State v. Boucher

No. 00-803

1~
-. SUPKEGIE COURT OF I H E STATE OF M@XAh'.'r
'TI-f~

7002 h4T 1 1-1

Plaintiffa~~d
Respondent.

Defendant and A4ppcllant.

APPEAL FROM: District Court of the Fourth Judicial District,
In aud for the Cotirlry of Mineral,
Honorable Ed McI,can, Judge Presiding

COUNSEL, OF RECORD:

For Appellant:

Mark E. Jones. Attorney at I.a\v, %lissoilla, h~loiitana

I'or Respondent

tlonorablc Mike McGrath, Afiorney General; Cregg W. Coughlin,
Assistant Attorney General; Helena, hlontana

M. Shauu Donovan, County Attorr~ey,
Superior, Moniana

Submitted on Briefs: ,4t1gust 0, 2001

Decided: May 30, 2002
Justice Jim Rice delivered the Opinion of the Court.

5I Robc1-i John Boucher (Bouehet) appeals lhc denial ofhis appeal to the i:or:i?h Judicial

Disriict Court. Bor!clier entered a plca of guilty to driving tinder the influence of alcohol in

Mincral County Justice Court. After judgment, Boucher moved to withdraw tlie plea, and

the Justice Court denied the motion. Rouchcr appealed to the District Court, which both

found that Boucher's plea liad been entered voluntarily and dismissed the appeal clue to lack

ofjurisdiction. This Court exercises subject matterjurisdiction by deeming Boucher's filing

in the District Court as a petition for postconviction relief. On the basis that the record does

not support a finding that Boucllcr entered his plea voluntarily, ltnowingly and intelligently,

we reverse and remand.

FACTCAL AXD PROCEDURAL BACKGROUND

72
1 Boucher received a citation ibr driving under the influesice of alcohol (Dlil). in

violation of 8 61-8-401, MCA, o:i Noven~berI I , 1999. I-le appeared in Mineral County

Justice Court the following day and entered a plca of not guilty. At the time of his initial

appearance, Justice of the Peace Wanda James advised Boucher of his constitutional rights,

and Boucher signed a form that stated, in pertinent part:

1 understand that if you [sic] willingly and knowingly enter aguilty plea in this
case, you [sic] are giving up your [sic] riglit to appeal this case to the district
court.

'/3 On March 3 1,2000, Bouclier, his attorney and the county attorney appeared in Justice

James' court and discussed the possibility of arncnding thc charge to Dtil per se and some
oilhe ramiiications of a guilty plea. The State amended tile original conrpiaint and Boucher

entered a plca of guilty to a Di,ri pi.^ st:' under
vioiatioi~, 8 6 I - 8 - 4 6 >bICA, by telephone
conversation with Jristice James on April 3,2000. Justice James testified she did not recall

whether she had reiterated or discussed waiver of Botlcher's right to appeal over the

telephone at the time he chiingcd h ~ s
plea. The court issued a n ~ ~ t t e n
judgment

mcmorialtzing the sentence, which was matled to Boucher. The judgment included the

following statement:

The Defendant may appeal this Judgment to the district court by filing written
notice of the appeal within ten days.

74 Boucher then learned that as a result of his guilty plea his dr15ingpnxileges would be

revoked in the State of Washington where he worked on a temporary construction job. On

April 7, 2000, Boucher tiled a motion in Justice Court to withdraw his plea, stating the

following basis:

Thc plea was entered with the [Defendant's] understanding that he could
continue driving. Subsequent events of no fatilt of any of the patties have
proven this to be impossible.

The Justice Conrt denied Boucher's motion.

Ti5 On April 12. 2000, Boucher tiled apt-o .ye, hand-written notice to the District Court

of an appeal "to [his] guilty plea." The State immediately moved to dismiss the appeal.

