November 5 2013
DA 12-0079
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 329
STATE OF MONTANA,
Plaintiff and Appellee,
v.
BRYCE EVERETT PETERSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DC-08-151
Honorable Jeffrey H. Langton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade Zolynski, Chief Appellate Defender; Sarah Chase Rosario, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General; Micheal S. Wellenstein,
Assistant Attorney General, Helena, Montana
William Fulbright, Ravalli County Attorney, Hamilton, Montana
Submitted on Briefs: September 18, 2013
Decided: November 5, 2013
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Bryce Everett Peterson appeals from the District Court’s Opinion & Order, filed
December 14, 2011, denying his Motion to Withdraw Alford Pleas. We affirm in part,
reverse in part, and remand for further proceedings.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 In November 2008, the State charged Peterson with the felony offenses of
aggravated kidnapping, aggravated assault, assault with a weapon, intimidation, and
aggravated burglary, and also the misdemeanor offense of partner or family member
assault, second offense. The affidavit filed in support of the charges alleges that on
October 17, 2008, Peterson arrived at the house of his sometime girlfriend H.P., and
kicked in the door. Once inside Peterson began assaulting H.P., hitting her and forcing
her to the floor where he continued the assault for an extended period of time. Peterson
forced H.P. into his truck and began driving, calling a hospital to report that H.P. had
overdosed on medication. When H.P. attempted to cry out for help Peterson punched her
in the head and continued to slap her. Peterson prevented H.P. from getting out of the
truck, slamming her head into the interior before pulling off onto a side road in a remote
area and telling H.P he was taking her where no one would ever find her.
¶3 Peterson then took H.P. to his home where he continued to assault her. A Deputy
arrived to check on H.P.’s safety but when he knocked on the door Peterson held a gun to
her face and demanded that she be quiet. The Deputy, hearing nothing from inside the
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house, left. Peterson then began making phone calls and H.P. eventually escaped the
house and was able to report what had happened to her.
¶4 Law enforcement officers surrounded Peterson’s house. He refused to leave and
made threats to kill specific officers who he could see outside. Peterson surrendered after
about 18 hours and was taken to the hospital for an evaluation and then to jail. He
retained an attorney to represent him.
¶5 In November 2008 the District Court ordered that Peterson be transferred to the
Montana State Hospital for a mental evaluation to determine his fitness to proceed.
Peterson was at MSH for two months after which treating professionals filed a report on
his condition. They concluded that he did not suffer from a mental disease or defect, that
he was fully capable of understanding the proceedings against him and of assisting in his
own defense, and that he was fit to proceed to trial. The MSH report also concluded that
Peterson had been fully capable of forming the “requisite state of mind” at the time of the
offenses and of appreciating the criminality of his behavior. On February 4, 2009, the
District Court found that Peterson was competent to stand trial.
¶6 Peterson’s attorney retained a psychiatrist to conduct an independent evaluation.
The defense psychiatrist evaluated Peterson and issued a report in July 2009 concluding
that Peterson suffered from bipolar disorder, but that he was competent to stand trial.
The defense psychiatrist concluded that Peterson had the ability to act with knowledge or
purpose at the time of the offenses, although his ability to appreciate the criminality of his
conduct was diminished by a mood disorder.
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¶7 At a hearing in August 2009 the District Court granted the State’s motion for leave
to introduce evidence of prior instances in which Peterson had assaulted other women
and H.P. At that same hearing the defense filed a brief questioning Peterson’s
competency to proceed. The District Court heard argument and testimony on the
competency issue, including testimony from Peterson. The District Court noted that
Peterson presented articulate, logical and coherent testimony about his personality
disorders, the medications that addressed them, and the therapeutic significance of dosage
levels. The District Court concluded that nothing was presented to alter the conclusions
of the professionals that Peterson had been capable of forming the required criminal
intent at the time of the offenses, and that he was competent to stand trial.
¶8 On September 10, 2009, a day before trial was scheduled to begin, Peterson and
his attorney appeared before the District Court to enter Alford pleas to all the charged
offenses. An Alford plea arises from the decision in North Carolina v. Alford, 400 U.S.
25, 91 S. Ct. 160 (1970) and is recognized by statute in Montana. Section 46-12-212,
MCA. An Alford plea allows a defendant to plead guilty to an offense without
acknowledging his guilt. State v. Locke, 2008 MT 423, ¶ 18, 347 Mont. 387, 198 P.3d
316.
