NO. 88-206
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DELMAR BLACK,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Roosevelt,
The Honorable M. James Sorte, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
F. Woodside Wright, Helena, Montana
For Respondent:
Marc Racicot, Attorney General, Helena, Montana;
Paul Johnson, Assistant Attorney General, Helena,
Montana; Ralph Patch, Roosevelt County Attorney,
Wolf Point, Montana
Submitted: June 28, 1990
Decided: September 7, 1 9 9 0
Filed:
Clerk
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Appellant and defendant Delmar Black appeals from the order
of the District Court of the Fifteenth Judicial District of the
State of Montana, County of Roosevelt, which accepted defendant's
plea of guilty to simple assault, a felony, and sentenced defendant
to 5 years at the Montana State Prison. The sentence also required
that defendant complete a sexual offender course while
incarcerated. We affirm.
The issues on appeal are:
1. Whether defendant was denied his right to counsel at the
evidentiary hearing ordered by this Court regarding defendant's
claim of ineffective assistance of counsel.
2. Whether defendant's claim of ineffective assistance of
counsel on direct appeal. is res judicata due to the previous
findings of fact and decision on this issue by the District Court
and which was subsequently adopted by this Court.
3. Whether defendant's plea of guilty was entered voluntarily
and with knowledge of its consequences.
4. Whether the sentence imposed upon defendant by the
District Court was a legal sentence.
5. Whether the delay in appointing counsel for defendant on
direct appeal was a denial of due process.
Defendant was charged by information with the felony offense
of incest with his fourteen-year-old daughter, N.B. A jury trial
was set to be held on February 8, 1988. On that date, but before
the trial began, defendant's attorney and the county attorney
approached the court with a plea agreement proposal. The plea
agreement contemplated amending the charge against defendant from
incest to simple assault. The county attorney made a motion
requesting the court to allow such amendment and the motion was
granted.
The factual basis for the amended charge was that Black had
physically and mentally injured his daughter in the course of
soliciting her for sex and engaging her in lengthy discussions
regarding sexual matters. After lengthy interrogation by the
court, defendant's plea of guilty to the amended charge was
accepted, and, pursuant to the plea agreement, defendant was
sentenced to five years in the Montana State Prison, subject to
the condition that he enroll in and complete the sexual offender's
treatment program at the prison.
On March 15, 1988, defendant filed a notice of appeal in
District Court, together with a motion for appointment of counsel.
In his motion for appointment of counsel, defendant stated that he
needed new counsel because he intended to pursue a claim of
ineffective assistance of counsel against the attorney originally
appointed to represent him. The District Court did not act on
defendant Is motion to appoint counsel so, on May 4, 1988, defendant
filed in this Court a motion to compel the District Court to
appoint counsel. This motion to compel was supported by a brief
which contained, as exhibits, copies of defendant's previous
motions.
On June 14, 1988, this Court, after briefing by the State of
Montana Attorney General, remanded the case to the District Court
for an evidentiary hearing on defendant's claim of ineffective
assistance of counsel. In our order, we denied defendant's request
for appointment of counsel for the proceedings on remand.
The evidentiary hearing was held on August 31, 1988. The
original sentencing judge did not preside. Defendant, representing
himself, attended the hearing and participated in the examination
and cross-examination of witnesses.
On September 7, 1988, the District Court entered its findings
of fact and decision, concluding that defendant had not been denied
effective assistance of counsel. In an order dated September 20,
1988, we adopted the findings and decision of the District Court
denying defendant's ineffective assistance claim.
Counsel was then appointed by the District Court. This appeal
on all the issues enumerated above, including the issue of
ineffective assistance of counsel followed.
The first issue is whether defendant was denied his right to
counsel at the evidentiary hearing ordered by this Court regarding
defendant's claim of ineffective assistance of counsel. A
defendant is entitled to assistance of counsel through the critical
stages of a criminal prosecution "where potential substantial
prejudice inheres in the absence of counsel.I t State v. Robbins,
218 Mont. 107, 111, 708 P.2d 227, 230 (1985). See U.S. Const.
Amend. VI. Direct appeals are considered to be part of these
critical stages. However, petitions for post-conviction relief are
collateral attacks that are civil in nature and are not governed
by the Sixth Amendment requirements for counsel. See Coleman v.
