NO. 95-051
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DAVID CHRISTOPHER JOHNSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John Keith, Great Falls, Montana
For Respondent:
Jospeh P. Mazurek, Attorney General, John Paulson,
Assistant Attorney General, Helena, Montana; Brant
Light, Cascade County Attorney, Shawn Glen, Deputy
Cascade County Attorney, Great Falls, Montana
Submitted on Briefs: September 13, 1995
Decided: November 30, 1995
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
David Christopher Johnson (Johnson) was charged with five
counts of criminal sale of dangerous drugs. A plea agreement was
reached wherein Johnson pleaded guilty to all five counts. Prior
to sentencing, Johnson moved the District Court for the Eighth
Judicial District, Cascade County, for an order allowing Johnson to
withdraw his guilty pleas. The District Court denied the motion
and sentenced Johnson to ten years with five years suspended on
each count. Johnson appeals the denial of his motion to withdraw
his guilty pleas. We affirm.
The sole issue on appeal is whether the District Court abused
its discretion in denying Johnson's motion to withdraw his guilty
pleas.
Johnson was arrested on October 1, 1993, in Great Falls and
charged with five counts of criminal sale of dangerous drugs in
violation of § 45-g-101, MCA (1991). The information and
supporting affidavit alleged that Johnson sold marijuana to a
confidential informant on five separate occasions between September
13 and September 27, 1993. According to the affidavit, Johnson
possessed a handgun during the last two transactions with the
informant.
An attorney with the Cascade County Public Defenders' Office
was appointed to represent Johnson. At his arraignment, Johnson
entered pleas of not guilty on each count. Additionally, the
District Court denied a motion for a reduction in the amount of
Johnson's bail.
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On January 7, 1994, Johnson's attorney filed a motion
requesting substitution of counsel. The motion stated that counsel
had a conflict because he was representing two other criminal
defendants against whom Johnson would be called to testify. The
District Court granted the motion and another attorney from the
public defenders' office was appointed to represent Johnson.
A second bail reduction hearing was held on January 20, 1994,
and the District Court reduced Johnson's bail from $100,000 to
$15,000. On January 27, 1994, Johnson's second attorney filed a
motion to be relieved as counsel of record and requested that the
court appoint another attorney for Johnson. After a February 4,
1994 hearing, at which Johnson indicated that he did not object to
his attorney's withdrawal, the District Court granted the motion.
The court appointed Marvin Anderson, an associate public defender,
as the third attorney to represent Johnson.
At the omnibus hearing on March 22, 1994, Johnson informed the
court that he wanted to defend himself, thus the District Court
allowed Johnson to represent himself during the hearing and argue
his motions to dismiss for selective prosecution and for
multiplicity of charges. These motions were later denied by the
court. By stipulation, Johnson's bail was reduced to $2,500.
Johnson was released from jail and trial was set for May 16, 1994.
On the day set for trial, the District Court received a letter
from Johnson charging Johnson's attorney with incompetence and
requesting that another attorney be appointed. Before proceeding
with jury selection, the District Court held a hearing and inquired
about the letter. Johnson told the court that he did not want to
be represented by Anderson and requested other counsel. The court
refused to appoint other counsel for Johnson, required Johnson to
represent himself, and designated Anderson as standby counsel.
After attempting to voir dire the prospective jurors, Johnson
entered into a plea agreement with the prosecutor wherein Johnson
agreed to plead guilty to the five counts of criminal sale of
dangerous drugs, and the prosecutor agreed to recommend ten-year
concurrent sentences with no dangerous offender designation or
weapons enhancement. The jury was dismissed and Johnson entered a
plea of guilty to all five counts.
That same day, the Cascade County Public Defenders' Office
filed a motion requesting to be relieved as Johnson's counsel
because Johnson had been granted leave to intervene in a federal
lawsuit involving the operation and effectiveness of that office.
The District Court granted the motion the following day and
appointed counsel independent of the public defenders' office to
represent Johnson.
On June 21, 1994, through his fourth appointed counsel,
Johnson filed a motion to withdraw his guilty pleas. On October
17, 1994, the time set for sentencing, the District Court also
conducted a hearing on Johnson's motion. The District Court denied
the motion and sentenced Johnson to ten years with five years
suspended on each count. The sentences were to run concurrently
and Johnson was designated a non-dangerous offender for purposes of
parole eligibility. Johnson now appeals the denial of his motion
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to withdraw his guilty pleas.
Did the District Court abuse its discretion in denying
Johnson's motion to withdraw his guilty pleas?
No set rule or standard exists under which a trial court
addresses a request to withdraw a guilty plea; each case must be
considered in light of its unique record. State v. Enoch (1994),
269 Mont. 8, 11, 887 P.2d 175, 177 (citing State v. Radi (1991),
250 Mont. 155, 158-59, 818 P.Zd 1203, 1206). Our standard in
reviewing a denial of a motion to withdraw a guilty plea is whether
the district court abused its discretion. Enoch, 887 P.2d at 177
(citing State v. Reynolds (19921, 253 Mont. 386, 390, 833 P.2d 153,
155).
Johnson alleges that his guilty pleas were coerced by the
State with the threat that he would receive a more severe sentence
if he did not plead guilty and that his pleas were not knowingly
and voluntarily made because he was on anti-depressant medication
at the time he entered his pleas. He also alleges a claim of
ineffective assistance of counsel by his former attorney, Anderson.
Section 46-16-105(2), MCA, 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 fundamental
purpose of allowing the withdrawal of a guilty plea is to prevent
the possibility of convicting an innocent man." Radi
-, 818 P.2d at
1206 (quoting State v. Arledge (1987), 228 Mont. 225, 232, 741 P.2d
781, 785).
This Court considers three factors to determine whether good
5
cause existed and whether the District Court erred in refusing to
allow withdrawal of a guilty plea: (1) the adequacy of the court's
interrogation at the time the plea was entered regarding the
defendant's understanding of the consequences of the plea; (2) the
promptness with which the defendant attempts to withdraw the plea;
and (3) the fact that the plea was the result of a plea bargain in
which the guilty plea was given in exchange for dismissal of
another charge. Enoch
-I 887 P.2d at 177; -I
Radi 818 P.2d at 1206.
As to the first factor, adequacy of the court's interrogation
at the time the plea was entered, this Court has previously stated:
Where a District Court has done all that it can to
determine from the defendant or otherwise, that the
proposed plea of guilty is voluntarily made, the
defendant understands what he is doing and is advised of
the consequences of his plea, including the nature and
extent of his punishment, has been adequately advised by
counsel, and has been treated fairly at all stages of the
prosecution against him, and that in fact the defendant
states he is guilty of the charges made, then this Court
has a duty to support the District Court when it allows
a plea of guilty to be entered in place of a plea of not
guilty.
Radi
-I 818 P.2d at 1208 (quoting State v. Long (1987), 227 Mont.
199, 202, 738 P.2d 487, 489).
In addition to being interrogated in court regarding his
guilty plea, Johnson signed a plea agreement and a document
entitled "Acknowledgment of Waiver of Rights by Plea of Guilty."
Contrary to Johnson's assertions that the court's interrogation was
inadequate and did not meet the criteria specified in § 46-12-210,
MCA, the combination of the in-court interrogation, the plea
agreement and the written acknowledgement do contain all the
necessary criteria. This Court has previously held that a written
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acknowledgement, combined with oral questioning of the defendant,
constitutes adequate interrogation. State v. Mahoney (1994), 264
Mont. 89, 95, 870 P.2d 65, 69 (citing State v. Walker (1986), 220
Mont. 70, 73, 712 P.2d 1348, 1350).
The second factor, promptness with which the defendant
attempts to withdraw the plea, weighs in Johnson's favor since
Johnson filed his motion less than a month and a half after
entering his guilty pleas. It has long been the rule that a
request to withdraw a guilty plea should be made within a
reasonable time. Enoch, 887 P.2d at 178 (citing State v. Nance
(1947), 120 Mont 152, 165, 184 P.2d 554, 561). In Enoch, a two-
month delay between the guilty plea and a motion to withdraw was
considered reasonable.
As to the third factor, that the plea was the result of a plea
bargain, the record shows that Johnson, through his attorney,
negotiated with the prosecutor on several occasions before Johnson
agreed to plead guilty on all five counts. In exchange for a
guilty plea, the prosecutor agreed to recommend concurrent
sentences of ten years on each count, a far more lenient sentence
than the maximum penalty of life imprisonment. In addition, the
prosecutor agreed not to recommend a sentence enhancement for the
use of a weapon or a dangerous offender designation.
We have often held that this Court "will not lend its
assistance to an accused criminal in escaping his or her
obligations of a plea bargain after accepting its benefits." State
v. Milinovich (1994), 269 Mont. 68, 74, 807 P.2d 214, 218 (quoting
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Reynolds, 833 P.2d at 157).
Johnson attacks the voluntariness of his guilty pleas. He
contends that he was coerced by threats that he would receive a
more severe sentence if he did not plead guilty and that he was on
antidepressant medication at the time of his pleas. The United
States Supreme Court has long held that a plea is not involuntary
simply because it was entered to avoid a greater punishment.
Milinovich, 887 P.2d at 216 (citing Brady v. United States (1970),
397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747, 760).
Moreover, in the acknowledgement of waiver of rights Johnson
signed, he stated that his plea was made voluntarily; that he was
not suffering under any emotional or mental disability from any
cause including the use of drugs, alcohol or prescription
medication; and that he understood what he was doing by pleading
guilty.
Johnson also claims that constitutional violations occurred
prior to the plea agreement. He claims that his right to counsel
was denied because he was forced to represent himself and he claims
a form of double jeopardy due to the multiplicity of charges.
However, because Johnson pleaded guilty, he waived all factual
defenses which occurred prior to the plea. State v. Skroch (1994),
267 Mont. 349, 358, 883 P.2d 1256, 1262-63 (citations omitted).
Thereafter, Johnson may only attack the voluntary nature of his
plea. Skroch, 883 P.2d at 1263. Moreover, at the change of plea
hearing, Johnson was not unrepresented but in fact had standby
counsel.
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Johnson dS0 claims ineffective assistance of COlXEXl
involving Anderson, Johnson's counsel at the time he entered his
guilty pleas. To determine whether a defendant received
ineffective assistance of counsel, this Court must conduct the two-
part Strickland test, adopted 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 (1984),
466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 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. Mahoney, 870 P.2d at 73 (citing State
v. Senn (1990), 244 Mont. 56, 59, 795 P.2d 973, 975).
Johnson has not demonstrated that he entered the guilty pleas
due to any deficient performance by Anderson. Anderson was not
only prepared to represent Johnson at trial, he also prepared a
packet of information for Johnson in case Johnson decided to
represent himself at trial. It was only after the court ordered
Johnson to represent himself that Johnson entered the guilty pleas.
Additionally, the record shows that the plea agreement was in line
with what Johnson had originally expected to receive.
Furthermore, despite Johnson's assertions that a conflict of
9
interest existed rendering Anderson's assistance ineffective,
Johnson has failed to show that his intervention in the federal
lawsuit involving the public defender's office resulted in a
conflict that adversely affected Anderson's performance. Moreover,
Johnson stated at his change of plea hearing that he was satisfied
with his attorney and in the acknowledgement of waiver of rights he
stated that he was fairly and properly represented by his attorney.
Accordingly, since Johnson has failed to show good cause to
allow withdrawal of his guilty pleas, we hold that the District
Court did not abuse its discretion by denying Johnson's motion.
Affirmed.
We Concur:
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