¶9 Peterson and his attorney signed and filed a multi-page pleading captioned “Alford
Plea and Waiver of Rights” in which Peterson affirmed his desire to voluntarily enter the
pleas and that there was no plea agreement. Peterson acknowledged that he was giving
up a variety of rights, including the chance of being convicted of lesser included offenses
and the chance of appeal on all issues except the voluntariness of the plea. He affirmed
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that he was satisfied with the services and competency of his attorney and that they had
discussed the merits of the case and possible defenses. He affirmed that he was
competent to enter the plea and did not suffer any emotional or mental disability that
would make him unsure about what he was doing. He specifically explained in a
handwritten passage that he wished to enter an Alford plea because he did not want to
plead guilty but had determined that it was in his “best interests to avoid trial.” He
affirmed that he believed that a jury would find him guilty beyond a reasonable doubt.
¶10 Thereafter the District Court read the allegations for the charges of aggravated
kidnapping and aggravated assault. Peterson entered Alford pleas to both charges. When
the District Court read the allegations related to the charge of assault with a weapon,
Peterson injected: “I can’t do this. I can’t do this. No, I’m not guilty of that. I’m not
guilty of this.” The District Court explained the nature of an Alford plea and Peterson
responded that he understood that it was in his best interest to enter a plea because the
“cards have been stacked against” him by the prosecution, apparently referring to prior
rulings on evidentiary issues. The District Court then recessed the proceeding.
¶11 When the proceeding resumed some 20 minutes later, Peterson announced that he
wanted two issues addressed: he requested an evaluation of his medication dosage and he
requested that there be specific language in the plea documents stating that he maintained
his innocence. Peterson agreed that the medication issue could be addressed after the
plea proceeding, and he entered Alford pleas to the remaining charges. The District Court
explained the possible penalties for the offenses as well as requirements for violent
offender registration and restitution obligations. The District Court again informed
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Peterson of the rights to trial that he was giving up and Peterson said that he understood.
He affirmed that there were no assurances of leniency given in exchange for his pleas,
nor was any force, threat or improper tactic used to obtain his pleas. Peterson’s attorney
told the District Court that he believed that Peterson was competent to enter the pleas and
that his medication complaints did not affect his ability to understand the proceeding.
¶12 Peterson affirmed that his communication with his attorney was “as good as could
be” and that they had disagreed about some things. He stated that he still did not
understand how he could maintain his innocence and still enter an Alford plea. The
District Court explained that an Alford plea is like a guilty plea but without agreement
that he committed every element of each offense. Peterson stated again that he believed
that there was “no defense” for him because the prosecutor had lied to the court to obtain
favorable evidentiary rulings. Even so, Peterson stated that it was “absolutely” in his best
interests to plead to the charges rather than to go to trial.
¶13 Peterson’s attorney summarized the time he had spent on the case, noting a couple
dozen personal meetings and close to 100 telephone calls. The attorney affirmed that
they discussed the evidence, including discussions involving the defense investigator.
¶14 Peterson then affirmed that it was his choice to go ahead with the pleas instead of
going to trial and provided a detailed and rational explanation of his medication issues.
The District Court then found that there was a factual basis for the charges, based upon
the facts set out in the affidavit filed in support of the motion for leave to file the
information against Peterson. The District Court found that Peterson entered the pleas
knowingly, voluntarily and intelligently. The District Court accepted the Alford pleas.
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¶15 The District Court conducted sentencing hearings on October 23 and November
13, 2009, and received testimony about the crimes and about Peterson’s mental state.
Peterson admitted to a history of abusing women but claimed he was suffering from a
mental disease or defect at the time of the prior events. Mental health professionals from
the Montana State Hospital testified that while Peterson had a personality disorder and
abused cannabis, he did not suffer from a mental disease or defect. The defense
psychiatrist testified that he believed that Peterson had bipolar disorder that should be
considered in sentencing. The District Court sentenced Peterson to a total of 70 years in
prison with 20 years suspended. Peterson’s attorney obtained leave of court to withdraw
as counsel.
¶16 In November 2010 Peterson appeared with new counsel and moved to withdraw
his Alford pleas. Peterson contended that he should be allowed to withdraw his prior
pleas because his mental state at the time of the pleas precluded him from knowingly and
voluntarily making a plea decision; because he maintained his innocence to the charges
against him; and because the District Court’s colloquy with him was insufficient to
determine whether the pleas were knowingly and voluntarily made.
