IN THE SUPREME COURT, STATE OF WYOMING

2016 WY 112

 OCTOBER TERM, A.D. 2016

November 29, 2016

JOSEPH SCOTT MCNAUGHTON,

Appellant

(Defendant),

v.

STATE OF WYOMING,

Appellee

(Plaintiff).

S-15-0118, S-16-0098

Appeal from the District Court of Natrona County

The Honorable Daniel L. Forgey, Judge

Representing Appellant:

Office of the State Public Defender: Diane M. Lozano, State Public Defender; 

Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant 

Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee:

Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; 

Christyne M. Martens, Senior Assistant Attorney General; Emily Elliott, Student 

Intern. Argument by Ms. Elliott.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, 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.
1

BURKE, Chief Justice.

[¶1] Appellant, Joseph Scott McNaughton, challenges his conviction of conspiracy to 

deliver a controlled substance, methamphetamine, in violation of Wyo. Stat. Ann. §§ 35-

7-1031(a)(i) and 35-7-1042 (LexisNexis 2013). He contends he received ineffective 

assistance of counsel. We affirm.

ISSUE

[¶2] Mr. McNaughton presents a single issue:

Was Mr. McNaughton provided effective assistance of 

counsel?

FACTS

[¶3] Mr. McNaughton’s participation in a conspiracy to deliver methamphetamine was 

discovered during an investigation of Preston and Ernesto Montoya by the Wyoming 

Division of Criminal Investigation (DCI) and the federal Drug Enforcement 

Administration. The investigating agents used, among other tools, a court-authorized 

wiretap to record phone calls and text messages from cell phones. During the course of 

the investigation, the agents intercepted communications between Mr. McNaughton and 

Preston Montoya regarding methamphetamine. Based on the intercepted 

communications and surveillance of Mr. McNaughton and his girlfriend, Teresa Porter, 

DCI obtained a warrant to search Ms. Porter’s residence. Upon execution of the warrant, 

DCI arrested Mr. McNaughton and Ms. Porter and seized Ms. Porter’s cell phone. 

Ms. Porter’s phone contained incriminating text messages between her and 

Mr. McNaughton regarding the sale of methamphetamine.

[¶4] Mr. McNaughton was charged with one count of conspiracy to deliver a controlled 

substance in violation of Wyo. Stat. Ann. §§ 35-7-1031(a)(i) and 35-7-1042. The court 

appointed a public defender to represent him. After charging Mr. McNaughton, the State 

sent defense counsel a letter notifying counsel of the procedure for obtaining the evidence 

against Mr. McNaughton. The letter informed counsel that he could provide the State a 

“hard drive with at least 200 GB of storage” or, in the alternative, he could arrange to 

view the discovery in person at the United States Attorney’s Office in Casper. Defense 

counsel did not provide any type of storage medium to acquire the discovery, nor did he 

contact anyone to arrange access to view the discovery at the U.S. Attorney’s Office.

[¶5] The State subsequently sent a formal plea offer to defense counsel. The State 

proposed that, in return for Mr. McNaughton’s guilty plea to the felony conspiracy 

charge, the State would agree to recommend a sentence of five to eight years in prison. 

Mr. McNaughton rejected the plea offer, and the State did not present any subsequent 
2

offers.

[¶6] Following Mr. McNaughton’s rejection, defense counsel filed a motion for a bill 

of particulars. In response, the State asserted that the motion was untimely and that the 

information and accompanying affidavit adequately apprised Mr. McNaughton of the 

allegations against him. The State also noted that its evidence against Mr. McNaughton

had been made available to him. The district court did not rule on the motion prior to 

trial.

[¶7] Several days before trial, the State provided a hard drive to defense counsel 

containing the incriminating evidence against Mr. McNaughton. On the morning of the 

first day of trial, defense counsel requested a ruling on his motion for a bill of particulars.

In the ensuing colloquy with the court, counsel admitted that he had not listened to all of 

the evidence provided by the State:

I don’t know how many phone calls are on that thing. I 

sometimes say 18,000 phone calls. It’s something like that. I 

don’t have time as a Public Defender to listen to every one of 

those phone calls and go through those things. And so I 

didn’t read all of those things. So if minimum representation 

in a case like this is you have got to listen to every phone call 

on that terabyte drive, that hasn’t happened.

The district court denied the motion, concluding that the charging document and the 

accompanying affidavit provided a sufficient description of the charge.

[¶8] During trial, the State presented evidence of phone and text conversations tending 

to incriminate Mr. McNaughton. Following trial, the jury found Mr. McNaughton guilty 

of conspiracy. On February 25, 2015, the district court sentenced him to not less than 

four years nor more than eight years in prison. In rendering its decision, the court 

concluded that, in light of Mr. McNaughton’s prior felonies and his history of probation 

violations, probation was not an appropriate sentence. Mr. McNaughton appealed his 

conviction and sentence, and the appeal was docketed in this Court as S-15-0118.

[¶9] In November 2015, Mr. McNaughton filed a motion for a new trial asserting that

defense counsel was ineffective for failing “to investigate and review discovery,” failing 

to “thoroughly research the controlling law,” and failing to “request a continuance on the 

basis of his inability to review the large amount of discovery.” The court held a hearing 

on the motion and heard testimony from Mr. McNaughton, his trial counsel, and the 

prosecutor. Defense counsel admitted that he had not reviewed all of the material 

provided by the State. He indicated, however, that Mr. McNaughton would only enter a 

plea bargain if the State agreed to reduce the charge against him to a misdemeanor.
3

[¶10] The district court denied the motion for a new trial. The court addressed only the 

issue of prejudice, holding that Mr. McNaughton had not established that he was 

prejudiced by his counsel’s performance during plea negotiations. The district court 

concluded that “any claimed prejudice in that regard is simply speculative.” The court 

did not find any credible evidence that the State ever made a plea offer for probation or 

that the sentencing court would have accepted the State’s recommendation for probation. 

Mr. McNaughton filed a second appeal, which was docketed in this Court as S-16-0098. 

We consolidated the cases for purposes of argument and decision.

DISCUSSION

[¶11] In his only issue, Mr. McNaughton claims he received ineffective assistance of 

counsel. Claims of ineffective assistance of counsel involve mixed questions of law and 

fact and are reviewed de novo. Hibsman v. State, 2015 WY 122, ¶ 14, 355 P.3d 1240, 

1244 (Wyo. 2015). 

[¶12] In order to prevail on a claim of ineffective assistance of counsel, an appellant 

must demonstrate, first, that trial counsel’s performance was deficient and, second, that 

the deficient performance caused prejudice to the defense. Rodriguez v. State, 2010 WY 

170, ¶ 14, 245 P.3d 818, 823 (Wyo. 2010) (citing Strickland v. Washington, 466 U.S. 

668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). The failure to make the 

required showing of either deficient performance or prejudice will result in a finding that 

counsel was not ineffective. Osborne v. State, 2012 WY 123, ¶ 19, 285 P.3d 248, 252 

(Wyo. 2012).

[A] court need not determine whether counsel’s performance 

was deficient before examining the prejudice suffered by the 

defendant as a result of the alleged deficiencies. . . . If it is 

easier to dispose of an ineffectiveness claim on the ground of 

lack of sufficient prejudice, which we expect will often be so, 

that course should be followed.

Sen v. State, 2013 WY 47, ¶ 39, 301 P.3d 106, 121 (Wyo. 2013) (quoting Strickland, 466 

U.S. at 697, 104 S.Ct. at 2069).

[¶13] Mr. McNaughton contends his counsel was ineffective because he “was under the 

mistaken understanding that the State did not have much, if any, evidence which would 

establish this conspiracy.” He claims his counsel was deficient for failing to review all of 

the evidence against him. According to Mr. McNaughton, his counsel’s failure to review 

the evidence or to request a continuance prevented him from entering a more favorable 

plea agreement. He characterizes the evidence as “overwhelming,” and asserts that his 

counsel should have more aggressively pursued a plea bargain. According to 

Mr. McNaughton, he was prejudiced by his counsel’s performance because “a skilled 
4

criminal defense advocate would likely be able to secure a more favorable agreement 

than was obtained in his current sentence.”

