07/06/2021
DA 20-0009
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 167N
STATE OF MONTANA,
Plaintiff and Appellee,
FLED
v.
JUL 0 6 2021
ROBERT GEORGE HORNBACK, Bowen Greenwood
Clerk of Supreme Court
State of Montana
Defendant and Appellant.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and For the County of Lincoln, Cause No. DC 87-72
Honorable John W. Larson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Koan Mercer, Assistant Appellate
Defender, Missoula, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant
Attorney General, Helena, Montana
Marcia Boris, Lincoln County Attorney, Libby, Montana
Submitted on Briefs: May 19, 2021
Decided: July 6, 2021
Filed:
Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3(c), 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 Defendant and Appellant Robert George Hornback (Hornback) appeals the written
Judgment and Sentence issued by the Nineteenth Judicial District Court, Lincoln County,
on December 10, 2019, which sentenced him to a term of 100 years at the Montana State
Prison (MSP) as a persistent felony offender (PFO), with a 35-year parole restriction, for
the offense of deliberate homicide. We affirm.
¶3 On September 17, 1987, the State charged Hornback with Aggravated Kidnapping,
Deviate Sexual Conduct Without Consent, and Deliberate Homicide for the August 31,
1987 kidnapping, sexual assault, and murder of 8-year-old Ryan VanLuchene in Libby.
On March 3, 1988, Hornback signed an Acknowledgement of Waiver of Rights by Plea of
Guilty, in which he agreed to enter an Alford plea' to an amended charge of Deliberate
Homicide, in violation of § 45-5-102(1)(b), MCA (1985), and PFO. In exchange for his
plea, the State agreed to dismiss the Aggravated Kidnapping and Deviate Sexual Conduct
Without Consent charges with prejudice. The parties agreed to a sentence where Hornback
I North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970).
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would be sentenced to 100 years at MSP, with a 17 1/2-year parole restriction, for
Deliberate Hornicide, and an additional 100 years at MSP, with a 17 1/2-year parole
restriction, as a PFO. The sentences were to run consecutively, for an effective sentence
of 200 years at MSP with a 35-year parole restriction. The plea agreement contained three
attachments: Attachment 1 memorialized the parties' agreements regarding the Alford plea,
length of sentence, dismissal of charges, and sentencing procedure; Attachment 2 listed—
in 29 separate paragraphs, each initialed by Hornback—the evidence the State would have
introduced at trial; and Attachment 3 contained a statement acknowledging Hornback was
satisfied with the services of his attorney. The plea agreement and the three attachrnents
were all signed by Hornback.
¶4 On March 7, 1988, the plea agreernent was filed, along with an Amended
Information which charged Hornback with a single count of Deliberate Homicide for
causing the death of Ryan VanLuchene while committing, or attempting to commit, the
offense of deviate sexual conduct. The District Court held a change of plea and sentencing
hearing on the same day. At the hearing, the court conducted a lengthy colloquy with
Hornback regarding the plea agreement and its attachments. Hornback indicated he
discussed the documents with his attorney, was satisfied with the services of his attorney,
examined the State's evidence, understood he would probably be found guilty by a jury at
trial, and felt the plea bargain was advantageous to hirn. The District Court accepted
Hornback's plea and adjudged him guilty of deliberate homicide and of being a PFO. The
plea agreement waived a presentence investigation, so the District Court proceeded
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immediately to sentencing. In accordance with the plea agreement, Hornback was
sentenced to 100 years at MSP, with a 17 1/2-year parole restriction, for Deliberate
Homicide, and an additional 100 years at MSP, with a 17 1/2-year parole restriction, as a
PFO. The District Court stated Hornback was "not to be released on parole under any
condition in less than 35 years."
¶5 Hornback did not directly appeal his conviction or sentence, but did file "a number
of petitions which have the effect of assailing his convictions" in this Court in 1988.
Hornback's petitions did not "directly ask for withdrawal ofthe guilty plea," but did imply
he felt he was coerced by his attorney into the Alford plea. We denied his petitions, noting
that "nothing in the record indicates even slightly that the Alford plea was not intelligently
accepted by [Hornback] and agreed to in open court." State v. Hornback, No. 88-615,
Order (Mont. Feb. 1, 1989). He filed a petition for postconviction relief in this Court in
1990, alleging ineffective assistance of counsel; that counsel coerced him into the Alford
plea; misconduct and coercion by the police and sheriffs departments; and that both blood
and hair evidence in the case had been "negated" by the state crime lab. Hornback also
filed several motions which repeatedly claimed the hair evidence in his case had been
"negated" and sought police files on children who had been murdered in Olney, Illinois,
and Spokane, Washington, as well as files on unsolved child murders in several other states.
