No. 95-550
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
v.
JOHN 0. MILLER, IV,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Stillwater,
The Honorable Russell C. Fagg, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Edmund F. Sheehy, Jr., Cannon and Sheehy,
Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Elizabeth L. Griffing, Assistant Attorney
General, Helena, Montana
Blair Jones, Stillwater County Attorney,
Columbus, Montana
Submitted on Briefs: June 20, 1996
Decided: September 10, 1996
F1led: Cd 3mifid
CLEXOFSUPREMECOURT
STATE OF MO N T A N A
Cledk
Justice Terry N. Trieweiler delivered the opinion of the Court.
The, defendant John 0. Miller, IV, filed an amended petition
for post-conviction relief in the District Court for the Thirteenth
Judicial District in Stillwater County. The petition alleged that
his guilty plea had not been entered in compliance with
5 46-12-204(3) (b), MCA (1989), and that he received ineffective
assistance of counsel. The District Court denied the petition.
Miller appeals from that decision. We affirm the judgment of the
District Court.
The issue on appeal is whether the District Court erred when
it denied Miller's petition for post-conviction relief.
FACTUAL BACKGROUND
On January 14, 1991, John 0. Miller, IV, was charged with two
counts of deliberate homicide in violation of § 45-5-102, MCA. He
retained James Goetz, a private attorney, to represent him, and in
August 1991 he pled guilty to both counts. In exchange for his
plea, the State agreed not to seek the death penalty, and to
recommend that he receive two concurrent life sentences.
At his change of plea hearing, Miller confirmed that he had
signed the acknowledgment of waiver of rights form, and that his
attorney had discussed those rights with him. The District Court
instructed him that he could receive a maximum penalty of two
consecutive life sentences and then informed him of the rights
waived upon entry of a guilty plea: the right to a trial by jury;
the right to assistance of counsel at trial; the right to testify
2
on one's own behalf; the right to confront witnesses; the right to
remain silent at trial; the right to have the charges proved beyond
a reasonable doubt; and the right to appeal a finding of guilt.
The District Court also expressly stated that it was not bound by
the plea agreement recommended by the parties, and that the court
could "impose any other sentence that would be appropriate under
the law . . without regard to [the1 plea bargain." Miller
acknowledged that he understood his rights and the consequences of
pleading guilty to the crimes charged.
The District Court accepted the guilty pleas. A presentence
investigation report recommended that Miller receive two
consecutive life sentences, and that he should not be eligible for
parole in less than forty years.
On November 8, 1991, the District Court sentenced Miller to
two concurrent life sentences. The District Court also imposed a
condition that Miller not be eligible for parole for twenty-four
years from the date of the sentencing order. Neither the conviction
nor the sentence was appealed.
DISCUSSION
Did the District Court err when it denied Miller's petition
for post-conviction relief?
The standard of review of a district court's findings of fact
is whether they are clearly erroneous. Stare v. Bower (1992), 254
Mont. 1, 7, 833 P.2d 1106, 1110. The standard of review of a
district court's conclusions of law is whether the court's
3
interpretation of the law is correct. statev. Sullivan (1994), 266 Mont.
313, 318, 880 P.2d 829, 832.
On appeal, Miller presents the following argument: (1) his
guilty plea was invalid because it was not entered in strict
compliance with the requirements of 5 46-12-204(3) (b), MCA (1989);
(2) the District Court's failure to strictly comply with
5 46-12-204(3) (b), MCA (1989), gave rise to a right to appeal; and
(3) attorney James Goetz provided ineffective assistance of counsel
when he did not advise Miller of his right to appeal.
Ineffective assistance of counsel claims are analyzed by this
Court pursuant to the two-part test set forth in Stricklandv. Washington
(1984), 466 U.S. 668. First, the defendant must establish that his
counsel's performance was not commensurate with the range of
competence demanded of attorneys under similar circumstances.
Strickland, 466 U.S. at 687. Second, the defendant must establish
that "but for" inadequate performance by his counsel, the result
would have been different. Sh+ckland, 466 U.S. at 694.
We conclude that Miller's claim fails in both respects.
We start with the operative principle that there is
no duty in all cases to advise of the right to appeal a
conviction after a guilty plea. Rather counsel is
obligated to give such advice only when the defendant
inquires about appeal rights or when there are
circumstances present that indicate that defendant may
benefit from receiving such advice.
Marrowv. UnitedStates (9th Cir. 1985), 772 F.2d 525, 528.
4
Miller contends that he could have benefited from such advice
because of the District Court's failure to strictly comply with
§ 46-12-204(3) (b), MCA (1989). At the time his guilty plea was
entered, that statute required, in relevant part, that:
(b) Before a judge accepts a plea of guilty, he
must advise the defendant:
(iii) that prior to entering a plea of guilty, the
defendant and his counsel should have carefully reviewed
Title 46, chapter 18, and considered the most severe
sentence that can be imposed for a particular crime
. . . .
Section 46-12-204(3) (b), MCA (1989). It is undisputed that, during
the guilty plea hearing, the District Court did not use the words
"most severe sentence," and failed to instruct Miller to review
Title 46, chapter 18. However, we hold that, based on the facts of
this case, the District Court's failure to strictly comply with
5 46-12-204(3) (b), MCA (1989), was not prejudicial to Miller's
rights, did not give rise to a right to appeal, and, concomitantly,
cannot support Miller's claim that his attorney was ineffective.
Montana's Code of Criminal Procedure states, in relevant
part:
Elements of record court considers on review -- errors
noticed. (1) Whenever the record on appeal shall contain
any order, ruling, or proceeding of the trial court
against the respondent [convicted person1 affecting his
substantial rights on the appeal of said cause, together
with any required objection of such respondent, the
supreme court on such appeal shall consider such orders,
rulings, or proceedings and the objections thereto and
shall reverse or affirm the cause on said appeal
according to the substantial rights of the respective
parties, as shown upon the record. No cause shall be
reversed bv reason of any error committed bv the trial
court aqainst the apuellant [convicted person] unless the
record shows that the error was wreiudicial.
5
Section 46-20-701, MCA (emphasis added). "To constitute reversible
error, the trial court's actions must affect substantial rights of
the party." Stotev.Bradley (1995), 269 Mont. 392, 395, 889 P.2d 1167,
1168. We have interpreted § 46-20-701, MCA, to require that
I( [wlhen prejudice is alleged in a criminal case the prejudice will
not be presumed, rather, it must be established from the record
that a substantial right was denied." State v. Eichenlaub ( 19 Y 5 ) , 2 72
Mont. 332, 336-37, 901 P.2d 90, 93. In addition, "[wlhen assessing
the prejudicial effect of an error, we examine the totality of the
circumstances in which the error occurred." Bower, 254 Mont. at 6,
833 P.2d at 1109. Under the guidance of these principles, and
after a thorough review of the record, we conclude that the
District Court's failure to strictly comply with 5 46-12-204(3) (b),
MCA (19891, did not deprive Miller of the essential information to
which he was entitled, and therefore, did not constitute
prejudicial error.
The District Court informed Miller of the maximum penalty
provided by law: a life sentence for each count, and that the
sentences could be imposed consecutively. Miller acknowledged that
he understood everything the District Court had told him.
1n its order denying the petition for post-conviction relief,
the District Court correctly observed that, while the exact words
"most severe sentence" were not used, Miller was informed of the
"maximum possible penalty." This purely semantic difference does
not amount to prejudicial error. Likewise, the District Court
6
recognized that the failure to state that sentencing is governed by
Title 46, chapter 18, did not prejudice Miller because "[tlhat
information, standing alone, would not aid or benefit any criminal
defendant in the least."
Since Miller could not have successfully appealed his sentence
based solely on the District Court's failure to use the language of
5 46-12-204(3) (b), MCA (1989), verbatim, we hold that, pursuant to
Strickland and Marrow, counsel was not ineffective for not advising him
of his right to appeal his sentence.
The District Court's denial of Miller's petition for
post-conviction relief is, therefore, affirmed.
We concur:
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September 10, 1996
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
EDMUND F. SHEEHY, JR.
Cannon and Sheehy
P.O. Box 5711
Helena, MT 59604-5717
Hon. Joseph P. Mazurek, Attorney General
Elizabeth L. Grifflng, Assistant A.G.
215 North Sanders
Helena, MT 59620
Blair Jones
Stillwater County ?Attorney
P.O. Box 179
Columbus, MT 59019-0179
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY: &
Deputy u