No. 87-105
I N THE SUPR.EME COURT O THE STATE O M N A A
F F OTN
1987
STATE O M N A A
F O T N
P l a i n t i f f and Respondent,
VS
DANNY ARTHUR ARLEDGE,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court of t h e Eleventh J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f F l a t h e a d
The H o n o r a b l e L e i f R . E r i c k s o n , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
H o n o r a b l e Mike G r e e l y , A t t o r n e y G e n e r a l ,
P a t r i c i a J. S c h a e f f e r , A s s i s t a n t Attorney General,
H e l e n a , Montana
Ted. 0. Lympus, F l a t h e a d County A t t o r n e y ,
K a l i s p e l l , Montana
For Respondent:
MOORE and DORAN; Gary G. Doran, K a l i s p e l l , Montana
S u b m i t t e d on B r i e f s : August 1 3 , 1987
Decided: August 2 6 , 1987
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Danny Arthur Arledge appeals from the order of the
District Court, Eleventh Judicial District, Flathead County,
denying his motion to withdraw his guilty plea and to vacate
the sentence imposed on him under his former guilty plea.
The principal grounds relied upon by Arledge to withdraw
his guilty plea are that he was improperly represented by
counsel or lied to by counsel; that he was coerced by his
detention officers by threats to plead guilty; that when he
entered his plea of guilty before the District Court, he was
not properly advised by the court of lesser-included crimes
with which he could be convicted; and, in essence that his
guilty plea was involuntary and without adequate knowledge of
his rights. The record shows that Arledge's contentions are
completely weightless. We affirm the District Court's
refusal to allow withdrawal of Arledge's guilty plea.
On October 28, 1986, Arledge approached Katrina Keiger
in Kalispell while she was parking her car and demanded her
car keys. She refused and Arledge entered her car firing a
.38 caliber revolver. Keiger began screaming and when
Arledge got out of the vehicle, he pointed the revolver at
her and fired again. The bullet entered the back of her
neck, severed the sub-clavical artery and vein and exited
through her left breast. Arledge took her wallet and fled.
Less than a half hour later, Arledge entered the
residence of Brenda Miller of Kalispell, pointed a handgun at
her and demanded the keys to her automobile. He forced her
to lie on the floor, threatened her, took her keys and $10
from her purse. He fled in her 1977 Mercury automobile.
Later, at a road block on U.S. Highway No. 2, in Lincoln
County, Montana, Arledge was arrested while traveling in a
vehicle as a hitchhiker west from Kalispell. At the time of
the arrest, officers found on his person a .38 caliber
handgun.
Arledge was charged with attempted deliberate homicide,
robbery and aggravated burglary on November 1, 1985. Steven
J. Nardi, an attorney in Kalispell, was appointed to
represent the defendant. The court required a psychiatric
evaluation of Arledge in which it was found that though
Arledge had a borderline personality disorder with antisocial
traits, a history of drug and alcohol abuse, and epilepsy, he
was nevertheless competent to assist in his defense and had
the ability to comprehend the nature and effect of a guilty
plea.
Arledge entered a plea of not guilty on January 16,
1986, but at that hearing, requested the court to appoint new
counsel for him. Arledge contended that Nardi had a conflict
of interest, was acting incompetently in his case, and was
working with the county attorney's office against his
interests. The court reviewed with Arledge each of his
allegations, and after discussion, Arledge indicated his
desire for Nardi to remain as his attorney.
Other procedures occurred before the District Court, not
important in this discussion, but on April 25, 1986, Arledge
came into court to enter a plea of guilty on all counts. His
counsel, Steven Nardi, took the position before the court and
in the presence of the defendant that Nardi opposed the entry
of the guilty plea by the defendant and advised Arledge on
the record that Nardi was seeking a pretrial agreement or
plea bargain with the State. Arledge nevertheless persisted
in entering a guilty plea.
At the entry of the guilty plea, the court interrogated
the defendant and established that he was satisfied with the
services of his attorney; that Arledge was not under the
influence of drugs or alcohol or suffering from mental or
emotional disability; that he understood his right to trial
by jury, his right to confront and cross-examine witnesses,
his right to counsel, his right to remain silent and his
right to appeal; that Arledge understood his plea of guilty
resulted in a waiver of those rights; that he was not relying
on any promises nor had he been threatened or "coerced"; that
the defendant was aware of the maximum penalties on all
charges plus additional penalties for the use of a firearm
and persistent felony offender status, plus the possibility
that the sentences could be consecutive; that Arledge
understood that a jury might find him guilty of
lesser-included offenses; that he understood the conseqences
of having a felony record; that he was abandoning his defense
of mental disease or defect; that he understood the substance
of the charges against him and believed he was guilty of the
offenses; further Arledge admitted shooting Katrina Keiger,
threatening Brenda Miller and stealing her car; he also
understood he was acting against the advice of his own
counsel. It is enough to say at this point that the
extensive examination of the defendant by the District Court
at the time of his entry of plea meets the standards set by
this Court in State v. Lewis (1978), 177 Mont. 474, 485, 582
P.2d 346, 352.
