State v. Nelson , 52 State Rptr. 1069 ( 1995 )

NO. 95-042
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and for the County of Ravalli,
The Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, State Appellate Defender,
Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General;
Patricia Jordan, Ass't Attorney General, Helena,
Montana
George Corn, Ravalli County Attorney, Hamilton,
Montana
Submitted on Briefs: August 17, 1995
Decided: October 24, 1995
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
Michael Ray Nelson (Nelson) appeals from the judgment entered
by the Twenty-First Judicial District Court, Ravalli County, on his
guilty plea to the offenses of felony assault, criminal mischief,
and resisting arrest. We affirm.
On September 7, 1994, Nelson was charged by information with
three counts of felony assault, one count of misdemeanor assault,
one count of misdemeanor resisting arrest and one count of
misdemeanor criminal mischief. Two weeks later, Nelson entered
pleas of not guilty to all charges. At the arraignment, the county
attorney presented a psychological evaluation of Nelson. Defense
counsel did not object to the admission of the evaluation.
On October 4, 1994, Nelson entered into a plea agreement in
which the State dismissed two counts of felony assault and one
count of misdemeanor assault. Nelson then pled guilty to one count
of felony assault and the two misdemeanors of resisting arrest and
criminal mischief.
On October 4, 1994, Nelson signed a Plea of Guilty and Waiver
of Rights. Nelson's Plea of Guilty and Waiver of Rights stated
that Nelson voluntarily plead guilty, explained the rights being
waived, outlined the sufficiency of his attorney's representation,
detailed in his own words the factual basis for his guilty plea,
and asserted that he was not under the influence of drugs or
alcohol.
The next day, during the court's interrogation at the change
of plea hearing, the District Court confirmed Nelson's
2
understanding of the nature and potential penalties for each of the
charges against him. The court confirmed Nelson's understanding of
the rights he waived in entering pleas of guilty and that he had no
right to withdraw his guilty pleas. The court determined that
Nelson had not been threatened or forced into pleading guilty and
that he had not consumed any drugs or alcohol that could affect his
judgment or ability to communicate. Nelson admitted that his
counsel was competent and had advised him well. Nelson explained,
in his own words, the facts upon which the charges and his guilty
pleas were based.
At the change of plea hearing, the court inquired whether
Nelson understood that the county attorney was not recommending any
particular sentence, and that regardless of the actual sentence,
Nelson would have no right to withdraw his pleas. Nelson responded
that he understood. The court accepted the plea agreement and
found Nelson guilty as charged. Defense counsel then moved the
court to release Nelson on his own recognizance (hereinafter "OR")
pending sentencing. While this release was not part of the plea
agreement, the State had no objection to the motion. After a brief
discussion regarding Nelson's sentencing date and bail, the court
declined to release Nelson on OR and the following colloquy
occurred:
THE COURT: . . . . Anything else?
THE DEFENDANT: Yes, Your Honor. I'm not going to do
this. This wasn't my agreement. This understanding --
I'm not ready to plead yet. I'd like you to send me over
to Warm Springs, sir, because I can't take any more of
it. I honest to God can't. They told me that they'd do
an OR. I thought this was part of the plea agreement.
3
That's not happening here, sir.
MR. STENERSON: Your Honor, for the record, I did not
tell him it was part of the plea agreement. I told him
if he took this plea agreement that Mr. Corn would not
oppose an OR and that was still up to the Court.
THE DEFENDANT: Your Honor, in regard to the guilty pleas
__
THE COURT: Mr. Nelson, that's already a done deal. YOU
plead guilty.
THE DEFENDANT: Your Honor, I can't take any more of
this. You have to send me to Warm Springs. This isn't
the deal that --
THE COURT: Silence, Mr. Nelson, or I will have you
removed.
THE DEFENDANT: Your Honor, can you do something or --
THE COURT: I can have you removed. Sheriff?
Nelson raises three issues on appeal. First, did the District
Court fail to adequately advise Nelson of the consequences of
pleading guilty and, as a result, were his pleas knowingly,
intelligently and voluntarily entered. Second, did the District
Court err in considering the mental evaluation report, prepared at
the direction of the State, without counsel present and without
Nelson having been advised of his rights. Finally, did the
District Court fail to consider alternatives to imprisonment for a
nonviolent felony offense pursuant to 55 46-18-225, and 46-18-
201(10), MCA, before sentencing Nelson to a term of imprisonment.
1. Did the District Court fail to adequately advise Nelson of
the consequences of pleading guilty and, as a result, were his
pleas knowingly, intelligently and voluntarily entered?
