No. 93-501
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA,
Plaintiff and Respondent,
-v-
CHRIS MAHONEY,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Maurice R. Colberg, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Chris Mahoney, Deer Lodge, Montana, pro se
For Respondent:
Brent Brooks, Deputy Yellowstone County Attorney:
Hon. Joseph P. Mazurek, Attorney General, Cregg
Coughlin, Assistant Attorney General, Helena,
Montana
submitted on Briefs: January 7, 1994
Decided: March 3, 1994
Justice James C. Nelson delivered the Opinion of the Court.
Chris Mahoney appeals an order of the District Court of the
Thirteenth Judicial District, Yellowstone County, denying his
motion to withdraw his guilty plea. We affirm.
The issue on appeal is whether the District Court abused its
discretion when it denied defendant's motion to withdraw his guilty
plea.
BACKGROUND
On or about May 29, 1989, at approximately 7:00 p.m., Chris
Mahoney went to a Town Pump in Billings where Beth Brandt was
working the night shift. Having previously purchased a soft drink
and having left the store, he returned at about 8:30 p.m. and
engaged Ms. Brandt in conversation. Mahoney was in the store about
9:00 p.m., closing time, when Ms. Brandt asked him to leave so she
could close the store. Mahoney walked out of the store followed by
Ms. Brandt who then hung up a "closedn sign near the door. She
walked back inside through the door, and, as she turned to lock the
door from the inside, the defendant pushed it open, pushing Ms.
Brandt away from the door in the process. He demanded she lock the
door, and then prevented her attempts to leave through the door.
Ms. Brandt attempted to scream, but Mahoney covered her mouth
with his hand and forced her to the floor near the cash register.
As she struggled, the defendant kept telling her to lock the door.
He forced her into a squatting position facing away from him on the
floor. Mahoney then produced a knife from his coat and began
stabbing her. After stabbing her repeatedly and in that process
2
severely lacerating her neck, exposing her carotid artery, he
restrained her, forcibly, partially disrobed her and, "... still
dressed, began to rub his penis up and down against the back of the
victim's hands as she held them in front of her genitals."
When he saw a large amount of blood from her wounds, he
stopped his actions, went around the checkout counter and called
the ~illingspolice, reporting that he had cut a clerk and that an
ambulance was needed. According to the affidavits in support of
the information and amended information subsequently filed, when
the police arrived at the scene, Mahoney was cooperative, Miranda
warnings were read, and he provided a factual account of the
incident.
Mahoney was brought before the Thirteenth Judicial District
Court on June 1, 1989, w i t h o u t counsel and in the custody of a
deputy sheriff. The County Attorney made and filed a motion,
supported by affidavit, for leave to file the information against
Mahoney charging him with aggravated assault. Leave was granted by
the court to file the information; a copy of the information,
motion and affidavit was given to Mahoney; counsel was appointed;
and the arraignment was continued to June 8, 1989. On June 9,
1989, on defense counsel's motion, the court continued the
arraignment again, pending Mahoney receiving a psychiatric
evaluation.
The State filed a motion and affidavit for leave to file an
amended information on July 12, 1989, and gave notice to defense
counsel. Mahoney and his counsel appeared before the District
Court on July 13, 1989, and the Staters motion to amend the
information was granted. The amended information charged Mahoney
with attempted deliberate homicide and attempted sexual intercourse
without consent. Mahoney pled not guilty to the offenses at that
time. A psychiatric evaluation was ordered on July 17, 1989, and
a report of that evaluation was subsequently filed with the
District Court.
On October 18, 1989, a proceeding was held in which Mahoney,
represented by counsel, withdrew his plea of not guilty and entered
a plea of guilty to the offenses charged. Mahoney was interrogated
by the District Court Judge about his understanding of the
consequences of his guilty plea, and he was questioned about his
understanding of the "Acknowledgement of Waiver of Rights by Plea
of Guilty," which he had read, discussed with his attorney and
signed. The District Court concluded that Mahoney's change of plea
was knowingly and voluntarily made and accepted his plea of guilty.
