text:
    2003 WY 97
    John Arthur TAYLOR, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-222.
    Supreme Court of Wyoming.
    Aug. 20, 2003.
    Rehearing Denied Sept. 3, 2003.

      Representing Appellant: John Arthur Taylor, Jr., pro se.
    Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehu-rek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Ed Newell, Special Assistant Attorney General.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[T1] John Arthur Taylor, Jr., appeals the district court's dismissal for lack of jurisdiction of his pro se "Petition to Show Cause Why Judgement [sic] is Not Void." Taylor had filed that petition to challenge his 1997 conviction and sentence for possession of a deadly weapon with unlawful intent. Finding that the district court was without jurisdiction to consider Taylor's petition, we dismiss this appeal as well.

ISSUES

[T2] In this pro se appeal, Taylor does not expressly state any issues in his brief. We discern his issue to be whether his 1997 conviction and sentencing are a nullity because written oaths of office were allegedly not filed by the county court commissioners involved in the preliminary stages of his criminal case. The State of Wyoming phrases the issues as follows:

I. Did the district court have jurisdiction to consider Taylor's "Petition to Show Cause Why Judgement (gic) Is Not Void"?
II. Does this Court have jurisdiction to consider Taylor's appeal?

FACTS

[T3] Taylor was convicted of possession of a deadly weapon with unlawful intent following a trial to the court in Fremont County on April 7, 1997, and was sentenced to two to four years in the Wyoming State Penitentiary on June 18, 1997. He appealed his convietion and sentence, which were upheld by decision of this Court on May 26, 2000, in Taylor v. State, 7 P.3d 15 (Wyo.2000).

[T4] On June 17, 2002, Taylor filed in the district court a "Petition to Show Cause Why Judgement [sic] Is Not Void." The Petition was filed under his criminal case caption and asserts that it was served on the Fremont County Attorney's Office by regular mail. He then filed a "Motion for Summary Judgment" on July 19, 2002. These pleadings allege defects in the arrest warrant and search procedures in 1997, and that his conviction is void because the county court commissioners who presided over his preliminary hearing and ordered him bound over to the district court for trial did not have written oaths of office on file. These issues were not raised in Taylor's previous appeal.

[T5] The Fremont County Deputy Prosecuting Attorney filed a one-page "State's Response to Defendant's Motion for Summary Judgment," asserting that a motion for summary judgment under the rules of civil procedure does not apply to criminal proceedings; that a motion for new trial pursuant to W.R.Cr.P. 33 would have been due within two years of final judgment; that a motion for arrest of judgment for want of jurisdiction under W.R.Cr.P. 34 would have been due within ten days of conviction, and that a motion for post-conviction relief would be untimely under Wyo. Stat. Ann. § 7-14-103(d).

[T6] The district court judge issued a decision letter on July 31, 2002, which stated:

Having reviewed your memos and the case of Nixon v. State, 2002 WY 118, 51 P.3d 851, I find that defendant has not stated any cause for relief over which this court has any authority. Therefore, I will order that the applications filed by defendant be dismissed and the claims be denied.

An order of dismissal was filed on September 3, 2002, which Taylor appealed.

DISCUSSION

[¶ 7] The district court and the state are correct that this matter is controlled by our decision in Nixon v. State, 2002 WY 118, 51 P.3d 851 (Wyo.2002). The facts in Nixon were procedurally similar. Nixon had pled guilty under a plea agreement to first degree murder and aggravated assault and battery. Nine months after this Court affirmed his judgment and sentence, he sought via motion in the district court to withdraw his guilty pleas. The district court, finding it lacked jurisdiction, dismissed the motion to withdraw the plea, and Nixon appealed. We agreed with the district court and dismissed the second appeal for lack of jurisdiction in this Court.

[¶ 8] We discussed at some length the finality of eriminal convictions in Nixon. We noted the specific procedures under the rules and statutes for post-conviction relief, acknowledged the constitutional and policy bases for finality in criminal cases, and concluded that, once the defendant's conviction has become final because of the exercise or forfeiture of his right to appeal from his conviction, the district court has no continuing authority to act in the case unless permitted by express statute or rule. Id. at TM 11-13; see also Barela v. State, 2002 WY 143, ¶¶ 8-9, 55 P.3d 11, 12-13 (Wyo.2002).

[T9] Perhaps out of naiveté or perhaps to avoid the preclusive effect of the above cases, Taylor tried to bring his claim before this Court in the cloak of a civil proceeding, using a show cause petition and motion for summary judgment. - But we will not permit post-conviction relief to be invoked as a substitute for a direct appeal. Cutbirth v. State, 751 P.2d 1257, 1261 (Wyo.1988). Nor will we allow issues that could have been raised on appeal to be challenged by a petition for post-conviction relief because they are foreclosed by the doctrine of res judicata. Kallas v. State, 776 P.2d 198, 199 (Wyo.1989). Likewise, we will not permit other civil proceedings to be used as an appeal-like proceeding to effect an end-run around the waiver and res judicata doctrines. Nixon, 2002 WY 118, ¶ 19, 51 P.3d at 856.

[¶ 10] Giving Taylor the benefit of the doubt, even if we were to construe his petition as a motion for a new trial under W.R.Czr.P. 33, he is three years too late in his request. And if construed as a motion for arrest of judgment under W.R.Cr.P. 34, he is five years too late. He is likewise too late under the post-conviction relief statute, Wyo. Stat. Ann. § 7-14-108(d) (LexisNexis 2008), and a habeas corpus petition would not lie as he would have completed his sentence no later than 2001.

[¶ 11] We have consistently held that an unconditional guilty plea waives an appellate review of non-Jjurisdictional claims. Kitzke v. State, 2002 WY 147, ¶ 8, 55 P.3d 696, 699 (Wyo.2002). The only claims that remain are those that go to the jurisdiction of the court or the voluntariness of the plea. Id. (citing Wilson v. United States, 962 F.2d 996, 997 (11th Cir.1992)).

Examples of jurisdictional defects are unconstitutionality of the statute defining the crime, failure of the indictment or information to state an offense, and double jeopardy. Non-jurisdictional defects include the use of inadmissible evidence, the use of unlawfully obtained statements, a claim that a grand jury was improperly convened and conducted, and a claim of violation of the right to speedy trial.

Kitzke, 1 9 (citations omitted).

[¶ 12] Taylor's arrest warrant and search claims are clearly waived by his plea. Taylor argues repeatedly that the alleged failure of the county court commissioners to have a written oath on file goes to the court's subject matter jurisdiction in his original erimi-nal proceedings, and therefore can be raised at any time. He cites several civil cases for the court's general jurisdictional requirement, but no pertinent authority or cogent argument for the proposition that the county court commissioner's written oath is a jurisdictional prerequisite in preliminary eriminal proceedings. Such a defect-the existence of which the record does not demonstrate-would be more akin to a claim that a grand jury was improperly convened than it would be to the jurisdictional defects we have identified, and is therefore non-jurisdictional and not subject to any kind of post-conviction review, even if properly pled.

CONCLUSION

[T 13] In light of the above considerations and precedents, the district court was correct in concluding that it lacked jurisdiction to afford Mr. Taylor any relief from his 1997 conviction and sentencing. And as we noted also in Nixon, 2002 WY 118, ¶ 8, 51 P.3d at 853, this Court enjoys no greater jurisdiction than that of the district court in such matters. We must therefore dismiss this appeal for lack of subject matter jurisdiction in this Court.


source: Caselaw Access Project

author: HILL, Chief Justice.

license: Public Domain

text:
    2003 WY 98
    Timothy John DESHAZER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-150.
    Supreme Court of Wyoming.
    Aug. 21, 2003.

      W. Keith Goody, Jackson, Wyoming, Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Richard Rideout, Special Assistant Attorney General, Representing Appel-lee. Argument by Messrs. Pauling and Rideout.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   HILL, Chief Justice.

[T1] Appellant, Timothy John deShazer (deShazer), appeals from the judgment and sentence, adjudicating him to be guilty of the crimes of attempted kidnapping, aggravated assault and battery, and aggravated burglary. He was sentenced to a term of 8 to 15 years on the kidnapping conviction, 5 to 8 years on the aggravated assault and battery, and 10 to 20 years on the aggravated burglary. The sentences were to be served consecutive to one another.