Nelson argues that he should have been allowed to withdraw his
4
guilty pleas because the District Court did not adequately advise
him of the consequences of pleading guilty, specifically the
possibility that he could be designated a dangerous offender thus
restricting his eligibility for parole.
The principles governing the entry and withdrawal of guilty
pleas are set forth in both case law and statutes. State v. Enoch
(1994), 269 Mont. 8, 11, 887 P.2d 175, 177. District courts must
meet the statutory requirements found in 55 46-12-210 and 46-16-
105(l), MCA, before accepting a guilty plea. Section 46-16-105(2),
MCA, regarding the withdrawal of a guilty plea, provides:
At any time before or after judgment the court may,
for good cause shown, permit the plea of guilty to be
withdrawn and a plea of not guilty substituted.
This Court has consistently stated that no set rule or
standard exists under which a district court addresses a request to
withdraw a guilty plea, and that each case must be considered in
light of its unique record. Enoch , 887 P.2d at 177; State v. Radi
(1991), 250 Mont. 155, 158-59, 818 P.Zd 1203, 1206. The grant or
denial of a motion to withdraw a guilty plea is within the
discretion of the district court. Radi
-I 818 P.2d at 1206. Our
standard in reviewing a district court's denial of a motion to
withdraw a guilty plea is whether the district court abused its
discretion. Enoch, 887 P.2d at 177; State v. Reynolds (19921, 253
Mont. 386, 390-91, 833 P.2d 153, 155.
When pleading guilty to a criminal charge a defendant waives
numerous constitutionally based rights and protections. -,
Radi 818
P.2d at 1206. In light of the significance of the rights that are
5
waived upon a plea of guilty, it is well-settled that a guilty plea
must be a voluntary, knowing, and intelligent choice among the
alternative courses of action open to the defendant. North
Carolina v. Alford (1970), 400 U.S. 23, 91 S. Ct. 160, 27 L. Ed. 2d
162; w, 818 P.2d at 1206.
This Court balances three factors when considering a criminal
defendant's attempt to withdraw a guilty plea: (1) the adequacy of
the court's interrogation at the time the plea was entered
regarding the defendant's understanding of the consequences of the
plea; (2) the promptness with which the defendant attempts to
withdraw the plea; and (3) the fact that the plea was the result of
a plea bargain in which the guilty plea was given in exchange for
dismissal of another charge. Enoch , 887 P.2d at 177.
In the present case, we need not engage in an analysis of the
above three factors because, although Nelson sought to withdraw his
pleas due to his misunderstanding as to release on recognizance,
Nelson did not attack the voluntary nature of his pleas. See State
v. Mason (19921, 253 Mont. 419, 424, 833 P.2d 1058, 1061. The
record reveals that Nelson did not move to withdraw his guilty
pleas on the grounds that the District Court failed to adequately
advise him that he could be designated a dangerous offender for
parole purposes. Rather, Nelson objected solely to the District
Court's decision to set bail instead of releasing him on his own
recognizance prior to sentencing.
Release on his own recognizance was not included in Nelson's
plea agreement and, in response to Nelson's objection, his attorney
6
specifically denied that release on OR was part of the plea
agreement. Thus, Nelson can not argue that his objection to bail
instead of OR was related to the voluntary nature of his guilty
pleas because OR was not a condition of his plea agreement. In
other words, he did not plead guilty in order to gain release on
OR, he pled guilty on the condition that the State drop two of the
felony assault charges. In fact, Nelson's Plea of Guilty and
Waiver of Rights states: "I am not entering this plea of guilty in
order to get released from jail." Nor can he relate his objection
to being denied OR to the issue he now raises that he was not
adequately advised that he could be designated a dangerous offender
for parole purposes.
Nelson's objection and motion to withdraw did not raise any of
the grounds on which he now appeals. This Court does not review
issues which were not preserved for appeal in the court below.
Sections 46-20-104 and 46-20-701, MCA. We have held that failure
to raise an issue before the district court bars a defendant from
raising the issue on appeal under § 46-20-104, MCA. State v.
Arlington (1994), 265 Mont. 127, 151, 875 P.2d 307, 321. We hold
that Nelson's contemporaneous motion to withdraw his pleas did not
raise a question as to the adequacy of the court's interrogation.
Further, although § 46-16-105(2), MCA, would have allowed a post-
judgment motion attacking the voluntariness of the pleas, no so
such motion was made in the District Court. Thus, Nelson is barred
from raising the issue of whether he was advised of the possibility
and consequences of being designated a dangerous offender on
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appeal.
We hold that Nelson did not, either before or after judgment,
move to withdraw his guilty pleas for lack of voluntariness. The
District Court did not abuse its discretion in denying Nelson's
motion to withdraw his guilty pleas based solely upon his
misunderstanding as to being released on his own recognizance.
2. Did the District Court err in considering the mental
evaluation report, prepared at the direction of the State without
counsel present and without Nelson having been first advised of his
rights?
Nelson argues that the District Court erred in considering and
relying on an emergency mental health evaluation report prepared in
violation of Nelson's Fifth Amendment rights. However, Nelson
failed to object to the admission of the report either when the
report was incorporated into the Presentence Investigation Report
or at the sentencing hearing. This Court does not review issues
which were not preserved for appeal in the court below. Sections
46-20-205 and 46-20-701, MCA. We have held that failure to raise
an issue before the district court bars a defendant from raising
the issue on appeal under 5 46-20-104, MCA. Arlinqton, 075 P.2d at
321. Thus, Nelson is barred from raising the issue of the mental
health report on appeal.
3. Did the District Court fail to consider alternatives to
imprisonment for a nonviolent felony offense pursuant to 55 46-l&
225, and 46-18-201(10), MCA, before sentencing Nelson to a term of
imprisonment?
Nelson qualified as a nonviolent felony offender. He argues
that Montana law, § 46-18-201(10), MCA, requires the sentencing
8
court to consider alternatives to incarceration when sentencing
nonviolent offenders.
In three recent cases in which the district courts failed to
consider alternatives to incarceration for nonviolent offenders, we
remanded for resentencing. State v. Pence (Mont. 1995), 902 P.2d
41, 52 St.Rep. 937; State v. LaMere (Mont. 1995), 900 P.2d 926, 52
St.Rep. 828; State v. Stevens (1993), 259 Mont. 114, 854 P.2d 336.
However, in each of these cases the defendants raised the issue of
consideration of alternatives to incarceration before the district
court. In Pence, I' Ii1 mmediately following the District Court's
oral ruling, Pence's counsel asked the judge to reconsider his
sentence, pointing out that the court was required to consider
alternatives to incarceration." Pence
-, 52 St.Rep. at 939. In
LaMere, we held that the defendant's objections to the sentence and
request for reconsideration were sufficient to preserve the issue
for appeal. LaMere, 900 P.2d at 928. Stevens also specifically
raised the issue of sentencing alternatives before the district
court. Stevens, 854 P.2d at 337.
However, in the instant case, the issue of consideration of
alternatives to imprisonment was not raised before the District
Court. Nelson did not object to the court's failure to consider
sentencing alternatives. The transcript of the sentencing hearing
reveals that Nelson did not object to the sentence imposed nor did
he request reconsideration. As we stated earlier, this Court does
not review issues which were not preserved for appeal in the court
below. Sections 46-20-104 and 46-20-701, MCA. We have held that
9
failure to raise an issue before the district court bars a
defendant from raising the issue on appeal under § 46-20-104, MCA.
Arlincrton, 875 P.2d at 321. Thus, Nelson is barred from raising
the issue of consideration of alternatives on appeal.
We note that although the District Court enunciated reasons
for its sentence, it did not specifically reference the statutory
requirement that it consider alternatives to incarcerating a
nonviolent offender or the criteria set forth in § 46-18-225, MCA.
Prior to sentencing a nonviolent felony offender to imprisonment,
the court must examine and take into account the ten specific
criteria set forth in 5 46-18-225, MCA.
Section 225 requires consideration of such things as
where the needs of the offender would be best served.
These statutes do not provide the court with any
discretion. The legislature has directed trial courts to
make these considerations before any nonviolent offender
is incarcerated.
LaMere, PO0 P.2d at 928 (emphasis added). Explicit, rather than
implicit consideration of the criteria makes for a much more
meaningful appellate review. In future cases, we strongly
encourage district courts, in imposing sentence upon nonviolent
offenders, to specifically recognize and address the criteria set
forth in § 46-18-225, MCA.
Affirmed.
10
We c
11
MICHAEL RAY NELSON, )
Defendant and Appellant. ;
On October 24, 1995, the Opinion of this Court in the above-
entitled cause was filed. On November 2, 1995, appellant Michael
Ray Nelson (Nelson) filed a Petitionfor Rehearing or Modification
of Opinion. Nelson alleges that this Court's Opinion of October
24, 1995 was in direct conflict with controlling decisions of this
Court and that the Court overlooked material facts. The State of
Montana filed its objections to Nelson's petition on November 6,
1995.
