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No. 99-478
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 144N
STATE OF MONTANA,
Plaintiff and Respondent,
v.
MICHAEL JOHN MARSHALL,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Kenneth Neill, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Rochelle D. Wilson, Attorney at Law, Great Falls, Montana
Chad Wright, Appellate Defender, Helena, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Pamela P. Collins,
Assistant Attorney General, Helena, Montana
Brant Light, Cascade County Attorney, Great Falls, Montana
Submitted on Briefs: April 12, 2001
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Decided: August 3, 2001
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 The Appellant, Michael John Marshall, was charged by Information filed in the District
Court for the Eighth Judicial District in Cascade County with aggravated burglary and
intimidation. Pursuant to a plea agreement, Marshall plead guilty to both charges and was
sentenced to 40 years in the Montana State Prison. Five years later Marshall filed a
petition for postconviction relief in which he alleged that his guilty plea should be set
aside for failure of the District Court to properly inform him of the potential sentence and
failure of the State to honor the plea agreement. Following a hearing, the District Court
denied Marshall's petition. Marshall now appeals from the order of the District Court
which denied his petition for postconviction relief. We affirm the order of the District
Court.
¶3 The following issues are presented on appeal:
¶4 1. Did the District Court err when it found that Marshall voluntarily entered into the
plea agreement?
¶5 2. Did the District Court err when it found that the prosecutor did not violate the plea
agreement?
¶6 3. Did the District Court err when it concluded that designation as a dangerous offender
and restrictions on parole eligibility in the same sentence are not inconsistent?
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FACTUAL BACKGROUND
¶7 The Appellant, Michael John Marshall, was charged by Information filed in the District
Court for the Eighth Judicial District in Cascade County with aggravated burglary and
aggravated kidnapping, both felonies, in violation of §§ 45-6-204(2)(b) and 45-5-303(1(c),
MCA, on November 14, 1991. At his arraignment, Marshall appeared with counsel and
plead not guilty to the charges alleged in the Information.
¶8 On March 27, 1992, Marshall requested a change of plea hearing pursuant to a plea
agreement reached with the State. On May 12, 1992, the District Court held a change of
plea hearing at which Marshall plead guilty to aggravated burglary and intimidation,
felonies in violation of §§ 45-6-204(2)(b), MCA, and 45-5-203(1)(b), MCA, respectively.
Concurrently, a plea agreement, an Acknowledgment and Waiver of Rights form signed
by Marshall and his counsel, Julie Macek, and an order for a sentencing hearing were filed
with the District Court.
¶9 The State filed its sentencing recommendation on June 15, 1992. For aggravated
burglary, the State recommended 40 years in the Montana State Prison, designation as a
dangerous offender, and restricted parole eligibility for the first 30 years. The State further
recommended a concurrent 10 year sentence for the intimidation charge.
¶10 The District Court held a sentencing hearing on June 16, 1992. Following the hearing,
the District Court sentenced Marshall to 40 years in the Montana State Prison on Count I
and a concurrent 10 year sentence on Count II. The District Court also designated
Marshall a dangerous offender and ordered him ineligible for parole for the first 30 years
of his sentence. Finally, the District Court required that Marshall complete sex offender
treatment as a condition to parole eligibility.
¶11 On June 16, 1997, Marshall filed a petition for postconviction relief. Marshall filed an
amended petition on April 27, 1998. The District Court held an evidentiary hearing
regarding Marshall's petition on October 1, 1998. On May 19, 1999, the District Court
granted in part and denied in part Marshall's petition. The District Court amended
Marshall's sentence to strike the requirement that he complete the sex offender program
but otherwise affirmed the sentence previously imposed. Marshall now appeals from that
portion of the District Court's order which denied his petition for postconviction relief.
DISCUSSION
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ISSUE 1
¶12 Did the District Court err when it found that Marshall voluntarily entered into the plea
agreement?
¶13 On appeal, Marshall contends that he was not aware that his parole eligibility could be
restricted by the District Court and that his counsel was ineffective for failing to advise
him of the State's sentencing recommendation. As a result, Marshall argues that his guilty
plea was not entered voluntarily.
¶14 We review a district court's denial of a petition for postconviction relief to determine
whether substantial evidence supports the findings and conclusions of the district court.
State v. Roach, 1999 MT 38, ¶ 7, 293 Mont. 311, ¶ 7, 975 P.2d 817, ¶ 7.
¶15 A district court may permit a guilty plea to be withdrawn whenever the defendant
shows good cause. See § 46-16-105(2), MCA. We consider three factors when reviewing a
district court's decision to disallow withdrawal of a guilty plea: 1) the adequacy of the
interrogation at the time the plea was entered to inform the defendant of the consequences
of the plea; 2) whether the plea was the result of a plea bargain in which the plea was
given in exchange for dismissal of a charge; 3) the promptness with which the defendant
attempted to withdraw the plea. State v. Keys, 1999 MT 10, ¶ 11, 293 Mont. 81,¶ 11, 973
P.2d 812, ¶ 11.
¶16 We conclude that substantial evidence supports the District Court's decision to deny
Marshall's request to withdraw his guilty plea. The record establishes that Marshall was
aware of the State's sentencing recommendation prior to pleading guilty. Marshall signed
the plea agreement and the acknowledgment of rights form. Although the signed plea
agreement did not contain the State's sentencing recommendation, Julie Macek stated in
her affidavit and testified at the hearing that Marshall demanded as part of any plea
agreement that the State's sentencing recommendation not be included. Furthermore, we
have held in State v. Thomas (1997), 285 Mont. 112, 946 P.2d 140, that prior notification
of discretionary parole restriction, such as provided in § 46-18-202(2), MCA (1991), is
unnecessary. And, although designation as a dangerous offender pursuant to § 46-18-404,
MCA (1991), is non-discretionary, Macek testified and the District Court found that she
discussed with Marshall the State's intention that he be designated a dangerous offender
which would restrict his parole eligibility. Finally, the plea agreement stated that the "State
remains free to make any recommendation at sentencing" and that "all parties understand
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that the County Attorney's recommendation may not be binding upon the Court." Marshall
testified that he understood that the District Court was the sole sentencing authority and
that his counsel and the District Court both informed him of the maximum potential
penalty for each offense charged. In light of the substantial evidence contained in the
record, we conclude that the District Court did not err when it concluded that Marshall's
guilty plea was entered knowingly and voluntarily.
ISSUE 2
¶17 Did the District Court err when it found that the prosecutor did not violate the plea
agreement?
¶18 Marshall next contends that the State violated the terms of the plea agreement when it
offered testimony from the victim at the sentencing hearing concerning other offenses
against the victim by Marshall. In the plea agreement, the State agreed that it would file no
further charges based on conduct related to that victim.
¶19 Substantial evidence supports the District Court's finding that the plea agreement was
not violated. Although the State elicited testimony which showed that Marshall had
previously committed a similar offense against the same victim, no new charges were filed
as a result of that testimony. Consequently, there is no basis for Marshall's claim that the
State violated the plea agreement.
ISSUE 3
¶20 Did the District Court err when it concluded that designation as a dangerous offender
and restrictions on parole eligibility in the same sentence are not inconsistent?
¶21 Marshall argues that the District Court's dangerous offender designation pursuant to §
46-18-404(3), MCA (1991), and the restriction placed on his parole eligibility pursuant to
§ 46-18-202(2), MCA (1991), are inconsistent. Therefore, according to Marshall, the 30
year parole restriction must be vacated.
¶22 The District Court addressed a similar argument and noted that Marshall cited no
authority to support his position. Consequently, the District Court concluded that nothing
prevented the imposition of a sentence restricting Marshall's parole eligibility for 30 years
rather than the 20 years provided pursuant to a dangerous offender designation.
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¶23 We agree with the conclusion of the District Court. Marshall provides no legal basis
for vacating the 30 year parole restriction. We decline to address an issue when the
appellant fails to cite supporting authority. See State v. Ellenburg, 2000 MT 232, ¶ 49, 301
Mont. 289, ¶ 49, 8 P.3d 801, ¶ 49. Accordingly, the order of the District Court is affirmed.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
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