96-470
No. 96-470
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and Respondent,
v.
BILL GENE THOMAS,
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:
Vernon E. Woodward, Hendrickson, Everson, Noenning and
Woodward, Billings, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General; Mark C. Fowler,
Assistant Attorney General, Helena, Montana
Robert Eddleman, County Attorney, Columbus, Montana
Submitted on Briefs: July 23, 1997
Decided: October 16,1997
Filed:
__________________________________________
Clerk
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Chief Justice J. A. Turnage delivered the Opinion of the Court.
Bill Gene Thomas pled guilty to deliberate homicide. He appeals the denial of
his
petition for postconviction relief by the Thirteenth Judicial District Court,
Stillwater
County. We affirm.
The issues are whether Thomas was denied effective assistance of counsel and
whether his plea of guilty was knowingly and voluntarily made.
On January 23, 1993, the body of Donald Verly was found lying face down in a
pile of dirt and snow on his ranch north of Rapelje, Montana. Verly had been shot
twice,
once in the chest and once under his left eye.
Verly's Dodge pickup truck was missing from his ranch. Within days,
investigating officers located the vehicle in a motel parking lot in Billings,
Montana. The
motel manager told the officers that a Bill Thomas had been registered in Room 7 at
the
motel for about a week. In December 1992, the Stillwater County Sheriff had removed
ranch hand Bill Thomas from Verly's ranch after Verly complained that Thomas had
threatened to kill him.
Billings police also received a Crimestopper's report that Thomas had tried to
sell
the informant two rifles and a .357 magnum pistol, stating that the owner would not
be
needing them because "he had a major coronary." At the Verly ranch, authorities
recovered empty boxes for a Remington rifle and a .357 magnum pistol.
Thomas was arrested. In his possession, Billings police found a bank cash card
belonging to Verly. In the Dodge pickup, they found ammunition, a loaded Remington
rifle, and a bag labeled with Thomas's name containing burglary tools. They also
recovered, from the home of Thomas's acquaintance, another rifle and a .357 magnum
pistol which the acquaintance said Thomas had left there. Weapons records from the
federal Bureau of Alcohol, Tobacco, and Firearms confirmed that Verly had purchased
the .357 magnum pistol and one of the rifles in December 1992.
Carol Lynne Bear Cub, a friend of Thomas, gave Stillwater County authorities a
detailed statement. She reported that she and Keith Fuller had given Thomas a ride
out
of Billings on the evening of January 19, 1993, so that the two men could burglarize
a
ranch. According to Bear Cub, Thomas had a gun with him. After they completed the
burglary at about 2 a.m., Bear Cub and Fuller left the ranch to drive back to
Billings.
Thomas left on foot to, as Bear Cub understood, walk five or six miles in the cold
snowy
night to another ranch for the purpose of having a "little talk" with his "friend."
Bear Cub further related that Thomas showed up at her apartment in Billings the
next day in an ugly, dented Dodge truck. She said he told her that he had committed
a
homicide because he had to "pay the guy back for being a bastard" and "take him out
of
his own misery." Thomas had previously complained to Bear Cub about a former ranch
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employer who owed him money, and Bear Cub understood that the rancher was the
victim of the homicide. According to Bear Cub, Thomas told her that he waited for
the
rancher to come out the door of his house in the morning and, when he did, shot him
"through the heart." Then he walked up to the rancher as he lay on the ground and
shot
him in the eye. Thomas told Bear Cub that he put the body where it would not be
found
for awhile.
On February 1, 1993, the District Court appointed John Mohr to represent
Thomas. Mohr read the police reports and the autopsy report. Thomas admitted to Mohr
that he had killed Verly, shooting him first in the chest, and then, as Verly lay on
the
ground, shooting him again in the eye. Thomas gave Mohr essentially the same facts
of
the crime as Bear Cub had relayed, which were also consistent with the police
reports.
Thomas told Mohr that he first disposed of Verlyþs body in a shed but that he later
returned to the ranch and used a tractor to move the body to the spot where it was
eventually discovered. Thomas also told Mohr that after he killed Verly and again
on his
return trip to the ranch, he stole items belonging to Verly to cover a $300 debt
Verly
owed him.
The State advised Mohr that it would seek imposition of the death penalty based
on the aggravating factor of lying in wait for the victim, under õ 46-18-303(4),
MCA.
Alternatively, the State advised Mohr that it would seek a term of life imprisonment
without parole.
On March 10, 1993, on Mohr's advice, Thomas pled guilty to deliberate homicide.
The State recommended that Thomas be sentenced to 100 years in the Montana State
Prison with ten additional years for use of a dangerous weapon. At sentencing, the
District Court added a special restriction making Thomas ineligible for parole for
thirty
years.
Five months later, Thomas filed with the District Court a pro se petition for
post-
conviction relief and moved for appointment of new defense counsel. The new attorney
appointed to represent him filed an amended petition for postconviction relief
alleging that
Thomas's plea was involuntary because he had not been advised of the possibility of a
parole restriction and because Mohr rendered him ineffective assistance of counsel.
The
amended petition claimed that Mohr did not independently or adequately investigate
the
facts of the case or imposition of the death penalty and did not properly advise
Thomas
regarding the death penalty, parole restrictions, or mitigating factors.
Mohr and Thomas both testified at the hearing on the amended petition for post-
conviction relief. Sandy Selvey, a Yellowstone County public defender, testified as
an
expert on behalf of Thomas. Gary Wilcox, another Yellowstone County public defender,
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testified as an expert on behalf of the State. Following the hearing, the court
entered
detailed findings and conclusions and a judgment denying Thomas postconviction
relief.
Issue 1
Was Thomas denied effective assistance of counsel?
This Court's general standard of review of a district court's denial of
postconvic-
tion relief is whether substantial evidence supports the district court's findings
and
whether the court's conclusions of law are correct. Brown v. State (1996), 277 Mont.
430, 434, 922 P.2d 1146, 1148.
Both the Sixth Amendment to the United States Constitution and Article II,
Section
24, of the Montana Constitution guarantee a criminal defendant the right to
assistance of
counsel for the person's defense. As in other cases involving issues of ineffective
assistance of counsel, we use a two-pronged standard of review in cases which have
resulted in guilty pleas: whether counsel's performance fell within the range of
competence reasonably demanded in light of the Sixth Amendment, and, if not, whether
counsel's constitutionally ineffective performance affected the outcome of the plea
process. See State v. Mahoney (1994), 264 Mont. 89, 101, 870 P.2d 65, 72-73.
On appeal, Thomas argues that he was denied effective assistance of counsel in
several respects. Mohr met with him only four times before the guilty plea. Thomas
maintains that Mohr did not investigate the case adequately in that he did not
conduct an
independent investigation (did not hire an investigator; did not travel to the crime
scene;
did not speak to Bear Cub, but only read the statement she gave to the police).
Thomas
also contends that Mohr should have investigated whether his mental condition
represented a mitigating circumstance as to the death penalty.
Although Thomas points out that this was the first deliberate homicide case Mohr
had ever defended, Mohr had been licensed to practice law in Montana for over fifteen
years when he was appointed to represent Thomas. He had handled the majority of the
criminal defense work for the City of Laurel, the City of Columbus, and Stillwater
County for almost ten years. Mohr estimated that he defended approximately fifty
criminal cases each year, with about half of those being felonies.
The standard for determining a criminal defense counsel's duty to investigate
was
described in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.
Ed.2d
674:
The reasonableness of counsel's actions may be determined or
substantially influenced by the defendant's own statements or actions.
Counsel's actions are usually based, quite properly, on informed strategic
choices made by the defendant and on information supplied by the
defendant. In particular, what investigation decisions are reasonable
depends critically on such information. For example, when the facts that
support a certain potential line of defense are generally known to counsel
because of what the defendant has said, the need for further investigation
may be considerably diminished or eliminated altogether. And when a
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defendant has given counsel reason to believe that pursuing certain
investigations would be fruitless or even harmful, counsel's failure to
pursue those investigations may not later be challenged as unreasonable.
Strickland, 466 U.S. at 691.