State, 38 St.Rep. 1352, 1353-54, 633 P.2d 624, 626-627 (Mont.
1981).
In this case, although defendant originally raised the issue
of ineffective assistance of counsel on direct appeal, the
resolution of such issue required consideration of factual matters
not contained in the record thereby making it an inappropriate
issue for direct appeal. Section 46-20-701, MCA; State v. Elliott,
221 Mont. 174, 178, 717 P.2d 572, 575 (1986). Because defendant's
filing failed to meet the requirements of a direct appeal, we
appropriately treated such filing as a petition for post-conviction
relief as provided in §§ 46-21-101 to 203, MCA. We then remanded
defendant's claim to the District Court so that an evidentiary
hearing could be held that would allow defendant to present those
factual matters necessary to his claim. See State v. Laverdure,
212 Mont. 31, 33, 685 P.2d 375, 376 (1984).
Our treatment of defendant's claim is in keeping with the
conclusions reached by the Ninth Circuit Court of Appeals in U.S.
v. Birges, 723 F.2d 666 (9th Cir., 1984). In Birses, the court
specifically stated that ineffective assistance of counsel claims
raised on direct appeal and involving the consideration of facts
beyond the record would more appropriately be addressed by a
petition for post-conviction relief. Birses, 723 F.2d at 670. See
also People v. Pope, 590 P.2d 859 (Cal. 1979) . Because defendant Is
claim of ineffectiveness involved facts beyond the record and
because all of the requirements for a petition for post-conviction
relief were met, defendant's claim was appropriately classified as
a petition for post-conviction relief. As a result, defendant was
not constitutionally entitled to counsel.
The second issue on appeal is whether defendant's claim of
ineffective assistance of counsel on direct appeal is res judicata
due to the previous findings of fact and decision on this issue by
the District Court, which was subsequently adopted by this Court.
This Court has applied the issues of res judicata and law of
the case to preclude an appellant from raising issues on appeal
which were previously resolved by this Court. State v. Perry, 232
Mont. 455, 463-65, 758 P.2d 268, 273-74 (1988); State v. Smith, 220
Mont. 364, 372, 715 P.2d 1301, 1306 (1986). The principle is that
an issue that has been finally decided cannot again be relitigated.
State v. Zimmerman, 175 Mont. 179, 185, 573 P.2d 174, 177 (1977).
I1[W]here a decision has been rendered by the Supreme Court on a
particular issue between the same parties in the same case, whether
that decision is right or wrong, such decision is binding on the
parties and the courts and cannot be relitigated in a subsequent
appeal." Zimmerman, 175 Mont. at 185, 573 P.2d at 177. Two
important policy rationales underlie these principles: judicial
economy and the need for finality of judgments. Perry, 232 Mont.
at 463, 758 P.2d at 273. They stand ''for the proposition that
there must be an end to litigation at some point. Perry, 232
Mont. at 464, 758 P.2d at 273.
In this case, an evidentiary hearing was held on the issue of
ineffective assistance of counsel. The District Court rendered a
decision which we reviewed and subsequently affirmed. To afford
defendant additional review of the same issue between the same
parties would negate the intent of the doctrines of res judicata
and law of the case. Defendant's claim of ineffective assistance
has been fully litigated and reconsideration of that claim is
barred.
The third issue on appeal is whether defendant's plea of
guilty was entered voluntarily and with knowledge of its
consequences. We have already disposed of defendant's ineffective
assistance of counsel claim and will not discuss defendant's
assertion that his guilty plea was involuntary due to ineffective
assistance of counsel.