After review of this Court's opinion issued on October 24,
1995, and having considered Nelson's Petition for Rehearing or
Modification of Opinion as well as the State's Objections to
Petition for Rehearing, we conclude that while the following
changes are necessary to clarify this Opinion in regard to our
previous opinions in Lenihan and Hatfield, the holding of our
original opinion still stands. Therefore,
IT IS ORDERED:
1. The petition for modification of opinion is GRANTED.
2. Issue 3 of this Court's October 24, 1995, Opinion (Slip
Op. pp. 8 through lo), is hereby withdrawn and replaced with the
following:
3. Did the District Court fail to consider alternatives
to imprisonment for a ncnviolent felony offense pursuant
to §§ 46-18-225, and 46-18-201(11) [formerly (lo)], MCA,
before ser?tsncir.g Xelscr. to a term of imprisonment?
Nelson qualified as a rcnviolent felony offender. He argues
that Montana law, 5 46-18-201(11), MCA, requires the sentencing
court to consider alternatives to incarceration when sentencing
nonviolent offenders.
In three recent cases in which the district courts failed to
consider alternatives to incarceration for nonviolent offenders, we
remanded for resentencing. State v. Pence (Mont. 1995), 902 P.2d
41, 52 St.Rep. 937; State v. LaMere (Mont. 19951, 900 P.2d 926, 52
St.Rep. 828; State v. Stevens (1993), 259 Mont. 114, 854 P.2d 336.
However, in these cases the defendants raised the issue of
consideration of alternatives to incarceration before the district
court, or, as in Stevens, the State conceded that the statute had
not been followed. Stevens, 854 P.2d at 337. In Pence,
tl[ilmmediately following the District Court's oral ruling, Pence's
counsel asked the judge to reconsider his sentence, pointing out
that the court was required to consider alternatives to
incarceration." Pence
-r 902 P.2d at 44. In LaMere, we held that
the defendant's objections to the sentence and request for
reconsideration were sufficient to preserve the issue for appeal.
LaMere, 900 P.2d at 928.
However, in the instant case, the issue of consideration of
alternatives to imprisonment was not raised before the District
Court and the State did not concede that the statute had not been
followed. The transcript of the sentencing hearing reveals that
Nelson did not object to the court's failure to consider sentencing
alternatives nor did he request reconsideration.
Nelson did request a deferred sentence at the sent3lcir.g
hearing and he argues that this request is sufficient to preserve
the issue for appeal. However, a request for a deferred sentence
does not serve the same role as an objection to the sentence
actually imposed. Nelson did not alert the District Court to the
alleged failure to consider alternatives to imprisonment. Thus,
the court was not able to correct any deficiency in the sentencing
process.
As we stated earlier, this Court does not review issues which
were not preserved for appeal in the court below. Sections 46-20-
205 and 46-20-701, MCA. We have held that failure to raise an
issue before the district court bars a defendant from raising the
issue on appeal under § 46-20-104, MCA. Arlinston, 875 P.2d at
321.
An exception to this general rule is found in the holdings of
State v. Lenihan (1979), 184 Mont. 338, 602 P.2d 997 and State v.
Hatfield (1993), 256 Mont. 340, 846 P.2d 1025. In those cases we
held that an appellate court may review any sentence imposed in a
criminal case, if it is alleged that such sentence is illegal or
exceeds statutory mandates, even if no objection is made at the
time of sentencing. Lenihan, 602 P.2'd at 1000; Hatfield, 846 P.2d
at 1029 (emphasis added). While not disturbing the holdings of
these cases, we find the instant case distinguishable.
In Lenihan, the defendant pled guilty to burglary and his
three-year sentence was deferred. He appealed from the sentencing
condition requiring him to pay $250 as reimbursement for his public
d&end*r 15 aEcorney's fees. Lenihan argued that because Montana
3
does not have a recoupment statute, the district court's order to
reimburse the county for attorney's fees was invalid. The State
countered, inter alia, that Lenihan did not object to reimbursement
in the district court. This Court held:
Traditionally, in both civil and criminal matters,
this Court has not accepted for review issues which were
not objected to at the trial level. . . .
This Court, however, has never specifically ruled on
the question presented here. That is, whether an
objection at the trial level is a prerequisite to the
challenging of a sentencing order on appeal. This issue
has been ruled on in other jurisdictions with varying
results. . . .
It appears to be the better rule to allow an
appellate court to review any sentence imposed in a
criminal case, if it is alleged that such sentence is
illegal or exceeds statutory mandates, even if no
objection is made at the time of sentencing.
Lenihan, 602 P.2d at 1000 (emphasis added; citations omitted).
Because the district court exceeded its statutory authority by
requiring Lenihan to reimburse the county for attorney's fees, this
Court remanded Lenihan's sentence with instructions to vacate the
condition of repayment of attorney's fees. Lenihan, 602 P.2d at
1001.
In State v. Hatfield, Hatfield appealed his convictions of
sale of dangerous drugs and conspiracy to sell drugs. Hatfield
argued that the court erred in imposing the following sentencing
condition:
Defendant may be required to serve up _to an additional
one hundred-eighty days. at tile discretion or tne
supervising Probation Officer. . . The Probation
Officer has the right to decide the amou3-l or cl-e to b,e
served for any infraction, u;, to t‘r.e entire o~-~ei-.-.;u:ldred
4
eighty days. . .
Hatfield, 846 P.2d at 1029. This Court noted that Hatfield did not
object to the sentence at the time it was entered. However,
relying on the Lenihan holding that a criminal sentence may be
reviewed on appeal if it is alleged to be illegal or in excess of
statutory mandates, the Court addressed the sentencing issue. The
Court stated: "We have long held that a district court has no power
to impose a sentence in the absence of specific statutory
authority." Hatfield, 846 P.2d at 1029. Holding that the district
court had exceeded its statutory authority by delegating sentencing
discretion to a probation officer and by imposing a condition that
could have resulted in Hatfield spending more time in jail than the
maximum sentence allowed, the Court remanded the case for
resentencing.
Both Lenihan and Hatfield involved situations where the
judgment was void due to lack of statutory authority. In Lenihan
and Hatfield, the district courts' sentences were illegal or in
excess of statutory authority because the courts lacked the
specific statutory authority to impose the sentence.
Unlike Lenihan and Hatfield, Nelson's sentence is neither
illegal nor does it exceed statutory authority. Sections 46-18-
201(11) and 46-18-225, MCA, do not preclude a court from sentencing
a nonviolent felony offender to prison. Section 46-18-225, MCA,
states: "Prior to sentencing a nonviolent 'felony offender to a term
of imprisonment . .I' the court shall take into account certain
criteria. Section 46-18-201(11) states: 1'If the offender is
5
subsequently sentenced to the state prison . .'I the court shall
state why alternatives to imprisonment were not selected. Although
these statutes require consideration of alternatives to
imprisonment, such consideration would not have necessarily changed
the court's final sentence for Nelson. Nelson's sentence of ten
years is not in excess of the maximum statutorily authorized by
§ 45-5-202(3), MCA.
Sections 46-18-201(11) and 46-18-225, MCA, impose an
affirmative duty upon the court to take certain matters into
consideration in sentencing. If the court fails to abide by this
requirement, the sentence is subject to challenge or objection.
That does not mean, however, that in the absence of an objection,
the sentence is thereby illegal. The District Court, after
considering the criteria in § 46-18-225, MCA, and stating its
reasons why alternatives to imprisonment were not selected as
required by § 46-18-201(11), MCA, could still have 'legally
sentenced Nelson to ten years in prison. Thus, Nelson's sentence
does not come within the exception found in Lenihan and Hatfield.
Having failed to object to the sentence or to move for
reconsideration, Nelson is barred from raising the issue of
consideration of alternatives on appeal.
We note that although the District Court enunciated reasons
for its sentence, it did not specifically reference the statutory
requirement that it consider alternatives to incarcerating a
nonviolent offender or the criteria set forth in § 46-18-225, MCA.
Prior to sentencing a nonviolent fe1cr.y offender to imprisonment,
6
the court must examine and take into account the ten specific
criteria set forth in § 46-18-225, MCA.
Section 225 requires consideration of such things as
where the needs of the offender would be best served.
These statutes do not provide the court with any
discretion. The legislature has directed trial courts to
make these considerations before any nonviolent offender
is incarcerated.
LaMere, 900 P.2d at 928 (emphasis added). Explicit, rather than
implicit consideration of the criteria makes for a much more
meaningful appellate review. In future cases, we strongly
encourage district courts, in imposing sentence upon nonviolent
offenders, to specifically recognize and address the criteria set
forth in § 46-18-225, MCA.
Affirmed
3. In all other respects, Nelson's Petition for Rehearing is
DENIED. Let Remittitur issue forthwith.
4. The Clerk is directed to mail copies of this order to
counsel of record for the respective parties, West Publishing
Company, State Reporter Publishing Company, and the Honorable
Jeffrey H.
DATED