[T2] In this appeal, deShazer contends that the district court erred in failing, sua sponte, to suspend the proceedings because the court had reasonable cause to believe that deShazer was unfit to proceed because of his readily evident mental condition. In addition, he contends that the district court abused its discretion in denying motions for a new trial and to permit him to plead not guilty by reason of mental illness or deficiency, as well as by denying a second round of those same motions without a hearing on them. Further, deShazer contends that his defense attorney did not provide effective assistance of counsel by failing to enter a plea of not guilty by reason of mental illness or deficiency, and by failing to demand that the proceedings be suspended during trial because there was reasonable cause to believe that deShazer was not fit to proceed. Finally, deShazer contends that the convictions should have merged for purposes of sentencing.

[¶ 3] Because we are convinced that the district court failed to properly exercise its responsibility to suspend the proceedings when it became evident that deShazer was not mentally fit to testify on his own behalf, and because deShazer did not have the benefit of effective assistance of counsel, we will reverse and remand for a new trial.

ISSUES

[T4] As his issues, deShazer submits these matters for our disposition:
I. Did the court err when it failed to suspend the proceedings on its own motion since it had reasonable cause to believe that [deShazer] was unfit to proceed? Accordingly, were [his] rights under the 5th, 6th and 14th Amendments to the United States Constitution and the applicable provisions of the Wyoming Constitution violated?
II. Did the court err when it denied [de-Shazer's] motion to set aside the jury verdict, motion to grant ... a new trial and motion to permit [him] to enter a plea of not guilty by reason of mental illness and deficiency? Accordingly, were [his] rights under the 5th, 6th, and 14th amendments to the United States Constitution and the applicable provisions of the Wyoming Constitution violated?
III. Did the court err when it ruled on [deShazer's] motion to set aside the jury verdict without a hearing? Accordingly, were [his] rights under the 5th, [6th,] and 14th Amendments to the United States Constitution and the applicable provisions of the Wyoming Constitution violated?
IV. Was defense counsel ineffective by failing to enter a plea of not triable and not guilty by reason of mental illness and deficiency and by failing to request that proceedings be suspended during trial since there was reasonable cause to believe that [deShazer] was unfit to proceed? Accordingly, were [his] rights under the 5th, 6th, and 14th Amendments to the United States Constitution and the applicable provisions of the Wyoming Constitution violated?
V. Should the convictions have merged for purposes of sentencing?

The State's summary of the issues is in substantial harmony with that presented by de-Shazer.

FACTS

[¶ 5] The victim of the crimes and de-Shazer were childhood friends who attended school together and lived in the same neighborhood in Omaha, Nebraska, until they finished high school. At that time, the victim moved to Buffalo with her family, and the two had no contact again until April 27, 1998, when she called him "out of the blue." For the next month they were in frequent contact by phone and e-mail, and then over Memorial Day weekend in 1998, they met in Chamberlain, South Dakota, to see one another. At that time deShazer was living in Milwaukee.

[¶ 6] The two also spent a week together in Illinois, Wisconsin, Minnesota, Canada, and North Dakota, from July 6-13, 1998, at which time they returned to Buffalo. During that trip, deShazer mentioned to the group with whom they were traveling that he was planning to move to Wyoming, which came as a surprise to the victim. He stayed in Buffalo with the victim until sometime during the first week of August, at which time he left. In the victim's perception, he was leaving and probably not coming back. The victim wanted deShazer to leave because she was going to Nevada to stay with her sister, who had been diagnosed with cancer. deShazer sent flowers to the victim and her sister and called persistently until the victim began declining to answer the phone if the caller ID indicated it was deShazer calling.

[¶ 7] The victim returned to Buffalo in late August of 1998. At that time she received a call from deShazer, and when she answered the phone, he said, "So it didn't work out did it?" She responded, "No, it didn't." The victim perceived that deShazer became angry and protested that he had spent a lot of time and money on their relationship. The victim said she could not do anything about the time but she would be glad to reimburse him for the money. He gave a figure of $600.00, and the victim said she would try to pay him over time and that she never wanted to hear from him again.

[¶ 8] Nonetheless, deShazer persisted in calling the victim on a weekly basis and she habitually would hang up on the calls and instructed her children to do the same. On one occasion, a male friend of the victim answered the phone, and the caller hung up. The caller ID indicated that the call was from "deShazer, T." Not long after that, he called her again and said, "So, you have a new dick in your life" The victim then changed her phone number and e-mail address, and the phone calls and other communication ceased for a time.

[¶ 9] After returning from a trip to Seattle on January 8, 1999, the victim found a note from deShazer in her mailbox. In that note he wrote: "Sorry I missed you. I hope to hear from you by January 10. Otherwise-perhaps you will see when I return. P.S. As you recall communication is one of the trusts we put in each other." The note had not come through the mail but appeared to have been placed in her mailbox by de-Shazer. The victim believed the note was a veiled threat and took it to the Buffalo police. She then sent two letters, one of which she composed, and one composed by her attorney, but neither was received by deShazer (they were sent certified mail and were returned undelivered). Those letters demanded that deShazer desist from having any contact with the victim. Toward the end of 1999 the victim became increasingly anxious about deShazer's intentions. Based upon information which she received from her sister, who had in turn been in contact with de-Shazer's sister, the victim was aware that deShazer was unrelenting in his obsession about her. In addition, several suspicious calls were made to her home in November and December of 1999. As a result, the victim borrowed a handgun from her father for protection.

[T10] January 5, 2000, was a usual workday for the victim and, although she had planned to go out with her fiancé that night, those plans were cancelled and she stayed at home alone doing work. It was a Wednesday night, and the victim's children were with her former husband for visitation. The victim opined that deShazer was aware that she was usually alone on Wednesday nights, because he learned about that routine while he was there. As she was about to leave home to go out to a friend's ranch, the victim thought she heard someone trying to open the back door from the outside, and it frightened her. Next, she heard pounding on the front door and could tell it was about to give way. She attempted to make a phone call to a friend but spoke only a few words and had to drop the phone and retreat to what she thought might be safety. That friend called the victim's neighbor and asked the neighbor to go over and check on the victim. The victim ran into her bedroom to get the gun that she had borrowed from her father and at that point, she could tell that whoever had broken in the front door was in the house. She could hear deShazer sereaming out her name and then she saw him coming down the hall with a gun pointed at her. She told deShazer that she too had a gun and that she would shoot. deShazer then put his gun down on the floor, removed the goggles he was wearing, and put them in a black duffel bag that he was carrying. He said to the victim, "Don't you know I've loved you since the 5th grade. My whole family thinks I'm a stalker ... and it's all your fault."

[T11] At this point, the victim's back door bell rang. As things eventuated, it was her neighbor, who her friend had called, coming to check on her. deShazer asked the victim several times if she had called the police, and she said that she had not. The victim, who had been cornered in her bedroom, put down her gun and began walking toward the back door to answer it, hoping deShazer would not shoot her. When she got to the door, it was her neighbor. The victim told deShazer that she was leaving and that he should leave also. She then left with her neighbor and they ran to the neighbor's house and called 911. The police arrived within 5-10 minutes. The victim was able to call deShazer's sister and get a description of his car and the license number, etc., which was relayed to the police. de-Shazer was apprehended near Gillette a short time later.

STANDARD OF REVIEW

[¶ 12] We turn to the Tenth Circuit Court of Appeals for an outline of the standards that must be employed in the review of issues relating to competency of a defendant as it pertains to the trial process:

Although competence is a factual issue, that term, as this case clearly demonstrates, is not self-defining. Because competency to stand trial is an aspect of substantive due process, the legal standard by which competency is to be evaluated is constitutionally mandated. Accordingly, the components of that standard, required as they are by the Constitution, do not vary according to the views of a particular court. The Constitution can require but one gauge against which to determine whether, because of his mental condition, a defendant's due process rights are violated by requiring him to stand trial. The content of the standard of competency is therefore a question of law which we review de novo.

Lafferty v. Cook, 949 F.2d 1546, 1550-56 (10th Cir.1991) (internal citations omitted); State v. Soares, 81 Hawai'i 332, 916 P.2d 1233, 1251 (App.1996); Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam); and see Hayes v. State, 599 P.2d 558, 562-63 (Wyo.1979).

[¶ 13] Here, the district court did not conduct a competency hearing, so no standard was employed. However, the standard for such a hearing is that set out in the cases cited immediately above. Once the trial court has "evaluated a defendant's com-petencey by the correct standard, the second inquiry on review is whether the trial court's determination of a defendant's competency is fairly supported by the record of the proceeding at which the determination [is] made.... In other words, the substantial evidence standard of review governs the see-ond inquiry." Soares, 916 P.2d at 1251. Again, because no competency hearing was conducted, the record at trial cannot provide the factual information necessary to evaluate this second prong of the test. The information supplied to the district court post-trial (to determine if deShazer was competent to proceed with sentencing and whether or not there should be a new trial) addresses the substantive issue of whether or not deShazer was competent and/or insane before, during, and after trial.

Failure of District Court to Suspend Proceedings Sua Sponte

[T14] The status of deShazer's mental health was in question from the very outset of this case. In fairness, we note that neither defense counsel nor the prosecutor were of much assistance to the district court with respect to this looming problem. Of course, the very acts which constituted the crime suggested that a problem could exist, and all participants, including the district court, were aware of that. This factor cannot count for much, however, as many if not most crimes suggest mental health problems.

[T15]l Considerable evidence was seized at the time deShazer was arrested, including tape-recorded "rantings" and typewritten and handwritten letters and notes, most of which might have raised the spectre of mental illness or incompetency even in the mind of a lay observer. Those materials strongly suggested that deShazer's "state of mind" was that he intended to kidnap and kill the victim and then take his own life. Indeed, that was the State's theory of this case. Further, the State's theory of the case was that deShazer's actions required cool calculation and considerable detailed planning, belying a suggestion that he was incompetent. On the other hand, the defense strategy at trial was that deShazer was merely a lovesick fool who honestly believed that if he could force the victim to hear him out, all of his problems with respect to their broken relationship would be solved.

[T16] At the arraignment on February 15, 2000, the district court inquired in a general way if deShazer was satisfied with his attorney, to which he answered, "Yes," and further if defense counsel "was aware of any procedural problems or detrimental delay in the case so far," to which defense counsel answered, "No." At a pretrial conference held on April 4, 2000, defense counsel indicated that deShazer was doing well. However, during that same court proceeding, the prosecutor called the district court's attention to the fact that deShazer's father had attempted to have his son involuntarily committed to a mental hospital shortly before the crimes were committed because he believed his son to be obsessed with the victim, severely depressed, and suicidal. At a bail modification hearing held on April 11, 2000, the district court made this comment directed to the prosecuting attorney:

COURT: Well, Mr. Erb, obviously, the accusations against the Defendant are quite serious. One thing that was disturbing to the Court, however, was you attaching to this motion a document that appears to be some sort of petition or pleading that might be filed in a case that alleges the mental incompetency of this Defendant.
Do you know why that might be important to the Court? It is because any party to a criminal action, including the Court, might request an examination of a Defendant to see whether or not he is competent to stand trial, to see whether or not he is competent at the time of the alleged instances. And I do not want a 9th inning pitch for a mental health evaluation when we already have this matter scheduled for trial. Is that going to happen?
MR. ERB: I do not anticipate bringing such a motion, Your Honor. Mr. Goddard has indicated that they do not intend to offer any evidence regarding insanity or mental illness as a defense.
I presented those documents, Your Hon- or, so that the Court would be well advised in order to make an appropriate ruling on bond. This is information that was provided to us from the family, the people who know him best.

[¶ 17] The hearing then moved away from that subject and on to further discussion of modifications to deShazer's bond. However, a bit later in the proceedings the defense attorney informed the district court that de-Shazer "was examined by two mental health professionals before the ultimate plea was made of not guilty to determine whether he was a danger to himself or others." Clearly, an alarm bell went off for the district court, and he pressed the defense attorney for more detailed information. In response, the defense attorney revealed this:

MR. GODDARD: Part of our proceeding and part of what happened, we needed to make sure, in fact, what kind of plea we were going to make with regard to Mr. [dleShazer; and we had to have at least some indication about his mental competency and his state of mind.
He was examined by two mental health professionals. That was then utilized to make our determination as to what pleas were going to be made. Both of which found him not to be a danger to himself or others.

[T18] The mental health issue came before the district court at a hearing held on April 18, 2000, but the district court indicated that it did not want to consider that issue as part of a "substantive argument," but only wanted to consider the foundation and hearsay aspects of it. The trial got underway on May 8, 2000 and continued until May 11, 2000.

[T19] The district court had made it clear that any matters relating to a sanity defense had to be raised before trial, but no such plea was offered. Near the end of the State's presentation of its case, the defense first broached the subject of whether or not de-Shazer was fit to proceed. Wyo. Stat. Ann. § 7-11-302 (LexisNexis 2008) provides:

(a) No person shall be tried, sentenced or punished for the commission of an offense while, as a result of mental illness or deficiency, he lacks the capacity, to:
(i) Comprehend his position;
(i) Understand the nature and object of the proceedings against him;
(i) Conduct his defense in a rational manner; and
(iv) Cooperate with his counsel to the end that any available defense may be interposed.
Wyo. Stat,. Ann. § 7-11-308 (LexisNexis 2003) provides:
(a) If it appears at any stage of a criminal proceeding, by motion or upon the court's own motion, that there is reasonable cause to believe that the accused has a mental illness or deficiency making him unfit to proceed, all further proceedings shall be suspended. [Emphasis added.]
(b) The court shall order an examination of the accused by a designated examiner. The order may include, but is not limited to, an examination of the accused at the Wyoming state hospital on an inpatient or outpatient basis, at a local mental health center on an inpatient or outpatient basis, or at his place of detention. In selecting the examination site, the court may consider proximity to the court, availability of an examiner, and the necessity for security precautions. If the order provides for commitment of the accused to a designated facility, the commitment shall continue no longer than a thirty (80) day period for the study of the mental condition of the accused.
(c) Written reports of the pretrial examination shall be filed with the clerk of court. The report shall include:
(i) Detailed findings;
(ii) An opinion as to whether the accused has a mental illness or deficiency, and its probable duration;
(iii) An opinion as to whether the accused, as a result of mental illness or deficiency, lacks capacity to comprehend his position, to understand the nature and object of the proceedings against him, to conduct his defense in a rational manner, and to cooperate with his counsel to the end that any available defense may be interposed;
(iv) An opinion as to whether at the time of the alleged eriminal conduct the accused, as a result of mental illness or deficiency, lacked substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law;
(v) A recommendation as to whether the accused should be held in a designated facility for treatment pending determination by the court of the issue of mental fitness to proceed; and
(vi) A recommendation as to whether the accused, if found by the court to be mentally fit to proceed, should be detained in a designated facility pending further proceedings.
(d) The clerk of court shall deliver copies of the report to the district attorney and to the accused or his counsel. The report is not a public record or open to the public. After receiving a copy of the report, both the accused and the state may, upon written request and for good cause shown, obtain an order granting them an examination of the accused by a designated examiner of their own choosing. For each examination ordered, a report conforming to the requirements of subsection (c) of this section shall be furnished to the court and the opposing party.
(e) If the initial report contains the ree-ommendation that the accused should be held in a designated facility pending determination of the issue of mental fitness to proceed, the court may order that the accused be committed to or held in a designated facility pending determination of mental fitness to proceed.
(£) If neither the state, nor the accused or his counsel contests the opinion referred to in paragraph (c)(iii) of this section relative to fitness to proceed, the court may make a determination and finding of record on this issue on the basis of the report filed or the court may hold a hearing on its own motion. If the opinion relative to fitness to proceed is contested the court shall hold a hearing on the issue. The report or reports may be received in evidence at any hearing on the issue. The party contesting any opinion relative to fitness to proceed has the right to summon and cross-examine the persons who rendered the opinion and to offer evidence upon the issue.
(g) If the court determines that the accused is mentally fit to proceed, the court may order that the accused be held in confinement, be committed to a designated facility pending further proceedings, or be released on bail or other conditions. If the court determines that the accused lacks mental fitness to proceed, the proceedings against him shall be suspended and the court shall commit him to a designated facility for such period as the court may order but not to exceed the time reasonably necessary to determine whether there is substantial probability that the accused will regain his fitness to proceed:
(1) If it is determined that there is no substantial probability that the accused will regain his fitness to proceed, the accused shall not be retained in a designated facility unless proper civil commitment proceedings have been instituted and held as provided in title 25 of the Wyoming statutes. The continued re-tertion, hospitalization and discharge of the accused shall be the same as for other patients. However, if the accused is discharged, the criminal proceedings shall be resumed, unless the court determines that so much time has elapsed since the commitment of the accused that it would not be appropriate to resume the criminal proceeding;
(ii) If it is determined that there is substantial probability that the accused will regain his fitness to proceed, the commitment of the accused at a designated facility shall continue until the head of the facility reports to the court that in his opinion the accused is fit to proceed as provided in paragraph (iii) of subsection (c) of this section. If this opinion is not contested by the state, the accused or his counsel the eriminal proceeding shall be resumed. If the opinion is contested, the court shall hold a hearing as provided in subsection () of this section. While the accused remains at a designated facility under this subsection, the head of the facility shall report at least onee every three (8) months on the progress the accused is making towards regaining his fitness to proceed.
(bh) A finding by the court that the accused is mentally fit to proceed shall not prejudice the accused in a defense to the crime charged on the ground that at the time of the act he was afflicted with a mental illness or deficiency excluding responsibility. Nor shall the finding be introduced in evidence on that issue or otherwise brought to the notice of the jury. No statement made by the accused in the course of any examination or treatment pursuant to this section and no information received by any person in the course of the examination or treatment shall be admitted in evidence in any eriminal proceeding then or thereafter pending on any issue other than that of the mental condition of the accused.
(J) Notwithstanding any provision of this section, counsel for the accused may make any and all legal objections which are susceptible of a fair determination prior to trial without the personal participation of the accused.

[¶ 20] The above-cited statutes are in harmony with the ABA Criminal Justice Mental Health Standards (1989). Of special importance here is Standard 7-4.2;

(a) The court has a continuing obligation, separate and apart from that of counsel for each of the parties, to raise the issue of incompetence to stand trial at any time the court has a good faith doubt as to the defendant's competence, and may raise the issue at any stage of the proceedings on its own motion.
(b) The prosecutor should move for evaluation of defendant's competence to stand trial whenever the prosecutor has a good faith doubt as to the defendant's competence. The prosecutor should further advise defense counsel and the court of any information that has come to the prog-ecution's attention relative to defendant's incompetence to stand trial.
(c) Defense counsel should move for evaluation of the defendant's competence to stand trial whenever the defense counsel has a good faith doubt as to the defendant's competence. If the client objects to such a motion being made, counsel may move for evaluation over the client's objection. In any event, counsel should make known to the court and to the prosecutor those facts known to counsel which raise the good faith doubt of competence.
(d) A motion for evaluation should be in writing and contain a certificate of counsel indicating that the motion is based on a good faith doubt that the defendant is competent to stand trial and that it is not filed for purposes of delay. The motion should also set forth the specific facts that have formed the basis for the motion.
(e) In the absence of good faith doubt that the defendant is competent to stand trial it is improper for either party to move for evaluation. It is improper for either party to use the incompetence process for purposes unrelated to incompetence to stand trial such as to obtain information for mitigation of sentence, to obtain favorable plea negotiation, or to delay the proceedings against the defendant.
(£) In making any motion for evaluation, or, in the absence of a motion, in making known to the court information raising a good faith doubt of defendant's competence, the defense counsel should not divulge confidential communications or communications protected by the attorney client privilege.

Also see, John M. Burkoff, Criminal Defense Ethics 2d Law and Liability, § 5:6 (2002).

[¶ 21] As the prosecution was about to rest on the last day of trial, the defense attorney asked for an in-chambers conference. As that proceeding got underway, the defense attorney told the district court that based upon his observations, deShazer had "continued to improve" during the pretrial process. Defense counsel iterated that he had had mental examinations done and the examinations established that deShazer knew right from wrong and "that a competency defense was not appropriate." As defense counsel began to prepare deShazer for trial, he observed that deShazer was "extremely depressed," and was unable to concentrate or do the things necessary to get ready for trial. Through contacts the deShazer family had with a psychiatrist in Casper, an arrange-raent was made during the weekend break in the trial for deShazer to be evaluated by psychiatrist Bruce Kahn, M.D. Both defense counsel and the district court noted that de-Shazer had appeared to do well on the first day of trial, both in the courtroom and in chambers. Defense counsel's concern was that deShazer was not "capable" of assisting counsel in his defense nor was he "capable" of testifying in his own defense if he chose to do so. Defense counsel's indication was that, in any event, he did not intend to have deShazer testify. Defense counsel indicated that deShazer's testimony would not be material and that after consultation with counsel, as well as with his family, a decision was made to go ahead with the proceedings. Defense counsel also conceded that he "never had a case like this, and I don't have experience with mental health people-or mentally ill people that has provided me any kind of background to do this. I'm prepared to proceed, but I thought the court needed to be aware." The district court then asked that deShazer be brought into chambers because it needed to "make some advisements and inquiry." The following advisement/inquiry was made:

THE COURT: I am informed that the State is close to the end of their case. So you and Mr. Goddard will be given an opportunity to put on a case of your own if you want to. Mr. Goddard has explained to me that there's a couple of witnesses that he thinks that you all will probably want to call, and that's fine.
The critical thing, though, that I want to be sure of is that you understand your personal right to either testify to or remain silent. The Court has absolutely no preference over which choice you make; it just wants to be sure that you understand the choice and that whatever choice you make along those lines is done of your own free will.
So you understand that as a matter of law you're not required to testify, correct?
THE DEFENDANT: Correct. But-
THE COURT: Also, at this stage of the game you absolutely have the right to testify if you want to. The choice that you make may be very important to you. And I suggest that you not make any choice like that without consulting with your counsel. But I need to know kind of ahead of time what you think you personally want to do. Not what somebody else thinks you ought to do, but what you want to do.
THE DEFEDANT: I want to, but I'm wrestling with whether or not I'm prepared for it (indicating) mentally. And I've been talking with Greg about that.
THE COURT: So you haven't made up your mind yet what you want to do?
THE DEFENDANT: Correct, I was hoping to talk to Greg here over this unch break.

[¶ 22] When defense counsel called Dr. Kahn as a witness, a conference was held out of the hearing of the jury. The purpose of that hearing, as articulated by the district court, was, "[iln this case the Defendant has not entered a plea of not guilty by reason of mental illness or deficiency and has represented to the Court that he will not tender any evidence regarding that type of defense." At the outset it was agreed that Dr. Kahn would not offer an opinion that deShazer met the statutory definition for incompetency due to mental illness or deficiency. Dr. Kahn was asked, and he responded to, a question regarding deShazer's mental state at the time of the crime. He opined:

DR. KAHN: Yes, I do have an opinion, in that he was psychotically depressed at the time of the offense and I think that his illness contributed substantially and materially to the commission of acts of which he's accused. I think that the mental illness contributed substantially and materially to loss of impulse control.
And it would be my further opinion, if I were asked, Your Honor, and allowed the opportunity to answer, that it meets the threshold eriteria of the volitional prong of the mental illness statute, 7-11-801, et se[q]. as the lack of substantial capacity to refrain from conduct which doesn't conform to the requirements of [the] law.

[¶ 23] When the district court asked about deShazer's competency to stand trial, Dr. Kahn responded:

DR. KAHN: With all due respect, Your Honor, I think that he lacks [the] mental capacity to assist in some respects with his defense; but I think it would be your decision, Your Honor, if he did not-if he was not competent by virtue of the means-or, rather, the way in which he did not have mental capacity.
Let me explain it. I'm not being very clear, and I'm aware of that.
Capacity is a function of his mental wherewithal. - Competency is a judicial construct, and it's not for me to tell the Court how relevant or significant his ability to testify might be. I do not think he has the mental capacity to testify in his own behalf. But if the Court were to decide that that's a relatively insignificant issue, for example, because counsel says we don't want him to testify regardless of how healthy he is mentally, then he probably is competent.
And regardless of how incapacitated he is mentally in that respect, in all other respects I think he has mental capacity to understand the nature of the proceedings and to assist counsel. The narrow exception is I don't think he can testify on his own behalf in his current frame of mind.

[T¥24] After considerable further discussion, the district court determined that Dr. Kahn would be allowed to testify, so long as his testimony was precisely limited to "the Defendant's state of mind, some of the processes that go on with people if they do get involved in what we commonly refer to as an obsession, perhaps, arguably, the Defendant, you know, would have the right to offer that sort of explanation to the jury, since the contra inferences will obviously be made." Following Dr. Kahn's testimony, a very brief conference was held wherein deShazer stated that he had decided not to testify.

[¶ 25] Thus, we are confronted with determining whether, in light of all the information available to the district court, it should have sua sponte suspended the proceedings, declared a mistrial, excused the jury, and ordered a mental examination of deShazer before a new trial could be held. Wyo. Stat. Ann. § 7-11-803 does not make it entirely clear what procedure should be followed in an instance such as this where the problem does not come fully to light until the middle of a jury trial. However, in this regard, the statute plainly contemplates that it might arise "at any stage of a eriminal proceeding." As future events bear out, it took several months for a mental examination to be completed at the Wyoming State Hospital for purposes of sentencing and a motion for new trial, and many more months yet for a second examination to be completed at the request of the prosecution. As a practical matter, the jury could not be held in waiting for a period of over one year. In such a circumstance, we conclude that the only practical solution was to declare a mistrial and re-initiate proceedings, if that was the appropriate thing to do in light of the mental examination(s). As a predicate to that, we must also conclude that the district court was obligated to suspend the proceedings given the information that slowly accumulated before it, from the date of the crime until the ultimate bridge had to be crossed in the midst of trial.

