September 24 2013
DA 13-0001
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 278N
CHARLES TODD CLUGSTON,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause Nos. DC-07-495(C), DC-09-511(B),
DV-11-341(C)
Honorable Stewart E. Stadler, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad M. Wright, Wright Legal, P.C., Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General; Pamela P. Collins, Assistant
Attorney General, Helena, Montana
Ed Corrigan, Flathead County Attorney; Travis R. Ahner, Deputy County
Attorney, Kalispell, Montana
Submitted on Briefs: August 28, 2013
Decided: September 24, 2013
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not serve
as precedent. Its case title, cause number, and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Charles Todd Clugston appeals from an order of the Eleventh Judicial District Court,
Flathead County, denying his Motion to Withdraw Guilty Pleas and Petition for
Postconviction Relief. We affirm.
¶3 We rephrase the following issues on appeal:
¶4 Issue One: Whether the District Court properly denied Clugston’s motion to withdraw
his guilty pleas.
¶5 Issue Two: Whether there was a sufficient factual basis for Clugston’s plea to
criminal endangerment.
¶6 Issue Three: Whether Clugston was denied effective assistance of counsel.
¶7 Issue Four: Whether the State violated the plea agreement by opposing Clugston’s
parole.
¶8 Clugston was arrested October 20, 2007, after a dispute with his wife. He was
charged with sexual intercourse without consent, tampering with or fabricating physical
evidence, and criminal destruction of or tampering with communications. Trial began May
11, 2009. On the fourth day of trial, an oral plea agreement was reached. Clugston pled
2
guilty to amended charges of criminal endangerment and tampering with or fabricating
physical evidence.
¶9 The District Court questioned Clugston under oath to determine that his plea was
voluntary and of his own free will. Clugston was then questioned by his attorney, Eduardo
Gutierrez-Falla, to establish a factual basis for the plea. With regard to the criminal
endangerment charge, he testified that in Flathead County on or about October 20, 2007, he
had knowingly engaged in a course of conduct that created a substantial risk of serious
bodily injury to Heather Clugston. The District Court accepted Clugston’s plea. The State
then informed the Court that a sex offender evaluation would be needed prior to sentencing.
Defense counsel confirmed that an evaluation was part of the agreement.
¶10 Sentencing was ultimately set for December 11, 2009. On November 10, 2009,
Clugston was arrested in a drunk driving incident. He pled guilty to criminal endangerment
and driving under the influence of alcohol. Because the plea agreement on the previous
charges had been oral, Clugston signed written plea agreements on November 18, 2009,
pertaining to both sets of charges. The written agreements show that the State would
recommend a ten year sentence, with all time suspended, for the first criminal endangerment
and tampering. The State would recommend a ten year sentence, with no time suspended,
for the second criminal endangerment. The sex offender evaluation was not mentioned in the
agreement, because it had already been completed. The sex offender evaluation and pre-
sentencing investigation recommended that Clugston complete phase I sex offender
treatment.
3
¶11 Clugston was sentenced on all four charges on December 11, 2009. The State made
its recommendation in accordance with the plea agreements. For the first criminal
endangerment and tampering, Clugston received a ten year sentence, with all time
suspended, and was required to complete phase I sex offender treatment. For the second
criminal endangerment, he received a ten year sentence with five years suspended. For
driving under the influence, he received a six month sentence, to run concurrently. The
written judgment and sentence was issued January 27, 2010.
¶12 On December 30, 2010, Clugston appeared before the parole board. Flathead County
Attorney Ed Corrigan wrote a letter opposing Clugston’s parole. The parole board denied
Clugston’s application and recommended that he complete phase II sex offender treatment.
¶13 Clugston, acting pro se, moved to withdraw all four guilty pleas on January 24, 2011,
and filed a petition for postconviction relief on March 23, 2011. With respect to his plea to
the first charge of criminal endangerment, Clugston claimed his attorneys had told him the
charge was based on a reckless driving incident. He claimed he was never informed of the
sex offender evaluation condition. He did not claim that his pleas to the other three charges
were entered involuntarily or without sufficient understanding. Clugston also claimed
ineffective assistance of counsel on the grounds that his attorneys conspired with the State to
coerce his plea, and then failed to petition for correction of the written judgment and
sentence, which he perceived to be inconsistent with the sentence delivered at the hearing.
Finally, Clugston argued that Corrigan’s letter violated the plea agreement.
¶14 An evidentiary hearing was held on July 6, 2012, at which Clugston was represented
by counsel. He did not testify. Gutierrez-Falla testified that he had told Clugston the plea to
4
criminal endangerment was based on “what was taking place in their bedroom between him
and his then wife just before his arrest.” He said he had avoided stating the details in open
court because he did not want the record to contain any reference to sex offenses. Gutierrez-
Falla and co-counsel Scott Hilderman both testified that Clugston was informed of the sex
offender evaluation requirement before entering his plea. Clugston did not question either
attorney about their failure to object to or appeal the sentence. The District Court denied
both the motion to withdraw guilty pleas and the petition for postconviction relief in an order
dated December 24, 2012.
¶15 On appeal of the denial of a motion to withdraw plea, this Court reviews findings of
underlying fact for clear error and conclusions of law for correctness. State v. Warclub, 2005
MT 149, ¶ 24, 327 Mont. 352, 114 P.3d 254. The same standard is applied to petitions for
postconviction relief. Rose v. State, 2013 MT 161, ¶ 15, 370 Mont. 398, 304 P.3d 387. This
Court reviews mixed questions of law and fact regarding the voluntariness of a plea de novo.
Warclub, ¶ 24. Claims of ineffective assistance of counsel are also mixed questions of law
and fact, and reviewed de novo. St. Germain v. State, 2012 MT 86, ¶ 7, 364 Mont. 494, 276
P.3d 886. Finally, this Court reviews de novo the issue of whether the State has breached a
plea agreement. State v. Lewis, 2012 MT 157, ¶ 13, 365 Mont. 431, 282 P.3d 679.
¶16 Issue One: Whether the District Court properly denied Clugston’s motion to withdraw
his guilty pleas.
¶17 A defendant may be permitted to withdraw his guilty plea within one year of final
judgment for good cause. Section 46-16-105(2), MCA. A guilty plea must be voluntary,
knowing, and intelligent, with awareness of the likely consequences. Brady v. United States,
5
397 U.S. 742, 748, 90 S. Ct. 1463, 1469 (1970). A district court’s denial of a motion to
withdraw a guilty plea will not be overturned unless the defendant was unaware of the
consequences of his plea or was induced by threats, misrepresentations, or improper
promises. Warclub, ¶ 32 (citing Brady, 397 U.S. at 755, 90 S. Ct. at 1472).
¶18 The District Court accepted the testimony of Gutierrez-Falla and Hilderman that they
had fully informed Clugston of the basis of the plea and its conditions. Their testimony was
contradicted only by Clugston’s parents’ testimony that they were surprised by the plea. The
District Court’s finding that Clugston was fully informed about the plea is supported by
substantial evidence and is not clearly erroneous.
¶19 Before entering his plea, Clugston testified under oath that his plea was voluntary and
of his own free will. Months later he signed a written plea agreement. Clugston did not
move to withdraw his plea until nearly two years after it had been entered, one year after
sentencing, and after he had completed both the sex offender evaluation and phase I sex
offender treatment. Clugston received a significant benefit from the plea agreement because
the amended charge of criminal endangerment allowed him to avoid sex offender
registration, an important objective to him. The conclusion of the District Court that
Clugston understood the consequences of his plea and entered his plea knowingly and
voluntarily is correct.
¶20 Issue Two: Whether there was a sufficient factual basis for Clugston’s plea to
criminal endangerment.
¶21 A court must determine that there is a factual basis for a guilty plea before the plea
can be accepted. Section 46-12-212(1), MCA. The court must obtain admissions
6
demonstrating “that the acts of the defendant, in a general sense, satisfy the requirements of
the crime to which he is pleading guilty.” State v. Frazier, 2007 MT 40, ¶ 20, 336 Mont. 81,
153 P.3d 18.
¶22 Clugston’s testimony, following three days of trial, established that he engaged in
conduct that created a substantial risk of serious bodily injury to Ms. Clugston, that he did so
knowingly, and that Ms. Clugston was not seriously injured, but his conduct created a
substantial risk of injury. This was sufficient to show that his acts satisfied the elements of
the crime of criminal endangerment.
¶23 Issue Three: Whether Clugston was denied effective assistance of counsel.
¶24 Contrary to the State’s assertions that Clugston did not raise this issue in the District
Court, it is clear from the record that he did; if not specifically, it was generally raised
throughout his pleadings in his complaints about trial counsel.
¶25 Both defense counsels indicated that Clugston was aware of all the provisions of the
plea agreement, as well as the sexual offender treatment recommendation made in the
presentence investigation. Clugston’s attorney verbally advised the District Court at the time
of the change of plea hearing that a sex offender evaluation was part of the plea agreement.
Hilderman’s affidavit advised that his client never asked the attorney to amend his sentence
or to move to withdraw his guilty plea.
¶26 The District Court accepted the testimony of counsel and determined that Clugston
failed to establish that “counsels’ performance fell below that guaranteed to Petitioner by the
Sixth Amendment.” We concur with the District Court.
7
¶27 Issue Four: Whether the State violated the plea agreement by opposing Clugston’s
parole.
¶28 A plea agreement is subject to contract law standards, and the State must fulfill its
contractual obligations strictly. State v. McDowell, 2011 MT 75, ¶ 14, 360 Mont. 83, 253
P.3d 812. The State may not act in a way that undermines its sentencing recommendation.
State v. Rardon, 2005 MT 129, ¶ 19, 327 Mont. 228, 115 P.3d 182.
¶29 The written plea agreement entered on November 18, 2009, contained no agreement
regarding parole. The State fulfilled its obligation by recommending the sentence outlined in
the written plea agreement. The State did not undermine its recommendation to the
sentencing court, and in fact, the sentence received was five years less than that
recommended by the State. The District Court did not err in concluding that the State did not
violate the plea agreement.
¶30 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
Internal Operating Rules, which provides for memorandum opinions. The District Court’s
findings of fact are supported by substantial evidence and the legal issues are controlled by
settled Montana law, which the District Court correctly interpreted.
¶31 Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
8