There was no plea agreement.
After a presentence report was filed, Mahoney appeared with
counsel and was sentenced on November 22, 1989, to 40 years in the
State Prison for the crime of attempted deliberate homicide, 18
years for the crime of attempted sexual intercourse without consent
and an additional eight years for the use of a weapon. The
sentences were ordered to be served consecutively, Mahoney was
designated a dangerous offender and conditions were imposed in the
event of his parole.
Mahoney subsequently filed a motion to withdraw his guilty
plea on July 10, 1992. The District Court denied his motion on
June 29, 1993, and Mahoney's notice of appeal was filed on August
26, 1993.
DISCUSSION
In reviewing cases involving a trial court's refusal to allow
a defendant to withdraw a plea of guilty, this Court will determine
whether the trial court abused its discretion. State v. Reynolds
(1992), 253 Mont. 386, 390, 833 P.2d 153, 155.
Section 46-16-105(2), MCA (1991), states that a court may
permit a guilty plea to be withdrawn and a non-guilty plea
substituted, for good cause, at any time before or after judgment.
The following three factors are considered by this Court when
determining whether a district court erred in refusing to allow the
defendant to withdraw his guilty plea:
1. The adequacy of the District Court's interrogation at
the time the plea was entered as to the defendant's
understanding of the consequences of his plea;
2. the promptness with which the defendant attempts to
withdraw the prior plea; and
3. the fact that the defendant's plea was the result of
a plea bargain.
State v. Walter (1986), 220 Mont. 70, 72, 712 P.2d 1348, 1350. As
to the first factor, we determine that the District Court's
interrogation as to Mahoney's understanding of the consequences of
his plea was adequate. A judge's interrogation of a defendant
seeking to enter a guilty plea is sufficient if the judge:
It... examines the defendant, finds him to be competent,
and determines from him that his plea of guilty is
5
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 fact
upon which his guilt is based.I1
Walter, 712 P.2d at 1350, citing State v. Lewis (1978), 177 Mont.
474, 485, 582 P.2d 346, 352. A review of the record indicates that
Mahoney was sufficiently interrogated by the judge at the change of
plea proceeding. The questioning met all the requirements listed
above, including a recitation of the facts upon which his guilt is
based.
Additionally, Mahoney was questioned by the district judge as
to his understanding of the llAcknowledgement Waiver of Rights by
of
Plea of Guiltyn document. He stated that he discussed the
document's contents with his attorney, read the document, filled in
the appropriate blanks and signed the document. This Court has
previously held that a written acknowledgement, combined with oral
questioning of the defendant, constitutes adequate interrogation.
Walter, 712 P.2d at 1350.
As to the second factor, Mahoney filed his motion to withdraw
his guilty plea more than two and one half years after he was
sentenced. The State persuasively argues that the District Court
was correct in its determination that Mahoney's motion to withdraw
his guilty plea was untimely. "In general, filing [ a ] motion to
withdraw a guilty plea over a year after entry of the guilty plea
is untimely." State v. Reynolds (1992), 253 Mont. 386, 391, 833
P.2d 153, 156. (Citation omitted. ) However, without ruling on the
timeliness of defendant's motion and in view of the seriousness of
the crimes to which the defendant pled guilty and the fact that the
issue raised regarding the abandonment of his attempts to commit
those crimes is one of first impression in Montana, we will proceed
to discuss and to decide this case on the substantive issues.
The third and final factor, whether the defendant I s guilty
plea was the result of a plea bargain, is not an issue because in
this case, there was no plea bargain.
Mahoney presents three arguments in support of his contention
that his plea of guilty should be withdrawn: 1) prosecutorial
vindictiveness, 2) he could not be guilty of the crimes charged,
and 3) ineffective assistance of counsel. We discuss these
arguments in turn.
1. PROSECUTORIAL VINDICTIVENESS
First, Mahoney states that the State was impermissibly
vindictive when it increased the charges from aggravated assault to
attempted homicide and attempted sexual intercourse without
consent. He asserts that the amended information was based on the
same available evidence cited in the original information.
The State cites State v. Hilton (1979), 183 Mont. 13, 18, 597
P.2d 1171, 1174, for its contention that, since he pled guilty to
the offenses charged, Mahoney cannot now be heard to complain about
any issue, save the voluntariness of his plea. We agree. Hilton
states that "[o]nce a defendant properly pleads guilty he waives
all factual defenses as well as constitutional violations which
occur prior to the plea." Hilton, 597 P,2d at 1174. On pleading
guilty, the defendant may only attack the voluntariness and knowing
character of the plea. Hilton, 597 P.2d at 1174. Therefore, given
the defendant's voluntary and knowing plea of guilty, there is
merit to the State's argument that Mahoney has waived his claims of
prosecutorial vindictiveness.
Moreover, the State having strictly followed the statutory
procedure for amending the information early in the case and before
he entered a plea to the original information militates against
Mahoney's claim of prosecutorial vindictiveness. Section 46-11-
403, MCA (1987), which was the statute in effect at the time the
prosecutor filed his motion to amend the information, sets forth
the procedural requirements for amending an information in matters
of substance. The statute authorizes such an amendment with leave
of court at any time not less than five days before trial.
In moving to amend the information, the State complied in all
respects with the procedural requirements of 5 46-11-403, MCA
(1987), and the District Court properly granted the State leave to
amend. The affidavit supporting the amended information contains
a more detailed account of the incident than the account provided
in the original affidavit and states facts that show the existence
of probable cause to support the charges of attempted deliberate
homicide and attempted sexual intercourse without consent.
"When the facts of a case support a possible charge of more
than one crime, the crime to be charged is a matter of
prosecutorial discretion." (Emphasis added.) State v. Booke
(1978), 178 Mont. 225, 230, 583 P.2d 405, 408. See also 5 46-11-
404 (I), MCA (1987).
Furthermore, we find no support in the record for any charge
of prosecutorial vindictiveness; the prosecutor merely exercised
the discretion which the law provides and amended the information
in accordance with the procedural requirements provided by statute
to charge crimes for which there was clearly probable cause. While
that is all that is required, here, it is also clear that the
defendant was at all time represented by counsel: that he was given
notice of the State's intention to amend; that no objection was
raised to the prosecutor's motion at the time it was made or
granted; and that the motion was made and granted very early in the
case before the defendant entered a plea to the original
information and before a trial date was even set.
Had Mahoney any legitimate concerns about the charges being
filed as a result of prosecutorial vindictiveness, he had more than
adequate opportunity to raise those before pleading guilty to the
amended information. Not only did Mahoney waive his right to
contest the amendment of the information by failing to object and
by pleading guilty, but, and just as importantly, the amendment of
the information was accomplished in accordance with the law, and
there is no indication in the record of any improper motivation by
the State.
We conclude that Mahoney has failed to establish that the
charges to which he pled guilty were filed as a result of
prosecutorial vindictiveness.
2. VOLUNTARY ABANDONMENT OF THE CRIMES CHARGED
Second, Mahoney argues that he could not be found guilty of
the crimes charged because he voluntarily abandoned his criminal
efforts. The Montana llattemptll
statute in effect when Mahoney pled
guilty provides that, "[a] person commits the offense of attempt
when, with the purpose to commit a specific offense, he does any
act towards the commission of such offense." (Emphasis added.)
Section 45-4-103(1), MCA (1987). State v. Ribera (1979), 183 Mont.
1, 11, 597 P.2d 1164, 1170. Further:
This Court has stated that an overt act 'must reach
far enough towards the accomplishment of the desired
result to amount to the commencement of the
consummation.' In addition, the Court stated that 'there
must be at least some appreciable fragment of the crime
committed, and it must be in such progress that it will
be consummated unless interrupted by circumstances
independent of the will of the attempter.'
Ribera, 597 P.2d at 1170, citing State v. Rains (1917), 53 Mont.
In this case, Mahoney accosted Ms. Brandt, prevented her
escape from the store and then stabbed his struggling victim twelve
times, causing serious injuries, including damage to her lungs,
liver and kidneys. It can hardly be argued that this is not "at
least some appreciable fragment of the crime [of deliberate
homicide] committed [and that his actions reached] far enough
towards the accomplishment of the desired result to amount to the
commencement of the consummation." Ribera, 597 P.2d at 1170.
Moreover, Mahoney forcibly pulled down Ms. Brandt's pants,
lifted her shirt up, cut her bra straps and attempted to have
sexual intercourse with her. Notwithstanding that she was
seriously wounded from the stabbing, Ms. Brandt resisted the
10
defendant's attack by holding her hands in front of her genitals to
prevent him from having sexual intercourse. Mahoney himself stated
in the proceeding to change his plea to guilty that his intent was
to have sexual intercourse with the victim. These actions by
Mahoney likewise unequivocally established that at least some
fragment of the crime of sexual intercourse without consent was
committed and that such actions reached far enough towards the
accomplishment of the desired result to amount to the commencement
of the consummation. R i b e r a , 597 P.2d at 1170.
There is no doubt from the conduct of the defendant in this
case that, with the purpose to commit the crimes of deliberate
homicide and sexual intercourse without consent, he did If. .. a c t [ s ]
toward the commission of such offense[^].^ Section 45-4-103(1),
MCA (1987).
However, Subsection (4) of ?j45-4-103, MCA (1987), provides a
defense to the offense of attempt. It is on this defense which
Mahoney relies for his claim that he could not be found guilty of
the crimes to which he pled guilty. Section 45-4-103(4), MCA
(1987), provides that:
A person shall not be liable under this section if, under
circumstances manifesting a voluntary and complete
renunciation of his criminal purpose, he avoided the
commission of the offense attempted by abandoning his
criminal effort.
Mahoney offers his telephone call to the police as evidence that he
voluntarily and completely renounced his criminal purpose by
abandoning his efforts to commit deliberate homicide and sexual
intercourse without consent.
The amended information discloses that after preventing her
escape from the store and after stabbing the victim numerous times,
Mahoney forcibly tried to disrobe the struggling Ms. Brandt, and
"then began to rub his penis up and down against the back of the
victim's hands as she held them in front of her genitals. When he
saw a large amount of blood from her wounds he stopped, went around
the checkout counter and called Billings police."
We are assisted in answering the question of whether Mahoney
voluntarily and completely renounced his criminal purpose and
abandoned his criminal effort by the decision of a sister state
which has extensively explored this issue.
The State of Michigan recognizes the affirmative defense of
voluntary abandonment but qualifies the definition of voluntary
abandonment, stating:
Abandonment is not 'voluntary' when the defendant
fails to complete the attempted crime because of
unanticipated difficulties, unexpected resistance, or
circumstances which increase the probability of detention
or apprehension. (Emphasis added.)
People v. McNeal (Mich.App. 1986), 393 N.W.2d 907, 912, citing
People v. Kimball (Mich.App. 1981), 311 N.W.2d 343, 349. The
defendant in Kimball was charged with and convicted of attempted
unarmed robbery. He argued that he voluntarily abandoned his
criminal enterprise before the crime was consummated; therefore, he
could not be found guilty of attempt.
The Kimball court concluded that voluntary abandonment was a
defense to a prosecution for criminal attempt (see 1 45-4-103(4),
MCA.). Kimball, 311 N.W.2d at 349. However, the court stated
emphatically, that abandonment was not "voluntary" when the
criminal endeavor was not completed because of unanticipated
difficulties or unexpected resistance. Kimball, 311 N.W.2d at
349. Although Michigan's attempt statute differs from ours, we
agree with the approach set forth in Kimball.
In arriving at its conclusion that voluntary abandonment is
a defense to a criminal attempt, the Kimball court extensively
reviewed authoritative commentary on criminal attempt law, citing
Perkins, Criminal Law (2d ed) , ch. 6, 5 3, p. 590, among others.
Perkins states that "although a criminal plan has proceeded far
enough to support a conviction of criminal attempt, it would be
sound to recognize the possibility of a locusperliterttine so long as
substantial harm has been done and no act of actual danaer
~ommitted.'~ Kimball, 311 N.W.2d at 347. (Underlined emphasis
added.) Perkins prefaces the above cited statement in his treatise
on criminal law, by commenting that there are limitations to the
use of abandonment as a defense to the crime of attempt.
"Attempted murder cannot be purged after the victim has been
wounded, no matter what may cause the plan to be abandoned."
"Perkins" at 590.
We agree with Perkins' logic, particularly in this case, where
the defendant prevented the victim's escape, stabbed her twelve
times causing grievous injury and then tried to forcibly rape her.
At this point, substantial harm had been done and acts of actual
danger had, indeed, been committed. Moreover, Mahoney's actions
represent at least "some appreciable fragment of the crime [to be]
committed." Ribera, 597 P.2d at 1170.
Nor did Mahoney voluntarily and completely renounce his
criminal purpose by abandoning his attempt to commit the crimes of
deliberate homicide and sexual intercourse without consent, as
required by 5 45-4-103, MCA (1987). Even after the victim had been
repeatedly stabbed, she was able to thwart the defendant's attack
by holding her hands over her genitals, trying to prevent him from
engaging in sexual intercourse with her. As stated in Kimball and
McNeal, an abandonment is not voluntary if the defendant fails to
complete the crime because of "unanticipated difficulties [or]
unexpected resistance." Kimball, 311 N.W.2d at 349; McNeal, 393
N.W.2d at 912.
Mahoney did not abandon his criminal conduct until he met with
unanticipated difficulties and unexpected resistance. He only
called the police after observing that the victim was bleeding
profusely from the wounds which he inflicted and because she
struggled and successfully protected herself from being raped.
Mahoney's conduct is not a manifestation of voluntary and complete
renunciation of criminal purpose and an abandonment of criminal
effort. That he did not actually consummate the crimes of sexual
intercourse without consent and deliberate homicide was due not to
any voluntary renunciation of criminal purpose on his part but to
good fortune that the victim was not killed by the stabbing and the
simple fact that circumstances occasioned by his brutal attack and
the victim's continued resistance made further criminal effort
impracticable. Mahoney's self-serving and conclusory arguments to
the contrary exalt form over substance.
Under the test enunciated above, i.e. that there is no
voluntary and complete renunciation of criminal purpose and
abandonment of criminal effort, where substantial harm has been
done and acts of actual danger have been committed, or where the
defendant fails to complete the attempted crime because of
unanticipated difficulties, unexpected resistance or circumstances
which increase the probability of detention or apprehension; under
45-4-103(1) and (4), MCA (1987), and our prior case law; and
under the facts of this case, we conclude that Mahoney committed
the offenses of attempted deliberate homicide and attempted sexual
intercourse without consent and that he has failed to establish his
abandonment defense. Accordingly, Mahoney's argument that he could
not have been found guilty of the crimes of attempted deliberate
homicide and attempted sexual intercourse without consent to which
he pled guilty is without merit.
3. INEFFECTIVE ASSISTANCE OF COUNSEL
Finally, Mahoney argues that he received ineffective
assistance of counsel. To determine whether a defendant received
ineffective assistance of counsel, the court must conduct the two-
part Strickland test, adopted by this Court in State v. Robbins
(1985), 218 Mont. 107, 114, 708 P.2d 227, 232. In that case we
stated:
First, the defendant must show that counsel s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the "counsel" guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense.
This requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.
Robbins, 708 P.2d at 232, citing Strickland v. Washington (1985),
466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. If the issue is
a defendant's guilty plea, the defendant must demonstrate that but
for counsel's deficient performance, a defendant would not have
entered a guilty plea. State v. Senn (1990), 244 Mont. 56, 59, 795
P.2d 973, 975.
Mahoney asserts that his attorney did not inform him that the
State must provide the defendant access to a competent psychiatrist
"who will conduct an appropriate examination and assist in
evaluation, preparation, and presentation of the defense." Ake v.
Oklahoma (1985), 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53.
Such advice is mandated only where the defendant has demonstrated
to the court that his sanity at the time of the offenses committed
will be a "significant factor at trial." &, 470 U.S. at 83.
However, defendant's counsel did consider a defense of mental
impairment but concluded there was no basis upon which to pursue
such a defense. A psychiatric evaluation was conducted at Warm
Springs State Hospital, which revealed no evidence of any mental
disease or defect. Defense counsel's considered decision to forego
a defense of mental disease or defect, therefore, was not an error
at all much less an error ". . . so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." Robbins, 708 P.2d a 232.
Neither can Mahoney demonstrate, as he claims, that his
counsel failed to inform him that he would not be convicted of
"attempted" homicide and sexual assault because he "abandoned his
criminal efforts before consummation." This argument is without
merit. We have already discussed the "attempted" felonies,
concluding that Mahoney did not voluntarily abandon his criminal
efforts before consummation. Therefore, it was not error or
incompetence for Mahoney1s counsel to fail to inform him that it
was impossible for him to be convicted of the two felony "attempts1'
to which he pled guilty.
Mahoney further argues that his counsel should have sought to
dismiss the increased charges brought in the amended information
because they were the result of "prosecutorial vindictiveness." We
dispensed with Mahoney's argument concerning "prosecutorial
vindictiveness" in the first section of this opinion. We stated
that under 3 4 6 - 1 1 - 4 0 3 , MCA (1987), the prosecution could amend the
information to charge crimes for which there was probable cause up
to five days before trial if the motion to amend was filed in
accordance with the procedural requirements of the statute. Here,
the State filed a proper motion to amend and therefore, Mahoney's
counsel had no reason to dispute the amended information on the
ground of "prosecutorial vindictiveness."
Moreover, Mahoney stated at his hearing to change his plea
from not guilty to guilty, that he was satisfied with the services
and advice given by his counsel in the matter. Additionally, he
signed an Acknowledgement of Waiver of Rights, which states that "1
am satisfied that my lawyer has been fair to me and has represented
me properly."
Finally, since defense counsel's performance was not
deficient, his performance could not have prejudiced the defense.
In the face of the record in this case and our discussion above,
Mahoney's claims of ineffective assistance of counsel are without
merit. We conclude that Mahoney cannot meet either prong of the
Strickland test and, therefore, has not demonstrated that his
counsel's assistance was ineffective.
Having reviewed the record and having disposed of Mahoney's
claims and arguments, we hold that the District Court did not abuse
its discretion in denying the defendant's motion to withdraw his
guilty plea.
We Concur: /
March 3. 1994
CERTIFICATE O F SERVICE
I herehy certify that the following order was sent by United States mail, prepaid, to the
following named:
Chris Mahoney
700 Conley Lake Road
Deer Lodge, MT 59722
Brent Brooks
Deputy County Attorney
P. 0. Box 35025
Billings, MT 59107
Hon. Joseph P. Mazurek, Attorney General
Cregg Coughlin, Assistant
Justice Building
Helena. MT 59620
ED SMITH
CLERK OF THE SUPREME COURT
STATE O F MONTANA ,