¶17 The District Court conducted a hearing on the motion and received briefs. On
December 14, 2011, the District Court issued a 30-page Opinion & Order denying
Peterson’s motion to withdraw the pleas. The District Court examined the medical
evidence as to Peterson’s mental capacity and found that the more persuasive and
credible evidence demonstrated that Peterson was competent to enter the pleas. The
District Court examined the change-of-plea hearing and found that Peterson did not
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demonstrate mental instability, but understood what was happening and had a detailed
understanding of his medication. The District Court found that Peterson had appeared to
be alert and that his “responses and statements were articulate, logical and oriented.” The
District Court found that Peterson was thoroughly questioned before the pleas were
accepted, and that his desire to maintain innocence was no ground to reject an Alford
plea.
¶18 The District Court concluded that Peterson’s Alford pleas were knowingly and
voluntarily entered and that his motion to withdraw the pleas was without merit and
should be denied. Peterson appeals.
¶19 On appeal Peterson raises the following issues:
¶20 Issue One: Did the District Court properly deny Peterson’s motion to withdraw
his Alford pleas?
¶21 Issue Two: Should this matter be remanded to the District Court to determine the
amount of restitution due to the victim from Peterson for future counseling expenses?
STANDARD OF REVIEW
¶22 A district court may allow a defendant to withdraw a guilty plea where good cause
is shown. Section 46-16-105(2), MCA. If a guilty plea is involuntary, that constitutes
good cause to allow it to be withdrawn. State v. Usrey, 2009 MT 227, ¶ 17, 351 Mont.
341, 212 P.3d 279. The standard of voluntariness of a guilty plea is whether the
defendant was fully aware of the direct consequences of the plea, including the actual
value of any commitments made to him by the court, prosecutor or his attorney. If so, the
plea will stand unless it was induced by threats or improper promises. State v. Warclub,
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2005 MT 149, ¶ 18, 327 Mont. 352, 114 P.3d 254, citing Brady v. U.S., 397 U.S. 742, 90
S. Ct. 1463 (1970). A properly supported claim of ineffective assistance of counsel
during the change of plea process can constitute good cause for withdrawal of a plea.
Burns v. State, 2012 MT 100, ¶ 7, 365 Mont. 51, 277 P.3d 1238.
¶23 When a district court denies a motion to withdraw a guilty plea, this Court will
review findings of fact to determine whether they are clearly erroneous, and conclusions
of law to determine if they are correct. The ultimate question of voluntariness is a mixed
question of fact and law that this Court reviews de novo to determine whether the district
court was correct. Warclub, ¶ 24.
DISCUSSION
¶24 Issue One: Did the District Court properly deny Peterson’s motion to withdraw
his Alford pleas?
¶25 Peterson raises a number of issues on appeal, all to support the underlying
contention that his Alford pleas were not voluntary and that he should be allowed to
withdraw them. First, Peterson argues that he should be allowed to withdraw his pleas
because both of his prior attorneys—the attorney who represented him at the trial/plea
proceedings and the attorney who represented him on the motion to withdraw the pleas—
provided him with ineffective assistance of counsel.
¶26 Peterson’s motion in District Court to withdraw the pleas was based upon the
arguments that he lacked the mental capacity to enter the pleas; that he maintained that he
was innocent of the charges; and that the District Court’s colloquy with him at the time of
the pleas was inadequate. Peterson did not raise any issue concerning the alleged
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ineffectiveness of his trial/plea attorney when he moved to withdraw his pleas, and the
District Court did not consider or rule upon that issue. When a defendant appeals denial
of a motion to withdraw a prior plea, this Court will not entertain new issues that were
not raised in the District Court. State v. Ostrerloth, 2000 MT 129, ¶ 20, 299 Mont. 517,
1 P.3d 946 (no new issues may be raised on appeal of a motion to withdraw a plea); State
v. McFarlane, 2008 MT 18, ¶ 12, 341 Mont. 166, 176 P.3d 1057 (this Court will not
consider a claim of ineffective assistance of counsel at a change of plea proceeding when
the claim was not raised in district court). Because Peterson did not raise the issue that
his trial/plea attorney provided ineffective assistance, we decline to address this argument
on appeal.1
¶27 Peterson next argues that he is entitled to withdraw the pleas because they were
not knowingly and intelligently made. He argues that the District Court failed to inform
him that that he could go to trial on the charge of aggravated kidnapping and pursue
conviction of a lesser included offense of kidnapping.
