Popkin v. State
Popkin v. State
Opinion of the Court
*54[¶1] Appellant Joshua R. Popkin pled no contest to two charges of second degree sexual assault. On appeal, he asserts that the facts alleged in the charges against him did not constitute crimes. We affirm because we conclude that his no-contest pleas waived this appeal issue.
ISSUES
[¶2] Dr. Popkin presents a single issue: Do the facts alleged in this case constitute a crime? The State raises a second issue: By pleading no contest to the charges, did Dr. Popkin waive his only appeal argument?
FACTS
[¶3] Dr. Popkin, a licensed psychologist, was initially charged in August of 2016 with one count of second degree sexual assault by a person in a position of authority. The affidavit of probable cause supporting the charge
[¶4] In April of 2017, in a separate docket, Dr. Popkin was charged with two counts of second degree sexual assault by a person in a position of authority. The affidavit indicated that Dr. Popkin served as counselor to the alleged victim, J.S., in late 2015. J.S. described their counselling sessions as "flirty." During a session at Dr. Popkin's house, he offered her alcohol and marijuana, began kissing her, and talked about matters of "a very sexual nature." During two sessions in February of 2016, Dr. Popkin had sexual relations and sexual contact with J.S.
[¶5] In August of 2017, Dr. Popkin and the State entered into a plea agreement. Dr. Popkin agreed to plead no contest to the first charge and to one of the later charges, and the State agreed to dismiss the second of the later charges. The State agreed to recommend a sentence of one year in jail followed by supervised probation for a period of ten years. The district court accepted Dr. Popkin's no contest pleas. However, it rejected the State's recommendation as to Dr. Popkin's sentence, and instead sentenced him to three to five years on each charge, with the sentences to be served consecutively.
[¶6] Dr. Popkin filed a notice of appeal, bringing this matter before us. Later, Dr. Popkin filed a motion in the district court seeking to correct an illegal sentence. He asserted that the facts alleged in his case did not constitute a crime because a clinical psychologist is not in a position of authority as that term is used in the applicable Wyoming criminal statute. The district court denied the motion to correct an illegal sentence, and Dr. Popkin appealed that decision. This Court, on its own motion, consolidated the two appeals.
DISCUSSION
[¶7] Dr. Popkin pled no contest to and was convicted on two counts of second degree sexual assault by a person in a position of authority, in violation of *55
(a) Any actor who inflicts sexual intrusion on a victim commits sexual assault in the second degree if, under circumstances not constituting sexual assault in the first degree:
* * * *
(vi) The actor is in a position of authority over the victim and uses this position of authority to cause the victim to submit[.]
"Position of authority" is defined by
[¶8] Dr. Popkin asserts that he was not in a position of authority over his alleged victims as required for conviction under
[¶9] Dr. Popkin recognizes that "Wyoming's statute is exceptionally inclusive both as written and as construed." Faubion v. State ,
[¶10] The State counters that Dr. Popkin entered no contest pleas to the two charges, and in doing so, he waived all non-jurisdictional defenses. His sole issue on appeal is not jurisdictional, the State contends, and so was waived. Accordingly, the State maintains, this Court should decline to consider the merits of his appeal and affirm.
[¶11] Because the State's issue is potentially dispositive, we consider it first. See Goetzel v. State ,
[¶12] We have consistently held that a no contest or "nolo contendere plea waives all issues but those related to jurisdiction and voluntariness of the plea." Hagen v. State ,
[¶13] The question of "whether or not there is sufficient evidence an accused is in a 'position of authority' ... is a mixed question of law and fact." Solis , ¶ 33,
[¶14] In this mixed question of law and fact, the legal portion was one to be decided by the district court. The factual portion was one to be decided by a jury. Neither portion prevented the State from bringing Dr. Popkin into court to answer the charges against him. Accordingly, the issue presented by Dr. Popkin in this appeal is not jurisdictional in nature. In Ochoa ,
[¶15] Dr. Popkin's contrary position apparently relies on a case in which the United States Supreme Court wrote that "a guilty plea does not bar a claim on appeal 'where on the face of the record the court had no power to enter the conviction or impose the sentence.' " Class v. United States , --- U.S. ----,
CONCLUSION
[¶16] When Dr. Popkin pled no contest to two charges of second degree sexual assault by a person in a position of authority, he waived the right to challenge all issues except those related to jurisdiction and the voluntariness of his plea. There is no dispute that his pleas were voluntary, and we conclude that the issue he raises on appeal is not jurisdictional. Accordingly, we affirm his convictions and the judgment of the district court.
Because Dr. Popkin pled no contest to the charges, the district court did not question him to establish the factual basis of his plea, but instead relied on the Affidavits of Probable Cause that supported the charges. "Accordingly, we also look to the supporting affidavit[s] to establish the facts necessary to analyze Appellant's ... claim." Drakeford v. State ,
In 2018, the Wyoming Legislature amended this definition to add "health care provider" to the list of positions of authority. 2018 Wyo. Sess. Laws ch. 80, § 1, at 80. However, the previous version of the statute was in effect in 2016 when Dr. Popkin had sexual relations with the two alleged victims.
Reference
- Full Case Name
- Joshua R. POPKIN, (Defendant) v. The STATE of Wyoming, (Plaintiff).
- Cited By
- 3 cases
- Status
- Published