[¶14] We find it unnecessary to address the deficiency prong of the ineffectiveness 

standard because Mr. McNaughton has not established he was prejudiced by counsel’s 

alleged deficient performance. See Pendleton v. State, 2008 WY 36, ¶ 21, 180 P.3d 212, 

219 (Wyo. 2008); Bloomer v. State, 2010 WY 88, ¶ 19, 233 P.3d 971, 976 (Wyo. 2010). 

In order to establish prejudice, the defendant must demonstrate a reasonable probability 

that, absent the deficient performance of counsel, the outcome of his trial would have 

been different. Galbreath v. State, 2015 WY 49, ¶ 10, 346 P.3d 16, 20 (Wyo. 2015). 

Mr. McNaughton’s claim that a more favorable plea agreement could have been obtained, 

however, is unsupported by the record in this case.

[¶15] Mr. McNaughton points to statements by trial counsel indicating that he would 

have more aggressively pursued a plea deal had he been aware of the evidence against 

Mr. McNaughton. For example, counsel stated that if he had been aware of the text 

messages between Mr. McNaughton and Ms. Porter, he “probably would have changed 

the attitude about negotiating with [the prosecution].” However, there is no indication in 

the record that the State would have offered a plea bargain that was more favorable than 

the sentence Mr. McNaughton received after trial, or that was acceptable to 

Mr. McNaughton or to the district court. In fact, the evidence in the record indicates 

otherwise.

[¶16] At the hearing on the motion for a new trial, Mr. McNaughton stated that “if there 

was probation on the table, I would have considered that.” He testified he was intent on 

going to trial unless he received an offer to plead to a misdemeanor, resulting in

probation but no jail time. He acknowledged that he was very interested in going to trial 

from the beginning of the case because he was “real adamant” about facing his accusers. 

When asked what prevented him from taking the State’s plea offer, Mr. McNaughton 

testified:

I wanted to find out, like, in [the] affidavit [supporting the 

State’s charging document], who CS8 [confidential source 8] 

was, [who] gave firsthand information about me. That’s what

they – the charging document, the affidavit said CS8 gave 

firsthand knowledge of Joseph McNaughton. I still haven’t 

found out who that person is. And that’s pretty much my 

biggest issue. I wanted to find out what they had against me 

and who was saying what about me. 

[¶17] Defense counsel testified that there was some discussion with the prosecution 

about a second plea offer. According to defense counsel, the State offered that “if 

Mr. McNaughton . . . would plead guilty to selling marijuana, [the State] would be 
5

willing to recommend probation if Mr. McNaughton was willing to address his drug 

problem via drug treatment.” However, defense counsel acknowledged there had never 

been a written offer to that effect. When the prosecutor was questioned about whether 

there had been an offer to recommend probation, he testified that no such offer was made

or considered:

There was never any offer made to that effect; but 

there was a discussion that we did have at one point. And I 

specifically remember [defense counsel] sitting down with me 

in our conference room at the DA’s office. And I started that 

conversation with a premise that we’re not making any offers 

here. I would just like to get some idea as to whether your 

client is interested in any other parameters. I think this was 

after he had already said, you know, he wouldn’t take 

anything other than a misdemeanor. Now, we made it clear 

we were just having a discussion; we were not making any 

offers.

After noting that Mr. McNaughton had been out of prison for less than a year at the time 

of his arrest and that he had not cooperated with law enforcement in their investigation of 

the conspiracy, the prosecutor testified that “I wouldn’t be doing my job if I would have 

made an offer of a misdemeanor given . . . what was going on with this case.” The 

prosecutor stated that the lowest offer the State would have presented was four to eight 

years, which is what Mr. McNaughton received after trial:

I made a note on the file, I could come off the five to eight 

maybe a little bit but not much. And as I recall, [the lead DCI 

agent] and I, we talked about, you know, maybe we would do

a four to eight, but we certainly were not ever talking about 

plea negotiations involving time served, misdemeanors, or 

anything close to that.