¶28 Section 46-12-210, MCA, covers in detail the “advice” that a district court must
give a defendant proposing to enter a guilty plea. A district court’s advice to a pleading
1
While we do not consider the ineffective assistance claim, we do note an argument made by
Peterson’s attorney on appeal. One of the contentions made by Peterson’s attorney on appeal is
that Peterson’s trial/plea attorney was “out of money,” causing his inability to adequately
represent Peterson and causing him to act against Peterson’s best interests by coercing him to
plead guilty. Despite the strident accusations made in the briefing on Peterson’s behalf on this
point, there is no demonstrated factual support for it, much less any justification for
characterizing it as an “insidious” factor in the case. The only cited support for this argument is
that Peterson’s trial/plea attorney requested in a pre-trial motion that the District Court order the
State to pay for the cost of serving trial subpoenas because Peterson, not the attorney, was
indigent. These rather serious accusations against Peterson’s trial/plea attorney are completely
unjustified and unfounded in the record.
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defendant is constitutionally adequate if it covers the items in § 46-12-210, MCA. State
v. Otto, 2012 MT 199, ¶ 18, 366 Mont. 209, 285 P.3d 583 (a district court is required to
give the advice covered by § 46-12-210, MCA, and that advice is constitutionally
sufficient for a voluntary plea). A district court is not required to advise the defendant
about issues not covered by the statute such as the right to appeal, the right to speedy trial
or the right to object to evidence. Otto, ¶ 19. There is no requirement that the district
court provide advice about possible lesser included offenses. Usrey, ¶ 24; State v.
Swensen, 2009 MT 42, ¶ 14, 349 Mont. 268, 203 P.3d 786. The District Court did not err
to the extent that it failed to advise Peterson about the possibility of a lesser included
offense to the charge of aggravated kidnapping.
¶29 Peterson next argues that his pleas were not knowingly and intelligently made, and
therefore not voluntary, because the District Court did not advise him that he could go to
trial and then appeal pre-trial orders, such as rulings on the admissibility of evidence and
other issues. A District Court is not required to advise a pleading defendant about any
rights to contest prior orders in a future appeal. Otto, ¶ 19. The District Court did not err
to the extent that it failed to advise Peterson about the possibility of a future appeal of
pre-trial orders.
¶30 Peterson next argues that he was entitled to withdraw his guilty pleas because the
attorney who represented him on the motion to withdraw the pleas provided ineffective
assistance of counsel. This Court evaluates claims of ineffective assistance of counsel
under the test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052
(1984). Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861; Bomar v.
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State, 2012 MT 163, ¶¶ 7-8, 365 Mont. 474, 285 P.3d 396. First the defendant must
show that his attorney’s performance was deficient by demonstrating that it fell below an
objective standard of reasonableness. Whitlow, ¶ 14. There is a strong presumption that
the attorney’s performance fell within the wide range of reasonable professional
assistance, Whitlow, ¶ 15, because there are “countless ways to provide reasonable
assistance in any given case.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
¶31 Second, the defendant must show that his attorney’s deficient performance
prejudiced the defense. Whitlow, ¶ 10. This requires a showing of a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
¶32 This Court will consider the merits of a claim of ineffective assistance of counsel
on appeal only if the record is sufficient to determine whether the attorney was
ineffective. State v. Briscoe, 2012 MT 152, ¶ 10, 365 Mont. 383, 282 P.3d 657. Claims
that are not based upon facts of record must be raised, if at all, in a proceeding for
postconviction relief. State v. Main, 2011 MT 123, ¶ 48, 360 Mont. 470, 255 P.3d 1240.
¶33 Peterson claims that his plea withdrawal attorney was ineffective because he failed
to argue that the District Court should not have accepted the plea to the charge of
intimidation under § 45-5-203, MCA. Specifically, Peterson argues that there was no
showing that he acted with the purposely or knowingly mental state required for that
offense. The intimidation charge was based upon Peterson’s actions during the extended
stand-off with law enforcement officers at his residence. During the stand-off Peterson
threatened that he was going to shoot one or more specifically identified officers who
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were at the scene. He identified an officer by name, described where he was at the scene,
and threatened to shoot him in the head.
¶34 We find that there is sufficient record-based information to allow review of this
claim. There is no factual dispute about the intimidation incident, and at sentencing
Peterson admitted to making the threat and to understanding how it could be understood
as a “threat and intimidation to law enforcement.” A defendant’s mental state may be
inferred from his acts and from the circumstances of the offense. State v. Claussell, 2001
MT 62, ¶ 31, 305 Mont. 1, 22 P.3d 1111 (purpose or knowing mental state). A
reasonable inference from the facts was that Peterson intended to hinder performance by
law enforcement and to prevent them from arresting him. This is sufficient to support the
charge of intimidation. State v. McCarthy, 2004 MT 312, ¶ 47, 324 Mont. 1, 101 P.3d
288. As a matter of law, Peterson has failed to demonstrate that his withdrawal
attorney’s performance in this regard was deficient and that it fell below an objective
standard of reasonableness. Peterson has not established that he received ineffective
assistance of counsel regarding the plea to the charge of intimidation.
¶35 Peterson next claims that his withdrawal attorney was ineffective because he failed
to present additional evidence at the hearing on the motion to withdraw about Peterson’s
mental state at the time of the pleas. At the hearing on the motion to withdraw, defense
counsel presented both Peterson’s testimony and the testimony of the defense psychiatrist
who had previously examined Peterson and who had previously testified as to Peterson’s
mental condition. Defense counsel also submitted into evidence a letter from the defense
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psychiatrist setting out the opinions of five other mental health professionals that
Peterson was bipolar.
¶36 Peterson’s contention on appeal is that his withdrawal attorney rendered
ineffective assistance by only presenting one expert. The argument is that if withdrawal
counsel had presented the live testimony of the other medical professionals described in
the letter admitted into evidence, the District Court would have found Peterson to be
bipolar. This entire argument turns on the assumption that if only the District Court had
found that Peterson was bipolar then the original pleas would not have been accepted or,
if accepted, Peterson would have been allowed to withdraw them. This is based upon
nothing more than speculation presented as fact. The assumption underlying Peterson’s
argument is that a person diagnosed as bipolar is not competent to enter a plea in a
criminal case, and, if he does, is entitled to withdraw it later. The issue below was not
whether Peterson was bipolar. The issue was whether he was competent to enter the
pleas to the charges. The experts for the State and for the defense agreed that Peterson
was competent to participate in the plea proceedings.
¶37 The record is clear in this case that the District Court was very familiar with
Peterson’s mental state. Testimony and evidence on that issue were presented to the
District Court prior to Peterson’s entering the pleas, and again at the withdrawal hearing.
Peterson does not contend on appeal that there was any new or different evidence, only
that the evidence should be presented in a different way. In addition, even the defense
psychiatrist who opined that Peterson was bipolar also rendered the expert opinion that
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Peterson was competent to stand trial and that he was capable of forming the mental state
required to be convicted of the charged offenses.
¶38 On the face of the record it is clear that Peterson’s withdrawal attorney acted
reasonably and consistently with an objective standard of reasonableness in presenting
the motion to withdraw to the District Court. Peterson has wholly failed to demonstrate
that his withdrawal attorney failed to provide effective assistance by presenting only one
expert at the withdrawal hearing.
¶39 The record demonstrates that Peterson was fully aware of the direct consequences
of the pleas and that they were knowingly and voluntarily given. He has failed to
establish that there was good cause to allow him to withdraw his prior Alford pleas to the
charges against him, and the District Court is affirmed.
¶40 Issue Two: Should this matter be remanded to the District Court to determine the
amount of restitution due to the victim from Peterson for future counseling expenses?
¶41 The District Court ordered that Peterson be responsible for payment of the future
counseling costs of the victim in an “unlimited amount.” Peterson does not argue that he
may not be held responsible for the counseling costs, but only that the District Court was
required to specify the total amount of restitution. Section 46-18-244, MCA. The State
agrees with Peterson’s argument and agrees that this matter should be remanded to the
District Court for a determination of the total amount of restitution for the victim’s future
counseling costs.
¶42 The District Court’s order denying Peterson’s motion to withdraw his Alford pleas
to the charges against him is affirmed. This matter is remanded to the District Court for
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the sole purpose of determining the amount of restitution for the victim’s future
counseling costs that Peterson is required to pay.
/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
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