Boucher, with the assistance of counsel, filed a response to the motion, alleging that his plea

was not knowing or voluntary because he had not been apprised by the Justice of the Peace

at the time he entered the plea on April 3, 20001that he was waiving his right to appeal
6 At the hearing held on Septernbcr 14, 20i)O; the District C'oul~
rcvicwed t'ne Justice

Coufiis denial of Rouchcr's motion to ~virhdraw plea, Tl:e coil!? found Boucher !lad been
his

informed at the time of his initial appearance on November 12, 19'99, that a guilty plea

waived the right to a trial and appeal, 'The court also found tltat Justice James admonished

Boucher on several occasions that any collateral consequences of his guilty plea, specifically

including the effect on his driving privileges in Washington, were unknown to the court and

would have to be determined exclusively by Boucher with the assistance of counsel. The

court noted that the Justice of the Peace did not make mention of any right to appeal the

judgment whcn Boucher entercd his guilty plea bq tclepltone.

77 The District Court concludcd that Boucher entered his guilty pic3 knowingly,

voluntarily and intelligently. Further, the court held that the Justice Court's oral judgment,

which contained no mention of any right to appeal, controlled over the subsequent written

judgment, which stated that the defendant could appeal within 10 days. On the issue of

jurisdiction, the court eorieluded Boucher was not entitled to appeal to the district court as

a matter of law and granted the State's motion to dismiss.

1!8 Boucher filed a notice of appeal from the District Court's dismissal of his appeal. On

October 20, 20001the District Court stayed Roucher's sentence pending thc outcome of the

appeal to this Court.

C,!
I: The threshold issuc before this Court is whether the District fourt has jurisdiction to

review a posteonvietion denial of a motion to withdraw a gr~ilty
plea in Justice Court. 'I-he
 underlying issuc is whether the District Court correctly concluded tlrat Bouchcr entered liis

guilty- plea
" justice Court voiui~iarily..

S'TANDARD OF REVIEW

710 Whether to dismiss a claim based on lack of subject matter jurisdiction is a question

of law. We review a district court's conclusions of labti to determine if they are correct.

In re :Worriage of Skillen, 19% 8 T 43,79,287 klont. 399,T 9,956 P.2d 1 , t 9. A district

court may permit the withdrawal of a guilty plea for good cause. Section 46-16-105(2)>

MCA. This Court reviews denial of a motion to bvithdra~va guilty plea for abuse of

discretion. Stcite v. Nowley !1997), 282 Mont. 298. 304, 938 P.2d 592? 5%.

L

(jl l Did the ljistrict Court lzcrvej~ivi.srliclior~ revielv clpostcorlvicfion derriul q f c ~
to nrotion
to witJzdt~~wguilty plea in Jzrsrice Court?
6
1

712 The issue of a court's subject matter jt~risdictionmay be presented at any time.

Brzlyeat Low, PC v. I'ettir, 1998 MT 252; (i 15,291 Mont. 196,T 15,967 P.2d 398,1/ 15. A

party can never waive or consent to subject matterjurisdiction where there is no basis for the

court to exercise jurisdiction. In re hi~zrriage Skillen, (1 10. Pursuant to 5 46-1 7-203(2),
of

MC.4, entry of a guilty plea in justice court waives a defendant's right to a trial de novo in

district court. This Court recently held there is no statutory right of appeal from a justice

court's order denying a motion to withdraw a guilty plea. State v, Feiglzt, 2001 bI'1- 205, 1'

22,306 Mont. 205, 22: 33 P.3d 623, rr 22; Stcrte 1). Fox.2001 'vlT 209, 17,306 Mont. 353,

I' i 7. 34 P.3d 484, 7 17.
7/13 'I'he State asserts on appeal that the District Court lackcd subject matter jurisdiction

over Bouchcr's appeal because Montiina law docs not prwidc for an iappcal lo district court

after a dckndant cnters a plea of guilty in a court of limited jurisdiction. Boucher

acknowledges that a defendant who enters a guilty plea in justice court waives the right of

trial rle tlo~jo district court, pursuant to 6 46-17-203(2), MCA, but contends his guilty plea
in

is not valid, and challenges the Justice Court's acceptance of the plea on the grounds that his

plea and waiver were not entered voluntarily. Boucher cites Stczte v. CV~~ynzire
(1987), 226

Mont. 306: 736 P.2d 106, for the proposition that reason, justice and public policy dictate that

an appcal of a guilty plea in justice court may be tried anew in district court provided the

appeal is properly perfected.

