No
No. 98-250
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 52
STATE OF MONTANA,
Plaintiff and Respondent,
v.
LLOYD WILSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventeenth Judicial District,
In and for the County of Blaine,
The Honorable John C. McKeon, Judge presiding.
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COUNSEL OF RECORD:
For Appellant:
Edmund F. Sheehy, Jr., Cannon & Sheehy; Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; John Paulson,
Assistant Attorney General; Helena, Montana
Submitted on Briefs: November 12, 1998
Decided: March 18, 1999
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the opinion of the Court.
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¶1. On March 11, 1987, Lloyd James Wilson was charged by information in the
Seventeenth Judicial District Court, Blaine County, with deliberate homicide (count
one) and accountability for deliberate homicide (count two). On May 14, 1987,
Wilson filed an acknowledgment of waiver of rights by plea of guilty, and entered a
guilty plea to both counts in accordance with the plea agreement. On May 13, 1992,
Wilson filed a motion to withdraw his guilty pleas and a motion for appointment of
counsel. On December 14, 1992, the District Court deemed Wilson's motion to
withdraw his guilty pleas to be a petition for postconviction relief. On June 3, 1996,
Wilson filed an amended petition for postconviction relief. On November 5, 1997, the
District Court denied Wilson's amended petition for postconviction relief. Wilson
appeals the District Court's denial of his request for postconviction relief. We affirm
the judgment of the District Court.
¶2. The issue presented on appeal is whether the District Court erred when it denied
Wilson's petition for postconviction relief.
FACTUAL BACKGROUND
¶3. On March 11, 1987, Lloyd James Wilson was charged by information with
deliberate homicide (count one) and accountability for deliberate homicide (count
two) in connection with the murders of Richard and Bernadette Cowen at a farm
house in Blaine County on January 21, 1987. A codefendant, Robert Bone, was
similarly charged in the same proceeding for his role in the murders. See Bone v.
State (1997), 284 Mont. 293, 944 P.2d 734. Judge Leonard H. Langen was the original
presiding judge in this case.
¶4. On May 14, 1987, after Robert Bone had pled guilty to charges pursuant to a plea
agreement, Wilson appeared before Judge Langen with counsel, filed an
acknowledgment of waiver of rights by plea of guilty, and entered a guilty plea to
both counts in accordance with the plea agreement set forth in the acknowledgment.
The acknowledgment states the potential punishment for each count, including the
maximum punishment of death or life imprisonment. The acknowledgment also
recognizes the sentence enhancement for use of a dangerous weapon which is
required to run consecutively to any sentence imposed for each initial offense. See
State v. Byers (1993), 261 Mont. 17, 861 P.2d 860, overruled on other grounds by State
v. Rothacher (1995), 272 Mont. 303, 310, 901 P.2d 82, 86-87; State v. Egelhoff (1995),
272 Mont. 114, 124, 900 P.2d 260, 266. These potential sentences were reviewed
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orally by Judge Langen during the hearing on Wilson's plea agreement. Judge
Langen did not specifically advise Wilson at the hearing that any terms of
imprisonment imposed for the two counts could be made to run consecutive to each
other or that the application of "good time" earned by Wilson could in any way be
limited.
¶5. The plea agreement recited in the acknowledgment shows that the State agreed
not to seek the death penalty for Wilson and further agreed to recommend
concurrent sentences of 100 years each for the two counts, and a consecutive sentence
enhancement of two years for the use of a weapon. The acknowledgment further
recognizes that the State's recommendations are not binding upon the court and that
the judge is not required to allow Wilson to withdraw his guilty pleas even if the
judge wishes to sentence him more harshly.
¶6. At the hearing on the plea agreement, Wilson stated that he had read the
acknowledgment several times and knew it "pretty well by heart." Judge Langen
reviewed the provisions of the acknowledgment with Wilson, and Wilson stated that
he had consulted with his attorneys and understood the terms and conditions
contained in the acknowledgment. Wilson also stated that he understood that the
court is not bound by the recommendation and may make an entirely different
determination as to what an appropriate and fair sentence would be under the
circumstances. Judge Langen thereafter accepted Wilson's guilty pleas.
¶7. On July 6, 1987, Judge Langen sentenced Wilson to a term of 100 years at the
state prison for count one, with an additional consecutive term of ten years for using
a weapon during the commission of the offense. Judge Langen sentenced Wilson to a
consecutive term of seventy-five years for count two, with a consecutive term of ten
years for the use of a weapon. Judge Langen stated that he intended Wilson to serve
a total of 195 years, pursuant to the applicable statutes, with no portion suspended.
