No. 90-546
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DANIEL W. MASON,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Daniel W. Mason, Pro Se, Deer Lodge, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Cregg W. Coughlin, Assistant Attorney General,
Helena, Montana; Robert Deschamps, 111, County
Attorney, Missoula, Montana; Betty Wing, Deputy
County Attorney, Missoula, Montana
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Submitted on Briefs: February 1 3 , 1992
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Decided: June 11, 1992
Clerk
Justice William E. Hunt, Jr., delivered the opinion of the Court.
Appellant Daniel W. Mason, appearing pro se, appeals his
conviction of felony sexual assault in the Fourth Judicial District
Court, Missoula County. Specifically, he alleges that his plea of
guilty was made under duress and coercion and that he suffered from
ineffective assistance of counsel.
We affirm.
Appellant raises several issues for our consideration.
However, we will phrase the issues as follows:
1. Was appellant denied effective assistance of counsel?
2. Was appellant coerced into pleading guilty?
3. Was appellant subjected to double jeopardy when the
District Court amended its oral sentence of 20 years in prison to
include completion of the sexual offender and alcohol treatment
programs at Montana State Prison?
4. Was appellant denied due process when he was not
permitted access to the county law library while awaiting trial?
5. Did the District Court properly consider the victim's age
when sentencing appellant?
6. Was appellant denied his right to appellate counsel under
the Sixth Amendment?
On March 28, 1990, appellant was charged by information with
one count of sexual assault in violation of 5 45-5-502, MCA. At
his arraignment hearing, appellant pled not guilty to the charge.
On April 12, 1990, the District Court set jury trial for April 23,
1990. On the same day, the State filed a notice of intent to
introduce evidence of other acts to which defense counsel
originally objected, and then later withdrew the objection.
During the pretrial period, defense counsel discussed possible
plea agreements with the prosecuting attorney. On April 21, 1990,
appellant signed a plea agreement with the State. On April 23,
1990, defense counsel advised the District Court that appellant
wished to change his plea of not guilty to guilty. The court
determined the plea was voluntary and informed and explained to
appellant that the plea agreement was not binding upon the court.
The guilty plea was entered and sentencing postponed until the
court had an opportunity to examine the presentence investigative
report.
On May 24, 1990, appellant appeared before the court and was
sentenced to 20 years in jail with no portion of the sentence
suspended, and designated a nondangerous offender for purposes of
parole eligibility. Later in the day, appellant was brought back
before the District Court and the court amended the sentence to
require appellant to enroll in and complete the sexual offender
intensive treatment and alcohol intensive treatment programs at the
Montana State Prison.
On May 29, 1990, appellant, acting pro set filed with the
District Court a Motion for Appeal of Sentence and Court Appointed
Counsel. The District Court considered the matter as a request for
sentence review. However, this Court advised the District Court
that the pleading was a notice of appeal. The court appointed
counsel to represent appellant. On July 15, 1990, appellant's
counsel filed a request to withdraw, claiming there were no
meritorious issues for appeal, along with a brief in accordance
with Anders v. California (1967), 386 U.S. 738, 87 S. Ct. 1396, 18
L. Ed. 2d 493. On September 10, 1991, this Court granted counsel's
leave to withdraw. On November 22, 1991, acting pro se, appellant
filed his brief for this Court to consider.
Was appellant denied effective assistance of counsel?
This Court has adopted the two-pronged test established by the
United States Supreme Court for determining whether a counsel's
performance was deficient when representing a criminal defendant.
Strickland v. Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674. Under this test, the defendant must:
[Flirst demonstrate that counsel's performance was
deficient. To demonstrate that a counsells performance
was deficient, defendant must prove that counsel's
performance fell below the range of competence reasonably
demanded of attorneys in light of the Sixth Amendment.
Second, the defendant must demonstrate that the counsel's
deficiency was so prejudicial that the defendant was
denied a fair trial. To satisfy this requirement, the
defendant must demonstrate that but for counsel's
deficient performance, it is reasonably probable that the
result of the challenged proceeding would have been
different.
State v. Senn (1990), 244 Mont. 56, 59, 795 P.2d 973, 975.
The second prong or "prejudicew requirement focuses on whether
counsells ineffective assistance affected the outcome of the plea
process. Hill v. Lockhart (1985), 474 U.S. 52, 59, 106 S. Ct. 366,
370, 88 L Ed. 2d 203, 210.
. When a guilty plea is at issue,
rather than the result of a trial, the defendant must prove that
"but for counsel's deficient performance, the defendant would not
have pled guilty, and would have insisted on going to trial."
Senn, 795 P.2d at 975.
Most of appellant's assertions contain matters outside of the
record. This Court's review of allegations on direct appeal is
limited to what is contained in the record, and therefore, we will
limit our inquiry only to those matters contained in the record.
Section 46-20-701, MCA.
Appellant alleges that he was denied effective assistance of
counsel because his attorney: (a) improperly withdrew objection to
the State's intent to use prior acts; (b) failed to object to the
post-omnibus hearing endorsement of witnesses; (c) failed to seek
a continuance of the trial date; (d) failed to inform the court of
errors in the presentence investigation report; and (e) failed to
advise him of the right to appeal.
Appellant fails to allege how any of these arguments affect
the voluntariness of his plea. since the case did not go to trial,
the withdrawal of objection to prior acts and the lack of objection
of witnesses who never testified had no affect on the outcome of
defendant's guilty plea.
Defendant's complaint that he was not given adequate time to
decide whether he wanted to go to trial, or accept the plea bargain
agreement, may have worked a hardship on the defendant, but
counsel's failure to seek additional time does not demonstrate
ineffective assistance of counsel.
With regard to the remaining issues, there is nothing
contained in the record which substantiates appellant's claim that
his defense counsel's performance was deficient and that but for
his counsel's deficient performance, defendant would not have pled
guilty. We hold appellant was not denied effective assistance of
counsel.
Was appellant coerced into pleading guilty?
This Court considers three factors to determine whether a
defendant's guilty plea should be withdrawn:
1. The adequacy of the District Court's
interrogation as to the defendant's understanding of the
plea;
2. The promptness of the motion to withdraw the
prior plea;
3. The fact that the defendant's plea was
apparently the result of a plea bargain in which the
guilty plea was given in exchange for dismissal of
another charge.
State v. Miller (1991), 248 Mont. 194, 196-97, 810 P.2d 308, 309.
The record reflects that the District Court read appellant his
rights and asked him if he understood that those rights would be
waived by a plea of guilty. Appellant indicted that it was his
desire to plead guilty. The court set out the charges against
appellant and explained that it was not required to follow the plea
agreement. Appellant indicted that he understood the effect of his
guilty plea. Appellant stated in court that he was not coerced,
threatened, or promised leniency in exchange for entering the
guilty plea. He also indicted to the court that he was not under
the influence of drugs or alcohol. In addition, he never filed a
motion to withdraw his guilty plea at the District Court level, but
instead, waited until after sentencing to raise the issue on
appeal. We hold that appellant entered into the plea agreement
voluntarily and with full understanding of the charge and its
consequences.
Was appellant subjected to double jeopardy when the District
Court amended its oral sentence of 20 years in prison to include
the completion of the sexual offender and alcohol treatment
programs at Montana State Prison?
On the morning of May 24, 1990, the District Court orally
pronounced judgment upon defendant. The court originally sentenced
appellant to 20 years in prison with no time suspended. The court
also designated appellant as a nondangerous offender. Later in the
afternoon of the same day, the District Court amended its oral
sentence to require as a condition of parole that appellant
complete the sexual offender and alcohol treatment programs at the
Montana State Prison. Appellant contends this additional sentence
placed him in double jeopardy. We disagree.
In State v. Enfinger (1986), 222 Mont. 438, 722 P.2d 1170,
this Court adopted the Diaz rule which states:
"It is well established that an oral ruling by the trial
court is not a final judgment, and that the trial court
can change such ruling at any time before the entry of
written judgment. tt
Enfinger, 722 P.2d at 1174 (quoting State v. Diaz (N.M. 1983), 673
P.2d 501, 502). The oral sentence pronounced by the District Court
was not a final or valid judgment. We hold that appellant was not
placed in double jeopardy because the original oral judgment was
not final.
IV.
Was appellant denied due process when he was not permitted
access the county law library while awaiting trial?
Appellant contends that he was denied access to the county law
library which he needed for the preparation of his case. In Bounds
v. Smith (1977), 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72, the
United States Supreme Court noted that one way to assure an
indigent's right to meaningful access to the courts was for the
state to provide an adequate law library or adequate legal
assistance from trained individuals. The Court held that:
[Tlhe fundamental constitutional right of access to the
courts requires prison authorities to assist inmates in
the preparation and filing of meaningful legal papers by
providing prisoners with adequate law libraries or
adequate assistance from persons trained in the law.
Bounds, 430 U.S. at 828. Previously, we have held that the state
is only required to "provide inmates with adequate legal libraries
or some other reasonable alternative." State v. Lance (1986), 222
Mont. 92, 106, 721 P.2d 1258, 1268. In this instance, appellant
was incarcerated while he awaited trial and was provided with
court-appointed counsel who was in frequent contact with appellant.
Appellant has not demonstrated any reason why he would need access
to a law library while awaiting trial when he was already receiving
legal assistance from his court-appointed counsel. We hold that
without a showing of need, due process does not require an accused
individual who is awaiting trial and is represented by counsel also
have access to a law library.
v.
Did the District Court properly consider the victim's age when
sentencing appellant?
Appellant contends that the District Court improperly
considered the victim's age when sentencing appellant to 20 years
in prison. Section 45-5-502, MCA, provides that when a person is
convicted of felony sexual assault and the victim is less than 16
years of age and the offender is three years older than the victim,
the district court may sentence the offender to a statutory maximum
of 20 years in prison. We hold that because the victim was only
seven years old, the District Court properly considered the
victim's age and did not abuse its discretion in sentencing
appellant to 20 years in prison.
VI .
Was appellant denied his right to appellate counsel under the
Sixth Amendment?
While it is correct that appellant has the right to an
attorney on his first appeal, the United States Supreme Court has
established a procedure for when an attorney believes an appeal
lacks meritorious issues.
[I]f counsel finds his case to be wholly frivolous, after
a conscientious examination of it, he should so advise
the court and request permission to withdraw. That
request must, however, be accompanied by a brief
referring to anything in the record that might arguably
support the appeal. A copy of counsel brief should be
furnished the indigent and time allowed him to raise any
points that he chooses; the court--not counsel--then
proceeds, after a full examination of all the
proceedings, to decide whether the case is wholly
frivolous. If it so finds it may grant counsel's request
to withdraw and dismiss the appeal insofar as federal
requirements are concerned, or proceed to a decision on
the merits, if state law so requires. On the other hand,
if it finds any of the legal points arguable on their
merits (and therefore not frivolous) it must, prior to
decision, afford the indigent the assistance of counsel
to argue the appeal.
Anders v. California (1967), 386 U.S. at 744.
This Court granted appellate counselts request to withdraw
after following the procedures mandated by Anders. This Court, as
a matter of practice, allows the case to proceed on the merits to
insure that the indigent defendant has been accorded his full due
process rights. We hold that appellant was not denied his right to
appellate counsel under the Sixth Amendment.
We affirm the conviction and sentencing of the District Court.
We concur: