State v. Osterloth

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No. 99-120

IN THE SUPREME COURT OF THE STATE OF MONTANA

2000 MT 129

299 Mont. 517

1 P.3d 946

STATE OF MONTANA,

Plaintiff and Respondent,

v.

WILLIAM JOSEPH OSTERLOTH,

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Jeffrey M. Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Edmund F. Sheehy, Jr.; Cannon & Sheehy, Helena, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders,

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Assistant Attorney General; Helena, Montana

Mike McGrath, Lewis and Clark County Attorney; Carolyn Clemens,

Deputy Lewis and Clark County Attorney, Helena, Montana

Submitted on Briefs: December 9, 1999

Decided: May 11, 2000

Filed:

__________________________________________

Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

¶1 William Osterloth (Osterloth) appeals from the judgment and commitment entered by
the First Judicial District Court, Lewis and Clark County, sentencing him to 30 years
imprisonment at the Montana State Prison (MSP), with 25 years suspended on conditions,
and from its order denying his motion to withdraw his guilty plea. We affirm and remand
with instructions.

¶2 We restate the issues on appeal as follows:

¶3 1. Did the District Court abuse its discretion in denying Osterloth's motion to withdraw
his guilty plea?

¶4 2. Was Osterloth denied his Sixth Amendment right to effective assistance of counsel
in the presentation of his motion to withdraw?

¶5 3. Did the District Court err in sentencing Osterloth without a psychosexual evaluation
prepared by a qualified evaluator and in continuing his sentencing to allow him an
opportunity to succeed in a community-based sex offender treatment program?

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¶6 4. Did the District Court err in sentencing Osterloth by failing to comply with statutory
requirements?

BACKGROUND

¶7 On July 10, 1997, the State of Montana (State) charged Osterloth by information with
one count of felony sexual assault under §§ 45-5-502(1), (3) and (5), MCA, based on
allegations that he sexually molested two of his nephews. Osterloth pled not guilty.

¶8 Osterloth subsequently moved to suppress a statement he had made to Detective Sam
McCormack, and, after a hearing, the District Court denied his motion. At a change of
plea hearing on October 30, 1997, Osterloth changed his plea to guilty. The District Court
accepted the guilty plea, ordered a presentence investigation report with a sexual offender
evaluation and scheduled sentencing for January 8, 1998. Osterloth moved "to allow the
defense to have a sex offender evaluation done of the Defendant by a sex offender
psychotherapist of the defense's choosing at county expense" and the District Court
granted the motion.

¶9 Osterloth chose therapist Kevin Wyse (Wyse) to conduct the sex offender evaluation.
Wyse determined that Osterloth "is at moderately high risk for sexual reoffense and is
moderately amenable to sex offender treatment." On that basis, he recommended that
"Osterloth should participate in an intensive outpatient sex offender treatment program" on
a six-month trial basis. Wyse explained that "[i]f Mr. Osterloth is successful in completing
this six month trial period, he should remain in this sexual offender treatment program for
a period of no less than three years. Termination from treatment will be based on the
opinions of his primary treatment therapist and his probation officer." Wyse also
recommended that, "[i]f Mr. Osterloth cannot succeed in an intensive outpatient program,
based on the opinion of his primary treatment therapist or his probation officer, he should
be incarcerated at the Montana State Prison . . . ."

]¶10 The State presented Wyse's recommendations at the sentencing hearing rescheduled
to February 12, 1998. On the basis of those recommendations, the State and Osterloth
jointly requested a continuance for several months to give Osterloth an opportunity to
succeed at community-based sex offender treatment. In the event the treatment was
unsuccessful, the State advised it would seek a prison sentence. The District Court
accepted the recommendations and continued the sentencing hearing to August 6, 1998.

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Sentencing was later rescheduled at the parties' request.

¶11 Wyse terminated Osterloth from the community sex offender treatment program on
September 1, 1998. He reported that Osterloth "has been either unwilling or unable to
honestly report and take responsibility for the inappropriate sexual behaviors which led to
the crime of Felony Sexual Assault."

¶12 The District Court resumed the sentencing hearing on October 16, 1998, at which time
Osterloth moved to withdraw his guilty plea. The primary basis for the motion was that he
was given poor advice by his attorney which he would have rejected if he were not so
easily led by authority figures. He also requested, and obtained, a psychological evaluation
for purposes of supporting his contention.

¶13 After completion of the psychological evaluation and briefing on Osterloth's motion,
the District Court deemed the motion submitted. It subsequently denied Osterloth's motion
to withdraw on the basis that the "psychological evaluation produced no finding to show
that the Court, or Defendant's attorney, somehow improperly influenced the Defendant."
The court also recognized Osterloth's concession that its change of plea interrogation had
been adequate, observed that the guilty plea was not the result of a plea bargain and
concluded the motion to withdraw--filed nearly 12 months after Osterloth entered his
guilty plea--was not prompt.