Section 46-16-105, MCA, governs a district court's acceptance
of a guilty plea and provides that:
(1) Before or during trial, a plea of guilty may be
accepted when:
(a) the defendant enters a plea of guilty in open court;
and
(b the court has informed the defendant of the
consequences of his plea and of the maximum penalty
provided by law which may be imposed upon acceptance of
such plea.
A guilty plea is presumed to be provided voluntarily and with
full knowledge of its consequences when:
the District Court carefully. ..
examines the defendant,
finds him to be competent, and determines from him that
his plea of guilty is voluntary, he understands the
charge and his possible punishment, he is not acting
under the influence of drugs or alcohol, he admits his
counsel is competent and he has been well advised, and
he declares in open court the facts upon which his guilt
is based. ..
State v. Docken, 222 Mont. 58, 62-63, 720 P.2d 679, 682 (1986)
citing State v. Lewis, 177 Mont. 474, 582 P.2d 346 (1978). ''[A]
plea of guilty accepted by the District Court on the basis of that
examination will be upheld. . ." Docken, 222 Mont. at 63, 720 P.2d
at 682, citing Lewis.
In State v. Martz, 233 Mont. 136, 760 P.2d 65 (1988), we added
that the district court must also inform the defendant of the
following before accepting his or her guilty plea:
1) [the defendant's] constitutional rights;
2) the consequences of a guilty plea;
3) the possible maximum penalty involved; and
4) that the court could not involve itself in the plea
agreement and was not obligated to accept the recommended
sentence.
Martz, 233 Mont. at 143, 760 P.2d at 69.
In this case, it is evident from the record that the District
Court properly examined defendant and correctly determined that
defendant's plea was entered voluntarily and with full knowledge
of its consequences. Defendant's assertion that he was never
informed by the District Court that he would have to attend a
sexual offender's program is directly contrary to the record as set
forth in the transcript of the sentencing hearing where, when
directly questioned by the court defendant specifically
acknowledges such requirement:
THE COURT: But you understand that. ..if you entered
a plea here of guilty, you would be sentenced to five
years in the state prison and that you will undergo 72
weeks or 73 weeks of sexual offenders therapy?
DEFENDANT: Yes.
Defendant also asserts that his plea was not entered with full
knowledge because his hearing loss and the medication he was taking
for his arthritis interfered with his ability to fully understand
the consequences of his plea. The record fails to support
defendant's assertion. During the questioning by the District
Court, defendant answered all questions without hesitation and
without request that the court repeat itself.
Defendant's plea of guilty was entered voluntarily and with
full knowledge. The court informed defendant of the consequences
of his plea and of the possible maximum penalty which may be
imposed. There is nothing in the record to suggest that defendant
was unable to hear or understand what the court asked or that he
was not in full control of his faculties.
The fourth issue on appeal is whether the sentence imposed
upon defendant by the District Court was a legal sentence.
Defendant argues that the District Court did not have the
authority to require the defendant to complete a sexual offender's
course while incarcerated. Defendant is mistaken.
In imposing the appropriate sentence, the district court must
comply with the requirements set forth in 9 8 46-18-201 through
-261, MCA. Under 5 46-18-202 (1)(e), MCA, the district court is
given broad discretion in imposing restrictions upon a defendant
beyond those specifically required by statute:
The district court may also impose any of the following
restrictions or conditions on the sentence provided for
in 46-18-201 which it considers necessary to obtain the
objectives of rehabilitation and the protection of
society:
(e) any other limitation reasonably related to the
objectives of rehabilitation and the protection of
society.
In imposing additional limitations there must be a correlation
established between the additional limitations and either the
rehabilitation of the offender or the protection of society. In
State v. Sullivan, 197 Mont. 395, 642 P.2d 1008 (1982), the
District Court found that the burglary committed by the defendant
was significantly influenced by excessive alcohol use. This
connection between the crime committed and alcohol justified the
District Court's sentence prohibiting defendant's use of alcohol
while on parole. This Court reasoned that failure to restrict
defendant's alcohol use "would not aid in his rehabilitation nor
would it be conducive to the protection of society." Sullivan, 197
Mont. at 403, 642 P.2d at 1012.
