to find that one
               or more of the traffic offense convictions essential to the
               order of revocation was not obtained in accordance with the
               defendant’s constitutional rights. Once the defendant makes
               this showing, the prosecution must establish by a
               preponderance of the evidence that the conviction was
               constitutionally obtained.


City of Laramie v. Cowden, 777 P.2d 1089, 1091 (Wyo. 1989) (citations omitted)
(quoting People v. Swann, 770 P.2d 411, 412 (Colo. 1989)). We review constitutional
questions de novo. Smith v. State, 2009 WY 2, ¶ 52, 199 P.3d 1052, 1067-68 (Wyo.
2009).

[¶14] We do not have the complete record in the 2007 and 2009 proceedings. We have
previously stated, “[i]t is the appellant’s burden to bring a complete record to this Court”
for review. Painovich v. Painovich, 2009 WY 116, ¶ 9, 216 P.3d 501, 504 (Wyo. 2009)
(citing Beeman v. Beeman, 2005 WY 45, ¶ 10, 109 P.3d 548, 551 (Wyo. 2005)). For the
purposes of this appeal, we only consider those facts contained in the record presented to
us by Mr. Derrera.

                                          DISCUSSION

I.   Does Mr. Derrera’s 2007 conviction, in which he pled guilty without counsel,
     constitute a violation of his Sixth Amendment right to counsel?

[¶15] Mr. Derrera contends that his 2007 DWUI conviction cannot be used for felony
enhancement purposes because he did not validly waive his right to counsel during his
plea hearing or sentencing. 4
4
  Mr. Derrera alleges that he was deprived of his Sixth Amendment right to counsel at the sentencing
stage of the case following the plea hearing where he was convicted. Whether Mr. Derrera may have
been deprived of his right to counsel at his sentencing does not address the constitutionality of his
conviction, which is the focus of our inquiry concerning the validity of his felony enhancement under
Wyo. Stat. Ann. § 31-5-233(e). Cowden, 777 P.2d at 1091 (Defendant “must make a prima facie showing


                                                 4
[¶16] The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const.
amend. VI. In Gideon v. Wainwright, 372 U.S. 335, 339-40, 83 S.Ct. 792, 794, 9 L.Ed.2d
799 (1963), the United States Supreme Court held that the Fourteenth Amendment
incorporates the Sixth Amendment right to counsel, and accordingly requires states to
make appointed counsel available to indigent defendants in all “criminal prosecutions.”5
This Court has further articulated that the right to counsel is not just for trials, but applies
to all “critical stages” in which the substantial rights of the accused may be affected.
Duffy v. State, 837 P.2d 1047, 1052 (Wyo. 1992) (citing United States v. Wade, 388 U.S.
218, 227, 87 S.Ct. 1926, 1932, 18 L.Ed. 2d 1149 (1967)); Nelson v. State, 934 P.2d 1238,
1240 (Wyo. 1997). Because of the clear, substantial rights implicated in pleading guilty,
we find that a plea hearing is indeed a “critical stage” of criminal proceedings, and
therefore the right to counsel attaches. See Duffy, 837 P.2d at 1052 (A proceeding is
“critical” if “[t]he defendant makes some sort of admission against penal interest, loses a
potential defense, or furnishes a plea of guilty or nolo contendere.” (Emphasis added.)).

[¶17] The Sixth Amendment, however, also guarantees the right of every citizen to
proceed without counsel and to conduct his own defense. Faretta v. California, 422 U.S.
806, 832, 95 S.Ct. 2525, 2539-40, 45 L.Ed.2d 562 (1975). “A criminal defendant may
waive his right to counsel so long as the . . . court ensures that it is ‘an intentional
relinquishment or abandonment of a known right or privilege.’” Vargas v. State, 963
P.2d 984, 989-90 (Wyo. 1998) (quoting United States v. Willie, 941 F.2d 1384, 1388
(10th Cir. 1991)).

[¶18] During the plea hearing, Mr. Derrera exercised his Sixth Amendment right to
represent himself, waiving his right to counsel. We first determine whether the
defendant’s waiver was voluntary when deciding whether a defendant has entered a valid
waiver of counsel. Bolin v. State, 2006 WY 77, ¶ 31, 137 P.3d 136, 146 (Wyo. 2006). If
we conclude the waiver was voluntary, we next look to whether the defendant waived the
right knowingly and intelligently. Id. “A waiver of the right to counsel is knowing and
intelligent if the record shows the defendant senses the magnitude of his undertaking and
the risks inherent in proceeding pro se.” Craft v. State, 2011 WY 142, ¶ 11, 262 P.3d
1253, 1256 (Wyo. 2011) (citing Trujillo v. State, 2 P.3d 567, 571 (Wyo. 2000)). We have
stated that, “[i]deally, the trial judge should conduct a thorough and comprehensive
formal inquiry of the defendant on the record to demonstrate that the defendant is aware
of the nature of the charges, the range of allowable punishments and possible defenses,

that one or more of the underlying convictions was constitutionally invalid.” (Emphasis added.)); see
Schiro v. Summerlin, 542 U.S. 348, 353, 124 S.Ct. 2519, 2523, 159 L.Ed.2d 442 (2004) (sentencing
considerations are divorced from considerations of guilt or innocence).
5
  Article 1, section 10 of the Wyoming Constitution provides for the right to counsel in criminal
prosecutions and tracks the federal constitutional provision. Duffy v. State, 837 P.2d 1047, 1052 (Wyo.
1992).


                                                  5
and is fully informed of the risks of proceeding pro se.” Van Riper v. State, 882 P.2d
230, 234 (Wyo. 1994) (quoting Willie, 941 F.2d at 1388).

[¶19] The record shows that when Mr. Derrera entered his pro se guilty plea, he signed a
statement of his constitutional rights, which, among other things, advised him of his right
to counsel. The hearing transcript also indicates that the presiding judge diligently
reviewed Mr. Derrera’s constitutional rights, specifically his right to the advice of an
attorney, prior to accepting his guilty plea. Mr. Derrera stated that he would proceed
without counsel. Furthermore, Mr. Derrera indicated the voluntary nature of his plea
when he responded in the negative to the following questions: “Did anybody promise you
anything to get you to plead guilty?” and “Did anybody force or coerce you to plead
guilty?” We find that the trial judge’s colloquy met the plea advisement requirements of
W.R.Cr.P. 11(b),6 and furthermore offers us a sound factual basis for concluding that Mr.
Derrera knowingly, voluntarily, and intelligently waived his right to counsel.

[¶20] Mr. Derrera further argues he was the victim of unfair bartering with the
prosecutor at the preliminary hearing, agreeing to plead guilty to allow him to return
home immediately, without jail time. He suggests that this was coercive despite not
having made an objection at the time of the plea. Mr. Derrera’s regret over his decision
presents an insufficient reason to revisit and revise the 2007 conviction. His hindsight
does not change the fact that at the time of the plea hearing, he waived his right to
counsel and entered a guilty plea knowingly, voluntarily, and intelligently.



6
  W.R.Cr.P. 11(b) sets forth the advisements that must be given to an unrepresented defendant before
acceptance of a guilty plea, in relevant part, as follows:

               (b) Advice to Defendant. — [B]efore accepting a plea of guilty or nolo
               contendere to a felony or to a misdemeanor when the defendant is not
               represented by counsel, the court must address the defendant personally
               in open court and, unless the defendant has been previously advised by
               the court on the record and in the presence of counsel, inform the
               defendant of, and determine that the defendant understands, the
               following:

                     (1) The nature of the charge to which the plea is offered, the
                     mandatory minimum penalty provided by law, if any, and the
                     maximum possible penalty provided by law and other sanctions
                     which could attend a conviction including, when applicable, the
                     general nature of any mandatory assessments (such as the
                     surcharge for the Crime Victim Compensation Account),
                     discretionary assessments (costs, attorney fees, restitution, etc.)
                     and, in controlled substance offenses, the potential loss of
                     entitlement to federal benefits.



                                                  6
[¶21] Because of the procedurally and constitutionally sound methods by which Mr.
Derrera waived his counsel and entered his guilty plea, we find that Mr. Derrera has
failed to meet his prima facie burden and we find no basis to disturb the 2007 conviction.

2. Did the district court subject Mr. Derrera to double jeopardy when it reinstated Mr.
   Derrera’s 2009 DWUI after dismissing the case with prejudice?