We denied Hornback's motions and ultimately denied and dismissed Hornback's petition,
noting it "raise[d] issues previously ruled on by this Court and against the petitioner[1" In
re Hornback, No. 90-513, Order (Mont. Dec. 18, 1990). Hornback filed a petition for a
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writ of habeas corpus in federal court in 1991, alleging his plea was not voluntarily made.
The federal district court permitted discovery, including a deposition of Hornback, and
held an evidentiary hearing on Hornback's claims on March 10, 2004. The federal district
court denied Hornback's petition, and its denial was thereafter affirmed in an unpublished
memorandum opinion by the Ninth Circuit Court of Appeals. Hornback v. McCormick,
133 F. App'x 378 (9th Cir. 2005). The Ninth Circuit found Hornback's "claim that his
plea was involuntary" was "contradicted by the record" and that "Hornback's Alford plea
was entered knowingly, intelligently, and voluntarily[1" Hornback, 133 F. App'x at 381.
On January 2, 2018, Hornback filed a Petition for Writ of Habeas Corpus or Other
Appropriate Writ in the District Court. In his petition, Hornback alleged he was serving a
facially invalid and illegal sentence because he received separate sentences for deliberate
hornicide and PFO and requested a resentencing hearing. The State conceded that
"imposition of a separate sentence" for Hornback's designation as a PFO was illegal, but
argued a resentencing hearing was not necessary as the District Court could simply strike
the additional 100-year PFO sentence from Hornback's existing sentence. After the
District Court appointed Hornback counsel, Hornback filed an amended sur-reply in
support of his petition where he argued he should be allowed to withdraw his Alford plea
and enter a plea ofnot guilty. In the alternative, Hornback requested an evidentiary hearing
to present further evidence in support of withdrawing his plea. Hornback separately filed
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a Motion to Withdraw Plea.2 The State filed responses to both the amended sur-reply and
the motion to withdraw plea. On September 23, 2019, the District Court issued its Order
Regarding Petitioner's Petition for Writ of Habeas Corpus and Denying Petitioner's
Motion to Withdraw Guilty Plea; Order Setting Sentencing Hearing and Order for
Transport, which found there was not good cause to allow Hornback to withdraw his plea
and set a sentencing hearing for December 3, 2019. At the sentencing hearing, the District
Court orally resentenced Hornback to 100 years at MSP for the offense of Deliberate
Hornicide, with a 35-year parole restriction. The court awarded Hornback credit for the
tirne he had already served on the original sentence. The District Court's written Judgment
and Sentence followed on December 10, 2019.
¶7 Hornback appeals, raising two issues which we restate as follows: (1) whether
Hornback's sentence is illegal, and (2) whether the District Court abused its discretion by
denying an evidentiary hearing on Hornback's motion to withdraw his guilty plea.
¶8 We review criminal sentences for legality. State v. Yang, 2019 MT 266, ¶ 8, 397
Mont. 486, 452 P.3d 897 (citing State v. Coleman, 2018 MT 290, ¶ 4, 393 Mont. 375, 431
2 This rnotion was filed in Hornback's habeas case, rather than in his original criminal case. The
State objected, and correctly noted the motion to withdraw plea should have been filed in
Hornback's original criminal case. After noting its objection, and recognizing "the State as
represented by the Lincoln County Attorney is the proper party" to address Hornback's rnotion,
the State responded to the merits of Hornback's motion. The District Court issued its order
denying Hornback's motion to withdraw in the habeas file. On appeal, the State again notes it
"will not challenge the efficacy of Hornback filing his motion to withdraw his plea in the habeas
case rather than in the criminal case[l" We therefore address the merits of the District Court's
denial of Hornback's motion to withdraw plea here because it is, in substance, part of his appeal
of the criminal judgment in this case.
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P.3d 26). "A sentence that falls within the statutory pararneters constitutes a legal
sentence." State v. Clark, 2008 MT 112, ¶ 8, 342 Mont. 461, 182 P.3d 62 (citing State v.
Mingus, 2004 MT 24, ¶ 10, 319 Mont. 349, 84 P.3d 658).
Hornback argues his felony murder sentence for deliberate homicide with the
predicate felony offense of deviate sexual conduct is facially invalid and therefore illegal.
He did not rnake this argurnent at the District Court and raises it for the first time in this
appeal. Relying on State v. Hansen,2017 MT 280,389 Mont. 299,405 P.3d 625, Hornback
asks this Court to vacate his sentence and remand to the District Court for either further
plea proceedings or a new trial. In Hansen, we determined a district court irnposed an
illegal sentence when it accepted a no contest plea to a sexual offense. Hansen, ¶ 12 ; see
also Hardin v. State, 2006 MT 272, ¶ 15, 334 Mont. 204, 146 P.3d 746 (holding Hardin's
claim the district court lacked jurisdiction to accept a no contest plea to a sexual offense
and impose the sentence he received was more accurately characterized as a claim that his
sentence was illegal as exceeding statutory authority). We therefore voided the plea
agreement and vacated the sentence imposed and remanded to the district court to allow
Hansen to "enter a legal plea to the original charges, enter a new plea agreement, or to
proceed to trial." Hansen, ¶ 13. Hansen and Hardin have since been overruled, however,
to the extent that they "fail[ed] to distinguish between an illegal sentence and an invalid
pleall" Gardipee v. Salmonsen, 2021 MT 115, ¶ 10, 404 Mont. 144, 486 P.3d 689.
¶10 Hornback asserts his plea to felony murder was invalid due to how the State charged
hirn in this case. While the original Information charged Hornback with Deviate Sexual
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Conduct Without Consent, in addition to Deliberate Homicide and Aggravated
Kidnapping, the Amended Information charged Hornback with Deliberate Hornicide while
committing the offense of Deviate Sexual Conduct. Section 45-5-102(1)(b), MCA (1985),
provided that a deliberate hornicide constituted felony murder when it was "cornmitted
while the offender is engaged in or is an accomplice in the commission of, an attempt to
commit, or flight after committing or attempting to commit robbery, sexual intercourse
without consent, arson, burglary, kidnapping, felonious escape, or any other felony which
involves the use or threat ofphysical force or violence against any individual." The Deviate
Sexual Conduct statute provided that "[a] person who knowingly engages in deviate sexual
relations or who causes another to engage in deviate sexual relations commits the offense
of deviate sexual conduct." Section 45-5-505(1), MCA (1985). The statute provided for
an enhanced sentence if the deviate sexual conduct was committed "without consent."
Section 45-5-505(3), MCA (1985). "Without consent" meant "(1)the victim is compelled
to submit by force or by threat of imminent death, bodily injury, or kidnapping to be
inflicted on anyone; or (2) the victim is incapable of consent because he is: (a) mentally
defective or incapacitated;(b) physically helpless; or (c) less than 16 years old." Section
45-5-501, MCA (1985).
¶11 In the Amended Information, the State did not charge Hornback with felony murder
with the predicate felony of deviate sexual conduct without consent, it charged him with
felony murder with the predicate felony of deviate sexual conduct. While under the
individual facts of this case there can be no argument that the eight-year-old victim
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consented to sexual contact with Hornback, Hornback argues the plain language of the
statutes show the offense of deviate sexual conduct is not a predicate offense to felony
murder when it is not charged as deviate sexual conduct without consent. He is correct on
this point. "In the construction of a statute, we look first to its plain language; if the
language is clear and unambiguous on its face, we need not engage in any further
construction." State v. Felde, 2021 MT 1, ¶ 16, 402 Mont. 391, 478 P.3d 825. Because
the plain language of the deviate sexual conduct statute did not require "the use or threat
of physical force or violence" and deviate sexual conduct was not an enumerated predicate
felony under § 45-5-102(1)(b), MCA (1985), Hornback's plea to felony rnurder was
defective.
¶12 Hornback, reaping the benefits of a plea agreernent which saw the State forego
seeking the death penalty and dismissing both felony deviate sexual conduct and
aggravated kidnapping charges, did not object to the validity of his conviction at the
District Court. "It is well established that a plea of guilty which is voluntarily and
understandingly made constitutes a waiver of nonjurisdictional defects and defenses,
including claims of constitutional violations which occurred prior to the plea." Gardipee,
¶ 3 (citing Hagan v. State, 265 Mont. 31, 35, 873 P.2d 1385, 1387(1994)). Hornback also
had the opportunity to, but did not, appeal his conviction in 1988. By not objecting,
Hornback has waived the clairn challenging the validity of his conviction. See Gardipee,
¶¶ 9, 11. Hornback's 100-year sentence is within the legal range for deliberate homicide
and is, therefore, a legal sentence. Because Hornback's sentence is within the legal range
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for deliberate homicide and he has waived any claims challenging the validity of his
conviction, we affirm the District Court's sentence in this case.
¶13 "When a criminal defendant appeals the denial of his motion to withdraw a guilty
plea, we review the trial court's findings of fact to determine whether they are clearly
erroneous and its conclusions of law to deterrnine if they are correct." State v. Newbary,
2020 MT 148, ¶ 5, 400 Mont. 210, 464 P.3d 999 (citing State v. Warclub, 2005 MT 149,
¶ 24, 327 Mont. 352, 114 P.3d 254). Whether a plea is voluntary is a mixed question of
law and fact, which we review de novo. Newbary, ¶ 5 (citing Warclub, ¶ 24). "Except
where rnandated by Title 46, the court has discretion to conduct a hearing on the merits of
a motion." Section 46-13-104(2), MCA. We review a district court's denial of an
evidentiary hearing for a clear abuse of discretion. State v. Terronez, 2017 MT 296, ¶ 19,
389 Mont. 421, 406 P.3d 947 (citing State v. Schulke, 2005 MT 77, ¶ 10, 326 Mont. 390,
109 P.3d 744). "A court abuses its discretion if it acts arbitrarily without the employment
of conscientious judgment or exceeds the bounds of reason, resulting in substantial
injustice." Terronez, ¶ 19.
1114 As we have determined Hornback is not serving an illegal sentence, we turn now to
the District Court's denial of his motion to withdraw plea, along with its decision to not
hold an evidentiary hearing on the motion. Hornback asserts an evidentiary hearing was
required because he now asserts new reasons for withdrawing his plea than he has in his
numerous previous atternpts. The State argues Hornback was not entitled to an evidentiary
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hearing on these claims and the District Court's denial of a hearing was not an abuse of
discretion. We agree with the State.
1115 "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." Section 46-16-
105(2), MCA (1987). "Good cause 'includes the involuntariness of the plea, but it may
include other criteria.'" Terronez, ¶ 27 (quoting Warclub, ¶ 16). "The fundarnental
purpose of allowing the withdrawal of a guilty plea is to prevent the possibility of
convicting an innocent [person]." State v. Liefert, 2002 MT 48, ¶ 10, 309 Mont. 19, 43
P.3d 329 (quoting State v. Johnson, 274 Mont. 124, 127, 907 P.2d 150, 152(1995)).
¶16 Hornback asserts he has "good cause" to withdraw his plea because of
misrepresentations, misconduct, and coercion by State actors prior to entering his plea.
Specifically, Hornback asserts he was coerced into pleading guilty due to an employee at
the state crime lab "matching" his hair to hair§ found on the victim in this case. But for
this evidence, he claims he would not have pled guilty via Alford and would have insisted
on going to trial. The District Court, without holding an evidentiary hearing, found
Hornback did not present good cause to allow hirn to withdraw his plea in this case. The
District Court relied, in part, on a transcript of an evidentiary hearing held by the federal
district court on Hornback's federal habeas corpus petition which dealt with Hornback's
claim regarding the hair evidence to show that his claims in this case were not new and he
had full opportunity to present them in the federal proceeding. At that hearing, Hornback's
original trial counsel testified he hired an expert and was able to neutralize the State's hair
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evidence prior to the plea. Beyond this evidentiary hearing relied on by the District Court,
Hornback also made claims the State's hair evidence had been "negated" in his 1990
petition for postconviction relief. Hornback's claims regarding the State's hair evidence
are not new, have been repeatedly rejected by both this Court and federal courts for over
30 years, and do not constitute "good cause" for allowing him to withdraw his plea.
¶17 Hornback's other claims, involving a "crazy" transient allegedly observed and
reported to law enforcement by a local man named Arnold Griner and a physical assault
on Hornback by "Detective Bernall and William Douglass . . . telling him to accept the
plea" also did not require the District Court to hold a hearing. "A hearing on a request to
withdraw a plea is not expressly mandated as a matter of law." Terronez, ¶ 25 (citing
§ 46-16-105(2), MCA). Hornback—who has been telling the story of how he was present
for Ryan's rape and rnurder, but it was actually committed by the supposed "crazy"
transient for over 30 years now—had full opportunity to present witness affidavits to
support his story. See Terronez, ¶ 25. None were presented. While conducting an
evidentiary hearing "would ordinarily be necessary and rnay well have been the prudent
course in this case," Terronez, ¶ 25, we do not find the District Court clearly abused its
discretion by not holding one. In addition, the District Court correctly found Hornback did
not present "good cause" to withdraw his Alford plea in this case.
¶18 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
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Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶19 Affirmed.
„6/."...5% Justice
We concur:
LeII
Chief Just e
Justices
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