On May 21, 1986, defendant appeared before the court for
sentencing. His testimony and that of his witness was
primarily directed at his mental condition while the State's
evidence was primarily focused on the ordeal of the victim,
Katrina Keiger.
Arledge was sentenced to 40 years imprisonment for the
crime of attempted deliberate homicide, 20 years imprisonment
for the crime of robbery, and 20 years imprisonment for the
crime of aggravated burglary, all to run concurrently. In
addition, he was sentenced to 5 years imprisonment for the
use of a dangerous weapon and an additional 5 years as a
persistent felony offender, both additional sentences to run
consecutive to other sentences imposed. He was designated a
dangerous offender for the purposes of parole eligibility.
On July 14, 1986, Arledge filed a motion to withdraw his
plea of guilty to all charges. Gary C. Doran was appointed
to replace Nardi as counsel for Arledge and a hearing was
held before the court on the motion to withdraw the plea on
December 12, 1986. The District Court denied his motion and
Arledge appeals.
We look first at the contentions made by Arledge against
his attorney Nardi. At the motion to withdraw his plea of
guilty, Arledge testified that he was not advised by Nardi of
certain charges that were pending against him in Missoula
County, including arson, burglary, forgery and a potential
probation violation. Arledge contended that had he been
aware of these charges he would have instructed Nardi to
contact the Missoula County Attorney's Office to seek a
combined intercounty agreement that would cover all
outstanding criminal charges against him. Arledge contended
he was not advised of these charges in Missoula until May 21,
1986, after he had already been sentenced.
Arledge was countered in this contention by the evidence
of the supervising detention officer, Theodore Stohlfuss,
that a warrant for his arrest from Missoula County was served
on Arledge on January 17, 1986, by Officer Joe Morin. Nardi
testified that there was a discussion of these charges with
Arledge in January and February, 1986.
Arledge contends that on his motion to withdraw his plea
of guilty, Nardi advised him to "make sure when he got up
there on the stand ... if it was your idea to plead guilty,
make sure the judge understands it was your idea to plead
guilty." Arledge construes this language to mean that he
should get on the stand and lie about the charges against
him. We cannot and do not read that into the statement
attributed to Nardi. Arledge further contends that at his
sentencing hearing, Nardi failed to call the detention
witnesses Bruce Hoffman, Joe Morin, and Kent Potter, who, if
they had testified, would have recited threats against
Arledge which resulted in his plea of guilty. Arledge makes
the argument that if at the sentencing hearing, the District
Court had heard testimony from these witnesses, it would have
found his guilty plea unacceptable, and reset the matter for
trial. We will discuss the purported threats hereinbelow,
but negligence cannot be attributed to his attorney because
the attorney failed to call witnesses at the sentencing
hearing whose testimony would result in a setting aside of
the guilty plea. That contention is inconsistent with
Arledge's action in voluntarily pleading guilty against the
advice of his attorney.
Arledge also points to a letter he received from Nardi
dated March 13, 1986, in which Nardi outlined for Arledge the
legal situation facing him and the possible sentences that he
might receive. The essence of the letter from Nardi to
Arledge was to the effect that it would be a very "foolish
move not to take the State's offer to plea bargain." The
letter is in effect advice to Arledge to seek a plea bargain;
Arledge decided against the advice of counsel not to plea
bargain. Now, Arledge uses the letter to say that his
attorney was threatening him to plead guilty. This
contention is nonsensical.
With respect to assistance by counsel, before such
assistance will be found ineffective, Arledge must show that
Nardi ' s performance was deficient and prejudicial to the
extent that except for Nardi's purported unprofessional
errors, the result of the proceedings here would be
different. Strickland v. Washington (1984), 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Boyer (Mont. 1985),
695 P.2d 829, 831, 42 St.Rep. 247, 250. Arledge ' s
contentions against Nardi do not begin to meet this standard.
Arledge also contends that Nardi did not attend his
client's concerns with the devotion required of an attorney,
that he visited Arledge only five or six times over the
course of a five month period, that he failed to provide
Arledge with books or statutes to enable him to understand
the proceedings in the case and that Nardi was unresponsive
to Arledge's request for certain motions to be filed. In the
light of the record that Arledge entered a guilty plea
against the advice of his own counsel, there is no substance
to these contentions.
Arledge also contends that his guilty plea was prompted
by threats received while being incarcerated in the county
jail.
Here, Arledge contends that on February 4, 1986, a
detention officer came to his section of the county jail with
a German shepherd dog and threatened the defendant by
stating, "See this dog? He'll chew you up and spit out your
hearing aid." In addition, an officer told the defendant
that "life is a bitch and you are going to die." Also,
statements were made that the officers would attend his
funeral and his next home would be "Memorial Gardens."
Arledge wrote about these threats to Chief Justice Turnage of
this Court on February 4, 1986; to Kalispell Mayor Ed
Kennedy; and in a complaint and witness statement made to
Detective Hossack on February 26, 1986. Also, Arledge
contended that a detention officer had supplied him with a
handcuff key, which he turned over to his attorney Nardi;
that the purpose of giving Arledge the handcuff key was to
encourage him to attempt to escape and that Arledge would be
gunned down in the attempt. It also appears that Arledge was
removed from the Flathead County Jail prior to his entering a
guilty plea, and that he was held in the Kalispell City Jail
for ten days to two weeks. Arledge was returned to the
county jail on his own demand and no further threats were
reported for the remaining two months prior to his plea.
At the time of the entry of his guilty plea, Arledge was
interrogated on this point and stated:
Q. And again, nobody here today has coerced you or
threatened or promised you anything by pleading
guilty; have they? A. No.
Q. And I include in that anybody at the Sheriff's
Office. Have they been threatening you or making
you do this? A. Oh, under the circumstances, your
Honor, not threatening me to get me to plead. But,
you know, emotionally and mental punishment, yeah,
I would say yes.
Q. What kind of emotional and mental punishment
would that be? A. Oh, threats and so forth.
Q. From the officers? A. Yes. Not the officers.
The detention officers.
Q. The detention officers. What have they said to
you? A. Well, what have they said to me? Well,
they made verbal threats against my life. They
have took the privileges away from me which was
considered privilege, you know. They have done
other things. You know, they have mentally petered
my brain down.
Q. Is that the reason you are pleading guil-tyhere
today? A. No, it is not the reason.
Q. I am concerned that I don't want to have you
feel that somebody is forcing you to plead guilty,
because we certainly don't want that. I want you
to plead guilty only because you want to. A. I
want to.
Q. And are you telling the Court that anything
that has happened over there has not caused you to
enter the plea of guilty today? A. No.
Q. You don't like what they have done to you? A.
No, I don't like what they done to me, no.
Q. But that is not the reason for the plea? A.
No.
Q. Anybody else that you feel may have coerced you
or threatened you? A. No.
In contravention to the contention that the threats of
the detention officers coerced his guilty plea, the affidavit
of his attorney, Nardi, showed:
Shortly before April 25, 1986, the next regularly
scheduled court appearance in this case, the
Defendant advised your Affiant that he was going to
go into Court on the 25th of April and plead guilty
to all charges pending against him, without the
benefit of a plea disposition agreement or
negotiations of any kind with the Flathead County
Attorney's Office. Your Affiant advised him
repeatedly that this was not in his best interests
and that if he was contemplating a plea, then he
should let your Affiant work out the details of a
plea bargain agreement to reduce his maximum
exposure for sentencing purposes. The Defendant
would not listen to counsel at all in that regard.
He stated on numerous occasions that he wanted to
plead guilty to all charges "so he could watch it
blow the D.A.'s mind." Another reason offered by
the Defendant for wanting to enter pleas of guilty
to all charges was that he wanted to hurry up and
get to the Montana State Prison to see his friends
and get settled in.
At the hearing on the motion to withdraw his guilty
plea, the court required the attendance of one of the
detention officers, Bruce Hoffman, who testified that he knew
of no threats against the defendant and that in fact, the
defendant, after he had stopped taking his medication, had
become violent against another cellmate. The District Court
specifically found that no threats existed which coerced the
guilty plea. Finally, the record shows that at the hearing
when Arledge entered his plea of guilty, the court was
careful to tell him that if he went to trial, there existed a
possibility that he could be found not guilty, or that he
could be found guilty of a lesser-included offense. The
defendant stated that he understood this and that
nevertheless, he wanted to enter his guilty plea.
The record in this case is replete that the defendant
Arledge was fully accorded his rights as one charged with
criminal offenses and that he voluntarily determined to enter
a plea of guilty. Not only are his contentions weightless,
but there is not the slightest doubt in the record that he
committed the crimes with which he was charged and that the
sentence imposed upon him by the District Court for those
crimes was proper in the circumstances. The fundamental
purpose of allowing the withdrawal of a guilty plea is to
prevent the possibility of convicting an innocent man. State
v. Pelke (1964), 143 Mont. 262, 271, 389 P.2d 164, 169. A
district court may permit withdrawal of a guilty plea only
for good cause shown. Section 46-16-105(2), MCA.
The order of the District Court denying withdrawal of
the Arledge's guilty plea was proper.and we affirm.
\
We Concur: