August 17, 2016

03:49:57 PM
CASE NUMBER: S-16-0166
IN THE SUPREME COURT

STATE OF WYOMING

KENNETH EUGENE CHRISTOPHER, )

Appellant, )
)
v. ) No. S-16-0166
)
THE STATE OF WYOMING, )
Appellee. )

_____________________________________________________________________

BRIEF OF APPELLANT PURSUANT TO

ANDERS V. CALIFORNIA, 386 U.S. 738 (1967)
_____________________________________________________________________

Diane Lozano, #6-2823

State Public Defender

Tina N. Olson, #6-3206

Chief Appellate Counsel

David E. Westling, #5-1760

Senior Assistant Appellate Counsel

Office of the State Public Defender

Rogers Bldg., 316 West 22nd Street
Cheyenne, WY 82002
(307) 777-3451

ATTORNEYS FOR APPELLANT

 TABLE OF CONTENTS

Table of Authorities ............................................................................................................. ii

Statement of the Issue .......................................................................................................... 1

Statement of the Case .......................................................................................................... 2

Argument ............................................................................................................................. 4

IS APPELLANTS APPEAL MERITORIOUS?

Conclusion ........................................................................................................................... 7

Certificate of Service ........................................................................................................... 8

Appendix A.......................................................................................................................... 9

Judgment and Sentence

i
 TABLE OF AUTHORITIES
Cases

Anders v. California, 386 U.S. 738 (1967).................................................................. 4, 5, 7

Harris v. State, 2006 WY 76, 137 P.3d 124 (Wyo. 2006) .................................................. 6

Johnson v. State, 806 P.2d 1282 (Wyo. 1991) .................................................................... 5

McCoy v. Court of Appeals Of Wis., 486 U.S. 429 (1988) .............................................. 4, 5

Mead v. State, 927 P.2d 1170 (Wyo. 1996)......................................................................... 4

Penson v. Ohio, 488 U.S. 75 (1988) .................................................................................... 4

Smith v. Robbins, 528 U.S. 259 (2000) ............................................................................... 4

Smith v. State, 871 P.2d 186 (Wyo. 1994)........................................................................... 5

Statutes

W.S. 6-2-314(a)(ii) ........................................................................................................... 2

Rules

W.R.Cr.P. 15........................................................................................................................ 5

ii
 STATEMENT OF THE ISSUE

IS APPELLANTS APPEAL MERITORIOUS?

1
 STATEMENT OF THE CASE

1. Nature of the case, course of proceedings and disposition in the trial court.

Kenneth Christopher entered guilty pleas to two counts of Sexual Abuse of a

Minor in the First Degree, a violation of W.S. 6-2-314(a)(ii), in the Eighth Judicial

District Court before the Honorable John C. Brooks. Mr. Christopher was sentenced to a

term of incarceration of not less than 30 years nor more than 40 years on each count. He

was given credit for 285 days of time served. Mr. Christopher was assessed fees and

costs in the amount of $395.00.

2. Course of Proceedings.

On August 13, 2015, an information was filed in the Circuit Court of the 8th

Judicial District charging Kenneth Eugene Christopher with three counts of violating

W.S. 6-2-314(a)(ii), Sexual Abuse of a Minor in the First Degree. (R.A. p. 1). Mr.

Christopher waived his preliminary hearing in Circuit Court. (R.A. p. 4). On August 18,

2015, all three counts were bound over to the District Court. (R.A. p. 13).

Mr. Christopher was arraigned in District Court on September 15, 2015, and at

that time he entered a plea of not guilty to all three charges. (R.A. p.64). Counsel for Mr.

Christopher entered an alibi defense alleging that Mr. Christopher was not in the alleged

jurisdiction on the alleged dates. (R.A. p. 69). An amended information was entered on

November 30, 2015. (R.A. p. 70). A notice of intent to change plea was entered on

February 9, 2016. (R.A. p. 90). The hearing for a change of plea was held on February

11, 2016, and at that hearing Mr. Christopher pled guilty to Counts I and II. (R.A. p.

108). An order upon a plea of guilty was entered on February 16, 2015. (R.A. p. 92). A

2
presentence investigation report was submitted on April 14, 2016. (Confidential File).

After hearing argument of counsel, Judge Brooks pronounced a sentence of 30 to 40

years of incarceration on each count with the sentences to run concurrent. (R.A. p. 138).

That decision was reduced to a Judgment and Sentence which was entered on May 27,

2016. (R.A. p. 116).

A Notice of Appeal was filed on June 22, 2016. (R.A. p. 164). This matter is

properly before the Wyoming Supreme Court.

3. Statement of Facts.

The facts of this case are contained in the factual basis of the Guilty Plea which is as

follows:

Mr. Foreman: I will set forth a factual basis for Count I and Count II.
Kenneth, approximately what day did you move to Converse County?

Defendant Christopher: It was Sunday after Thanksgiving.

Mr. Foreman: Which year?

Defendant Christopher: 2012

Mr. Foreman: Okay. So 2012. And during the - - this time period in
question, did you have a sexual relationship with your stepdaughter
identified as J.K.S. in which you had sexual intrusion with her during
November and December of 2012?

Defendant Christopher: Yes.

Mr. Foreman: Okay. And your stepdaughter was less than 18 years old?

Defendant Christopher: Yes.

Mr. Foreman: And you were greater than 18 years old?

Defendant Christopher: Yes.

(R.A. pp. 108-109).

3
 ARGUMENT

APPELLANTS APPEAL IS NOT MERITORIOUS.

Appellate counsel for Mr. Christopher has conscientiously reviewed the entire file,

as well as other materials, spoken with his client, and has found no appealable issues.

Mr. Christopher believes that he was not properly advised that he would not be able to

use a crossbow or an archery trigger device if he was a convicted felon. He also

indicated that he did not understand everything that was going on.

Standard of Review.

This Court is being requested to review the record in its entirety to determine if the

appeal is wholly frivolous in accordance with the mandates of Anders v. California, 386

U.S. 738 (1967).

Of course, if counsel finds his case to be wholly frivolous, after a

conscientious examination of it, he should so advise the court and request
permission to withdraw. That request must, however, be accompanied by a
brief referring to anything in the record that might arguably support the
appeal. A copy of counsels brief should be furnished the indigent and time
allowed him to raise any points that he chooses; the court -- not counsel --
then proceeds, after a full examination of all the proceedings, to decide
whether the case is wholly frivolous. If it so finds it may grant counsels
request to withdraw and dismiss the appeal insofar as federal requirements
are concerned, or proceed to a decision on the merits, if state law so
requires. On the other hand, if it finds any of the legal points arguable on
their merits (and therefore not frivolous) it must, prior to decision, afford
the indigent the assistance of counsel to argue the appeal.

Id., 386 U.S. at 744 at 498; see also Smith v. Robbins, 528 U.S. 259 (2000); McCoy v.

Court of Appeals Of Wis., 486 U.S. 429 (1988); Penson v. Ohio, 488 U.S. 75 (1988); and

Mead v. State, 927 P.2d 1170 (Wyo. 1996) (endorsing Anders v. California).

4
 An attorney, whether appointed or paid, is under an ethical obligation to refuse to

prosecute a frivolous appeal. McCoy v. Court of Appeals Of Wis., 486 U.S. 429, 436

(1988). [T]he fact that appointed appellate lawyer may find it necessary to file a motion

to withdraw because he or she has concluded that an appeal is frivolous does not indicate

that the indigent defendant has received less effective representation than the affluent.

Id., 486 U.S. at 437. Only after a thorough and competent review of the record in the

clients interest which has led counsel to the conclusion that the appeal is wholly

frivolous is counsel justified in making a motion to withdraw, which is the central

teaching of Anders v. California. McCoy, 486 U.S. at 438-439 (1967).

Argument.

In the present case there was a guilty plea.

A guilty plea waives non-jurisdictional defenses. Ochoa, 848 P.2d at 1361;

Davila, 831 P.2d at 205; Sword, 746 P.2d at 425. In Davila, 831 P.2d at
20506, [this Court] set forth the difference between jurisdictional and non-
jurisdictional defenses. Jurisdictional defenses involve the state's power to
bring the defendant into court; non-jurisdictional defenses are those
objections and defenses which would not prevent a trial. Id. (quoting
Sword, 746 P.2d at 426). Constitutional challenges to pretrial proceedings,
including speedy trial violations, are non-jurisdictional defenses. Ochoa,
848 P.2d at 1362; Davila, 831 P.2d at 206; Sword, 746 P.2d at 425.

Smith v. State, 871 P.2d 186, 188 (Wyo. 1994).

In regards to proper advisements, this Court has stated that Under W.R.Cr.P. 15,

the trial court is not required to inform the defendant of all the possible collateral

consequences. Johnson v. State, 806 P.2d 1282, 1291 (Wyo. 1991). The court did

inform Mr. Christopher that as a felon he would be unable to possess firearms or be

employed in a capacity requiring their use. (R.A. p. 99). In addition, Mr. Christopher was

5
given a written advisement of rights that contained the same language and directed the

individual to a website on collateral consequences. (R.A. p. 37).

This Court has stated that The American Heritage College Dictionary 521 (4th

ed.2002), defines firearm as [a] weapon, esp. a pistol or rifle, capable of firing a

projectile and using an explosive as a propellant. Webster's Ninth New Collegiate

Dictionary 465 (1991), defines firearm as a weapon from which a shot is discharged

by gunpowder. Finally, Black's Law Dictionary 634 (6th ed.1990), defines firearm as

[a] weapon which acts by force of gunpowder. Harris v. State, 2006 WY 76, 12, 137

P.3d 124, 12829 (Wyo. 2006). Since archery products or crossbows do not seem to fit

this definition, it seems Mr. Christophers concerns are misplaced.

Finally, the trial court specifically asked Mr. Christopher if he understood the

charges. (R.A. p. 106, 108). The court asked Mr. Christopher if he understood his rights.

(R.A. p. 97). The court asked Mr. Christopher if he had any questions. (R.A. p. 100).

Mr. Christopher was asked if he understood the plea agreement. (R.A. p. 102). All of

those questions were answered appropriately and there was no indication that Mr.

Christopher had any problem understanding or was confused.

6
 CONCLUSION.

After a conscientious examination of the record and investigation, appellate

counsel concludes that there are no meritorious, arguable issues for appeal. Counsel has

followed the mandates of Anders v. California, 386 U.S. 738 (1967). Therefore, it is

respectfully requested that this Court review the record in its entirety and either decide

the case on its merits, allow counsel to withdraw and allow Mr. Christopher to proceed

pro se, or make a determination that there are arguable issues that should be briefed by

counsel.

Respectfully submitted this 17th day of August, 2015.

s/Tina N. Olson
Tina N. Olson

s/David E. Westling
David E. Westling
Wyoming State Bar No: 5-1760
Attorney for Appellant
Senior Assistant Appellate Counsel
Appellate Division
Office of the State Public Defender
Rogers Bldg., 316 West 22nd Street
Cheyenne, Wyoming 82002
Telephone (307) 777-3451
david.westling@wyo.gov

7
 CERTIFICATE OF SERVICE

The undersigned hereby certifies that on August 17, 2016, a true and correct copy

of the foregoing was served electronically via the Wyoming Supreme Court C-Track

Electronic Filing System, addressed as follows:

Christyne Martens
Senior Assistant Attorney General
123 Capitol Building
Cheyenne, WY 82002

A true and correct copy was also served on Appellant via First Class Mail, postage

prepaid, addressed as follows:

Mr. Kenneth E. Christopher, #30609

WMCI
7076 Road 55F
Torrington, WY 82240

The undersigned also certifies that all required privacy redactions have been made and,

with the exception of any required redactions, this document is an exact copy of the

written document filed with the Clerk. Furthermore, this document has been scanned for

viruses and is free of viruses.

s/Tina N. Olson
Tina N. Olson

s/David E. Westling
David E. Westling

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 APPENDIX A

Judgment and Sentence