[¶ 26] Wyo. Stat. Aun. § 7-11-802 affords broad protection to the mentally ill. Of course, the standard articulated by that statute is also the law of the land. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Wyo. Stat. Ann. § 7-11-303 places great responsibility on both the prosecutor and the defense attorney, but ultimately that responsibility must fall upon the shoulders of the district court. The ABA Criminal Justice Mental Health Standards, Standard 7-4.1 summarizes the prevailing law in this regard:

(a) No defendant shall be tried while mentally incompetent to stand trial.
(b) The test for determining mental competence to stand trial should be whether the defendant has sufficient present ability to consult with defendant's lawyer with a reasonable degree of rational understanding and otherwise to assist in the defense, and whether the defendant has a rational as well as factual understanding of the proceedings.
(c) The terms competence and incompetence as used within Part IV of this chapter refer to mental competence or mental incompetence. A finding of mental incompetence to stand trial may arise from mental illness, physical illness, or disability; mental retardation or other developmental disability; or other etiology so long as it results in a defendant's inability to consult with defense counsel or to understand the proceedings.

[¶ 27] The commentary to that standard emphasizes that the case law only establishes "a basic norm, understandably and necessarily imprecise, that permits individual judges to evaluate each case in the light of an individual defendant's level of functioning in relation to the complexity of that case." ABA Criminal Justice Mental Health Standards, supra at 172. There appears to be general agreement that an adequate evaluation must touch on at least five areas:

1. Defendants should have a perception of the process not distorted by mental illness or disability. Whether phrased in terms of (a) an ability to perceive rationally and without distortion, (b) an "understanding" of the process, or (c) an "awareness" of the charge and possible verdicts, or (d) couched in a codified requirement that defendants understand that there is a judge on the bench, a prosecutor who will try to convict, and defense counsel who will defend against criminal charges, the thrust of the requirement is that defendants understand the nature of the process and their functions as participants within that process free from undue perceptual distortion.
2. Defendants require a capacity to maintain the attorney-client relationship, embracing an ability to discuss the facts of a case with counsel "without paranoid distrust," to advise and accept advice from counsel, to elect an appropriate plea, and to approve the legal strategy of the trial. The relationship requires an ability to consult rationally about a pending case which is something more than a superficial capacity to converse with others.
3. A third requirement, somewhat akin to the second, bears on the ability to recall and relate factual information. If a primary purpose of the prohibition against trying incompetent defendants is to preserve accuracy in factfinding, then defendants must be able to recall and relate factual occurrences. If they are not, they cannot reveal exonerating cireumstances to their attorneys. This requirement has been variously phrased: that a defendant have "sufficient memory to relate answers to questions posed" to him or her, that "he [or she] can follow the testimony reasonably well," and that there be a "capacity to realistically challenge prosecution witnesses." - Without that capacity, defendants realistically are unable to exercise the rights to consult with counsel, testify in personal defense, and confront accusers.
4. Defendants should be capable of testifying in personal defense if that should be appropriate.
5. A final factor is a defendant's abilities to meet the competency criteria in the setting of the particular charges, the extent of the defendant's needed participation in trial proceedings, and the complexity of the case. Therefore, an evaluator should consider a defendant's mental ability in relation to the severity of the charge and the complexity of the case.

ABA Criminal Justice Mental Health Standards, supra at 173-75.

[¶ 28] We hold that the cireum-stances presented at trial were sufficient to trigger the requirement that the district court conduct a competency hearing in order to determine if deShazer was fit to proceed. State v. Bostwick, 1999 MT 237, ¶¶ 16-29, 296 Mont. 149, 988 P.2d 765, ¶¶ 16-29 (1999) (also see concurring opinion, Bostwick, ¶¶ 35-47); see 3 Charles Alan Wright, Federal Practice and Procedure: Criminal 2d § 556, n. 7 (1982); and compare State v. Lopez, 271 Kan. 119, 22 P.3d 1040, 1048-49 (2001) (district court affirmed based upon district court's thorough inquiry of the defendant and his counsel, as well as the report of an evaluation done by a jail physician during the noon recess); State v. Boorigie, 273 Kan. 18, 41 P.3d 764, 771-72 (2002) (district court affirmed although proceedings continued while competency evaluation was pending where evaluation ultimately determined that defendant was competent before trial began); People v. Tally, 7 P.3d 172, 178-79 (Colo.App.1999) (where district court conducted one competency hearing, it was not error to fail to conduct second hearing merely because defendant stated he was not competent). Because no hearing was conducted, as was required by Wyo. Stat, Ann. § 7-11-808(a), we are without a sufficient record to ascertain whether or not deShazer was actually incompetent or if there was substantial evidence that deShazer was competent. As is demonstrated in the excerpts from the tran-seript of the proceedings set out above, rather than making a full inquiry of Dr. Kahn and deShazer when the opportunity was ripe, the district court curtailed that inquiry. As a consequence, we are compelled to reverse deShazer's convictions and remand for a new trial.

[¶ 29] In the Bostwick decision, the Montana Supreme Court opted to remand for a nune pro tune hearing on the question of competency. Bostwick, 1831. We decline to do so in this case because we do not perceive that there is a meaningful possibility that such a hearing would fully protect deShazer's rights. In addition, because we also hold that defense counsel was ineffective, a new trial is necessary for that reason as well.

Effective Assistance of Counsel

[¶ 30] Our standard of review with respect to this issue provides that the paramount determination is whether, in light of all the pertinent cireumstances, trial counsel's acts or omissions were outside the range of professionally competent assistance. We indulge a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. An appellant claiming ineffective assistance of counsel must demonstrate on the record that counsel's performance was deficient and that prejudice resulted. We also inquire as to whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Schmidt v. State, 2001 WY 73 ¶ 32, 29 P.3d 76, ¶ 32 (Wyo.2001); Chapman v. State, 2001 WY 25 ¶ 6, 18 P.3d 1164, ¶ 6 (Wyo.2001); Pearson v. State, 12 P.3d 686, 691-92 (Wyo.2000).

[¶ 31] In this instance, we find that it suffices to note that counsel appears to have admitted in court that he did not know how to handle this particular case, nor his client, and the record does not reflect what effort counsel made to become sufficiently learned in that regard so as to provide effective assistance to his client under these circumstances. - Defense counsel's admitted lack of the basic knowledge essential to this area of criminal defense work, and an apparent trial strategy that did not evince a sound legal foundation, mandate reversal of de-Shazer's conviction. These failings were instrumental in denying deShazer a meaningful defense, especially because the strategy chosen, that deShazer intended only to attempt to compel the victim to hear him out concerning their relationship, relied so heavily upon deShazer's ability to explain himself. The critical issue near the end of trial was an evident lack of competency on deShazer's part to testify in his own defense and to otherwise assist in that defense. See generally, George L. Blum, Annotation, Adequacy of Defense Counsel's Representation of Criminal Client-Issues of Incompetency, 70 A.L.R.5th 1, esp. § 8(b) (1999); George L. Blum, Annotation, Adequacy of Defense Counsel's - Representation - of - Criminal Client-Pretrial Conduct or Conduct at Unspecified Time Regarding Issues of Insanity, 72 ALR. 5th 109, esp. § 5(b) (1999); and George L. Blum, Annotation, Adequacy of Defense Counsel's Representation of Criminal Client-Conduct at Trial Regarding Issues of Insamity, 95 AL.R.Sth 125, esp. § 3(b) (2002). We can only conclude that, under these peculiar circumstances, defense counsel was ineffective and that this ineffectiveness ultimately was prejudicial to de-Shazer's case. For this reason, too, we are compelled to reverse and remand for new trial.

CONCLUSION

[¶ 32] Under the cireumstances presented by this case, we hold that the district court erred in failing to conduct a competency hearing in the face of mounting doubt that the defendant was competent or fit to stand trial and, most especially, in the face of direct evidence from a psychiatrist that deShazer was unable to testify in his own behalf because of his mental problems. In addition, we hold that defense counsel was ineffective in representing deShazer to a degree that proved to be prejudicial to his defense. For these reasons, the judgment and sentence are reversed, and the matter is remanded to the district court for further proceedings consistent with this opinion.