13 In St~totc. I.Eic!yrt~ire, Court addressed two separate cases mrl~ere
v. the defendants sought

to withdraw their guilty pleas. Jcffeiy Waymire alleged that the justice court entered a plea

011his behalf but ~vithout consent. 7'he other defendant, Charles Metcalf, voluntarily
his

entered a guilty plea in justice court but was dissatisfied with his sentence. I\lthough the

defendants presented very different legal issues, we held that the remedy for both was trial

de ~cnoi.o district court. I;t5>ytzilz.; Monk. at 408-0") 730 P.2d at 108.
in 226

(115 Following the IV2iyttti~edecision, the 1,egislature limited the right of appeal fro111

jurisdiction by amending $46-17-3 I 1: MCA; in 1991 to rcad, in pertinent
courts of li~llitcd

part:

Appeal from justices', municipal, and city courts. ( 1 ) Except. . . for cascs
in which legal issues are preserved for appeal pursuant to 46-12-204, all cases
 on appeal from a justice's or city court must bc tried anew in thc district court
. . . (2) The defendant may appeal to the district court by tiling written notice
of inte~~tiiin appeal within I 0 days aHcr a judgmcnr i s renderedj;,iic>it~i~?g
to
trial. . . .

Scc. 217, Ch. 800. I... 1991 (words of arneadment in italics). Subsequently, we determined

5 46-17-3 11(2), MCA, as amended, proccdurally requires adjudication of a matter by trial
in a justice or city court as a prerequisite to an appeal in district court for a trial de izovo.

Feiglzt, 1, 15. We also held that 5 46- 1'7-3 1 1. MCA, provides the exclusive statutory remedy

for appeals from the coui?s of limited jurisdiction. Feig12t, 7; 15. At present, unless a specific

issue has been preser~ed appeal prior to final judgment, our laws provide no appeal from
for

entered in a court of limited jurisdiction. Feig-llr, 7 12.
a plca of guilty or r!o!o coizfer~riere

Accordingly, a motion to withdraw a guilty plea may be granted or denied at the discretion

of a justice or city court that has original jurisdiction, with no right of direct appeal.

716 On appeal to this Court. the State argues that aftcr the J~lstice the Peace denied
of

Boucher's requcst to withdraw his guilty plea, Boucher's remedy was to petition the District

Court for postconviction relief oil the grounds that his conviction in Justice Court was based

on an involuntary plea. We agree.

717 Section 46-21-101(2), :MCA, states that a defendant who has exhausted all appeal

remedies provided by law may seek relief from a sentence by filing a petition for

postconviction relief with the district court in the county where the court of limited

jurisdiction is located. Postconviction relief is available when the sentence violates state

law. the blontana Constitution or the Constitution of thc llnited States. Section 46-21-
lOI(1). MCA. A posrconviction bearing is not another fonn of appeal from a criminal case,

but a separate civil proceeding aimed at vacating, setting aside or correcting a sentenz-_

Golenzun v. State (19811, 194 4ont. 428, 333, 633 P.2d 624, 627. The right lo

postconviction relief is available to a defendant wliose sentence was imposed by a justice,

municipal or city court. State V. Cl~rister~sen
(1994), 265 Mont. 374,377,877 P.2d 468,469.

f I8 Recently, in State v. Liefert, 2002 MT 48, : 8,309 Mont. 19,1/ 8, -P.3d -,
' 7 8,
the State invited this Court to deem an appeal as a petition for postconviction relief in order

to exercise subject matterjurisdiction over the denial of Liefert's motion to withdraw a plea

entered in justice court. We did so, but did not determine whether a petition for post-

conviction relief is proper in similarly situated cases. Liejkrt, 7 8. The instant controversy

presents such a siniilarly situated case.

919 The District Court correctly determined as a matter of law that Boucher had no right

to appeal the Justice Court's denial of his motion to uithdraw his guilty plea. However,

g i ~ e n contrary instructions regarding the appeals process issued by the Justice of the
the

Peace. the fact that just~cecourt 1s not a court of record, and the naturc of Boucher's

constitutio~ialchallenge to the validity of hts plca, the D~strict
Court held an ev~denttary

hearing to establish a factual basis for ruling on issues raised.

7j20 The absence of an appellate remedy and the constitutional claims asserted establish

Bouchcr's eligibility to pursue postconviction relief in accordance with 5 46-21-101, MCA.

In vie\\ of this right and consistent with our holdings in CItristi+nsenand Liefert, we deem
Boucher's appeal to the District Court as a petition for pusrconviction relief and the District

Couri-proceedings as the functional equivalent of : postcoavictiiin bearing. We now address
:

the Dtstrict Court's findtng that Boucher's plea was entered ~oluntarily

1 2 1 Did the District Court correct& conclude that Bouclzer entered his guilty plea it1
3
Justice Court knowingly urzd volwltarily?

722 1 1 light of the importance of the constitutional rights and protections waived by a
1

guilty plea, the plea must be a voluntary, knowing, and intelligent choice among the

alternative courses of action open to the defendant. State v. Radi (1991j, 250 Mont. 155,

159,818 P.2d 1203; 1206(ciringi\~orfh Carolina v, Alford(l970),400 U.S. 25,") SS.Ct.
160,

27 L.Ed.2d 162). The defendant must be aware of the rights waived, which include the right

to a speedy and public trial by jury, the right to effective assistance of counsel, the right to

confront and cross-examine wttnesses, the right to testify and have uTttnesses
testify, the nght

not to be compelled to incriminate oneself, the r ~ g h t have charges proved beyond a
to

reasonable doubt, and the right to appeal a finding of guilty. Stafe v. Yotlzer (1992), 253

Mont. 128, 130, 831 P.2d 1347, 1348.

1;23 Because thc voluntary nature of a guilty plea is crucial to the integrity of the judicial

process, numerous statutes set forth procedural requ~remcnts a \al~dplea.See $5 46-12-
for

204. 46- 12-2 10,46- 12-2 12 and 46-1 6- 105(1),MCA. if these requirements are not met, the

court may not accept the plea, and the case must be either disinisscd or tried on its merits.

Section 46-12-204 (2),MCA, states:
 'The court may not accept zl pica of guilty or itoio contendere without first
determining that the pica is voluntary and not the result of force or threats or
o f promises q a r r llom tile plea agr-eernent. The court shati also iirquire as to
whether the defendant's willingness to plead guilty or nolo contendere results
from prior discussions between the prosecutor and the defendant or the
defendant's attorney,

2 procedural safeguards to illsure that a plea entered in a court of l~mited
Add~tional

jurisdiction is voiuntary are outlined in 8 46-17-203(2), MCA, whicl~
states:

A plea of guilty or nolo contendere in a justice's courti city court, or other
court of limited jurisdiction waives the right of trial de novo in district court.
A defendant must be informed of the waiver before the plea is accepted, and
the justice or judge sliall question the defendant to ensure that the plea and
waiver are entered voluntarily.

More explicitl), "the court sl?a!! d e t e n n e that thc defendant ~~nderstands . there mill not
..

be a further tnal of any kind, so that by pleading guilty or nolo contendere the defendant

uralvesthe right to a tr~al."Section 46- 12-2 10(1)(e), MCA. A court may permit a defendant

to withdraw his guilty plea at any time, before or after judgment, for good cause shown.

Section 46-1 6-i05(2), MCA.

1125 To detcnnlne u,hether good cause existed and uhether a court abused its d~scretion

by denying a defendant's motion to withdram-a guilty plea, we consider three factors: (1) the

adequacy of the court's iiitenogation at the tine the plea was entered regarding the

defendant's understanding of the consequences of the plea; (2) the promptness \*it11 mhich

the defendant attempts to uithdraw thc plea; and (3) u hcther the plea u a s the result of a plea

bargain in which the guilty plea was given in exchange for dismissal of another charge.

Ko~viey.282 Mont. at 304, 938 8.2d at 505. The fundamental purpose of allouing the
withdrawai of a guilty pica is to guard against the conviction of an innocent person. ,Yluze

Si-liczj; 1 I Y " ) S M I li)Lj.,? 17, 288 Mont. 32 i, 7 1'7, 058 P.2d 682. ";j '7 jciliizg iiiiiciey.i.,
282

Mont. at 303-04, 933 P.2d at 5955). If there is any doubt that a plea was involuntary9the

doubt should be resolved in favor of defendant, Sclzcif 7 17 (quoting Stcire v. il;fcAlli.~ter

(1934), 96 Mont. 348, 353, 30 P.2d 521, 823).

726 Boucher's challenge is based solely on the adequacy ofthe Justice Court's advisement

regarding Boucher's waiver of his appeal rights, as required by 5 46-17-203(2). MCA, and

5 46-12-210(1)(e), MCA. Boucher maintains that he was confused about his right to appeal

and did not realize he was waiving his appeal right at the time he entered his guilty plea. tie

further contends that the Justice ofthe Peace neither informed itorqucstioncd him at the time

he changed his plea over the telephone to make certain that he understood the consequences

of his waiver. Justice James testified at the hearing in District Court that she did not recall

discussing Boucher's waiver at the time he entered his plea on April 3,2000, and relicd upon

the statement signed five months earlier on November 12; 1 0 signifying Roucher

understood he would x a ~ \ h ~ rlght to appeal f o ~ tr~al noi~uin dlstrlct court if he
~e s a ife

pleaded guilt).

'727 The Justice Court was required to determine that Uoucher understood he waived

certain cons~itutional rights, including the right to a trial and appeal. pursuant to

46-12-210(1); .MCrZ. The court accomplished this at Boucher's initial appearance by

having Boucher acknowledge in writing that he understood the waivers he would make if he
pleaded guilty. Months later: the State amended the complaint and Boucher changed his

plea to guilty. Section 46-1 7-203(2j,MGA, stares: ","\deicndant must bc: idol-med of the

waiver before tlte plea is accepted, and the justice or judge shal2 question the defendant to

ensure that the plea and waiver are entered voluntarily." This statute gives the clear

impression that the justice court is to inform the defendant about the waiver of the right to

appeal and ascertain that the defendant understands the waiver at the time a guilty plea is

entered and before the court accepts the plea.

728 Boucher entered aplea of not guilty at his initial appearance. Accordingly, he waived

no constitutional rights on November 12, 1999, when he signed the waiver acknowledgment

fotm provided by the tour%. Boueher's ~vaiver
occurred only after the State amended thc

charge and when he changed his plea to guilty in April 2000. Prior to accepting the change

of plea, the court is required to "question the defendant to ensure the plea and waiver are

entered voluntarily." According to the testimony of Justice James. she did not reiterate the

infonnation the court provided five months earlier concerning Boucher's constitutional rights

and failed to question Boucher regarding his understanding of the waiver at the time Boucher

changed his plea. Consequently, we conclude that the court's colloquy was inadequate and

good cause existed to permit Roticher to withdraw his guilty plea.

2 9 Since any doubt about whether a plea was voluntary should be rcsolved in favor ofthe

defendant, we hold that the District Court, under these facts, erred by not allowing Boucher

to withdraw his guilty plea. Therefore, we reverse Boucher's guilty plea, and remand this
matter to the Justice Court for further proceedings in regard to ihc charge against Boucher

b driving under the influeiicc of alcohol.
r

We concur:
J ~ ~ s t i James C ,Nelson specially concurs.
cc '

$30 1 concur in our Opinion. 1 v;riie separateIyj iiowel-er, lo strongly urge tne Legislature

to amend $5 46-1 7-203. MCA. and 46-17-3 1 1. MCA, in the manner hereafter suggested.

$ 31 Our Opinion sets out the history of the 1991 amendment to 6 46-1 7-3 1 1. MCA; which

liniits the right of appeal to district courts from courts of limited jurisdiction. Section 46-17-

3 1 l(2). ,MCA, restricts this right of appeal to those cases where the defendant has first been

tried in the limited jurisdiction court. Our Opinion also traces our recent cases interpreting

$ 46-17-3 1 1(2), MCA, which, faithful to the plain and unambiguous language of this statute,

hold that there is no statutory right of appeal to the district coun fi-om a justice court's order

denying a motion to withdraw a guilty plea.

qi32 While that is the law, as the author of all three of our controlling opinions--Feighi,

Fox, and Ligfkrt--I have no hesitaxicy in saying that this statutory scheme is flawed to the

extent that it denies direct appeals to the district courts from the limited jurisdiction courts

it1 cases involving the denial of a defendant's motion to withdraw his or her guilty plea on the

ground that the plea was not voluntary. My rationale for this conclusion is as follows.

'133 It is common knowledge that many defendants who plead guilty to offenses in

Montana's courts of limited jurisdiction do so without the benefit of counsel. In my

experience, the judges of these courts typically do a good job ensuring that pleas are

voluntarily entered as required by $ 46-17-203(2), MCA: and explaining to the accused the

consequences of a guilty plea as required by 5 46-17-203(l)(bf, MCA. and $ 46-12-210.
?AC:A. Notwithstanding? the fact remains that some of these defendants ine;.itahly fail to

fiii!y uildersia:ld and appreciate the importance of the rights they are waiving by pleading

guilty and the consequences that may follotv from their plea.

:I34
ii As our Opinion points out, the law is absolutely clear that any guilty plea? to be

constitutionally effective, must be voluntary, knowing and intelligent. Rudi, 250 Mont. at

159. 8 18 P.2d at 1206. To this end, 5 46- 17-203(2), MCA, specifically requires the limited

jurisdiction court judge or justice to inform the defendant of the waiver of the right of appeal

by trial de novo iniposed by this section. before accepting a plea of guilty or nolo corztendere.

Additionally, the judge or justice niust question the defendant "to ensure that the plea and

waiver are entered volu~itarily." See ulso H.B. 454, 5ist Leg., Sec. 3; Chap. 277, L. 1989,

which added subsection (2j to $46-17-203, MCA (Committee minutes and exhibits clearly

demonstrate the legislators' and proponents' concern regarding voluntariness and that the

entire scheme depends upon the voluntariness of a defendant's plea).

'35 When, however, volunrariuess of a guilty plea becomes an issue--and it does with

some regularity in all trial courts--then there must be a process for appellate review of the

magistrate's decision denying the defendant's motion to withdraw his or her plea of guilty.

LVhile that is not a problem where the plea is entered in a district court proceeding. it is uhere

the plea is entered in a court of limited jurisdiction. This is so by reason of a combination

of three factors: First. under Article VII; Section 4(2), of Montana's Constitution, trial cle

~zovoin district court is the only means of appeal from the courts of limited jurisdiction,
unless the Legislature provides otherwise. See also 46- i7-3 1 i(1). MC.4. Second, under

5; 46- 17-203(2), MCA, a guilty plea 5,vaives trial de nova in district court. And, third, under
cj 46- 17-1 1 i(2I1 MCA, a limited jurisdiction court defendant has no statutcry right ofappeal

to the district court unless he or she has first been tried in the lower court, In other viords,

by reason of the combined provisions of Article VII, Sectioii 4(2), 46-17-203(2), MCA, and

46-1 7-31 1(2), MCA, a district court judge has no authority to judicially review by way of
?j

direct appeal; a limited jurisdiction court judge's or justice's decision to deny a defendant's

motion to withdraw his or her guilty plea on grounds of voluntariness. Feight,1 11-22; Fox,
'1
17 8-16.
q36 This scheme results in an anomaly. 4 defendant who receives a trial but is unhappy

with the outcome can receive an entirely new trial in the district court. On the other hand,

a defendant who pleads guilty in a court of limited jurisdiction has no opportunity for a new

trial or for appeal even if his plea was constitutionally invalid. In addition, a defendant who

pleads guilty under this scheme also has no opportunity for an independent review of the

voluntariness of his or her plea (aside from the less-tlran-adequate remedy of postconviction

relief, as discussed below) because the only review allowed is that before the same judge

who accepted the plea in the first place.

737 The case at bar presents a good cxan~ple why an independent judicial review of the
of

voluntariness of a plea is necessary. Here, the Justice Court abused its discretion by denying

Bouciter's initial motion to withdraw his guilty plea. Boucher's plea was not voluntary,
knowing and intelligent. His plea was constitutionally invalid. Notwithstanding, under the

present statutory scheme, Roucl-ier has no avenue to directly appeal tile denial of his motion

to withdraw his guilty plea. And, that brings us to our decision i i l Liefit-t

q38 Consistellt with the statutory scheme which the Legislature has enacted and absent any

defendant, to date, challenging the constitutionality of the aforementioned strictures on direct

appeal imposed by $g 46-1 7-203(2), MCA and 46-17-31 1(2), MCA, we treated a limited

jurisdiction court defendant's "appeal" to the district court from the denial of his motion to

withdraw his guilty plea as a petition for postconviction relief under $36-21-10 1, MCA. See

Licfkrr, !/ Despite having done so in that case and in the one at bar, I do not believe that
8,

pos~convietion
relief is the appropriate remedy, however.

139 Postconviction relief is a civil proceeding involving a collateral attack on the

defendant's conviction, rather than a direct appeal. State v. Garner, 1999 MT 295, ?j 19,297

Mout. 89, 7 19, 990 P.2d 175, 71 19. Being a civil proceeding on collateral review, an

indigent defendant has no right to appointed counsel except under the narrow circumstances

set out in 3 46-2 1-201(2), MCA. Such a defendant would have the right to appointed counsel

on a direct appeal. Stale v. Rat-don, 2001 MT 77,73; 305 Mont. 78, ?/ 3, 22 P.3d I 132,13.

Additionally, we have held that a defendant is entitled to counsel during a "critical stage" of

thc criminal proceeding--i.e. where there is potential substantial prejudice to the defendant.

!
Sturi. v. Fiiz'i,zl~1996). 276 Mont. 126, 145, 91 5 P.2d 208,220 overruled or/ otlter groutzds

ly Sf~itc! V. Guiluglter, 2001 MT 3Y1 304 Mont. 2 15, 19 P.3d 8 17. In my view, the stage at
which a criminai defendant seeks to withdraw his guilty plea on the basis of constitutional

iirvalidity is a "critical stage" of the proceedings implicating the right to counsei.'

"40
I: Furthermore. the postcon~;iction process--which is designed for collateral revieiv

following appeal--is, on the one hand, cumbersome in that the defendant must file a verified

petition supported by affida\ its, records and other documents, $$46-21-103 and 46-21-104,

MCA, yet, on the other hand, this process gices the defendant a year to challenge his plea,

$ 46-2 1-102. MCA, in contrast to the ten days for a direct appeal allonred by $46-1 7-3 11(2),

MCA.

4 1 Moreover, review on appeal would allow the defendant challenging the volnntariness

of his or her plea a hearing, similar to the procedure where the deferrdarlt preserves issues of

law for review under $ 46-12-204(3), MCA, and 5 46-17-3 1 I(]), MCA. See also State v.

Bczrlier (1993), 260 Mont. 85, 89-92, 858 P.2d 360, 362-64; Stale ex rel. Wilsorz v. District

C'ourl (1995), 270 Mont. 449, 893 P.2d 318. In contrast, a defendant is not entitled to a

hearing in a postconviction proceeding unless the district court grants a hearing at its

discretion. Section 46-21-201(1)(a), MCA. Again, keeping in mind that a guilty plea must

be loluntary, ~ntellrgentand knowing, it is hard to conclude that these constitutional

~mperati\esare statutorily protected by a scheme that forces the defendant to utilize a

'I acknowledge that we held in Stcrte v. Gut-ner,2001 MT 222.306 Mont. 462, 36 P.3d
336 (GurrzerI f ) , that a hearing on a motion to withdraw a guilty plea is not a critical stage of the
proceedings. I continue to believe that our decision was in error. Atid, the great weight of
fcdcral and state jurisprudence supports my conclusion. See Gunzer II, c 59 (Nelson, J.,
i
dissenting). This case presents one more real-life example of why C;urner II should be overruled
to that extent.
cumbersome civil proeeedii~g
-which allo\h-s the reviewing court discretion to appoint counsel

and lioid a hearing.

e42 Finally, subsection ( )of $46-21-101. hZCh, is anomaloris in that it restricts the filing
2

of postconviction petitions by defendants from sentences imposed by the courts of limited

jurisdiction to situations where the defendant has exhausted all appeal remedies provided by

law. As already noted, defendants who plead guilty or nolo conrendere in the courts of

limited jurisdiction have no appeal remedies to exhaust. Sections 46-17-203(2), MCA and

46- 17-3 11(2), MCA.

743 To remedy these defects and anomalies, I suggest that the Legislature statutorily

provide an exception to 55 46-17-203(2), MCA and 46-1 7-3 1 l(1) & (2), MCA, to give the

district courts authority to entertain direct appeals from the courts of limited jurisdiction in

cascs where the defendant claims that his or her plea was not voluntary. The district courts

should have authority to appoint counsel. hold a hearing, and then enter appropriate findings

of fact, conclusions of law and a decision affirming or reversing the limited jurisdiction court

judge's or justice's denial of the defendant's motion to withdraw the guilty plea. if the district

court reverses the decision of the limited jurisdiction court judge. then the case would be

remanded for trial in the lower court. Alternatively, the district court's decision could be

appealed to this Court,

743 in sum, I suggest that the present statutory scheme is flawed in the foregoing respects

and may well be subject to legal challeiige. Under Article V1I; Section 4(2), of Montana's
Constit~rtion Legislature can--and should--remedy this situation. Accordingly: I urge the
the

Legislature to statutorily provide criminal defendants who seek to withdraw an involunrayv

guilty- plea entered in a court of limited jurisdiction an awnue of direct appeal to the district

courts.

Justice W. William Leaphart joins in the foregoing special concurrence.
Justice Jim Rcgnier Concurring

,,-is
4; - A [ concur v;ith ti.)- Coiirt's a n a l p i s in the second issiie and 1 agwe with ihc iestiir

reached by the C'ourr on the jurisdictional issue. Howe\.cr, once again; I disagsec with thc

"postconviction rclief' fonnula employed by the Court to establish jurisdiction ~ i t the
h

District Court.

4 Within the last se\!en months, this very jurisdictional issue has appeared before this

Court on several occasions, and, in all likelihood, the inquiry will not end lvith this case.'

Yet, in the short time since October of 2001, the majority has established nothing short of an

elusive jurisdictional target for practitioners to hit.

747 111Feigiif, F a , and Kenlpiil the Court applied a rigid construction of 5 46-17-3 11,
MCA, to prohibit the respective appeals from justice court to district court on jurisdictional

grounds. In Liefhrf, i n order to circumvent its own narrow jurisdictional construction, the

Court deemed Liefcrt's appeal fromjustice court to district coin? a petition forposteon\,iction

relief so that it might address another substantive argument raised in the appeal. Curiously,

while Feight, Fox, andZ,i