In this case, the chief evidence supportive of a self-defense theory was
Thomas's
own statement that Verly carried a gun when he came out of his house on the morning
he was killed. Thomas had not related this to Bear Cub. Nor was any corroboration
available for this statement, because Thomas had moved the body and no gun had been
found with it. Moreover, Mohr noticed that each time Thomas described the events,
"you would see this anger and sort of aggression about Mr. Verly." Mohr testified
that
he was concerned that Thomas would appear aggressive if he testified, and that he
felt
Thomas's own testimony would be detrimental to a self-defense case.
The evidence contradicting a self-defense theory, on the other hand, was
formidable. According to Thomas's own statement, when he shot Verly the second time
Verly was lying on the ground immobilized from the first shot. Thomas did not
attempt
to contact authorities after the shooting, as would be consistent with a shooting in
self-
defense. Instead, by his own admission, he smoked a cigarette, burglarized Verly's
home, and then stole Verly's truck and left the ranch. Thomas admitted that he and
his
friend Fuller later returned to the ranch and burglarized the house a second time,
when
Thomas also moved and tried to conceal Verly's body.
Mohr testified that he recognized that Verly's character would be important if
it
could have been considered a contributing factor to the homicide. Some witness
statements he reviewed indicated that Verly was eccentric and had mood swings.
However, in light of Thomas's own admission that he went onto Verly's property during
the night and waited outside Verly's house with a gun until Verly came out in the
morning, Mohr did not believe that Verly's character could be considered a direct
cause
of the homicide.
Mohr testified that he had reviewed the statutes relating to mitigated
deliberate
homicide and was aware of the defendant's burden, in establishing mitigation, to show
that he was under the influence of extreme mental or emotional distress. Mohr knew
that
Thomas was angry with Verly for failing to pay him $300 in wages. He did not
believe,
however, that a jury would agree with a mental or emotional distress defense based on
that factor, especially when Thomas went to Verly's house and waited for him to come
out.
Mohr testified that prior to bringing the plea proposal to Thomas's attention,
he
felt there were "[n]o holes to be filled with any investigation." Thomas's
statements to
Mohr concerning the crime had been consistent with the discovery material and witness
statements. Mohr interviewed several witnesses, such as a person who had helped
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Thomas out of the ditch as he drove Verly's truck away from the crime scene. The
court
had allowed Bear Cub's deposition to be taken, which could have been used at trial if
Bear Cub was not present, or to rebut her testimony at trial if it was different
from her
initial statements. Mohr believed he had all the facts pertinent to handle the
case.
Thomas did not ask Mohr to investigate any other issues or to hire an investigator.
Defense counsel's duty is "to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary." Strickland,
466
U.S. at 691. A decision not to investigate must be assessed for reasonableness in
light
of all of the circumstances of the case, "applying a heavy measure of deference to
counsel's judgments." Strickland, 466 U.S. at 691.
Thomas suggests that Mohr was drastically ineffective in not personally
interviewing Bear Cub. However, Thomas himself confirmed that the substance of Bear
Cub's statement was essentially correct. His main quarrel with Bear Cub's statement
was
that he had told Fuller, not Bear Cub, about the homicide; he claimed he had not
personally discussed the homicide with Bear Cub. Thomas nonetheless admitted that
the
substance of what he told Fuller was the same as the story related by Bear Cub.
"A claim of failure to interview a witness may sound impressive in the abstract,
but it cannot establish ineffective assistance when the person's account is
otherwise fairly
known to defense counsel." United States v. Decoster (D.C. Cir. 1976), 624 F.2d 196,
209. Here, Mohr had reviewed the written statements of Fuller, Bear Cub, and all
other
potential witnesses. Thomas himself had confirmed the accuracy of these reports.
There
is no indication that there were any witnesses who could have provided exculpatory
information. There is no indication that a personal interview of Bear Cub was
necessary
to effective representation of Thomas.
