### IN THE SUPREME COURT, STATE OF WYOMING

20 2 1 WY 43

OCTOBER TERM, A.D. 20 20

March 22 , 2021

ROY DAVID STANGER,

Appellant (Defendant),

v.

THE STATE OF WYOMING,

Appellee (Plaintiff). S

- 20

- 0167

Appeal from the District Court of Campbell C oun t y The Ho nor ab le Michael N. Deegan

, Judge

Representing Appellant:

Office of the State Public Defender: Diane Lozano, Wyoming State Public

Defender ; Kirk A. Morgan, Chief Appellate Counsel ; David E. W estling, Senior Assistant Appellate Counsel

.

Rep re s ent i ng Appel lee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig , Deputy Attorney General; Jo shua C. Eames , S en ior Assistant Attorney General ; Timothy P. Zintak

, Assistant Attorney General

.

Before DAVIS, C.J., and F OX , K AUTZ, BOOMGAARDEN, and GRAY

, J J

.

NOTI CE: 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 a n y typ ographical or other formal err o rs so th at correction may be made before final publication in the permanent volume.1 GRAY , Justice.

[¶1] Roy David Stanger was charged with possession of methamphetamine, a fourth offense felony based on three prior possession convictions

— two in Miss ouri and one in

Sherid an County, W yoming. Mr. Stanger later entered into a conditional plea agreement

reserv ing his argument that his prior Missouri convictions did not subject him to enhanced penalties because they were not violations of a “similar law” under the Wyoming statute

. This appeal followed. We remand

.

ISSUE

[¶2] Mr. Stanger raises one issue on appeal: Did the district court err when it used his prior Missouri convictions as a bas is for an en hanced sentence under Wyo. Stat. Ann. § 35

- 7

- 1031(c)(i)? Becau se we c annot determine from the record which statutes or

ordinances underlie Mr. Stanger ’ s prior convictions, we do not reach his issue.

FACTS

[¶3] The State charged Mr. Stanger wi th m ethamphetami ne possession, a felony as a third or subsequent offense under Wyo. Stat. Ann. § 35

- 7

- 1031(c)(i)(C). A supplemental

affidavit attached to the f elony i nformation documented three pr ior convictions for “misdemeanor possession of a controlled su b stance” based on a National Crime Information Center (NCIC) report : two fr om O’Fallon, Missouri, and one from Sheridan County, Wyoming. 1 The affidavit listed the dates of Mr. Stanger’s convict ions and case numbers, but did not inc lude citations to the st a tute or code corresponding to those

convictions. The State did not attach the NCI C report or certified copies of Mr. Stanger’s prior convictions to the supp lemental affidavit.

[¶4] Mr. Stanger f iled a motion arguing his Missouri convictions did not qual ify as “convictions for violations of similar laws in other jurisdictions” und er the Wyoming felony enhancement statute. 2 He argued Mo. Ann

. Stat. § 195.202 (1989)

, the Missouri

1 The affidavit incorrectly states Mr. Stanger’s convictions occu rred in “O’Fallon County, MO.” Later,

the State introduced evidence document ing his convictions occurred in the c ity of O’Fal lon, Missou ri.

2 Wyo. Stat. Ann. § 35

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- 1031(c)(i) provides in relevant part: (c) It is unlawful for any person knowingly or int ention ally to possess a
controlled substance unless the substance was obtaine d di rect ly from, or pursuant to a valid pre script ion or order of a practitioner while a cting in the course of his professional practice, or except as otherwise authorized by this act

. . . . Any person who violates this subsection: (i) And has in his posses sion a c ontrolled substance in the

amount s et for th in this paragraph is guilty of a mis demeanor punishable by imprisonment for not more than twelve (12) months, a fine of not mor e than one thousand dollars2 statute prohibi tin g possess ion of controlled substances in effect at the time of his

Missouri convictions

, did not contain a sentencing enhancement provisi on and was therefore dissimilar to Wyo. Stat. Ann. § 35

- 7

- 1031(c)(i)

. 3 Th e State did not file a

response , but argued a t the motion hearing that the Missouri s tatute was similar to W yo. Stat. Ann. § 35

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- 1031(c)(i ) and qualified as a basis for sentence enh ancemen t because the elements of the underlying crimes were co mparable. The district court agreed with

t he State and denied Mr. Stanger’s motion

.

[¶5] Mr. Stanger later entered into a conditional guilty plea ag reeme n t reserv ing the right to appeal his convic tion based on his argument that Mo. Ann . Stat. § 195.202 (1989)

was not a “similar law” for purposes of sentence enhancement. Mr. Stanger’s Notice of

Intent to Enter Conditional Plea stated

t hat the issue of wh eth er Mo. [Ann.] Stat. § 195.202 (1989) is similar for purposes of en hancement pu rsuant to W .S. § 35

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- 1031(c)(i) is a dispositive iss ue insofar as if the Defendant’s

pr ior Missouri convictions cannot be used to enhance the

instant possession offense to a fe l ony, then the Defendant is improperly ch arged with a felony offens e, and a con vi ction of

such a felony offense cannot stand [

. ]

Th e State verified and consen ted to the conditional plea as stated in Mr. Stanger’s Notice

of Intent.

[¶6] At the change o f plea h earing, t he State introduced a “defe ndan t history report” obtained through the O’Fallon, Missouri

, Municipal Court (the O’Fallon re port)

. The O’Fallon report listed three “ possession [ of ] marijuana/synthetic ” convictions

— one

($1,000.00), or both. Any person convicted for a thi rd o r subsequent offense under this par agraph , including convictions for violations o f similar laws in other jurisdictions, shall be imprisoned for a term not more than five ( 5) yea rs, fined not more than five thousand dollars ($5,000.00), or both. Wyo . St at. Ann. § 35

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- 1031(c)(i) (LexisNexis 2019) (emphasis added).

3 Mo. Ann

. Stat. § 195.202 ( 1989) reads a s follows:

1. Except as authorized by sections 195.005 to 195.425

, it is unlaw ful for any person to possess or have under his control a controlled

substa nce. 2. Any person who violates this sect ion wi th respect to any controlled substance except thirty

- five gra ms o r less of marijuana is guilty of a c lass C felony.

3. Any person wh o viol ates this section with respect to not more than thirty

- five grams of ma riju ana is guilty of a class A misdemeanor.

Mo. A nn . Stat. § 195.202 ( West 1989)

.3 ent e red in 2005

, one e ntered i n 2006, and one entered in 2007

. 4 The r eport did not

contain citations to the code or statute corresponding to the convictions

. D espite the

introduction of the O’Fallon repo rt

, n either M r. Stanger nor the State raised a possible disparity in the source o f Mr. Stanger’s Missouri convictions

— tha t the convictions might

arise from a violation of municipal code rather than the previously argued state statute

. The district court accepted Mr. Stanger’s plea and later sentenced him in accordance with

the plea a g reement. This appea l fo llowed.

STAND AR D OF REVIEW

[¶7] We would normally apply a de novo standard of review to the question of whethe r the Missouri possession statute is a “similar law” t o Wyo. Stat. Ann. § 35

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- 1031(c)(i). Spreeman v. State , 2012 W Y 88, ¶ 6, 278 P.3d 1159, 11 61 ( Wyo. 2012) ; Ram i rez v. State , 2016 WY 128, ¶ 7, 386 P.3d 348, 349 (Wyo. 2016) (“ We apply a de novo standard

of review to issues of statutory interpretation.”)

. However, here, we do not reach the statutory interpretation que stion. We examine the circu msta nces of this cas e in light of our caselaw recognizing that a plea agreement is a contract between the State and the defendant to which we apply general principles of contract law. Mendoza v. State , 2016 WY 31, ¶ 26, 368 P.3 d 886, 8 95 (Wyo. 2016) ( quot ing Deeds v. State

, 201 4 WY 124, ¶ 14, 335 P.3d 473, 478 (Wyo. 2014) ).

DISCUSSION

[¶8] On appeal, Mr. Stanger ren ews his argument that his Wyoming conviction was improperly enhanced because Mo. Ann . Stat. § 195.202 is not a “simil ar law” contemplated under W yo. Stat. Ann. § 35

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- 1 031(c)(i). In response, the State raises a

new argument. It contends Mr. Stanger was n ot convicted under Mo. Ann

. Stat. § 195.202 but was convicted of a municipal ordinance viola tion

. The State maintain s becaus e Mr. Stanger’s argument is incorrectly premised on the state

- level statute

, we should decline to consider his appeal

.

[¶9] The uncer tainty regarding the statutory foundatio n for the charge s rai ses questions

about the validity o f the ple a agreement

. In Holc omb v. State

, the defendant entered a

co nditional guilty plea in exchange for the State’s promise it would recommend deferred

prose cution to the sentencing court. Holcomb v. State

, 2007 WY 13 1, 1 65 P.3d 105 (Wyo. 2007)

. In a prior Colorad o case , however, the defendant had received a “ deferred judgment,” rendering him ineligible for deferred pr o secution in Wyoming. Id. ¶ 5, 165

4 At the change of plea hearing, the district court noted discrep ancies between the convictions l isted in th e NC I C report

— which documented only two possession convictions

— and the O’F allon report

. Mr. Stanger conceded he ha d been convicted of “at least two” prior convictions for possession of marijuana in O’Fallon, oc curring in 2005 and 2006.4 P.3d at 1 09

. In recognition of a plea agree ment as a contract, t he C o urt applied the doctrine of mutual mistake to the p lea agre ement, finding the par ties’ mistake as t o defendant’s eligibility for deferred prosecution caused a “collapse of the plea agreement .”

Id. ¶ 1 1 , 165 P.3d at 110

– 11

.

[T] h ere was an agreement that , in exchange for the appellant ’ s guilty plea, the d istrict court would consider deferred prosecutio n. That did not happen

— the district court never considered deferred prosecution because it was prevented from doing so by a mutual mistake of the parti es: neither the State nor the appellant knew that the ap pellant was ineligible for deferred prosecution.

Id. (emphasis removed)

. “ [T] he fact that the agree ment was impossible to perform ” requir ed that the defendant be allowed to with draw his plea. Id. ¶ ¶ 11

, 15, 165 P.3d at

110

– 11 ; see also United States v. Chica

- Or ellana , 768 F. App ’ x 834, 837 (10th Cir. 2019) (set ting fort h a three

- part test for rescission of a plea agreement based on mutual mistake).

[¶10] H ere, we cannot determine fr om the record whether the parties based their plea

agreement on accurate info rmation

, or if the parties were mutually mistake n as to the

statute or ordinance upon which Mr. Stanger’s prior convictions were based. If the prior

convictions were based on mun icipal ordinances, as espoused by the Stat e, the plea agreement is impossible to perf orm because Mr. Stanger’s guilty plea is premised on his

ri ght to arg ue against enhancement arising from convictions under the Miss ouri statutes,

not the O’Fallon municipa l code. Whether a violation of th e mu nicipal ordinance could qualify to enha nce Mr. Stanger’s conviction is a question of st atutory interpretation that was never presented to the district court.

[¶11] If Mr. Stanger’s convictions were premised on a violation of municipal code and

not the Mis sour i statutes, then both parties were mist aken as to the basis for the felony

enhancement. Mr. Stanger pre dicat ed his conditional plea on the right to appeal the question of whethe r he had bee n previously convicted of a similar law

— the basis for

enhancem ent of his misdemeanor possession charge to a felon y . A mutual mistake as to the proper ba sis for enhancement wo uld preclude performance of the plea agreement and render it invalid, as in Holco mb . The state of the record pre vents resolution of this issue

. F or th ese reason s , we cannot reach Mr. S tanger’s issue on appeal. We remand to the

dist rict court for further proceedings consistent with this opinion.