[¶18] Further, there is no indication in the record that the district court would have 

accepted a plea agreement on the terms sought by Mr. McNaughton. According to the 

prosecutor, “the likelihood of a judge taking that offer [of probation] was virtually nil for 

a guy that just got out of prison.” The prosecutor’s testimony is supported by the 

sentencing court’s statements at the sentencing hearing. In that hearing, the court 

concluded that, in light of Mr. McNaughton’s prior felonies and “history of multiple 

probation and parole revocations,” probation was not an appropriate sentence.

[¶19] Considering the testimony of Mr. McNaughton, his defense counsel, and the 

prosecutor, the district court determined that, with respect to the issue of whether 

Mr. McNaughton was prejudiced during plea negotiations, “it doesn’t take much to find 
6

that any claimed prejudice in that regard is simply speculative.” The court concluded:

Ultimately, having considered the testimony of those three 

witnesses, I am not able to find any credible evidence that 

there was an offer of probation made to the defendant or that 

any such offer would have been made to the defendant nor 

necessarily that he would have accepted such an offer even if 

it had been made. It’s convenient for the defendant to testify 

to that now; however, there’s certainly other evidence in the 

record that the defendant was not interested in taking much of 

a plea offer and was fairly committed to going to trial. . . .

That argument also doesn’t account for the Court’s 

role in the plea agreement process and in sentencing. Any 

agreement along those lines would need to be submitted to 

the Court for approval, and there is no evidence that the Court 

would have accepted such an agreement. In fact, I would 

submit that one could reasonably infer based on the sentence 

the Court did impose, finding that probation was not 

appropriate under no restriction of a plea agreement and 

having stated the reasons therefor during sentencing, that one 

could reasonably infer that that would not have happened.

We agree with the district court. 

[¶20] Mr. McNaughton cites the Supreme Court’s opinion in Lafler v. Cooper, 566 U.S. 

156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) to support his claim that he was prejudiced 

by his counsel’s performance. In that case, however, the appellant rejected the 

prosecution’s plea offer and, unlike the present case, he received a less favorable

outcome after trial. The Court stated that a defendant must prove several facts, including 

that the plea offer’s terms would have been more favorable than the outcome after trial, in 

order to demonstrate prejudice:

In these circumstances a defendant must show that but for the 

ineffective advice of counsel there is a reasonable probability 

that the plea offer would have been presented to the court 

(i.e., that the defendant would have accepted the plea and the 

prosecution would not have withdrawn it in light of 

intervening circumstances), that the court would have 

accepted its terms, and that the conviction or sentence, or 

both, under the offer’s terms would have been less severe 

than under the judgment and sentence that in fact were 

imposed.
7

Id., 132 S.Ct. at 1385. The Court indicated that the severity of the sentence after trial was

integral to its holding that the appellant was prejudiced by his counsel’s deficient 

performance:

In the instant case respondent went to trial rather than accept 

a plea deal, and it is conceded this was the result of 

ineffective assistance during the plea negotiation process. 

Respondent received a more severe sentence at trial, one 31⁄2 

times more severe than he likely would have received by 

pleading guilty. Far from curing the error, the trial caused the 

injury from the error. Even if the trial itself is free from 

constitutional flaw, the defendant who goes to trial instead of 

taking a more favorable plea may be prejudiced from either a 

conviction on more serious counts or the imposition of a more 

severe sentence.

Id., 132 S.Ct. at 1386.

 

[¶21] In the present case, there was no plea offer made that was more favorable than the 

sentence Mr. McNaughton ultimately received. Further, Mr. McNaughton has not 

demonstrated that the State would have offered a plea bargain that was more favorable 

than the sentence he received after trial, or that was acceptable to him or to the district 

court. He has not shown that he was prejudiced by his counsel’s performance. As a 

result, we are unable to conclude he received ineffective assistance of counsel.

[¶22] Affirmed.