Popkin v. State

Citation: 429 P.3d 53Docket: S-18-0104; S-18-0105

Court: Wyoming Supreme Court; October 26, 2018; Wyoming; State Supreme Court

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Joshua R. Popkin pled no contest to two counts of second degree sexual assault by a person in a position of authority. On appeal, he argues that the facts do not constitute a crime, but the court affirms that his no-contest pleas waived this argument. The case involves allegations from two victims, E.M. and J.S., both of whom were under Dr. Popkin's counseling. E.M.'s encounters included unwanted sexual advances and drug use, while J.S. described flirty sessions with similar behaviors, including sexual relations and substance offers. Following a plea agreement, Dr. Popkin was sentenced to three to five years for each charge, to be served consecutively, which he contested as an illegal sentence, claiming his role as a clinical psychologist did not meet the statutory definition of "position of authority" under Wyoming law. The district court denied his motion, leading to the consolidated appeal. The relevant statute defines "position of authority" broadly, encompassing various roles that allow significant influence over a victim.

Dr. Popkin argues that he does not meet the criteria for being in a position of authority over his alleged victims as defined by Wyo. Stat. Ann. 6-2-303(a)(vi), claiming he is not a "parent, guardian, relative, household member, teacher, employer, or custodian." He contends that as a psychologist, he falls outside the broader category of individuals who can exert significant influence. Acknowledging Wyoming's expansive interpretation of this statute, Dr. Popkin notes that previous cases have identified various professions, such as massage therapists and certified nursing assistants, as positions of authority, but asserts that psychologists have not been included. He claims that the State's allegations do not establish that he committed second-degree sexual assault under these definitions.

In response, the State argues that Dr. Popkin's no contest pleas to the charges waive non-jurisdictional defenses, and therefore his appeal should not be considered. The court first examines whether Dr. Popkin's plea waived the issue he seeks to raise on appeal, which is a legal question reviewed de novo. It is established that a no contest plea waives all issues except those concerning jurisdiction and the voluntariness of the plea. Since Dr. Popkin does not contest the voluntariness of his plea, the court assesses whether his issue relates to jurisdiction.

Jurisdictional matters pertain to the State's authority to bring charges, and determining if Dr. Popkin was in a position of authority involves both legal and factual questions. The court notes that Dr. Popkin could have challenged the interpretation of the statute regarding psychologists before entering his plea but chose not to. Instead, he waived his right to a jury trial by pleading no contest, thereby forfeiting the opportunity to present this argument to a jury.

In this case, the legal issue regarding Dr. Popkin is to be decided by the district court, while factual determinations fall to a jury. The State is permitted to bring Dr. Popkin to court for charges against him, and his appeal does not raise a jurisdictional matter. The court references a precedent, Stokes v. State, which established that a criminal defendant's challenge to the propriety of charges after a guilty plea is nonjurisdictional. Dr. Popkin's argument that the alleged facts do not constitute a crime is similarly deemed nonjurisdictional. His reliance on the Supreme Court's Class v. United States is misplaced, as that case involved a challenge to the constitutionality of a statute, which Dr. Popkin does not assert. He has waived the right to contest issues except those concerning jurisdiction and the voluntariness of his plea, with no dispute over the latter. Consequently, the court affirms his convictions and the district court's judgment. The court notes that since Dr. Popkin entered a no contest plea, the factual basis for his plea was established through supporting affidavits rather than a direct inquiry during the plea process. Additionally, the statute regarding positions of authority was amended in 2018 to include "health care provider," but the version in effect during Dr. Popkin's offenses in 2016 is applied.