The Wyoming Supreme Court on Thursday upheld the felony convictions of a Cheyenne man who killed a 61-year-old man, shot a woman in the hip and attacked police after his arrest while wearing nothing but a blanket and handcuffs.
Sorry, No
Frank John McHenry, 31, pleaded no contest to voluntary manslaughter and other felonies. He was sentenced to 20 years in prison on the charges after striking a plea agreement with the Laramie County District Attorney’s Office.
A no-contest plea is treated like a guilty plea, except the defendant doesn’t have to confess to the crime in court and may avoid civil liability. It’s an admission that the prosecution likely has enough evidence to secure a conviction.
But his case dragged on for more than three years amid mental health evaluations, a mental health incompetency pleading, rescheduling and COVID-19 delays. Most of the delays were at McHenry’s request, the Wyoming Supreme Court’s Thursday order says.
There were also times when the District Court Judge questioned whether all the delays violated McHenry’s constitutional right to a speedy trial. Neither McHenry or his attorney indicated at first that the delays were problematic.
However, after McHenry submitted his no-contest pleas and signed his plea agreement, the judge told him in a hearing that she had many concerns about his attorney’s inattentiveness and had reported the attorney to the Wyoming State Bar.
The attorney had disobeyed at least two court orders to address the speedy trial issue, says the ruling.
McHenry filed a motion to withdraw his no-contest pleas three months after that hearing.
The judge ultimately found that McHenry couldn’t win a withdrawal, because he wasn’t asserting his innocence, delayed in filing the motion to withdraw, and did have an attorney to explain his plea agreement to him before he signed it.
McHenry appealed to the state’s high court. But the Wyoming Supreme Court sided with the district judge and declined to overturn McHenry’s conviction.
“His ‘belated misgivings’ about his pleas did not justify allowing him to withdraw them,” reads the order.
All In This Neighborhood
McHenry broke into two homes on Cheyenne’s Pontillo Drive on May 11, 2018, stole guns, and shot and killed 61-year-old Joseph Tortolito, according to the affidavit in his case.
Tortolito had been working on a property in the area.
McHenry then shot a woman in the hip, injuring but not killing her.
Police responded when the woman’s father called, reporting her hip wound. The woman told Laramie County Sheriff’s deputies that the man had run into a house in the neighborhood.
Deputies searched the house and found no one there other than the owner, whom they told to exit the house, the affidavit says. They also searched a junkyard outside the house. There they found Tortolito’s body buried under several pallets.
Seven Bangs
The homeowner told deputies he heard “seven bangs” that morning but didn’t know what the sound was. He went outside, saw nothing, and went back inside. He started to draw himself a bath, but he heard an outside spigot turn on.
The homeowner figured Tortolito, who was working for him, had come to the house to get a drink. But the faucet kept running, so the man went outside to see what was going on. There was no one near the faucet, so he turned it off, the affidavit says.
Naked By Now
Sheriff’s deputies and Casper Police Department agents combined to form a SWAT team. Together they saw a man later identified as Frank McHenry running in and out of the house, brandishing a firearm.
McHenry also rummaged through two vehicles in the driveway, the affidavit says, then he got into the homeowner’s Suburban and started it with keys he’d taken from inside the home.
McHenry backed the Suburban down the driveway until the SWAT team stopped him and he surrendered. Police recovered a .22-caliber pistol McHenry had stolen from his uncle, who also lived on Pontillo Drive.
Police also recovered a rubber-banded wad of cash with the homeowner’s driver’s license stashed inside of it and the homeowner’s gun.
McHenry was naked by this time, though he was wearing black clothing earlier when the injured woman spotted him. Emergency medical personnel performed a medical check and gave McHenry a blanket to cover himself.
A later search revealed that McHenry had left his own wallet and driver’s license in the homeowner’s basement bathroom.
‘Just Shoot Me’
McHenry waited in an interview room with his hands cuffed behind his back and still had the blanket after his arrest.
He asked his interviewer, Detective Neuman, for a minute alone to adjust the blanket. But when the detective left, McHenry slipped his cuffed wrists down his legs and to the front of his body.
When Neuman entered, McHenry jumped up, wrapped the blanket around his wrist, put his shoulders down and ran toward Neuman.
Neuman grabbed McHenry, placed him against the wall and told him to put his hands back behind him.
“Just shoot me in the head,” said McHenry, the affidavit relates.
But he was able to get his handcuffs back behind his body.
Duct Fight
Neuman left the room to make some calls, then returned. This time, McHenry splashed his bottled water at the detective.
McHenry kept looking at the ceiling, then slid his handcuffs to his front again. He got on a chair and tried to go through the ceiling while Neuman was again out of the room, pulling the air duct, causing it to break and the ceiling panel to come crashing down.
Neuman entered and told McHenry to get down.
McHenry jumped down and charged Neuman with a 3-foot-long piece of air-conditioning duct and charged Neuman, injuring his arms.
They fought until another deputy rushed in and tased McHenry, the affidavit says.
A brawl ensued.
Deputies tried to restrain McHenry, while he in turn tried to bite deputies, kicked a detective’s elbow, kicked a deputy’s leg and grabbed at another deputy’s belt and genitals.
Deputies eventually subdued McHenry, the affidavit indicates.
Clair McFarland can be reached at clair@cowboystatedaily.com.
