THE SUPREME COURT, STATE OF WYOMING
2023 WY 97
OCTOBER TERM, A.D. 2023
October 10, 2023
NATHANIEL CASTELLANOS,
Appellant
(Defendant),
v. S-23-0032
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Carbon County
The Honorable Dawnessa A. Snyder, Judge
Representing Appellant:
H. Michael Bennett of Corthell and King Law Office, P.C., Laramie, Wyoming.
Representing Appellee:
Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General;
Kristen R. Jones, Senior Assistant Attorney General; and Donovan Burton,
Assistant Attorney General.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY and FENN, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are
requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of
any typographical or other formal errors so that correction may be made before final publication in the
permanent volume.
FENN, Justice.
[¶1] Appellant, Nathaniel Castellanos, challenges his conviction for interference with a
peace officer. He contends his due process rights were violated when the district court
conducted an Asch1 hearing in his absence. We affirm.
ISSUE
[¶2] Appellant raises a single issue, which we rephrase as follows:
I. Did the district court violate Mr. Castellanos’s due process
rights by conducting an Asch hearing in his absence after
he refused to attend the hearing?
FACTS
[¶3] Mr. Castellanos is currently serving three consecutive life sentences at the Wyoming
State Penitentiary (Penitentiary). The facts surrounding those convictions are set forth in
Castellanos v. State, 2016 WY 11, 366 P.3d 1279 (Wyo. 2016). In March 2022, Mr.
Castellanos was charged with interference with a peace officer for allegedly injuring a
corrections officer at the Penitentiary. Mr. Castellanos purportedly hit the officer
repeatedly with his fist and threw a trash can at him, causing abrasions to the officer’s face
and an injury to the officer’s wrist.
[¶4] Mr. Castellanos’s preliminary hearing was initially set for April 7, 2022. However,
he refused to leave his cell, and the hearing was reset for a video hearing on May 10, 2022.
Mr. Castellanos appeared at that hearing, but he objected to the use of video conferencing
and insisted the hearing be conducted in person. The circuit court again continued the
hearing and specifically advised Mr. Castellanos he would not be provided with copies of
orders of transport listing the exact dates and times he would be brought to court for
hearings due to security concerns.2 His preliminary hearing was reset for May 18, 2022.
Mr. Castellanos appeared in person at that hearing. His case was bound over to district
court and set for trial in November of 2022.
1
An Asch hearing comes from our decision in Asch v. State, 2003 WY 18, 62 P.3d 945 (Wyo. 2003). In
that case, we held whenever the State wishes to have a defendant shackled or physically restrained during
a trial, it must make a motion pre-trial, and the district court must hold a hearing and state on the record the
“compelling reasons justifying the measures.” Id. at ¶ 62, 62 P.3d at 964 (citing United States v. Theriault,
531 F.2d 281, 285 (5th Cir. 1976)). The State has the burden of “establishing the necessity for particular
restraints and that such restraints are the least drastic effective measures available.” Id. (citing State v.
Thompson, 832 S.W.2d 577, 580 (Tenn. Crim. App. 1991)).
2
The Penitentiary typically does not provide copies of orders of transport to inmates because knowing the
exact time and date of transport creates a safety concern by giving an inmate the opportunity to plan an
escape or an ambush.
1
[¶5] Approximately three months before the scheduled trial date, the State filed a motion
to require Mr. Castellanos to be restrained during trial. The State argued restraints were
necessary in this case due to Mr. Castellanos’s history and concerns about his future
behaviors. The State asked to have Mr. Castellanos wear a taser belt under his clothing,
called a “Band-it,” that would be invisible to the jury and to have additional security
personnel present in the courtroom.
[¶6] The district court set an Asch hearing for October 19, 2022. However, due to
“transportation issues”3 the Penitentiary did not bring Mr. Castellanos to this hearing, and
it was rescheduled for the following day. When the hearing commenced the next day, the
district court observed Mr. Castellanos was absent, and it asked defense counsel to explain
why his client was not present. Counsel stated:
Your Honor, I was contacted about 1:44 p.m. today by []Major
Hobson up at the Wyoming State Penitentiary. He’s refusing
to leave his cell. I asked to arrange a phone call, which they
were going to - - Major Hobson was going to use his personal
cell phone to allow him to talk to me, and he refused that
contact as well.
[¶7] The district court asked defense counsel: “Do you think that if we reset this for
another time that we would be more productive, or are you prepared to proceed today with
the Asch hearing?” Counsel did not ask for a continuance and indicated he would be
arguing against the State’s motion on his client’s behalf. The district court continued to
conduct the Asch hearing without Mr. Castellanos and heard evidence about the need for
the restraints. Following this testimony, the district court made specific findings regarding
the factors we adopted in Asch both on the record at the hearing and in a separate written
order. After considering all these factors, the district court concluded requiring Mr.
Castellanos to wear the taser belt under his clothing was appropriate and it was the least
restrictive option. Mr. Castellanos did not file any pretrial motions challenging the district
court’s decision to impose restraints at trial.
[¶8] On the morning of the first day of trial, dressed in his prison jumpsuit, Mr.
Castellanos objected to the use of the taser belt. The district court stated it held the Asch
hearing in Mr. Castellanos’s absence because he refused to attend the hearing. Mr.
Castellanos asserted he declined to attend the hearing because the staff at the Penitentiary
refused to show him the transport order. After being given numerous opportunities to
3
The exact nature of the transportation issues is unclear. The State contends the Penitentiary would not
bring Mr. Castellanos to the hearing because he had obtained a copy of the order of transport, and the
Penitentiary believed this posed “a major safety concern.”
2
change into street clothes, Mr. Castellanos decided to wear his prison jumpsuit and
traditional restraints during his trial.
[¶9] The jury convicted Mr. Castellanos of one count of felony interference with a peace
officer. At Mr. Castellanos’s request, the district court proceeded to sentencing
immediately following the trial. The district court sentenced Mr. Castellanos to a term of
four-to-six years in prison to be served consecutively to his other sentences. This appeal
timely followed.
STANDARD OF REVIEW
[¶10] Mr. Castellanos alleges he had a right to be present at the Asch hearing, and the
district court violated his due process rights under the Fifth, Sixth, and Fourteenth
Amendments to the Federal Constitution and Article 1, Section 10 of the Wyoming
Constitution by conducting the hearing in his absence. The State asserts that if Mr.
Castellanos had a right to be present at the Asch hearing, he waived that right by refusing
to attend the hearing.
[¶11] We review the question of whether the district court violated Mr. Castellanos’s
constitutional rights de novo. Mills v. State, 2023 WY 76, ¶ 7, 533 P.3d 182, 187 (Wyo.
2023) (citing Kovach v. State, 2013 WY 46, ¶ 19, 299 P.3d 97, 104 (Wyo. 2013)).
Similarly, “[t]he question of whether a defendant had the right to be present at a particular
stage of trial is an issue of law subject to de novo review.” Wall v. State, 2019 WY 2, ¶ 29,
432 P.3d 516, 525 (Wyo. 2019) (citing DeMillard v. State, 2008 WY 93, ¶ 8, 190 P.3d 128,
130 (Wyo. 2008)).
DISCUSSION
[¶12] We have previously discussed the nature of a defendant’s right to be present during
every critical stage of his criminal proceedings:
A criminal defendant has the right to be present during every
critical stage of his criminal proceeding. There are numerous
federal and Wyoming guaranties of this right. “The Sixth
Amendment and the due process clauses of the Fifth and
Fourteenth Amendments to the United States Constitution
guarantee an accused the right to be present during every stage
of the criminal proceeding that is critical to its outcome if his
presence would contribute to the fairness of the procedure.”
Skinner v. State, 2001 WY 102, ¶ 20, 33 P.3d 758, 765 (Wyo.
2001). Article 1, § 10 of the Wyoming Constitution “is even
more explicit in its guarantee to an accused of the right of
presence at trial.” Maupin v. State, 694 P.2d 720, 722 (Wyo.
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1985). That provision states: “In all criminal prosecutions the
accused shall have the right to defend in person. . . .” Wyo.
Const., art. 1, § 10. “‘The right to be present at trial stems in
part from the fact that by his physical presence the defendant
can hear and see the proceedings, can be seen by the jury, and
can participate in the presentation of his rights.’” Skinner, ¶ 21,
33 P.3d at 765 [(]quoting Bustamante v. Eyman, 456 F.2d 269,
274 (9th Cir. 1972)[)]. However, the “defendant’s presence is
not required when it ‘would be useless, or the benefit but a
shadow.’” Seeley, 959 P.2d at 177 [(]quoting Snyder v. Com.
of Mass., 291 U.S. 97, 106-07, 54 S. Ct. 330, 332-33, 78 L. Ed.
674 (1934)[)].
Wall, 2019 WY 2, ¶ 30, 432 P.3d at 525 (quoting DeMillard, ¶ 9, 190 P.3d at 130).
[¶13] We have yet to decide whether an Asch hearing is a “critical stage” of a proceeding
where a defendant’s presence is required. An Asch hearing is not one of the proceedings
listed in Wyoming Statute § 7-11-202 (LexisNexis 2021) or Rule 43(a) of the Wyoming
Rules of Criminal Procedure (W.R.Cr.P.) at which a defendant’s presence is required. For
the purposes of this case, we assume, without deciding, Mr. Castellanos had a right to be
present at the Asch hearing. We must decide whether he waived that right.
[¶14] Mr. Castellanos asserts his right to be present at the Asch hearing arises under both
the Federal and Wyoming Constitutions. In his brief, he claims it was the district court that
waived his right to be present at the Asch hearing, and the district court could not do so
under Article 1, § 10 of the Wyoming Constitution. However, we are analyzing whether
Mr. Castellanos personally waived his right to be present at the hearing. Irrespective of
whether the right arises under the Federal or the Wyoming Constitution, we require a
defendant’s waiver of a constitutional right to be done voluntarily, knowingly, and
intelligently. See, e.g., Taylor v. State, 612 P.2d 851, 861 (Wyo. 1980) (discussing waiver
of rights under Article 1, § 10 of the Wyoming Constitution); Jendresen v. State, 2021 WY
82, ¶ 30, 491 P.3d 273, 282–83 (Wyo. 2021) (discussing the standard for waiver of Fifth
Amendment rights).
[¶15] We begin our analysis by inquiring into whether the right to be present at an Asch
hearing is waivable, and then we analyze whether Mr. Castellanos voluntarily, knowingly,
and intelligently waived that right. Kearns v. State, 2002 WY 97, ¶ 12, 48 P.3d 1090, 1093
(Wyo. 2002) (citing Taylor, 612 P.2d at 860–61; Vargas v. State, 963 P.2d 984, 990 (Wyo.
1998)). We have long recognized “with certain exceptions, . . . any constitutional or
statutory privilege inuring to the benefit of the defendant, which does not violate a public
policy, may be waived.” Taylor, 612 P.2d at 860 (citing Patton v. United States, 281 U.S.
276, 50 S. Ct. 253, 74 L. Ed. 854 (1930); Schick v. United States, 195 U.S. 65, 24 S. Ct.
826, 49 L. Ed. 99 (1904)). We have previously held “[t]he constitutional right to be present
4
at every critical stage of the trial may be waived by a defendant’s voluntary absence.”
Campbell v. State, 999 P.2d 649, 661 (Wyo. 2000) (citing Maupin, 694 P.2d at 722). “A
defendant must have a compelling reason to stay away from the trial. If his absence is
deliberate without a sound reason, the trial may start in his absence.” Maupin, 694 P.2d at
722 (citing United States v. Tortora, 464 F.2d 1202, 1208 (2d Cir. 1972)). Where a
defendant’s failure to appear occurs voluntarily, knowingly, and without justification, a
conviction in absentia may be affirmed. Id. (citing United States v. Reed, 639 F.2d 896,
903–04 (2d Cir. 1981)).
[¶16] Although both Campbell and Maupin dealt with a defendant’s presence at trial, other
jurisdictions have adopted a similar approach for determining whether a defendant has
voluntarily and knowingly waived his right to be present during some other crucial stage
of the proceeding. The Supreme Court of Montana has held “[a]n absence is voluntary if
the defendant knew of the hearing and failed to appear due to circumstances that were
within her control.” State v. Bekemans, 293 P.3d 843, 848–49 (Mont. 2013) (citing State v.
Clark, 115 P.3d 208, 210 (Mont. 2005)) (involving an absence at a show cause hearing).
Florida recognizes “[a] defendant may . . . waive his right to be present where he voluntarily
absents himself from a crucial stage of a criminal trial without leave of court.” Papageorge
v. State, 710 So.2d 53, 55 (Fla. Dist. Ct. App. 1998) (citing Fla.R.Cr.P. 3.180(c)) (involving
an absence from a restitution hearing); Capuzzo v. State, 596 So.2d 438, 440 (Fla. 1992)
(involving an absence from a sentencing hearing). Likewise, Georgia recognizes
“voluntary absence” is sufficient to establish waiver of the defendant’s right to be present
at a critical stage. Williams v. State, 715 S.E.2d 440, 442 (Ga. Ct. App. 2011) (involving
an absence from a restitution hearing).
[¶17] Mr. Castellanos was given notice of the State’s Asch motion and the date of the
hearing. Mr. Castellanos was specifically advised by the circuit court he would not be
given advance notice of specific times of transport due to security concerns. The
Penitentiary gave Mr. Castellanos three opportunities to attend the hearing on October 20,
2022, but he refused to leave his cell. The Penitentiary gave Mr. Castellanos the
opportunity to consult with counsel about attending the Asch hearing, but he declined this
opportunity. Mr. Castellanos failed to appear at the hearing due to circumstances within
his control and without leave of the court. See Bekemans, 293 P.3d at 848–49 (citing Clark,
115 P.3d at 210). Therefore, he knowingly, intelligently, and voluntarily waived his right
to be present at the hearing. The district court did not violate his due process rights under
either the Federal or Wyoming Constitutions when it proceeded to conduct the Asch
hearing in his absence.
CONCLUSION
[¶18] The district court did not violate Mr. Castellanos’s due process rights by conducting
the Asch hearing in his absence. Mr. Castellanos waived any right he had to be present at
5
that hearing by knowingly and voluntarily failing to appear at the hearing due to
circumstances within his control. Affirmed.
6