[¶22] Mr. Derrera argues his 2009 conviction is invalid because the district court lost
jurisdiction to reinstate the case after it had already been dismissed with prejudice. He
argues that reinstating his case violated the double jeopardy protections of the Fifth and
Fourteenth Amendments.

[¶23] The Fifth Amendment to the United States Constitution and article 1, section 11 of
the Wyoming Constitution protect a person from twice being put in jeopardy of
prosecution, conviction, or punishment for the same criminal offense. Though the two
provisions differ in language, this Court has stated, “they have the same meaning and are
co-extensive in application.” Landeroz v. State, 2011 WY 168, ¶ 17, 267 P.3d 1075,
1080 (Wyo. 2011) (quoting Tucker v. State, 2010 WY 162, ¶ 41, 245 P.3d 301, 311
(Wyo. 2010)). Furthermore, we have said that the double jeopardy provisions of both
Constitutions provide an accused three protections: “1) protection against a second
prosecution for the same offense following an acquittal; 2) protection against a second
prosecution for the same offense after a conviction; and 3) protection against multiple
punishments for the same offense.” Id. (citing Vigil v. State, 563 P.2d 1344, 1350 (Wyo.
1977)). “The protection of the Double Jeopardy Clause by its terms applies only if there
has been some event, such as an acquittal, which terminates the original jeopardy.”
Landeroz, 2011 WY 168, ¶ 19, 267 P.3d at 1080 (citing Richardson v. United States, 468
U.S. 317, 325, 104 S.Ct. 3081, 3086, 82 L.Ed.2d 242 (1984)). “For double jeopardy to
bar re-trial in a case where the district court grants a defense motion for a mistrial based
upon prosecutorial misconduct, the defense must show prosecutorial intent to goad the
defense into moving for a mistrial.” State v. Newman, 2004 WY 41, ¶ 21, 88 P.3d 445,
452-53 (Wyo. 2004) (citing Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083,
2089, 72 L.Ed.2d 416 (1982)). Here, the trial court declared a mistrial in response to Mr.
Derrera’s objection. There is nothing to indicate a prosecutorial intent to goad the
defense into moving for a mistrial, and therefore the constitutional protection against
double jeopardy is not implicated.

[¶24] With respect to the State’s failure to timely refile, our limited record indicates that
the State was not provided a copy of the motion and order to dismiss, and therefore was
not provided an opportunity for a hearing on the motion.7


7
 W.R.Cr.P. 49(a) provides in part, “written notices and similar papers shall be served upon each of the
parties.”


                                                    7
[¶25] The Wyoming Rules of Criminal Procedure do not specifically address the re-
opening of a case following dismissal with prejudice.8 Nevertheless, the State points us
to W.R.Cr.P. 36, which provides, “[c]lerical mistakes in judgments, orders or other parts
of the record and errors in the record arising from oversight or omission may be corrected
by the court at any time and after such notice, if any, as the court orders.” Furthermore,
W.R.C.P. 60(b), by way of W.R.Cr.P. 1(a),9 allows “[o]n motion . . . the court may
relieve a party . . . from a final judgment, order, or proceeding for the following reasons:
(1) mistake . . . (6) any other reason justifying relief from the operation of the judgment.”
Under both W.R.Cr.P. 36 and W.R.C.P. 60(b), a failure to provide the State with a
proposed motion and order constituted a mistake, allowing the lower court to re-open the
matter and re-rule on the issue.

[¶26] Because Wyoming’s procedural rules support the actions taken by the district
court in reinstating Mr. Derrera’s 2009 DWUI, we find that Mr. Derrera has failed to
make a prima facie showing that his 2009 DWUI conviction was unconstitutionally
obtained.

                                            CONCLUSION

[¶27] We find that Mr. Derrera’s underlying convictions were constitutionally obtained,
and we therefore affirm his enhanced sentence.




8
  It has not been established whether the trial court has inherent authority to dismiss a criminal case with
prejudice. See State v. Naple, 2006 WY 125, ¶¶ 16-19, 143 P.3d 358, 363-64 (Wyo. 2006). We do not
address that question here because the case was reinstated.
9
  W.R.Cr.P. 1(a) provides, “[i]n the event that a procedure is not established by these rules, the Wyoming
Rules of Civil Procedure shall govern.”


                                                     8