In this case, the District Court properly included within
defendant's sentence the condition that defendant complete a sexual
offender's course while incarcerated. Defendant was convicted of
assault upon his fourteen year old daughter. There is ample
support in the record, based upon the examination of defendant at
10
the plea hearing, that the assault took the form of both bodily
injury and invitations or solicitations concerning sexual
intercourse which resulted in mental and emotional impairment to
the daughter. The sexual nature of the assault established a
significant connection between the crime and the need for defendant
to attend the sexual offender's program. In order to protect
society and to promote rehabilitation of the defendant, the
District Court properly determined that defendant needed to attend
the sexual offender's program. The sentence was proper.
The fifth issue on appeal is whether the delay in appointing
counsel for defendant's direct appeal was a denial of due process.
Defendant alleges that the 21 month delay between the date of
filing his notice of appeal and request for appointment of counsel
to the date counsel was appointed was a denial of due process. We
disagree.
Due process protection under both the United States
Constitution and the Montana Constitution requires that a defendant
be given a fair and meaningful appeal. U.S. Const. Amend. XIV;
Mont. Const., Art. 11, § 17. Because each case revolves around a
unique set of facts, wconsideration of the facts and circumstances
of each casen must be evaluated to determine whether that
particular defendant has been afforded a fair and meaningful
appeal. ~ankinsv. Wicker, 582 F.Supp. 180, 182-183 (W.D. Pa.
1984).
This Court has not specifically dealt with this issue.
Therefore, we look to the line of cases originating with United
States v. Alston, 412 A.2d 351 (D.C. 1980), for support. See State
v. Chapple, 660 P.2d 1208 (Ariz. 1983); State v. Hall, 487 A.2d 166
(Vt. 1984); Lopez v. State, 769 P.2d 1276 (Nev. 1989).
Alston held that a delay in the processing of an appeal rises
to the level of a due process violation only upon a showing of
prejudice to the defendant. Alston, 412 A.2d at 357. Prejudice
to the defendant is the sole determining factor in assessing
whether a defendant was given a fair and meaningful appeal.
Alston, 412 A.2d at 357; Chapple, 660 P.2d at 1226; Hall, 487 A.2d
at 171. In alleging prejudice due to appellate delay, defendant
must show that: 1) he is "unable to present an adequate appeal
because of the delay, or 2) that he will be unable to defend
adequately in the event a retrial is ordered." Hall
I 487 A.2d at
171, citing Chapple, 660 P.2d at 1225-1226 and Alston, 412 A.2d at
356-357.
In this case, defendant has failed to show that the delay i n
hearing his appeal and in the appointment of counsel prejudiced h i s
appeal. Delay alone is not adequate to raise a due process concern
absent some proof of prejudice occasioned by the delay. Chapple,
660 P.2d at 1226 (15-month post-conviction incarceration without
appeal does not, absent a showing of prejudice, violate due
process). See also Alston, (33 1/4-month delay did not result i n
prejudice); Hall, (17-month delay did not result in prejudice).
Defendant has only presented general allegations concerning
prejudice resulting from denial of appointment of counsel. It has
already been determined that defendant was not entitled to counsel
atthe evidentiary hearing on remand. Immediately after the
hearing, counsel was appointed to represent defendant in his
current appeal. Defendant has failed to show that subsequent
appointment of counsel was prejudicial.
Additionally, the time period defendant refers to as a delay
is questionably labeled. Defendant filed his notice of appeal on
March 15, 1988. After briefing, this Court issued an order
remanding the case to the District Court and denying defendant
appointment of counsel on remand. The District Court heard the
remand on August 31, 1988, and issued its order on September 7,
1988. Upon review of the District Court's order, this Court issued
its order adopting the District Court's findings on October 7,
1988. Counsel for defendant was then appointed and the appeal was
briefed by both parties. Based upon the above it is evident that
this Court proceeded in an orderly, timely, and legally proper
fashion to review and dispose of the case.
Affirmed.
/
xe Concur: