A defendant’s sentence may be enhanced under the Persistent Felony Offender Statute when the second felony was committed before conviction of the first. Even if the defendant had no convictions at the time she committed her second felony, she may still be sentenced as a PFO. SCOMONT ruled that this was the clear precedent of State v. Hamm, 250 Mont. 123 (1991), and State v. Williamson, 218 Mont. 242 (1985), and declined to overturn those cases as “manifestly wrong.”
Criminal Law
Tyler claimed he should be allowed to withdraw his guilty plea because Williams (the woman he was accused of assaulting) testified at sentencing that Tyler did not actually hit her, he had a good heart, and she did not have any marks on her body. The District Court rejected Tyler’s argument that this constituted new evidence, and sentenced him for partner family member assault.
In considering whether Tyler should have been allowed to withdraw his plea of guilty, SCOMONT used a five factor test to determine whether he presented newly discovered evidence sufficient to establish good cause to withdraw his guilty plea. The factors are:
(1) the evidence must have been discovered since the defendant’s trial;
(2) the failure to discover the evidence sooner must not be the result of a lack of diligence on the defendant’s part;
(3) the evidence must be material to the issues at trial;
(4) the evidence must be neither cumulative nor merely impeaching; and
(5) the evidence must indicate that a new trial has a reasonable probability of resulting in a different outcome.
State v. Clark, 2005 MT 330 ¶ 34. Tyler’s challenge failed under the first factor because his investigator had met with Williams and learned the same information months before Tyler pled guilty. ”From the record before this Court, we must conclude Tyler was well aware Williams recanted before he pled guilty. Thus, the fact that she had done so is not newly discovered evidence.” Tyler, ¶ 15.
The record showed that Tyler entered his guilty plea voluntarily and he presented no new evidence creating just cause for the withdrawal of the plea. Thus, the District Court did not err in denying Tyler’s motion.
SCOMONT ruled that:
1) Where the State amends an information to charge a lesser included offense which is supported by an identical factual basis, the District Court is not required to hold a new omnibus hearing.
2) Amending to charge a lesser included offense based on identical underlying facts, did not require the District Court to extend the time allowed for Adkins to file a second motion to suppress evidence. And
3) An ineffective assistance of counsel claim (for failure to file the second motion to suppress) failed because it would have been without merit. Under inevitable discovery, Adkin’s meth would have been discovered by independent legal means and thus admissible, so the failure to file the motion was not prejeducicial.
The sole issue on appeal was whether the District Court erred in denying Wise’s motion to withdraw his guilty plea. SCOMONT found that “the District Court incorrectly concluded that there was a factual basis for Wise’s plea, which casts doubt on the voluntariness of Wise’s plea, and which he timely moved to withdraw.” Wise, ¶ 18. Therefore Justice Rice ordered the case reversed and remanded.
Wise’s colloquy consisted of the following:
THE COURT: And can you tell me in your own words, then, what you did that you are pleading guilty to.
THE DEFENDANT: Me and my brother, we did some work for Mrs. Jensen. We painted some barn roofs, and evidently we messed up, didn’t do it correctly, Your Honor.
THE COURT: Do you agree that you damaged the roof of a barn?
THE DEFENDANT: Yeah. I mean – according to what I’ve seen, yes, sir. I do apologize. I mean -
THE COURT: All right. The Court finds there is a factual basis for the criminal mischief charge. The plea has been knowing, voluntarily and intelligently entered. It is accepted. The Defendant is found guilty as charged to criminal mischief, a felony.
At sentencing, Wise was sentencing to 10 years with 5 suspended. At the end of the hearing, Wise argued that the colloquy didn’t adequately admit guilt and he should be allowed to withdraw his guilty plea. After briefing, the District Court denied the motion.
Reviewing the issue de novo, SCOMONT noted that Wise’s colloquy, while an acknowledgement of causing damage, did not include any indication of criminal intent or culpability. Although “[a] court need not extract an admission from the defendant of every element of the crime in order to establish a factual basis for the guilty plea,” State v. Frazier, 2007 MT 40, ¶ 20, it is still necessary that “the court ascertain, from admissions made by the defendant at the plea colloquy, that the acts of the defendant, in a general sense, satisfy the requirements of the crime to which he is pleading guilty.” Frazier, ¶ 20.
Resolving doubt of voluntariness in favor of the defendant, SCOMONT held that the colloquy was clearly inadequate, believing that “Wise simply did not own up to a criminal intention required by the charge.” Wise, ¶ 17. Because there was doubt as to the voluntariness of the plea, the District Court’s ruling that Wise could not withdraw his plea was reversed, and the case was remanded for further proceedings.
As Montana Attorney General, Chief Justice McGrath is only required to recuse himself from cases in which he participated personally and substantially or in which he expressed an opinion concerning the merits in the controversy. In cases initiated by criminal defendants, the fact that the Chief Justice’s name appears on the states answer does not, in itself, disqualify him from hearing the case. Rather, a case-by-case determination must be made.
In Ellis’ case, it was the State of Montana that initiated the appeal meaning that Chief Justice McGrath oversaw and approved the filing. SCOMONT concluded that this oversight and approval constitutes personal and substantial participation under Rule 2.1.2(A)(5)(b) of the Code of Judicial Conduct.
The Chief Justice had already agreed to disqualify himself from this case. The Court issued this Opinion to clarify the issue for future criminal appeals.
In an attempt to have his driver’s license reinstated after refusing a breath test, Brown argued that only an experienced officer could make the proper inferences to justify compelling a breath sample. SCOMONT noted that in a driver’s license reinstatement proceeding, “the court is limited to deciding whether the peace officer had reasonable grounds to believe that the person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol […]” Brown, ¶ 11 (internal citations omitted). The reasonable grounds requirement is equivalent to particularized suspicion in an investigative stop. “[T]he test for particularized suspicion simply requires that the information available to the investigating officer – whether a rookie or a veteran – be sufficient to allow a hypothetical ‘experienced’ officer to have either particularized suspicion for a stop, or probable cause for an arrest.” Brown, ¶ 19.
The Court acknowledged that several cases implied an “experienced officer” requirement (State v. Gopher, 193 Mont. 189 (1981), State v. Schatz, 194 Mont. 59 (1981), and State v. Morsette, 201 Mont. 233 (1982)) but found that these evolved from various early misinterpretations of the U.S. Supreme Court’s decision in United States v. Cortez, 449 U.S. 411 (1981). Attempting the remedy the confusion, SCOMONT stated:
Therefore, we hold that, henceforth, for a peace officer to have particularized suspicion or reasonable grounds for an investigatory stop, the peace officer must be possessed of: (1) objective data and articulable facts from which he or she can make certain reasonable inferences; and (2) a resulting suspicion that the person to be stopped has committed, is committing, or is about to commit an offense. While a peace officer’s experience and training may be a factor in determining what sort of reasonable inferences he or she is entitled to make from his or her objective observations, experience and training will not necessarily be the defining element of the test.
Brown, ¶ 20. Here, where the officer smelled alcohol in Brown’s vehicle, it was 2:51 a.m., Brown’s vehicle had been moving slowly down the street before abruptly pulling over, stopping and turning off the headlights, Brown’s speech was slow and slurred, Brown made a slow and staggered exit from the vehicle, Brown admitted that he had been drinking earlier in the night, and there was a plastic Budweiser container in the pickup’s cupholder, there was sufficient evidence for the officer to believe that Brown was driving under the influence of alcohol. The District Court’s conclusion that the deputy had reasonable grounds to believe that Brown was driving under the influence of alcohol was affirmed.
Simpson pled guilty to felony common scheme theft by embezzlement and the conditions of his defferred imposition of sentence included 1) no drugs or alcohol, 2) obtaining a mental health evaluation, and 3) no casinos or gambling. He claimed that the three conditions had no nexus to his crimes.
SCOMONT agreed that terms 1 and 2 were impermissible under State v. Ashby, 2008 MT 83, because sentencing must be individualized and have some nexus to the offender or the offense. However, Simpson stated that he embezzled from his employer because “funds [were] tight.” This established a sufficient nexus to warrant the gambling restriction and the court affirmed condition 3.
James Warner pled guilty to criminal possession of dangerous drugs with intent to distribute. He was arrested in the parking lot of the post office after picking up a package containing meth. The 2003 Chevrolet Pickup Warner was driving at the time was seized as drug related property. Warner argued that the forfeiture of the vehicle was an excessive fine in violation of the 8th Amendment of the U.S. Constitution. SCOMONT rejected this argument, pointing out that the U.S. Supreme Court has not applied the Excessive Fines Clause of the 8th to the states and declining to impose such a requirement themselves.
Although Warner did not raise a challenge under the Montana Constitution, the court indicated it would not be easily persuaded by such an argument, stating that “we would have a difficult time holding that the District Court abused its discretion in ordering the forfeiture of a 2003 Chevrolet Pickup which facilitated the scourge of methamphetamine.” ¶ 9.
