No. 93-327
I N THE SUPREME COURT OF THE STATE OF M N A A
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19 9 4
ROBERT HAGAN,
Petitioner and Appellant,
v.
STATE O MONTANA,
F
Respondent and Respondent.
APPEAL FROM: District Court of the Sixteenth ~ u d i c i a lDistrict,
In and for t h e County of Rosebud,
The Honorable J o e L. Hegel, Judge p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
Jay F. Lansing, Moses Law Firm,
Billings, Montana
For Respondent:
Hon, Joseph P. Mazurek, Attorney General,
Carol E. Schmidt, Assistant A t t o r n e y
General, Helena, Montana
Garry P. Bunke, C u s t e r County Attorney,
~iles City, Montana
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Submitted on ~riefs: February 17, 1994
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Decided: March 2 2 , 1 9 9 4
STATE @P I4
Justice Terry N. ~rieweilerdelivered the opinion of the Court.
Robert Hagan filed a petition for post-conviction relief in
the District Court for the Sixteenth Judicial District in Rosebud
County after he pled guilty and was convicted of attempted sexual
intercourse without consent, in violation of 5 45-5-503, MCA
(1987). Hagan alleged that his conviction was improper and
violated his constitutional rights because the victim was his
natural daughter and the only crime with which he could have been
charged, convicted, and sentenced was incest, in violation of
5 45-5-507, MCA (1987). Following a hearing on the merits of
Hagan's petition, the District Court dismissed the petition for
post-conviction relief.
We affirm.
The issue on appeal is whether the District Court erred when
it dismissed Hagan's petition for post-conviction relief.
On February 27, 1989, the Rosebud County Attorney charged
Robert Hagan in the District Court for the Sixteenth Judicial
District with attempted sexual intercourse without consent, a
felony, in violation of § 45-5-503, MCA (1987), and aggravated
assault, a felony, in violation of § 45-5-202, MCA. The alleged
victims of the charged offenses were Hagan's minor daughters.
On September 14, 1989, Hagan pled guilty to the offense of
attempted sexual intercourse without consent. This plea was not
the result of a plea bargain agreement but was entered after Hagan
signed an acknowledgment of his rights. During the hearing on this
matter, Hagan's attorney testified that he had advised Hagan that
the offense of incest, which carries a lower maximum penalty, may
have been the most applicable affense based on the alleged conduct.
However, Hagan1s attorney stated that Hagan was pleading guilty to
the offense described in the information, which was attempted
sexual intercourse without consent. Based on the testimony
received and the courtlsquestioning of Hagan, the court found that
Hagan was competent, and had entered his guilty plea knowingly and
voluntarily. The ~istrictCourt also found that Hagan understood
he was waiving all of his rights, including the right to appeal a
finding of guilt, by pleading guilty.
The charge of aggravated assault was reduced by the State to
the charge of misdemeanor assault. Hagan also pled guilty to the
reduced charge.
The District Court sentenced Hagan to 30 years in the Montana
State Prison, with ten suspended if Hagan met certain conditions,
for the offense of attempted sexual intercourse without consent,
and to six months imprisonment in the Rosebud County Jail for the
offense of misdemeanor assault. The Court further ordered that the
two sentences be served consecutively, and designated Hagan a
dangerous offender for purposes of parole eligibility.
Hagan did not appeal the entry of his guilty p l e a s to this
Court. However, on May 29, 1992, Hagan filed a petition in the
District Court for post-conviction hearing and relief, pursuant to
5 5 46-21-101through -203, MCA.
In his petition, Hagan argued that sexual intercourse without
consent, in violation of 5 45-5-503, MCA (19871, and incest, in
violation of 1 45-5-507, MCA (1987), are two separate and distinct
crimes, and due to the fact that the alleged victim was Hagan's
natural daughter, the only offense with which he could have been
charged, convicted, and sentenced was the offense of incest. He
further argued that if the court found that these two offenses were
not separate and distinct crimes, and if Hagan could be charged,
convicted, and sentenced for either crime for the same or identical
conduct, then his constitutional rights were violated, including
his rights to equal protection and due process of law, as well as
the separation of powers doctrine. Based on these assertions,
Hagan sought relief from his conviction for attempted sexual
intercourse without consent, and requested the court to vacate and
set aside that conviction and to order that he be charged with the
offense of incest which carries a lower maximum penalty.
Hagan did not assert in his petition for post-conviction
relief that his guilty plea to either charge was made involuntarily
or unknowingly, or that he had ineffective assistance of counsel at
the time the plea was entered.
On July 1, 1992, the State moved to dismiss the petition for
post-conviction relief on the grounds that Hagan was procedurally
barred from seeking the relief requested pursuant to 5 46-21-105,
MCA, because he could have raised these claims on direct appeal.
The District Court denied the motion to dismiss and ordered
the State to address the merits of Hagan's petition.
An evidentiary hearing was held to allow evidence in support
of Hagan's petition on December 7, 1992. At that time, in addition
to testimony concerning the merits of the petition, John Forsythe,
the attorney who had represented Hagan during the criminal
proceedings, testified aboutHaganlsmental state when the criminal
charges were brought against him. Forsythe testified that Hagan
was very distraught and "self-destructive" and "acted against his
interests regularly, and seemed to do everything he could to harm
his own best interests with respect to the criminal charges."
Nonetheless, Forsythe confirmed that he had discussed the issue of
incest with Hagan and pointed out that it carried a lower maximum
penalty. However, Hagan insisted this defense not be brought up
because he wanted to be "punished" by receiving the maximum penalty
for his acts. Forsythe conceded that Hagan's waiver of that issue
was voluntary, but alleged that it was not an intelligent waiver
because Hagan "wasn't acting in his own self-interest."
On cross-examination, Forsythe stated that he did not believe
Hagan suffered from any mental defect which would have excused
liability under the penal statutes. He testified that Hagan was
"intelligent, competent, [and] aware" and had made a voluntary
decision to plead guilty.
On May 14, 1993, the District Court issued its opinion and
order. The court first held that Hagan1s claims were
jurisdictional and were not waived by pleading guilty. However,
after considering the merits of Hagan1s petition, the court
concluded there were no grounds for relief and dismissed the
petition for post-conviction relief. From this order, Hagan
appeals.
Did the District Court err when it dismissed Hagan's petition
for post-conviction relief?
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. Statev.
Turcotte (1974), 164 Mont. 426, 428, 524 P.2d 787, 788. Thereafter,
the defendant "may only attack the voluntary and intelligent
character of his plea. State v. Hilton (1979), 183 Mont. 13, 18, 597
P.2d 1171, 1174 (citing Tollettv. Henderson (1973), 411 U.S. 258, 93
S. Ct. 1602, 36 L. Ed. 2d 235). As stated by the Supreme Court in
Tollett, 411 U.S. at 267:
[A] guilty plea represents a break in the chain of events
which has preceded it in the criminal process. When a
criminal defendant has solemnly admitted in open court
that he is in fact guilty of the offense with which he is
charged, he may not thereafter raise independent claims
relatingto the deprivation of constitutional rights that
occurred prior to the entry of the guilty plea. He may
only attack the voluntary and intelligent character of
the plea . .. .
The District Court based its dismissal of Hagan's request for
post-conviction relief upon its conclusion that his constitutional
rights, including his rights to equal protection and due process of
law, as well as the separation of powers doctrine, were not
violated when he was charged, convicted, and sentenced for
attempted sexual intercourse without consent. Without addressing
the merits of the court's conclusions, we conclude that a proper
basis for denying post-conviction relief is Hagan's waiver of the
right to raise these claims after entering a knowing and voluntary
guilty plea. This Court will uphold the decision of a district
court, if correct, regardless of the lower court's reasoning in
reaching its decision. Wolfev. Webb (1992), 251 Mont. 217, 824 P.2d
No. 55 v. Mussekhell County (1990), 245 Mont. 525, 802 P.2d
240 ; Dismmct
1252.
In this instance, Hagan does not challenge the voluntary and
intelligent nature of his plea. Moreover, as demonstrated by the
transcripts from both the plea hearing and the post-conviction
hearing, there is ample evidence that Hagan was competent and had
voluntarily and knowingly entered the plea, understood the
consequences of the plea, and had been informed prior to entering
the plea that an offense with a lower maximum penalty may have been
applicable to the conduct for which he was charged.
The District Court based its conclusion that Hagants claims
were jurisdictional on Sword v. State (Wyo. l987), 746 P. 2d 423,
425-26. However, we disagree. In United States v. Cortez (9th Cir.
1992) , 973 F.2d 764, 767, the Ninth Circuit, citing UnitedStatesv. Broce
(1989), 488 U.S. 563, 109 S. Ct. 757, 102 L. Ed. 2d 927, described
jurisdictional claims in the context of waiver as "those cases in
which the district court could determine that the government lacked
the power to bring the indictment at the time of accepting the guilty plea from
the face of the indictment or from the record. 'I We agree and hold that
jurisdictional claims, in the context of waiver, are limited as
described in Cortez. In this instance, we conclude that Hagan's
claims are nonjurisdictional because, at the time of accepting the
guilty plea, the State did have the power to bring charges against
Hagan based on his alleged conduct and nothing to the contrary was
evident from the face of the information.
Because the validity of Hagants guilty plea is not in
question, we conclude that Hagan is precluded from seeking
post-conviction relief on the bases that the offense of incest was
more applicable to the facts in this case and that his
constitutional rights were violated when he was charged with
attempted sexual intercourse without consent. These
nonjurisdictional claims were waived when he entered his guilty
plea and we decline to address the merits of these arguments. The
petition for post-conviction relief was properly denied.
Accordingly, the order of the District Court dismissing
Hagants petition for post-conviction relief is affirmed.
< ~ W Y
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' C k e f Justice
March 22, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Jay F. Lansing
Moses Law F i
P.O. Box 2533
Billings, MT 59103
Hon. Joseph P. Mazurek
Attorney General
Justice Bldg.
Helena, MT 59620
Garry P. Bunke, Esq.
Special Prosecutor for Rosebud County
P.O. Box 1407, 315 Main
Miles City, MT 59301
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA