Opinion
S-20-0133
01-06-2021
Russell John RAYDA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
ORDER AFFIRMING THE DISTRICT COURT ’ S JUDGMENT AND SENTENCE
[¶ 1] This matter came before the Court upon its own motion following notification that Appellant has not filed a pro se brief within the time allotted by this Court. Appellant entered unconditional guilty pleas to (1) possession of marijuana, a fourth offense felony and (2) driving while under the influence, a misdemeanor. Wyo. Stat. Ann. § 35-7-1031(c)(i)(A) ; § 31-5-233. On the felony, the district court imposed a three to five-year sentence, with the misdemeanor sentence to run concurrently. Appellant filed this appeal to challenge the district court's March 17, 2020, "Judgment, Sentence and Order of Incarceration."
[¶ 2] On July 28, 2020, Appellant's court-appointed appellate counsel filed a "Motion to Withdraw as Counsel," pursuant to Anders v. California , 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). This Court subsequently entered an "Order Granting Motion for Extension of Time to File Pro Se Brief." On September 14, 2020, Appellant filed a pro se letter that described his claims. On September 29, 2020, this Court entered its "Order Denying Permission for Court-Appointed Counsel to Withdraw and Order Requiring Further Briefing." This Court noted that, pursuant to the Anders briefing procedure, appellate counsel is required to "refer[ ] to anything in the record that might arguably support the appeal." Anders v. California , 386 U.S. at 744, 87 S.Ct. at 1400. This Court concluded appellate counsel should have discussed the potential merit of a motion to suppress. This Court noted that, even in a case involving an unconditional guilty plea, an appellant may claim trial counsel was ineffective in failing to file a motion to suppress evidence. See Kitzke v. State , 2002 WY 147, ¶¶ 8-12, 55 P.3d 696, 699-701 (Wyo. 2002).
[¶ 3] Next, on October 29, 2020, Appellant's court-appointed appellate counsel filed another "Motion to Withdraw as Counsel," pursuant to Anders v. California , along with a supplemental Anders brief. This Court subsequently entered an "Order Granting Motion for Extension of Time to File Pro Se Brief," which provided Appellant another opportunity to file a pro se brief "specifying the issues he would like the Court to consider in this appeal." This Court also provided notice that, after the time for filing a pro se brief expired, this Court would "make its ruling on counsel's motion to withdraw and, if appropriate, make a final decision" on this appeal. This Court notes that Appellant did not file a pro se brief or other pleading in the time allotted.
[¶ 4] Now, following a careful review of the record, the initial Anders brief submitted by appellate counsel, the supplemental Anders brief, and Appellant's pro se letter, this Court finds appellate counsel's motion to withdraw should be granted and that the district court's "Judgment, Sentence and Order of Incarceration" should be affirmed.
[¶ 5] ORDERED that the Wyoming Public Defender's Office, court-appointed counsel for Appellant Russell John Rayda, is hereby permitted to withdraw as counsel of record for Appellant; and it is further
[¶ 6] ORDERED that the Albany County District Court's March 17, 2020, "Judgment, Sentence and Order of Incarceration" be, and the same hereby is, affirmed.
[¶ 7] DATED this 6th day of January, 2021.
BY THE COURT:
/s/ MICHAEL K. DAVIS