The judge declared Wilson to be dangerous for purposes of parole eligibility and
restricted Wilson's eligibility for parole or participation in any supervised release
program for the first thirty years of his sentence with no "good time" allowances to
be given against the thirty-year term.
¶8. Wilson did not appeal from the sentencing order. On May 13, 1992, five years
after entering his guilty pleas, Wilson filed a motion to withdraw his guilty pleas.
Judge Langen deemed his motion a motion for postconviction relief. Wilson filed an
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amended postconviction petition on June 3, 1996, which the District Court denied on
November 5, 1997, and filed on November 7, 1997.
DISCUSSION
¶9. Did the District Court err when it denied Wilson's petition for postconviction
relief?
¶10. Wilson contends that the District Court erred because Judge Langen did not
properly advise him of the consequences of his guilty pleas, because Judge Langen's
limitation on his "good-time" allowances was illegal, and because, contrary to the
assertion of the District Court, his claims were not procedurally barred. Wilson's
amended petition for postconviction relief requested that the District Court order the
withdrawal of his guilty pleas or, alternatively, modify his sentences. Wilson urges
this Court to reverse the District Court's denial of his petition for postconviction
relief and remand this matter for modification of his sentence.
¶11. The standard of review of a denial of postconviction relief is whether substantial
evidence supports the findings and conclusions of the district court. See State v.
Sheppard (1995), 270 Mont. 122, 127, 890 P.2d 754, 757 (citing State v. Barrack (1994),
267 Mont. 154, 159, 882 P.2d 1028, 1031). We review a district court's findings to
determine if they are clearly erroneous, and the district court's conclusions to
determine if the court correctly interpreted the law. See Bone v. State (1997), 284
Mont. 293, 302-03, 944 P.2d 734, 740.
¶12. Section 46-16-105(1)(b), MCA (1985), governed the entry of guilty pleas at the
time Wilson's guilty plea was entered. That statute provides that "[b]efore or during
trial, a plea of guilty may be accepted when . . . the court has informed the defendant
of the consequences of his plea and of the maximum penalty provided by law which
may be imposed upon acceptance of such plea." We have interpreted § 46-16-105 (1)
(b), MCA (1985), as requiring the district court to advise the defendant of the
consequences of his guilty plea and the maximum sentence which may be imposed.
See State v. Buckman (1989), 236 Mont. 37, 43, 768 P.2d 1361, 1365. Wilson argues
that he was not properly advised of the maximum penalty because the District Court
did not inform him that he could receive consecutive sentences for both counts and
for the use of a weapon, amounting to a possible cumulative maximum sentence of
220 years. Upon review of the record, we reject Wilson's argument for several
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reasons.
¶13. First, the acknowledgment that Wilson signed clearly advises him of the
maximum punishment provided by law for deliberate homicide and for
accountability for deliberate homicide. The acknowledgment also contains sufficient
language to inform Wilson that he could receive consecutive sentences. Because the
sections of the acknowledgment which describe the potential punishment for each
count are set forth in separate paragraphs, they are sufficient to have informed
Wilson that there was a separate potential punishment of up to 100 years for each
offense. Following these paragraphs there is a provision which recites the additional
sentence of up to ten years for committing an offense with a dangerous weapon. That
provision states that the additional sentence will "run consecutively to the sentence
imposed for the initial offense." Because Wilson pled guilty to committing two initial
offenses, the language "the initial offense" in this provision necessarily implies that
the additional punishment possible for the use of a dangerous weapon is attached to
each initial offense. (Emphasis added). We agree with the District Court that the
acknowledgment form itself is sufficient to have informed Wilson that because he
committed two separate offenses, he was subject to potential punishment for each
offense and an additional potential punishment for the use of a dangerous weapon in
each offense.
¶14. Following the recital of potential punishments and the trial rights which Wilson
waived by his guilty plea, the acknowledgment sets forth the State's agreed
sentencing recommendations. The State agreed to recommend that Wilson "be
sentenced to a period of 100 years . . . on each count" with "each of these
sentences . . . to run concurrently with the other." This language is clear and it
unambiguously states the recommendation that "each sentence" run "concurrently."
The State's recommendation in the plea agreement is important since without it the
State may well have urged the court to "otherwise order" the sentences to run
consecutively, as § 46-18-401(4), MCA (1985), permits.
¶15. Second, Wilson's awareness of the possibility of consecutive sentences is
evidenced by the use of both terms, "concurrent" and "consecutive," in his
acknowledgment. In the acknowledgment, the State recommended "concurrent"
sentences on the initial offenses, and a "consecutive" sentence enhancement for the
use of a dangerous weapon. Used in this manner, the language of the
acknowledgment itself shows the distinction between the two terms and the two types
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of sentences.
¶16. Third, Judge Langen's colloquy at the plea agreement hearing removes any
remaining doubt as to whether Wilson was made aware of the sentencing
possibilities. The judge correctly stated the punishment for each count, including a
possible sentence of death or life imprisonment. After reciting the punishment for
count one, Judge Langen stated that if Wilson pled guilty to count two, "the statute
provides for the same punishment - exactly the same punishment." Judge Langen
then addressed the sentence enhancement for the use of a dangerous weapon. At no
time did the judge advise Wilson that the total possible sentence for the crimes
charged was only 110 years. The only reasonable conclusion to be made from the
language of the acknowledgment and transcript of the hearing was that Wilson could
possibly receive 100 years, plus an additional ten years, on each count.
¶17. We have held that a written acknowledgment, combined with oral questioning
of the defendant, constitutes adequate interrogation. See State v. Johnson (1995), 274
Mont. 124, 907 P.2d 150; State v. Duff (1993), 262 Mont. 288, 865 P.2d 238. In this
case, the specific terms of the acknowledgment of waiver of rights, together with
Judge Langen's colloquy at the hearing, were sufficient to have informed Wilson of
the maximum sentence for each count and the possibility of consecutive terms of
imprisonment. Because Judge Langen did not incorrectly state the total possible
years of punishment, this case is distinguishable from State v. Brown (1993), 262
Mont. 499, 865 P.2d 282.
¶18. In Brown, the original trial judge, upon entry of the defendant's guilty pleas,
incorrectly advised the defendant that the maximum total punishment possible
pursuant to the charge was thirty years. The defendant was ultimately sentenced to
forty years. Upon review, we concluded that the defendant had not been properly
advised of the maximum punishment at the time he entered his guilty pleas and that
the sentence should be modified accordingly. In the present case, we decline to apply
the holding in Brown because Judge Langen did not mislead Wilson by incorrectly
stating the total possible years of punishment. Rather, he correctly stated the
maximum possible penalty for each count.
¶19. In State v. Buckman (1989), 236 Mont. 37, 768 P.2d 1361, we indicated that the
court need not advise the defendant beyond the specific requirements of §§ 46-16-105
and 46-12-204, MCA (1985). Section 46-12-204, MCA (1985), requires the court to
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advise the defendant "of the punishment as set forth by statute for the crime
charged" and that the defendant and his counsel should consider "the most severe
sentence that can be imposed for a particular crime."
¶20. We conclude that Judge Langen correctly advised Wilson of the maximum
possible punishment which could be imposed as a result of each plea of guilty. Judge
Langen complied with the statutory requirements and no further advice concerning
sentencing possibilities was required.
¶21. Next, Wilson contends that Judge Langen did not have statutory authority to
restrict Wilson's right to earn "good time" against the thirty-year term during which
he is ineligible for parole. Wilson cites State v. Hatfield (1993), 256 Mont. 340, 346,
846 P.2d 1025, 1029, in support of his contention that a district court can only impose
a sentence that is provided for by statute. Wilson maintains that § 46-18-202(2),
MCA (1985), contains no language that would allow a district court to restrict a
defendant's right to earn "good time."
¶22. "Good time" allowances are authorized by § 53-30-105, MCA (1985), granted by
the Department of Corrections, and operate as a credit on a prisoner's sentence.
Wilson's total sentence of 195 years is therefore reduced by any "good time" which
he is granted. Upon review of Judge Langen's sentencing order, we conclude that
Wilson is not limited in earning "good time" against his sentence, but rather, his
thirty-year period of ineligibility for parole is not to be reduced by any "good time"
credits he receives toward his total sentence. Judge Langen's order does not affect
Wilson's ability to earn "good time" based upon his good behavior and therefore the
restriction is well within the court's authority pursuant to § 46-18-202(2), MCA
(1985).
¶23. Finally, Wilson argues on appeal that the District Court should not have raised
sua sponte the issue of whether Wilson's postconviction claims were procedurally
barred because of his failure to directly appeal the sentencing order to this Court.
