May 20 2014
DA 13-0052
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 132
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JULIAN JAMES HENDRICKSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC 12-128
Honorable Karen Townsend, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade Zolynski, Chief Appellate Defender; Gregory Hood, Assistant
Appellate Defender; Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General; Pamela P. Collins, Assistant
Attorney General; Helena, Montana
Fred Van Valkenburg, Missoula County Attorney; Shawn Thomas,
Deputy County Attorney; Missoula, Montana
Submitted on Briefs: March 26, 2014
Decided: May 20, 2014
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Julian James Hendrickson appeals the judgment of the Montana Fourth Judicial
District Court. The sole issue is whether the District Court erred when it denied
Hendrickson’s motion to withdraw his guilty plea. We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 On February 8, 2012, Jenny LaTray reported to law enforcement that her
ex-boyfriend, Hendrickson, had entered her residence without permission and assaulted
her the previous night. LaTray told the officers that Hendrickson had crawled through
her bedroom window at night, punched her repeatedly in the head and face, and choked
her for over an hour. LaTray reported that Hendrickson had threatened to beat her again
if she reported the incident to the police, and that he forced her to write a list of the names
and addresses of family and friends that would allow him to find her if she ever told
anyone about the assault. The responding officers observed visible injuries on LaTray.
The crime scene corroborated her story.
¶3 The State charged Hendrickson by information on March 22, 2012, with
aggravated burglary and tampering with witnesses and informants. During arraignment,
the District Court told Hendrickson that the charges against him carried a maximum
penalty of fifty years and a $100,000 fine. Hendrickson told the court that he understood
and pleaded not guilty to both counts. The State did not file a notice of intent to pursue a
persistent felony offender (PFO) designation or otherwise indicate that it intended to
pursue a PFO designation. Hendrickson was released on pretrial supervision.
2
¶4 Between February 8, 2012, and May 9, 2012, LaTray gave four taped statements
to law enforcement. In her first two statements, she maintained that Hendrickson broke
into her residence and assaulted her. On May 1, she recanted those statements and stated
that another man, named John Dean or John Gibson, actually assaulted her. On May 9,
she returned to her original story and explained that she had invented the statements
about the other man.
¶5 While Hendrickson was released on bond, he was arrested for allegedly placing
several telephone calls to LaTray in violation of the conditions of his release. On
May 30, Hendrickson made a recorded phone call from jail to his current girlfriend,
Natalie Fleming, in which he seemed to suggest that Fleming should try to take the blame
for contacting LaTray. Based on the recording of this call, the State filed an amended
information on August 1, 2012, charging Hendrickson with an additional count of
tampering with witnesses and informants.
¶6 The State offered that in return for a plea of guilty on the tampering charge for the
call to Fleming, the State would not pursue the other charges and would recommend a
total sentence of ten years with eight suspended. The agreement would allow
Hendrickson to argue for a ten-year commitment with all ten years suspended.
Additionally, the State agreed not to file a petition to revoke Hendrickson’s conditional
pre-trial release based on positive urinalysis tests for methamphetamine. The State
informed him that if the plea negotiations failed, the State would file another amended
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information to add several new charges against him, including sexual intercourse without
consent and aggravated assault.
¶7 Hendrickson ultimately agreed to the State’s offer and the agreement was reduced
to writing. He signed a document entitled “Plea of Guilty and Waiver of Rights,” which
stated that “[t]he maximum possible punishment provided by law for the above-named
offense is: State Prison not to exceed 10 years and/or fine of $50,000.” A line in the
document regarding the potential for sentence enhancement for previous offenses was
marked as inapplicable.
¶8 Hendrickson appeared in court for a change of plea hearing on August 1, 2012.
During the court’s colloquy, the court explained the charge against Hendrickson and told
him, “You understand that you are now charged with the offense of tampering with
witnesses and informants. That’s a felony. That carries up to a potential of ten years in
the State prison and/or a $50,000 fine. Do you understand that?” Hendrickson explained
that he understood the charge and the consequences of changing his plea. He stated that
he was not impaired by alcohol or drugs and that he was satisfied with the services of his
attorney, John Smith. Hendrickson summarized the factual basis for the plea, stating, “I
purposely induced Natalie into testifying falsely.” Smith stated that the plea was free and
voluntary. The court accepted Hendrickson’s guilty plea.
¶9 After the plea was entered by the court, LaTray contacted the law firm
representing Hendrickson to recant her story again—this time claiming that Hendrickson
had not beaten her or called her afterward. LaTray recorded another taped statement with
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Smith where she claimed that Fleming, not Hendrickson, had been the one to call her.
Hendrickson engaged new counsel and moved to withdraw his guilty plea based on “new
evidence” from LaTray’s most recent version of the events giving rise to the charges
against him. The State opposed the motion.
¶10 In his reply brief, Hendrickson made an additional argument that his plea was
involuntary because his previous counsel, Smith, had incorrectly explained to
Hendrickson that he faced mandatory PFO sentence enhancements because he previously
had been convicted of a felony for tampering with a witness. Smith’s affidavit, filed with
the reply brief, stated that he incorrectly told Hendrickson that, if convicted, he faced a
mandatory, consecutive five to one hundred years in prison for being a PFO. Because
Hendrickson had completed a deferred imposition of sentence on his prior felony offense
and successfully moved to dismiss the charge, he was not eligible for PFO designation.
Smith attested that his incorrect legal advice was a significant factor in Hendrickson’s
decision to plead guilty.
¶11 The District Court denied Hendrickson’s motion to withdraw his guilty plea. The
court noted that, “[a]t most, what has been presented here, is that LaTray keeps changing
her story.” The court pointed out that the witness with whom Hendrickson agreed he had
tampered was Fleming, not LaTray. The court agreed that if Smith had told Hendrickson
that he faced a sentence enhancement based on his potential for designation as a PFO, the
advice was incorrect. The court noted, however, that Hendrickson signed a plea
agreement form and a waiver of rights, and engaged in a proper colloquy at his change of
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plea hearing. The court also observed that Smith’s advice correctly determined that there
was a substantial risk of significantly more punishment if the plea was rejected—up to
160 years if convicted on all charges the State intended to pursue. The court concluded
that the plea was not involuntary and that Hendrickson could not demonstrate good cause
for allowing him to withdraw his guilty plea. Hendrickson appeals the court’s decision.
STANDARD OF REVIEW
¶12 This Court reviews a district court’s denial of a motion to withdraw a guilty plea
de novo, because whether a plea was entered voluntarily is a mixed question of law and
fact. State v. Valdez-Mendoza, 2011 MT 214, ¶ 12, 361 Mont. 503, 260 P.3d 151. We
review the trial court’s underlying factual findings for clear error. State v. Warclub,
2005 MT 149, ¶ 23, 327 Mont. 352, 114 P.3d 254. We review for correctness the district
court’s interpretation of the law and its application of the law to the facts. Warclub, ¶ 23.
DISCUSSION
¶13 Hendrickson contends that he should be allowed to withdraw his guilty plea for
two related reasons. First, he argues that his plea was involuntary because his attorney
misinformed him about his PFO eligibility. Second, he argues that his attorney provided
ineffective assistance of counsel for the same reason. This second argument asserts a
stand-alone ineffective assistance claim that was not presented to the District Court and
we decline to address the issue on appeal. State v. McFarlane, 2008 MT 18, ¶ 12, 341
Mont. 166, 176 P.3d 1057. Hendrickson does not appeal the denial of his motion on the
ground that LaTray’s most recent statement amounted to “new evidence.”
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¶14 The remaining issue is whether good cause exists to allow Hendrickson to
withdraw his guilty plea because his counsel incorrectly advised him that he was PFO
eligible. Pursuant to § 46-16-105(2), MCA, a court may for good cause permit a plea of
guilty to be withdrawn and a plea of not guilty substituted within one year after the
judgment becomes final. “Good cause” includes the involuntariness of the plea, but it
may include other reasons. Warclub, ¶ 16. To prove that a plea was involuntary,
“allegations of having had certain mental impressions at the time of the plea must be
supported by objective proof in the record.” State v. Brinson, 2009 MT 200, ¶ 12, 351
Mont. 136, 210 P.3d 164 (quoting State v. Humphrey, 2008 MT 328, ¶ 23, 346 Mont.
150, 194 P.3d 643). It is the defendant’s obligation to provide such proof. See State v.
Robinson, 2009 MT 170, ¶¶ 17-18, 350 Mont. 493, 208 P.3d 851. If any doubt exists on
the basis of the evidence presented regarding whether a guilty plea was voluntarily or
intelligently made, the doubt must be resolved in favor of the defendant. State v. Melone,
2000 MT 118, ¶ 14, 299 Mont. 442, 2 P.3d 233.
¶15 This Court utilizes the standard articulated in Brady v. U.S., 397 U.S. 742, 748,
90 S. Ct. 1463, 1468-69 (1970), to determine whether a plea was voluntarily made. State
v. Prindle, 2013 MT 173, ¶ 17, 370 Mont. 478, 483, 304 P.3d 712. The Brady standard
requires that, to make a voluntary plea, a criminal defendant must be “fully aware of the
direct consequences, including the actual value of any commitments made to him by the
court, prosecutor, or his own counsel.” State v. Lone Elk, 2005 MT 56, ¶ 21, 326 Mont.
214, 108 P.3d 500, overruled in part on other grounds, Brinson, ¶ 9 (quoting Brady, 397
7
U.S. at 755, 90 S. Ct. at 1472). “Under Brady, we will not overturn a district court’s
denial of a motion to withdraw a guilty plea if the defendant was aware of the direct
consequences of such a plea, and if his plea was not induced by threats,
misrepresentation, or an improper promise such as a bribe.” Warclub, ¶ 32 (citing Brady,
397 U.S. at 755, 90 S. Ct. at 1472).
¶16 When evaluating an argument that counsel’s ineffectiveness impacted the
voluntariness of the defendant’s plea, we apply the Strickland test for ineffective
assistance of counsel. McFarlane, ¶ 11; Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052 (1984). Under Strickland, “the defendant must show (1) that his counsel’s
advice fell outside the range of competence demanded of a criminal attorney and (2) but
for counsel’s deficient performance, he would not have entered a guilty plea.”
McFarlane, ¶ 11. We have recognized that the defendant bears a significant burden
under Strickland; we may determine that counsel committed an error and still conclude
that the defendant did not carry his burden to establish an error serious enough to allow
him to withdraw his plea. See Prindle, ¶ 23; Weaver v. State, 2005 MT 158, ¶ 20, 327
Mont. 441, 114 P.3d 1039.
¶17 Determining whether a defendant entered a plea voluntarily and whether a district
court erred in denying a motion to withdraw a plea requires case-specific considerations,
including “the adequacy of the district court’s interrogation, the benefits obtained from a
plea bargain, the withdrawal’s timeliness, and other considerations that may affect the
credibility of the claims presented.” McFarlane, ¶ 17.
8
¶18 As an initial matter, we agree with the District Court that, if Smith told
Hendrickson that he could be subject to a PFO sentence enhancement, the advice was
incorrect. State v. Gladue, 209 Mont. 235, 240, 679 P.2d 1256, 1259 (1984). We also
agree with the court, however, that Hendrickson has not met his burden to show good
cause for the withdrawal of his plea.
¶19 Prior to accepting a guilty plea, the trial court must satisfy the requirements of
§§ 46-12-210 and 46-16-105, MCA. Melone, ¶ 16. Section 46-12-210(1), MCA,
provides, in relevant part, that “[b]efore accepting a plea of guilty or nolo contendere, the
court shall determine that the defendant understands the maximum penalty provided by
law, including the effect of any penalty enhancement provision.” Section 46-16-105,
MCA, provides, in relevant part, that a court may accept a plea of guilty or nolo
contendere when “the court has informed the defendant of the consequences of the plea
and of the maximum penalty provided by law that may be imposed upon acceptance of
the plea.” These requirements were satisfied when the District Court advised
Hendrickson at the plea hearing that he faced a maximum penalty of ten years in prison
and a $50,000 fine. The court said nothing about a potential PFO enhancement.
¶20 Even if Hendrickson’s counsel misled him regarding his potential PFO status,
Hendrickson must demonstrate that the misrepresentation induced his plea. Warclub,
¶ 32. “The rule that a plea must be intelligently made to be valid does not require that a
plea be vulnerable to later attack if the defendant did not correctly assess every relevant
factor entering into his decision.” Lone Elk, ¶ 26 (quoting Brady, 397 U.S. at 757,
9
90 S. Ct. at 1473). In Lone Elk, after the defendant pleaded guilty, counsel for the
defendant testified that she incorrectly had told Lone Elk that the judge could not require
sexual offender treatment for burglary despite that the underlying felony he intended to
commit was sexual assault. Lone Elk, ¶ 4. The defendant moved to withdraw his plea.
The district court denied the motion. We affirmed, observing that the district court
specifically told Lone Elk during the plea colloquy that his sentence could require sexual
offender treatment and that Lone Elk had admitted in court that he understood the
repercussions of his decision. Lone Elk, ¶ 27.