¶14 The District Court ultimately sentenced Osterloth to 30 years imprisonment at the
MSP, with 25 years suspended on conditions, and ordered him ineligible for parole until
he completed both phases of the MSP's sex offender treatment program. Osterloth appeals.

DISCUSSION

¶15 1. Did the District Court abuse its discretion in denying Osterloth's motion to
withdraw his guilty plea?

¶16 A district court may permit a defendant to withdraw his guilty plea at any time, before
or after judgment, for good cause shown. Section 46-16-105(2), MCA.

A change of plea will ordinarily be permitted if it fairly appears that the defendant was in
ignorance of his rights and of the consequences of his act, or if influenced unduly and
improperly either by hope or fear in making it, or if it appears that the plea was entered

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under some mistake or misapprehension. If there is any doubt that a plea is involuntary,
the doubt should be resolved in the defendant's favor.

State v. Schaff, 1998 MT 104, ¶ 17, 288 Mont. 421, ¶ 17, 958 P.2d 682, ¶ 17 (citation omitted).

¶17 In its order denying Osterloth's motion to withdraw, the District Court first properly
quoted the Schaff principles. In discussing the reasons for its decision, however, it stated
that "withdrawal was permissible only if it fairly appears that the defendant was ignorant
of his rights and the consequences of his guilty plea, or if he was influenced unduly or
improperly by hope or fear in the entry of his guilty plea, or if the guilty plea was entered
by some mistake or misapprehension." (Emphasis added.)

¶18 Osterloth argues at the outset that, in substituting "only" for "ordinary" in determining
whether to permit his plea to be withdrawn, the District Court misapplied Schaff. Given
the language in Schaff, it is apparent that the District Court erroneously summarized Schaff
in its second reference to that decision. This is not to say, however, that this error means
the District Court necessarily misapplied the Schaff principles.

¶19 In this regard, the record reflects that Osterloth's motion was based primarily on his
contention that his plea was involuntary because he is easily influenced by authority
figures, namely, his attorney. He obtained a psychological evaluation in hopes of
supporting his contention but, as the District Court found, that "evaluation produced no
finding to show that the Court, or Defendant's attorney, somehow improperly influenced
[him]." That finding, unchallenged by Osterloth, was the foundation for the court's later
determination there was no reason, let alone any sound reason, to allow withdrawal of
Osterloth's plea. The District Court went on to observe that, while Schaff requires any
doubt regarding the voluntary nature of the plea to be resolved in the defendant's favor, "[i]
n this case, there is no doubt that needs to be resolved one way or the other." Based on the
record before us, Osterloth has not established that the District Court's error in
summarizing the Schaff principles resulted in misapplication of Schaff.

¶20 In a somewhat similar vein, Osterloth contends his plea was involuntary because he
was influenced unduly and improperly by hope he would be placed in a community-based
sex offender treatment program and avoid the mandatory minimum two-year sentence. He
urges that he moved to withdraw his guilty plea because community-based sex offender
treatment was no longer available. The problem with Osterloth's argument is that it was
not the basis for his motion to withdraw in the District Court. We do not address issues or
theories raised for the first time on appeal. Schaff, ¶ 26. Therefore, we decline to address

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this argument further.

¶21 We review a district court's denial of a motion to withdraw a guilty plea for abuse of
discretion. Schaff, ¶ 18 (citation omitted). In determining whether an abuse of discretion
occurred, we consider three factors:

(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.

Schaff, ¶ 18 (citations omitted).

¶22 The District Court briefly addressed these factors in its order. It observed that
Osterloth had conceded the adequacy of its interrogation and observed there was no plea
bargain in this case. Finally, the court noted that Osterloth's motion was filed nearly 12
months after he entered his guilty plea and concluded that such delay negated any notion
of promptness.

¶23 Here, the parties do not dispute that the District Court's interrogation at the time the
plea was entered was adequate and no plea agreement was involved. Therefore, the first
and third factors in our review of the court's decision are not at issue here.

¶24 Osterloth contends that his motion to withdraw was timely because he filed it prior to
his sentencing and less than a year after he entered his guilty plea. In this regard, we long
have held that a request to withdraw a guilty plea must be made within a reasonable time.
See State v. Nance (1947), 120 Mont. 152, 165, 184 P.2d 554, 561. We have declined to
adopt specific parameters defining the timeliness of a motion to withdraw because each
case presents unique factual circumstances. State v. Enoch (1994), 269 Mont. 8, 12, 887
P.2d 175, 178. As a general rule, however, a motion to withdraw a guilty plea filed over a
year after entry of the plea is untimely. State v. Reynolds (1992), 253 Mont. 386, 391, 833
P.2d 153, 156 (citation omitted). On the other hand, we have upheld a district court's
denial of a motion to withdraw a guilty plea because it was untimely when the motion was
filed only five months after entry of the plea. See State v. Coggins (1993), 257 Mont. 440,

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441-42, 849 P.2d 1033, 1034-35.

¶25 In the present case, Osterloth entered his guilty plea on October 30, 1997. After a
continuance of sentencing to allow him an opportunity to succeed at community-based sex
offender treatment, followed by termination from that treatment, he moved to withdraw
his guilty plea when the District Court resumed the sentencing hearing on October 16,
1998.

¶26 Osterloth's primary argument for withdrawing his guilty plea in the District Court was
that his plea was involuntary because he was easily influenced by authority figures such as
the court and his attorney. The record reflects, however, that Osterloth first argued he was
easily influenced by authority figures on August 22, 1997, when he moved to suppress a
statement he had made to Detective McCormack. After this motion was denied, Osterloth
changed his plea to guilty. Thus, Osterloth was aware of his purported susceptibility to
influence by authority figures prior to changing his plea, prior to the initial sentencing
hearing on February 12, 1998, and well over a year before he asserted it as grounds for his
motion to withdraw his guilty plea. Moreover, at the change of plea hearing on October
30, 1997, the court ordered Osterloth to have weekly contact with his attorney and, as a
result, he had numerous opportunities to initiate the withdrawal of his guilty plea without
waiting until the final sentencing hearing almost a year later.

¶27 The case before us is analogous to Coggins. There, the defendant stated that "he knew
from '[t]he minute [he] made the plea' that it was a mistake." Coggins, 257 Mont. at 443,
849 P.2d at 1035. Here, Osterloth similarly knew of his purported susceptibility to
influence by authority figures--the primary grounds for his motion to withdraw--at the
time he entered his plea. In Coggins, 257 Mont. at 443, 849 P.2d at 1035, we observed
that, although the defendant had spent some time out of state with his ill mother and a
month in alcohol treatment, there was no indication that he was unable to contact his
attorney during those periods. Here, the District Court ordered Osterloth on October 30,
1997, to maintain weekly contact with his attorney. In addition, as was the case in
Coggins, Osterloth participated in the preparation of the presentence investigation report
between the time he entered his guilty plea and the time he sought to withdraw it. See
Coggins, 257 Mont. at 443, 849 P.2d at 1035. We conclude, therefore, that Osterloth's
motion to withdraw his guilty plea was untimely.

¶28 We hold the District Court did not abuse its discretion in denying Osterloth's motion
to withdraw his guilty plea.

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¶29 2. Was Osterloth denied his Sixth Amendment right to effective assistance of
counsel in the presentation of his motion to withdraw?

¶30 In evaluating ineffective assistance of counsel claims, this Court utilizes the two-
prong test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674. State v. Senn (1990), 244 Mont. 56, 58-59, 795 P.2d 973, 975 (citations
omitted). The defendant must establish that counsel's performance was deficient and that
the deficient performance prejudiced him. Senn, 244 Mont. at 59, 795 P.2d at 975
(citations omitted).

¶31 Osterloth contends he was denied effective assistance of counsel when his lawyer
failed to premise the motion to withdraw on his having entered the guilty plea out of hope
of avoiding the mandatory minimum sentence for sexual assault by being admitted to a
community-based sex offender treatment program and fear of incarceration. This
unasserted basis for the motion to withdraw apparently arises from the District Court's
observation that Osterloth "wants to withdraw his guilty plea simply because it now
appears that he may not be amenable to community sexual offender treatment." He relies
on Schaff for the proposition that an assertion that a guilty plea was influenced by hope or
fear is a proper basis for withdrawing a plea and, therefore, such an argument ordinarily
would have resulted in the District Court allowing withdrawal of his plea.

¶32 Here, the District Court advised Osterloth, at the change of plea hearing, of the
minimum and maximum sentences for the offense and that it would not be bound by the
recommendations of the presentence investigation or the sexual offender evaluation. Even
assuming Osterloth hoped to avoid incarceration at the time he entered the guilty plea, "a
plea is not involuntary simply because it was entered to avoid a greater punishment." State
v. Milinovich (1994), 269 Mont. 68, 71, 887 P.2d 214, 216 (citation omitted). Moreover,
we have previously stated that counsel's performance cannot be deficient for failure to
raise an issue which lacks merit. See, e.g., State v. Baker (1995), 272 Mont. 273, 283, 901
P.2d 54, 60; State v. Hildreth (1994), 267 Mont. 423, 432-33, 884 P.2d 771, 777. Because
Osterloth's plea was not involuntary even if entered to avoid greater punishment, his
counsel's performance was not deficient in failing to raise the issue in Osterloth's motion
to withdraw.

¶33 Osterloth having failed to establish the first prong of the Strickland test, we need not
address the second prong. See State v. Sellner (1997), 286 Mont. 397, 403, 951 P.2d 996,
999. We hold Osterloth was not denied his Sixth Amendment right to effective assistance

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of counsel in the presentation of his motion to withdraw.

¶34 3. Did the District Court err in sentencing Osterloth without a psychosexual
evaluation prepared by a qualified evaluator and in continuing his sentencing to
allow him an opportunity to succeed in a community-based sex offender treatment
program?

¶35 Osterloth contends the District Court erred in sentencing him without a psychosexual
evaluation prepared by a Montana Sex Offender Treatment Association (MSOTA)
provider or other qualified therapist as required by § 46-18-111(1), MCA. He also urges
the District Court erred in imposing an " 'interim sentence' or a condition of Osterloth
continuing release on bail that he attend and participate in sex offender treatment" because
it was not authorized by statute to do so and because § 46-18-115, MCA, requires the
court to conduct a sentencing hearing without unreasonable delay. The State responds that
Osterloth waived his right to assert these alleged errors on appeal by failing to object in
the District Court.

¶36 Under § 46-20-104(2), MCA, "this Court is precluded from considering an alleged
error unless a timely objection was made . . . or unless the . . . criteria [of § 46-20-701(2),
MCA,] are met." State v. Schmalz, 1998 MT 210, ¶ 12, 290 Mont. 420, ¶ 12, 964 P.2d 763,
¶ 12. Here, the record reflects that Osterloth did not object to Wyse conducting his
psychosexual evaluation or to the District Court continuing his sentencing hearing to give
him an opportunity to succeed in a community-based sex offender treatment program.
Consequently, these arguments have not been properly preserved for appeal. Schmalz,
¶ 13. Nor does Osterloth assert that he can satisfy any of the requirements of § 46-20-701
(2), MCA. We conclude, therefore, that Osterloth waived the right to have this Court
consider his arguments relating to Wyse's qualifications or the continued sentencing
hearing.

¶37 4. Did the District Court err in sentencing Osterloth by failing to comply with the
statutory requirements?

¶38 Osterloth contends that the District Court totally failed to comply with § 46-18-115
(6), MCA, which requires in felony cases that the court "specifically state all reasons for
the sentence . . . in open court on the record and in the written judgment." As a result, he
urges he is entitled to be resentenced. Osterloth is partially correct.

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¶39 The District Court stated in open court that

[t]he law is quite clear that you are required to get two years in prison just by
pleading guilty. And last year, we went out on a limb that is available to not send
you to prison, to allow you to stay in the community. We were willing to take that
risk in the unusual case, which this is and was. And, unfortunately, it didn't work
out. So with that being done, I cannot accept the risk to the other children in this
community. So I will agree with [the probation and parole officer]. I will sentence
you to 30 years in the State Prison. 25 of that will be suspended.

We conclude that these statements meet the § 46-18-115(6), MCA, requirement that the
court state the reasons for the sentence in open court. The court did not set forth the
reasons for the sentence imposed in its written judgment, however, and, to that extent, we
conclude the District Court erred. Our conclusion does not require that Osterloth be
resentenced, however.

¶40 "[T]he sentence orally pronounced from the bench in the presence of the defendant is
the legally effective sentence and valid, final judgment" and the written judgment and
commitment serves as evidence of the sentence orally pronounced. State v. Lane, 1998
MT 76, ¶ 40, 288 Mont. 286, ¶ 40, 957 P.2d 9, ¶ 40. In Lane, we upheld a district court's
nunc pro tunc order modifying its written judgment to conform to its oral sentence. Lane,
¶ 49. In subsequent cases where a written judgment did not conform to an oral sentence,
we have remanded for modification of the written judgment. See, e.g., State v. Waters,
1999 MT 229, ¶ 35, 296 Mont. 101, ¶ 35, 987 P.2d 1142, ¶ 35; State v. Simpson, 1999 MT
259, ¶ 15, 296 Mont. 335, ¶ 15, 989 P.2d 361, ¶ 15. The same result is appropriate here.

¶41 Affirmed and remanded for entry of a modified written judgment setting forth the
reasons for the sentence as stated in the District Court's oral judgment.

/S/ KARLA M. GRAY

We concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER
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/S/ TERRY N. TRIEWEILER

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