Mohr testified that he did not request a psychological evaluation of Thomas
because of Thomas's vehement objections to the idea and his own observations of
Thomas, which led him to believe that Thomas was not suffering from a mental disease
or defect. Nothing of record in Thomas's history or demeanor indicates that he
suffered
from a mental disease or defect at the time of the crime. Based on his answers to
Mohr's
inquiries, Thomas was not interested in pursuing such a defense. Mohr's decision not
to request a mental examination of Thomas is supported by the absence of evidence in
the
record to support a theory of mental disease or defect. See State v. Long (1986),
223
Mont. 502, 726 P.2d 1364.
Thomas further contended that he would not have signed the plea agreement had
Mohr not "badgered" him into doing so. The court found that Thomas's testimony that
Mohr pressured him into signing the plea agreement was not credible. Thomas admitted
that he never asked for a change of counsel. He acknowledged satisfaction with
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Mohr's
services twice in writing, and orally in response to the court's inquiry at the
change of
plea hearing.
Determinations of credibility of witnesses are within the province of the
finder of
fact. State v. Ahmed (1996), 278 Mont. 200, 212, 924 P.2d 679, 686, cert. denied,
117
S.Ct. 748 (1997). The District Court found Mohr's testimony at the hearing on the
post-
conviction relief petition credible and Thomas's testimony incredible. Thomas
contradicted himself in several respects. For example, he testified that he had
believed
the plea agreement was completely binding on not only himself, but also on the
court.
This testimony contradicted the signed provisions of the plea agreement. It was also
contrary to Thomas's oral statements on this subject at the plea hearing, when he
told the
court that he understood that the court could still impose whatever sentence it felt
was
appropriate.
Mohr certified that he left the ultimate decision on whether to go to trial up
to
Thomas. He testified that Thomas agreed to the plea agreement, telling Mohr that he
had
committed the crime and just wanted to start serving his time. Mohr further
testified that
Thomas explained he did not think he would live another seventeen years (the minimum
time to be served under the plea agreement), because heart problems ran in his
family.
The State's expert, Wilcox, testified that under the circumstances it was
reasonable
for Mohr to conclude that no psychological evaluation of Thomas was warranted, that
Thomas was able to assist in his own defense, and that he was capable of forming the
requisite mental state for the offense charged. Wilcox also opined that Mohr's
representation of Thomas was adequate.
After reviewing the extensive evidence presented to the District Court, we
conclude that the court did not err in determining that counsel's performance fell
within
the range of competence reasonably demanded under the Sixth Amendment. The court's
comprehensive findings of fact are supported by substantial credible evidence, and
its
conclusions of law are correct. Because Mohr's representation of Thomas was
effective,
we do not address whether Thomas suffered prejudice from ineffective representation.
Issue 2
Was Thomas's guilty plea knowingly and voluntarily made?
Thomas maintains that his guilty plea was unknowingly and involuntarily entered
because Mohr did not advise him of the possibility that the court might restrict his
parole
eligibility. Thomas argues that this failure to advise him violated õ 46-12-210(1),
MCA,
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which requires that before a plea of guilty is accepted, the court must determine
that the
criminal defendant understands "the maximum penalty provided by law, including the
effect of any penalty enhancement provision or special parole restriction."
The District Court restricted Thomas's parole pursuant to its authority under õ
46-
18-202(2), MCA:
Whenever the district court imposes a sentence of imprisonment in
the state prison for a term exceeding 1 year, the court may also impose the
restriction that the defendant is ineligible for parole and participation in the
supervised release program while serving that term. If the restriction is to
be imposed, the court shall state the reasons for it in writing. If the court
finds that the restriction is necessary for the protection of society, it shall
impose the restriction as part of the sentence and the judgment must contain
a statement of the reasons for the restriction.
In its sentencing order, the court set forth as reasons for the parole restriction
Thomas's
criminal history of felony convictions for burglary, armed robbery, escape and
assault,
his history of "no demonstrable positive response to community supervision," and that
he had spent the larger part of the past seventeen years in prison. The court
stated, "It
is clear . . . the defendant cannot conform to the norms of society and his release
into
the community could well lead to recurrent violence which makes the defendant a
significant danger to other members of society."
This issue requires an interpretation of the meaning of "special parole
restriction"
as that phrase is used in õ 46-12-210(1), MCA. In construing a statute, the statute
must
be read as a whole and its terms must not be isolated from the context in which the
legislature has used them. McClanathan v. Smith (1980), 186 Mont. 56, 61, 606 P.2d
507, 510. When the phrase "special parole restriction" is read in the context of õ
46-12-
210(1), MCA, as a whole, "the maximum penalty provided by law, including the effect
of any penalty enhancement provision or special parole restriction," the phrasing of
the
statute indicates that the parole restriction must be one that is provided by law,
and does
not refer to discretionary parole restrictions which the court might impose upon
reviewing
the presentence investigation. Such a construction is reasonable because, prior to
sentencing, and when a district court is not bound by the terms of a parole
agreement,
it is impossible to know what restrictions the court might impose, other than those
specifically defined by statute.
The legislative history of õ 46-12-210, MCA, buttresses this interpretation.
The
statute was significantly revised in 1991. The Commission Comments concerning that
revision state:
This statute is essentially a restatement of Rule 11(c) of the Federal Rules
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of Criminal Procedure. When appropriate, some changes have been made
to accommodate Montana statutory and case law decisions. The statute
presents a more concise and coherent approach to the plea colloquy.
Contrary to Thomas's assertions, there is no indication that the Legislature
intended to
overrule this Court's opinion in State v. Buckman (1989), 236 Mont. 37, 43, 768 P.2d
1361, 1365, that the statutes "do not require the District Court to advise the
defendant
of any possibility of limitations of his parole eligibility."
Further, the Commission Comment that õ 46-12-210, MCA, is a restatement of
Rule 11(c), Fed.R.Crim.P., confirms that the court and attorney are obligated only to
inform a defendant of statutorily-defined "special parole restrictions." The phrase
"special parole term" in Rule 11(c), Fed.R.Crim.P., has been uniformly construed to
mean a term as defined by law, not "all conceivable consequences such as when [a
person] may be considered for parole." United States v. Sanclemente-Bejarano (9th
Cir.
1988), 861 F.2d 206, 209.
In Hill v. Lockhart (1985), 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203, the
United States Supreme Court verified that Rule 11(c), Fed.R.Crim.P., does not require
advice on parole eligibility. The Court stated:
We have never held that the United States Constitution requires the State
to furnish a defendant with information about parole eligibility in order for
the defendant's plea of guilty to be voluntary, and indeed such a constitu-
tional requirement would be inconsistent with the current rules of procedure
governing entry of guilty pleas in the federal courts.
Hill, 474 U.S. at 56.
Thomas suggests that the Hill decision on remand indicates that defense counsel
bears a duty to inform a criminal defendant of a possible parole restriction in
order to
have a voluntary and knowing guilty plea. However, the facts found on remand in Hill
are significantly different from the facts in this case. In Hill, the court found
that Hill
had explicitly asked his defense counsel about the parole system in Arkansas and had
made it clear to his counsel that timing of his parole eligibility was the
dispositive issue
for him in accepting or rejecting the plea bargain. Hill v. Lockhart (8th Cir.
1990), 894
F.2d 1009, 1010. Hill told his attorney he would not accept the plea bargain unless
he
would be eligible for parole in less than seven years. The court found that Hill's
attorney
actually gave Hill incorrect advice which directly affected his decision to plead
guilty, by
telling him that he would be eligible for parole after serving one-third of his
sentence,
when Arkansas statutes provided that he must serve one-half of his sentence. Hill,
894
F.2d at 1010.
In contrast, there is nothing to indicate that Thomas was either misadvised or
given
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incorrect information regarding Montana's statutory parole requirements. He was made
aware that under the proposed plea agreement he would be eligible for parole in
seventeen and a half years. The record establishes that Thomas also knew that the
District Court was not bound by the terms of the plea agreement. Most importantly,
there is nothing of record to indicate that parole eligibility was a concern for
Thomas
when he agreed to the plea bargain. As Mohr testified, Thomas told him he wanted to
plead guilty and begin serving his time. In this situation, Thomas cannot credibly
claim
that the additional parole restriction would have affected his decision to plead
guilty.
Affirmed.
/S/ J. A. TURNAGE
We concur:
/S/ W. WILLIAM LEAPHART
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
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