See § 46-21-105, MCA (1985). We conclude, however, that while the District Court
did suggest that the statutory procedural bar could be applied to Wilson's claims, the
District Court fully discussed Wilson's claims on their merits and, therefore,
contrary to Wilson's assertions, the procedural bar of § 46-21-105, MCA (1985), was
not the primary or alternative basis for the District Court's decision to deny Wilson's
postconviction relief.
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¶24. The record in this case supports the District Court's finding that Wilson was
aware of the possibility that he could be sentenced to consecutive terms of
imprisonment following his guilty pleas to the separate offenses of deliberate
homicide and accountability for deliberate homicide. The record also supports the
District Court's finding that Wilson was sufficiently made aware that he could
receive two separate additional sentences for the use of a weapon during the
commission of each initial offense. Finally, the District Court correctly interpreted
Judge Langen's sentence when it declined to modify the "good time" restriction on
Wilson's thirty-year parole ineligibility.
¶25. Accordingly, we conclude that the findings and conclusions of the District Court
which serve as the basis for its denial of Wilson's petition for postconviction relief are
supported by substantial evidence. None of the District Court's findings are clearly
erroneous and our review of the District Court's conclusions leads us to conclude
that the court correctly interpreted the law.
¶26. The judgment of the District Court is affirmed.
/S/ JIM REGNIER
We Concur:
/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
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Justice W. William Leaphart, specially concurring.
¶ 27 Although I concur with the Court's conclusions that when the plea agreement and the
sentencing colloquy are read together, Wilson was adequately advised that he faced a 100-
year sentence on each count plus ten years on each count. However, I think the preferable
approach in implementing the requirements of § 46-16-105(1)(b), MCA (1985), is to
explicitly advise a defendant of the maximum penalty provided by law assuming that
consecutive sentences are imposed for each count involved in the plea. For example, the
defendant in this case would have been forewarned that if consecutive sentences were
imposed for both counts in the plea he would be exposed to a maximum penalty of 220
years.
/S/ W. WILLIAM LEAPHART
Justice James C. Nelson joins in the foregoing specially concurring opinion.
/S/ JAMES C. NELSON
Justice Terry N. Trieweiler specially concurring.
¶27. I specially concur with the majority opinion. While I agree with the result, I do
not agree with all the reasons given for that result.
¶28. For example, as pointed out in the majority opinion, pursuant to § 46-16-105(1)
(b), MCA (1985), and as applied by our decision in State v. Buckman (1986), 236
Mont. 37, 43, 768 P.2d 1361, 1365, the district court must advise a defendant of the
maximum penalty provided by law before the district court can accept a guilty plea.
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In this case, had the maximum penalty for each offense been 100 years of
imprisonment and the possible enhancement by ten years for use of a weapon, I
believe that this statute and our prior decision would have required that the District
Court advise Wilson that all periods of imprisonment could be imposed
consecutively, and that the maximum term of imprisonment would, in that event,
have been 220 years. The District Court did not do that, nor was that information
included at any point in the acknowledgment of waiver of rights. I disagree with the
majority's conclusion that "[t]he acknowledgment also contains sufficient language
to inform Wilson that he could receive consecutive sentences." Wilson was told that
the sentence enhancement for each offense could run consecutive to the basic
sentence for each offense, but was never advised that the term of imprisonment for
one offense could be imposed consecutive to the term of imprisonment for the other
offense.
¶29. However, the maximum sentence provided by law for the offenses to which
Wilson pled guilty was not imprisonment for a period of years. Section 45-5-102,
MCA, provides the following possible sentences for deliberate homicide or deliberate
homicide by accountability:
(2) A person convicted of the offense of deliberate homicide shall be punished by death as
provided in 46-18-301 through 46-18-310, by life imprisonment, or by imprisonment in
the state prison for a term of not less than 10 years or more than 100 years, except as
provided in 46-18-219 and 46-18-222.
¶30. Punishment by death or imprisonment for life are both more severe sentences
than imprisonment for a period of years, and Wilson was advised of both of those
possibilities in the colloquy cited in ¶ 16 of the majority opinion. It is therefore my
conclusion that without regard to the lack of any advice about the possibility for
consecutive sentences, Wilson was advised of the maximum penalties provided by law
for each of the offenses to which he pled guilty. For that reason, I specially concur
with the majority's conclusion that the District Court's advice to Wilson satisfied the
requirements of § 46-16-105(1)(b), MCA (1985).
¶31. I also concur with the remaining conclusions expressed in the majority opinion
and with the reasons given therefore.
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/S/ TERRY N. TRIEWEILER
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