      . Wyo. Stat. Ann. §§ 6-2-201 and 6-1-301 (Lex-isNexis 2003) provide:
      § 6-2-201. Kidnapping; penalties; effect of release of victim.
      (a) A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business or from the vicinity where he was at the time of the removal, or if he unlawfully confines another person, with the intent to:
      (i) Hold for ransom or reward, or as a shield or hostage;
      (ii) Facilitate the commission of a felony; or
      (ii) Inflict bodily injury on or to terrorize the victim or another.
      (b) A removal or confinement is unlawful if it is accomplished:
      (i) By force, threat or deception; or
      (ii) Without the consent of a parent, guardian or other person responsible for the general supervision of an individual who is under the age of fourteen (14) or who is adjudicated incompetent.
      (c) If the defendant voluntarily releases the victim substantially unharmed and in a safe place prior to trial, kidnapping is a felony punishable by imprisonment for not more than twenty (20) years.
      (d) If the defendant does not voluntarily release the victim substantially unharmed and in a safe place prior to trial, kidnapping is a felony punishable by imprisonment for not less than twenty (20) years or for life except as provided in W.S. 6-2-101.
      § 6-1-301. Attempt; renunciation of criminal intention.
      (a) A person is guilty of an attempt to commit a crime if:
      (i) With the intent to commit the crime, he does any act which is a substantial step towards commission of the crime. A "substantial step" is conduct which is strongly corroborative of the firmness of the person's intention to complete the commission of the crime; or
      (ii) He intentionally engages in conduct which would constitute the crime had the attendant circumstances been as the person believes them to be.
      (b) A person is not liable under this section if, under circumstances manifesting a voluntary and complete renunciation of his criminal intention, he avoided the commission of the crime attempted by abandoning his criminal effort. Within the meaning of this subsection, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the person's course of conduct, which increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal intention. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.

      . Wyo. Stat. Ann. § 6-2-502 (LexisNexis 2003) provides:
      § 6-2-502. Aggravated assault and battery; penalty.
      (a) A person is guilty of aggravated assault and battery if he:
      (i) Causes serious bodily injury to another intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;
      (i) Attempts to cause, or intentionally or knowingly causes bodily injury to another with a deadly weapon;
      (Zi) Threatens to use a drawn deadly weapon on another unless reasonably necessary in defense of his person, property or abode or to prevent serious bodily injury to another; or
      (iv) Intentionally, knowingly or recklessly causes bodily injury to a woman whom he knows is pregnant.
      (b) Aggravated assault and battery is a felony , punishable by imprisonment for not more than ten (10) years.

      . Wyo. Stat. Ann. § 6-3-301 (LexisNexis 2003) provides:
      § 6-3-301. penalties. Burglary; aggravated burglary;
      (a) A person is guilty of burglary if, without authority, he enters or remains in a building, occupied structure or vehicle, or separately secured or occupied portion thereof, with intent to commit larceny or a felony therein.
      (b) Except as provided in subsection (c) of this section, burglary is a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,-000.00), or both.
      (c) Aggravated burglary is a felony punishable by imprisonment for not less than five (5) years nor more than twenty-five (25) years, a fine of not more than fifty thousand dollars ($50,-000.00), or both, if, in the course of committing the crime of burglary, the person:
      (i) Is or becomes armed with or uses a deadly weapon or a simulated deadly weapon;
      (ii) Knowingly or recklessly inflicts bodily injury on anyone; or
      (iii) Attempts to inflict bodily injury on anyone.
      (d) As used in this section "in the course of committing the crime" includes the time during which an attempt to commit the crime or in which flight after the attempt or commission occurred. [Emphasis added.]

      . In order to make the narrative complete, we will point out that deShazer came to this confrontation supplied with an unusual amount and array of gear, including: the goggles; shin guards under his pants; jock strap with plastic cup; bolt cutters; charcoal lighter fluid; Berret-ta pistol; Muscle-Man stun gun; duct tape; pepper mace; gas can with gas in it; flex ties that could be used to bind a person's wrists; and much more.

      . That evidence is in conflict, but we summarize it here in order to more fully explain the circumstances of this case. The Wyoming State Hospital's evaluation of deShazer determined that he suffered from a mental illness that was treatable with psychotropic drugs and that he was not competent to stand trial. deShazer was also evaluated in the federal prison system after parallel federal charges were filed against him. That evaluation was made after deShazer had been taking psychotropic drugs and his mental illness was in remission. Contrary to the Wyoming State Hospital's findings, the federal evaluation determined that deShazer had no mental illness and was competent to stand trial at the time he was tried.

      . So far as we can perceive from the record, these evaluations were directed toward whether or not deShazer was dangerous to himself or to others and did not purport to be for the purpose of determining competency or sanity. See Wyo. Stat. Ann. §§ 25-10-10l(a)(ii) and 25-10-109(b)(ii) (LexisNexis 2003).


author: HILL, Chief Justice. LEHMAN, Justice,

text:
    2003 WY 99
    Diego ALCALDE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-188.
    Supreme Court of Wyoming.
    Aug. 22, 2003.

      Representing Appellant: Kenneth M. Ko-ski, State Public Defender; Donna D. Do-monkos, Appellate Counsel; and Ryan R. Roden, Senior Assistant Appellate Counsel. Argument by Mr. Roden.
    Representing Appellee: Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Naney D. Conrad, Student Intern. Argument by Ms. Conrad.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   HILL, Chief Justice.

[T1] Diego Olmos Alcalde (Alcalde) appeals his conviction for kidnapping in violation of Wyo. Stat. Ann. §§ 6-2-201(a)(@H1), (b)G) and (c). Alcalde claims error in the substitution of an alternate juror after deliberation had commenced and challenges the constitutionality of the kidnapping statute, § 6-2-201, alleging it is unconstitutionally vague, both facially and as applied in this case. We reject Alcalde's claims that § 6-2-201 is unconstitutional. However, we conclude that the substitution of the alternate juror after deliberations had begun constituted prejudicial error. Accordingly, we reverse Alcalde's conviction and remand for a new trial.

ISSUES

[¶ 2] Alcalde frames his two issues on appeal as follows:

ISSUE I
Whether the district court committed reversible error when it substituted a discharged alternate juror for a regular juror after deliberations had commenced for a number of hours?
ISSUE II
Is W.S. § 6-2-201 is [sic] unconstitutionally vague facially and as applied to the facts in the case, denying [Alcalde] due process of law, because it provides no standard of conduct or notice of forbidden conduct and it allows for arbitrary and discriminatory enforcement?

The State sets forth the issues before us in the following language:

I. Did the district court commit reversible error when it substituted an alternate juror for a regular juror after deliberations had begun?
II. Is Wyo. Stat. § 6-2-201 constitutionally vague, either facially or as applied to [Alealde's] conduct?

FACTS

[¶ 3] Early on the morning of August 10, 2000, Alcalde followed a young woman to her apartment parking lot. After parking his car in such a way that she could not move her vehicle, Alcalde approached her under the guise of being lost. The woman remained sitting in her car but with her legs out the open driver's side door. While the woman was attempting to give Alcalde directions, he lunged and pinned her inside the car. Al-calde began choking her, which prevented her from erying out. The woman was, however, able to reach the car horn and sound it twice. Complaining that she "just had to do that," Alcalde forced the woman out of the car and dragged her about 15 to 20 feet to a privacy fence. After approximately a minute, Alcalde abruptly stopped the assault and returned to the apartment parking lot where he was confronted by the victim's brother and sister, who had come out of their apartment upon hearing the car horn. Meanwhile, the victim had come back around the fence whereupon she cried for help. The victim's father, who had just come out of the apartment, chased after Alcalde, who managed to get into his car and escape the scene. Al-calde was apprehended shortly thereafter by the police and identified as the assailant by the victim, her brother, and father.

[¶ 4] Alcalde was charged with one count of kidnapping in violation of Wyo. Stat. Ann. §§ 6-2-201(a)(if), (b)) and (c) (LexisNexis 2003). The matter went before a jury for trial and after the parties had presented their closing arguments, the district court dismissed the alternate juror:

Earlier when we drew the name of the alternate, that was done so that if somebody in the course of the trial became ill or disabled or somehow unable to finish, we'd have an alternate juror to fill that place. Happily, we've arrived at this point without any so misfortunes. We'll now identify and excuse the alternate.
The alternate should understand that until the verdict is received, there's always the possibility that the alternate could be called upon, so the instruction is not to discuss the case remaining until the alternate hears that there is a verdict.
Who is the alternate, [name of juror]? [The alternate], you are excused. Now, depending on your point of view, you don't get to or you don't have to help with deliberations. Thank you very much for participating, and we will be in recess until we've heard that there's a verdict.

During deliberations, the jury sent a series of notes requesting clarification of the terms "vicinity" and "confined" as used in the kidnapping statute and whether or not a verdict had to be unanimous. After consulting with counsel for both parties, the court sent a stipulated reply to the jury:

(a) A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business or from the vicinity where he was at the time of the removal, or if he unlawfully confines another person, with the intent to:
(iii) Inflict bodily injury on or to terrorize the victim or another.
(b) A removal or confinement is unlawful if it is accomplished:
(i) By force, threat or deception;. ...
(c) If the defendant voluntarily releases the victim substantially unharmed and in a safe place prior to trial, kidnapping is a felony punishable by imprisonment for not more than twenty (20) years.
The answer to the first question is yes. Any verdict must be unanimous.
"Vicinity" and "confined" are the words of the statute. The elements listed are taken from the statute, using the parts that could apply to the evidence in this case. The other portions could not apply.
I'm sorry, but, again, we cannot further define or provide a dictionary.

The court excused the jury over defense's objection when a verdict had not been reached by the end of the first day of deliberations.

[¶ 5] The next morning, the court was notified that a juror sought to be excused from the panel for medical reasons. A conference was held in chambers with the court, counsel for both parties, and the juror. The juror's doctor appeared by phone. After the court and the parties' counsel questioned the juror and his doctor, the court dismissed the juror because of a serious medical condition. The court then indicated that the dismissed juror would be replaced with the alternate juror, who was called into the conference. Defense counsel objected to replacing the exeused juror with the alternate but the court overruled him. The alternate was questioned as to whether or not he had discussed the case with anyone since his dismissal the day before. After satisfying itself that he had not discussed the case, the district court directed the alternate to join the jury, which would continue its deliberations. Approximately 50 minutes later, the jury delivered a guilty verdict.

DISCUSSION

I. Substitution of Alternate Juror

[¶ 6] Initially, Alcalde contends that a district court lacks the authority to substitute an alternate juror for a regular juror once deliberations have commenced. Pursuant to W.R.Cr.P. 24(e), Alcalde argues that it is mandatory for the district court to discharge any alternate jurors when the jury retires to consider a verdiet. In an alternative argument, Alcalde contends that even if an alternate juror can be substituted for a regular juror after deliberations have begun, the district court in this case failed to take adequate procedural safeguards to protect the deliberative process.

[¶ 7] We begin our analysis with the language from the relevant portion of W.R.Cr.P. 24(e) (emphasis added):

Alternate jwrors.-The court may direct that not more than six jurors in addition to the regular jury be called and impanelled [sic] to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath and shall have the same functions, powers, facilities and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. Each side is entitled to one peremptory challenge in addition to those otherwise allowed by law if one or two alternate jurors are to be im-panelled, two peremptory challenges if three or four alternate jurors are to be impanelled, and three peremptory challenges if five or six alternate jurors are to be impanelled. The additional peremptory challenges may be used against an alternate juror only, and the other peremptory challenges allowed by these rules may not be used against an alternate juror.

Alcalde cites the use of the mandatory word "shall" to support his contention that an alternate can only replace a regular juror prior to the time the jury retires to deliberate and that once the jury does retire, the alternate must be discharged.

[¶ 8] Prior to 1999 the corresponding federal rule was identical to Wyoming's. See Fed.R.Crim.P. 24(c) (1999). In those circumstances, we have generally looked to federal case law for guidance in the interpretation of the rules of criminal procedure. Brock v. State, 981 P.2d 465 (Wyo.1999). The federal courts adopted the view that the substitution of an alternate juror during mid-deliberations violated the plain language of the rule. United States v. Quiroz-Cortez, 960 F.2d 418, 420 (5th Cir.1992). However, the federal courts applied a harmless error standard and would reverse a conviction only if the defendant had suffered prejudice by the substitution. Id. The federal appellate courts evaluated prejudice to the defendant by examining, "among other things, the length of the jury's deliberations before and after substitution of the alternate and the district court's instructions to the jury upon substitution charging the jury to begin its deliberations anew." Id. (citing United States v. Phillips, 664 F.2d 971 at 995-96 (5th Cir.1981)). Consideration was also given to whether or not the trial court had ensured that the alternate juror had not discussed the case with anyone nor been exposed to extrinsic information about the case in the interim between his discharge and the time of substitution. Quiroz-Cortez, 960 F.2d at 420; United States v. Guevara, 823 F.2d 446, 448 (11th Cir.1987).

[T9] The majority of the state courts to consider the issue have adopted the federal approach. See, e.g., State v. Sanchez, 2000-NMSC-021, ¶¶ 16-22, 129 N.M. 284, 6 P.3d 486, ¶¶ 16-22 (2000) (collecting cases); and generally, David B. Sweet, Annotation, Pro-pricty, Under State Statute or Court Rule, of Substituting State Trial Juror With Alter-mate After Case Has Been Submitted to Jury, 88 A.L.RA" 711 (1991). In People v. Burnette, 775 P.2d 583 (Colo.1989), the Colorado Supreme Court held that recalling a discharged alternate to replace a regular juror after deliberations have begun violated Colorado Rule of Criminal Procedure 24(e), which at that time was identical to the Wyoming Rule at issue here. Id. at 586-87. The Colorado court noted the potential prejudices inherent when substitution of a regular juror occurs in mid-deliberation:

The potential for prejudice occasioned by a deviation from the mandatory requirements of Crim.P. 24(e) is great. Where an alternate juror is inserted into a deliberative process in which some jurors may have formed opinions regarding the defendant's guilt or innocence, there is a real danger that the new juror will not have a realistic opportunity to express his views and to persuade others.... Moreover, the new juror will not have been part of the dynamics of the prior deliberations, including the interplay of influences among and between jurors, that advanced the other jurors along their paths to a decision.... Nor will the new juror have had the benefit of the unavailable juror's views.... Finally, a lone juror who cannot in good conscience vote for conviction might be under great pressure to feign illness in order to place the burden of decision on an alternate.

Burnette, 775 P.2d at 588 (citations and footnote omitted). While noting that the substitution raises a presumption of prejudice to the defendant's right to a fair trial, the court held that the presumption could be overcome by a showing that the trial court took adequate procedural precautions to obviate the danger of prejudice to the defendant. Id. at 587-88. In its analysis, the Colorado court cited the following safeguards: (1) whether the alternate juror was adequately instructed upon discharge not to discuss the case and avoid extrinsic information about the case that could influence him; (2) whether the alternate was questioned about his activities during the period from his discharge to recall and his present ability to serve on the jury; and (8) whether the remaining regular jury members had been instructed to recommence deliberations anew and whether they would be capable of disregarding their previous deliberations and any opinions formed during those deliberations. Id. at 590-91.

[¶ 10] We concur with the authorities noted above and hold that the plain language of W.R.Cr.P. 24(e) does not permit the substitution of an alternate juror for a regular juror once deliberations have commenced. The substitution of an alternate juror in those cireumstances raises a presumption of prejudice to a defendant that can, however, be rebutted upon a showing that adequate procedural safeguards were undertaken by the trial court to ensure that the defendant received a fair trial. Specifically, the trial court must: (1) instruct the alternate upon discharge that his oath is still applicable and until a verdict has been rendered and the regular jury discharged, he must refrain from discussing the case with anyone and avoid extrinsic information that may affect his ability to impartially judge the case; (2) upon recall, inquire on the record whether the alternate juror did, in fact, comply with the court's instructions; (8) instruct the reconstituted jury to begin deliberations anew; and (4) inquire on the record whether the remaining members of the original jury can ignore the previous deliberations and set aside any opinions formed during them. If the trial court cannot establish that all of these safeguards are met, then the court may not substitute the alternate, and the matter may proceed pursuant to W.R.Cr.P. 283(b); otherwise, a mistrial may be declared.

[¶ 11] In this case, the record clearly shows that adequate procedural safeguards were not taken. The district court properly instructed the alternate before discharging him and, upon recall, inquired whether he had complied with those instructions. The district court then sent the alternate into the jury room. The reconstituted jury was not instructed to begin deliberations anew. Nor was there an inquiry as to whether or not the remaining regular jurors could set aside their previous deliberations and any opinions formed during those deliberations. This failure raises the potential for prejudice noted by the Colorado Supreme Court. The potential for prejudice in this situation is evidenced by the fact that the original jury deliberated for the previous afternoon without reaching a verdict but managed to reach a verdict with the participation of the alternate juror in less than an hour. Accordingly, we must reverse Alealde's conviction and remand for a possible new trial.

II. Constitutionality of Wyo. Stat, Ann. § 6-2-201

[¶ 12] In his second issue, Alcalde challenged the constitutionality of the kidnapping statute, §§ 6-2-201(a)(iii), (b)) and (c), claiming that it is unconstitutionally vague on its face and as applied to him. Although we have reversed Alcalde's convietion on his other claim, we will address this issue because of the possibility of a new trial upon remand.

[T13] We apply the following analysis to claims of facial vagueness:

A statute may be challenged for vagueness "on its face" or as applied to particular conduct. When a statute is challenged for vagueness on its face, the court examines the statute not only in light of the complainant's conduct, but also as it might be applied in other situations. See Schwartzmiller v. Gardner, 752 F.2d 1341 (9th Cir.1984). Facial review is not appropriate in all cases.
"[Flacial vagueness review is not common because ordinary canons of judicial restraint do not permit a party whose particular conduct is adequately described by a criminal statute to 'attack [the statute] because the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit!" (Emphasis omitted). Id. at 1846 (quoting Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439 (1974)).
This principle is sometimes described in terms of standing. Parker v. Levy, supra 94 S.Ct. at 2561; State v. Hegge, 89 Wash.2d 584, 574 P.2d 386, 389 (1978).
The standing requirement is relaxed when a statute reaches "a substantial amount of constitutionally protected conduct." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982); Kolender v. Lawson, [461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)]. The requirement is also relaxed when a statute is shown to be vague " 'not in the sense that it requires a person to conform his conduct to an imprecise but comprehensive normative standard, but rather in the sense that no standard of conduct is specified at all " Parker v. Levy, supra 94 S.Ct. at 2561 (quoting Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971)). See also Schwartzmiller v. Gardner, supra 752 F.2d 1341. G

Griego v. State, 761 P.2d 973, 975 (Wyo.1988). "A 'facial challenge' [to a statute] is available in only two situations: (1) when the statute reaches a substantial amount of constitutionally protected conduct, and (2) when the statute is shown to specify no standard of conduct at all." Ochoa v. State, 848 P.2d 1359, 1363 (Wyo.1993). In regard to "as applied" challenges, we have said:

In making this determination we must decide whether the statute provides sufficient notice to a person of ordinary intelligence that appellant's conduct was illegal and whether the facts of the case demonstrate arbitrary and discriminatory enforcement. When evaluating a statute to determine whether it provides sufficient notice, we must again consider not only the statutory language but also any prior court decisions which have placed a limiting construction on the statute or have applied it to specific conduct. Ward v. Illinois, 431 U.S. 767, 97 S.Ct. 2085, 52 L.Ed.2d 738 (1977); Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975); Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973); Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948).

Griego, 761 P.2d at 976.

[T14] The language that Alcalde challenges appears in subsection (a) of the kidnapping statute, Wyo. Stat. Ann. § 6-2-201:

(a) A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business or from the vicinity where he was at the time of the removal, or if he unlawfully confines another person, ... [.]

Specifically, Alcalde claims that the words "vicinity" and "confines" are vague and ambiguous. He contends that the statute does not put a person of ordinary intelligence on notice that "merely forcefully moving someone only 20 feet and for only under 80 see-onds could result in a felony kidnapping conviction." Thus, he claims the statute does not specify a standard of conduct. To support his contention, Alcalde cites the fact that the jury in his case requested a definition of "vicinity" and "confine" from the court three different times. Accordingly, he concludes that the jury must have found the terms ambiguous and vague.

[T15] There is a strong presumption that a statute is constitutional and any doubt is resolved in favor of constitutionality. Reiter v. State, 2001 WY 116, ¶ 7, 36 P.3d 586, ¶ 7 (Wyo.2001). We begin with the words of the statute that Alcalde claims are ambiguous or vague. The ordinary meanings of the words are:

Vicinity-1. the quality or state of being near: proximity 2: a surrounding area or district: neighborhood
Confine-1. a: to hold within a location b: imprison 2: to keep within limits

Merriam-Webster's Collegiate Dictionary 1316 and 242 (10% ed.1998). In plain terms, the statute prohibits a person from unlawfully removing another from his place of residence or business or from the "surrounding area or district" where he was at the time of the removal, or if he unlawfully "holds within a location or imprisons" another person. Al-calde claims that the statute establishes no standard of conduct at all. That claim fails when considered against the plain meaning of the words used in the statute. As we have already noted, a statute employs a standard, for purposes of vagueness, if " 'by [its] terms or as authoritatively construed [applies] without question to certain activities, but whose application to other behavior is uncertain'" Griego, 761 P.2d at 976 (quoting Smith v. Goguen, 415 U.S. 566, 577-78, 94 S.Ct. 1242, 1249, 39 L.Ed.2d 605 (1974) (emphasis in original)). The statute prohibits the unlawful removal of a person from the area in which the person is occupied and the unlawful holding of a person within a location. The statute is not unconstitutionally vague. "[Tlo succeed on a facial vagueness challenge to a legislative measure that does not threaten constitutionally protected con-duet ... a party must do more than identify some instances in which the application of the statute may be uncertain or ambiguous; he must demonstrate that 'the law is imper-missibly vague in all of its applications' ..." People v. Moore, 75 Cal.App.4th 37, 44-45, 88 Cal.Rptr.2d 914, 918 (1999) (quoting Evangelatos v. Superior Court, 44 Cal.3d 1188, 1201, 246 Cal.Rptr. 629, 753 P.2d 585 (Cal.1988) (emphasis in original)). The statute prohibits specified conduct and is not unconstitutionally vague on its face.

[¶ 16] We also disagree with Alcalde's assertion that the statute is unconstitutionally vague as applied to his conduct. As noted above, neither the term "vicinity" nor "confine" is vague in its ordinary usage. In this case, Alcalde approached the victim after following her home and parking his car so as to block her exit. He used her readiness to help him as an opening to physically assault her. After the victim had managed to honk her horn, Alcalde forcefully removed her from her vehicle and dragged her 15 to 20 feet to a privacy fence. Onee he had successfully moved the victim to an area that could not be seen from the apartment complex, Alcalde pinned the victim to the ground and choked her.

[¶ 17] Another court was confronted with a case in which the victim was confined for approximately five minutes and removed for a distance of only 100 to 150 feet. State v. Morris, 281 Minn. 119, 160 N.W.2d 715, 717 (1968). The defendant in that case argued that his actions were merely behavior incidental to an indecent assault and were not intended by the state's legislature to constitute kidnapping. Quoting a California Supreme Court case where the victim was forcibly moved only 22 feet, the Minnesota court eloquently stated, "It is the fact, not the distance, of forcible removal which constitutes kidnapping in this state." Id. (quoting People v. Chessman, 38 Cal.2d 166, 238 P.2d 1001, 1017 (1951)). The statute is not unconstitutionally vague as applied to Alcalde because any person of ordinary intelligence would be on notice that his acts were illegal under the statute.

CONCLUSION

[¶ 18] The substitution of the alternate juror after deliberations had begun without instructing the reconstituted jury to recommence deliberations from the beginning constituted prejudicial error. Accordingly, we reverse Alcalde's conviction and remand for a new trial.

LEHMAN, Justice,

specially concurring, with whom KITE, Justice, joins.

[{T19] I agree with the majority's reasoning, application of established case law, and relevant rule interpretation in reaching its ultimate determination under the facts and cireumstances that exist in this matter. Nevertheless, while I am not bothered by the majority's holding which provides certainty and guidance in the future for the trial courts and litigants, I believe that this case points out the need for modification to W.R.Cr.P. 24(e) regarding the use of alternate jurors.

[¶ 20] Frankly, the present condition of our established alternate juror rule defeats the very basic reason for selecting alternate jurors, namely, to prevent having to re-try an entire case should one of the regular jurors become unable to complete their assigned duties and thus promote judicial economy. Accordingly, I would respectfully suggest that W.R.Cr.P. 24(e) be modified to allow alternate jurors to take the place of original jurors even after deliberations have commenced under those safeguards set forth in People v. Burnette, 775 P.2d 583 (Colo.1989) adopted by the majority.

[T21] Modification to W.R.Cr.P. 24(e) would not only assure that a defendant receives a fair and impartial review by a jury of his peers of those charges alleged against him in the furtherance of judicial economy, but would also promote enhanced trust and confidence by the public in our legal system.

      . § 6-2-201. Kidnapping; penalties; effect of release of victim.

      . In 1999 the federal rule 24(c) was amended to eliminate references to pre-submission substitution and to the discharge of alternate jurors when deliberations have commenced. The federal rule now provides:
      (3) Retention of Alternate Jurors. When the jury retires to consider the verdict, the court in its discretion may retain the alternate jurors during deliberations. If the court decides to retain the alternate jurors, it shall ensure that they do not discuss the case with any other person unless and until they replace a regular juror during deliberations. If an alternate replaces a juror after deliberations have begun, the court shall instruct the jury to begin its deliberations anew.
      Fed.R.Crim.P. 24(c)(3) (2002 Second Rev. Ed.).