¶21 A similar conflict between the plea colloquy and the advice of counsel exists in
this case. The District Court clearly stated the maximum penalty that Hendrickson faced
for the charge against him and the maximum penalty was stated correctly in the signed
document containing his plea of guilty and waiver of rights. Hendrickson does not
challenge the adequacy of the plea colloquy. Smith’s post-plea affidavit is the only
document in the record that suggests that Hendrickson’s plea was involuntary.
Hendrickson did not submit his own affidavit or provide testimony confirming that the
incorrect advice was a factor in his decision to plead guilty. Smith’s affidavit does not
establish that Hendrickson misunderstood the potential maximum sentence that he faced.
In light of the fact that the District Court and the written plea agreement clearly explained
the correct maximum sentence, the record shows that Hendrickson was well-advised of
the penalty he faced.
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¶22 We stated in Lone Elk that involuntariness could be established if the plea was
induced, “however slightly,” by improper promises, threats or misrepresentations. Lone
Elk, ¶ 21. We made clear in Brinson, however, that the “however slightly” language had
no place in the determination of voluntariness of a plea, and overruled Lone Elk to that
extent. Brinson, ¶¶ 8-9. Rather, in ruling on a motion to withdraw a guilty plea, the trial
court is to examine all relevant “case-specific considerations.” McFarlane, ¶ 17. Other
considerations affect the credibility of Hendrickson’s claims in this case. The District
Court found that Hendrickson was properly advised in open court and understood the
possible punishment for his offense. The court further found that Hendrickson faced
additional charges that the State would pursue if he did not accept the plea agreement,
including aggravated burglary, sexual intercourse without consent, aggravated assault,
and another tampering with witnesses charge. Smith correctly explained to Hendrickson
that there was a substantial risk of significantly more punishment if the plea was rejected.
Hendrickson received a significant “benefit of the bargain” by accepting the State’s plea
offer. State v. Muhammad, 2005 MT 234, ¶ 24, 328 Mont. 397, 121 P.3d 521. He could
have faced up to 180 years of incarceration for all charges. He also might have been
subjected to a PFO sentence enhancement—although for different reasons than those
mistakenly articulated by Hendrickson’s counsel—because he allegedly committed four
felonies on February 7, 2012, against LaTray, and another felony on May 30, 2012, when
he induced Fleming to testify falsely. See State v. Anderson, 2009 MT 39, ¶ 14, 349
Mont. 245, 203 P.3d 764 (“[T]he PFO statute can be used to enhance a sentence when the
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second felony was committed before conviction of the first felony.”). Even if the State
did not pursue additional charges, Hendrickson faced an additional forty years and
$50,000 on the initial aggravated burglary charge. Thus, while his counsel’s statement
regarding Hendrickson’s PFO status was incorrect, it amounted to an “inaccurate
prediction” rather than a “gross mischaracterization of the likely outcome.” Prindle,
¶¶ 30-32.
¶23 The timeliness of Hendrickson’s argument to withdraw his plea also does not
support that his counsel’s advice rendered his plea involuntary. Hendrickson initially
moved to withdraw his plea because LaTray had changed her story. It was not until his
reply brief that he argued that he would not have pleaded guilty but for his counsel’s
incorrect advice. This indicates that the PFO claim was not the primary reason that
Hendrickson’s plea was alleged to have been involuntary.
¶24 After full consideration, the record supports the District Court’s determination that
Hendrickson was fully aware of the direct consequences of his plea and that the plea was
not induced by misrepresentation. The reference in Melone, ¶ 20, to “any doubt” about
voluntariness of a plea cannot be interpreted, as suggested by the Dissent, to be
tantamount to the “however slightly” standard we expressly disapproved in Brinson. The
record must be examined as a whole to determine whether the plea was voluntary.
Smith’s mistaken statements regarding the potential for a PFO designation are but one
factor in this analysis. The District Court’s findings of historical fact surrounding the
entry of Hendrickson’s plea are not clearly erroneous. Upon examination of all
12
case-specific considerations, we conclude that Hendrickson has not shown that, but for
counsel’s deficient performance, he would not have entered a guilty plea.
CONCLUSION
¶25 The District Court’s order denying Hendrickson’s motion to withdraw his guilty
plea is affirmed.
/S/ BETH BAKER
We concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ JIM RICE
Justice Patricia Cotter, dissenting.
¶26 I respectfully dissent from our decision to affirm the District Court’s denial of
Hendrickson’s motion to withdraw his guilty plea.
¶27 The Court concludes that Hendrickson did not meet his burden under the second
prong of Strickland and therefore failed to raise “any doubt” regarding the voluntariness
of his plea. Opinion, ¶¶ 18, 24. Under Strickland’s second prong, a defendant must show
that, but for counsel’s deficient performance, a reasonable probability exists that he
would not have entered a plea of guilty. State v. Henderson, 2004 MT 173, ¶ 4, 322
Mont. 69, 93 P.3d 1231; St. Germain v. State, 2012 MT 86, ¶ 11, 364 Mont. 494, 276
P.3d 886 (citation omitted). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome of the proceedings.” St. Germain, ¶ 11 (citation
13
omitted). Smith’s affidavit clearly establishes that, but for his incorrect advice, there is a
“reasonable probability” that Hendrickson would not have pleaded guilty.
¶28 Smith testified he told Hendrickson that “if he was convicted of even a single
felony offense, he would face a mandatory, consecutive, 5-100 years in prison for being a
persistent felony offender.” Hendrickson was apparently reluctant to sign the plea
agreement but eventually did so after his counsel “reiterated . . . the good reasons to
accept the plea agreement, including that if he proceeded with a guilty plea to the
tampering charge concerning Natalie he would not face being designated a persistent
felony offender.” Smith testified that he “believes the stated potential application of the
persistent felony offender statute was a significant factor in [Hendrickson’s] decision to
plead guilty.” These unrefuted statements raise a plain and obvious doubt about the
voluntariness of the plea, which must be resolved in favor of Hendrickson. As we stated
in Melone, if “there is any doubt that a guilty plea was not voluntarily or intelligently
made, the doubt must be resolved in favor of the defendant.” Melone, ¶ 14.
¶29 I find it puzzling that the Court reaches the decision it does, given the correct
statements of law set forth in ¶ 15 of the Opinion. As the Court notes, “the actual value
of any commitments made to [the defendant] by the court, prosecutor, or his own
counsel” are of significant consequence in determining the voluntariness of a plea. Lone
Elk, ¶ 21. There is no dispute that Hendrickson’s lawyer incorrectly advised him he
would face a PFO designation unless he accepted the plea deal, a fact even the Court is
willing to concede. Opinion, ¶ 18. Nor is there any doubt in Smith’s mind that the
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potential of a PFO sentence was “a significant factor” in Hendrickson’s decision to plead
guilty. As the Court further observes in ¶ 15, this Court “will not overturn a district
court’s denial of a motion to withdraw a guilty plea if . . . his plea was not induced by
threats, misrepresentations, or an improper promise such as a bribe.” Warclub, ¶ 32
(citing Brady, 397 U.S. at 755, 90 S. Ct. at 1472) (emphasis added); see also State v.
Leitheiser, 2006 MT 70, ¶ 20, 331 Mont. 464, 133 P.3d 185, overruled in part on other
grounds, State v. Herman, 2008 MT 187, ¶ 12, 343 Mont. 494, 188 P.3d 978 (A plea is
voluntary where defense counsel, the State, and the District Court have fully advised the
defendant of the consequences of his plea and “did not induce him to enter the agreement
based on threats, misrepresentation or improper promises.”). I find it impossible to
reconcile the Court’s concession that Hendrickson’s lawyer misrepresented the
consequences Hendrickson faced if he did not accept the plea deal with its conclusion
that his plea was nonetheless voluntary.
¶30 The Court reasons that Hendrickson received a significant “benefit of the bargain,”
and that “Smith correctly explained to Hendrickson that there was a substantial risk of
significantly more punishment if the plea was rejected.” Opinion, ¶ 22. While this may
be true, the Court misses the point. Hendrickson had the right to evaluate his options and
his prospects free of misrepresentations. He had the right to make a fully informed
choice, even if that choice might not turn out to be in his best interests. It is not this
Court’s prerogative to rationalize away an involuntary guilty plea because it might have
been the wisest course for the defendant to take. Where a plea is entered on the basis of a
15
misrepresentation, under the foregoing authorities the proper course is to allow the
defendant to withdraw his guilty plea. Because Smith’s advice was clearly wrong and
Hendrickson acted upon it, Hendrickson’s plea was not voluntary. I would therefore hold
that the District Court erred in denying Hendrickson’s motion to withdraw his guilty plea.
/S/ PATRICIA COTTER
Justice Laurie McKinnon joins in the dissenting Opinion of Justice Cotter.
/S/ LAURIE McKINNON
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