01-337 Opinion
No. 01-337
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 48
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DAVID ARNOLD LIEFERT,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Broadwater,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael Donahoe, Assistant Federal Defender, Federal Defenders of Montana, Helena,
Montana
For Respondent:
Mike McGrath, Montana Attorney General, Cregg W. Coughlin, Assistant Montana
Attorney General, Helena, Montana; John T. Flynn, Broadwater County Attorney, Townsend,
Montana
Heard: January 15, 2002
Submitted: January 15, 2002
Decided: March 19, 2002
Filed:
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__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 David Liefert (Liefert) was charged under federal law with unlawfully possessing a firearm, 18 U.S.
C. § 922(g)(9), after pleading guilty under state law to partner assault, § 45-5-206, MCA, in Justice
Court No. 1, Broadwater County. After the federal violation was charged, Liefert sought to withdraw
his guilty plea to the partner assault in Justice Court, arguing good cause to withdraw his plea because
the Justice Court did not inform him of the federal prohibition on possessing a firearm as a result of his
plea under state law. The Justice Court denied the motion, and Liefert appealed the denial to the First
Judicial District Court, Broadwater County1. The District Court also denied his motion, concluding
Liefert did not have to be advised of the federal prohibition because it is a collateral consequence of
Liefert’s sentence. Liefert followed with this appeal, again arguing that his guilty plea was not
voluntary because he was not informed of the federal limitations on possessing a gun upon conviction
for domestic violence under state law.
¶2 We address the following issue on appeal: Did the District Court err in denying Liefert’s motion to
withdraw his guilty plea because Liefert was entitled to be informed of the federal firearms prohibition
that could result from a state conviction for partner assault?
¶3 We affirm.
1
There is no appeal to a District Court from a
denial of a motion to withdraw a guilty plea in
Justice Court. State v. Feight, 2001 MT 205, ¶ 22,
306 Mont. 312, ¶ 22, 33 P.3d 623, ¶ 22. The
jurisdictional issue created by Liefert's case is
discussed below.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶4 On August 25, 1999, Liefert plead guilty to partner assault under § 45-5-206, MCA, in Justice
Court No. 1, Broadwater County. The facts underlying the plea are not part of the record because justice
courts are not courts of record. However, the briefs of the parties indicate that law enforcement
responded to a 911 call regarding an argument between Liefert and his wife.
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¶5 On May 18, 2000, Liefert was charged with violations of federal laws that prohibit possession of a
firearm when someone receives qualifying state convictions. One charge arose under 18 U.S.C. § 922(g)
(9) due to Liefert’s guilty plea for domestic assault. The other charge arose under 18 U.S.C. § 922(g)(1)
due to Liefert’s Minnesota conviction for third degree assault. We are only concerned here with the
federal charge arising from Liefert’s guilty plea to partner assault in Montana. The facts that gave rise to
Liefert’s possession of a firearm are also not part of the record. However the briefs of the parties
indicate that Montana Fish, Wildlife, and Parks authorities discovered Liefert’s gun possession during a
hunting investigation and reported this possession to the United States Attorney’s Office for the District
of Montana after learning of his prior convictions.
¶6 After Liefert was charged with the federal violations, he sought to withdraw his guilty plea in
Justice Court. The Justice Court denied the motion. The basis for the Justice Court’s decision is not part
of the record because justice courts are not courts of record.
¶7 Liefert then appealed to the District Court. The District Court held that the Justice Court did not
have to inform Liefert of the federal gun prohibition because under State v. Reynolds (1992), 253 Mont.
386, 833 P.2d 153, judges are not required to inform defendants of the collateral consequences of a
guilty plea. Therefore, the District Court held that there was no good cause for Liefert to withdraw his
plea.
¶8 We have held that there is no appeal to a District Court from the denial of a motion to withdraw a
guilty plea in Justice Court. State v. Feight, 2001 MT 205, ¶ 22, 306 Mont. 312, ¶ 22, 33 P.3d 623, ¶
22. Further, lack of proper jurisdiction can always be raised at any point in a proceeding. State v.
LaPier (1998), 289 Mont. 392, 395, 961 P.2d 1274, 1276; § 46-13-101(3), MCA. The State asserts here
that jurisdiction was not proper in District Court and that Liefert’s appeal should therefore be dismissed.
However, the State also suggests that Liefert’s appeal could be deemed as one for post conviction relief,
which is an alternative not addressed in Feight. See State v. Feight, 2001 MT 205, ¶ 16 n.2, 306 Mont.
312, ¶ 16 n.2, 33 P.3d 623, ¶ 16 n.2. Without deciding the issue of whether a petition for post conviction
relief is proper in all similarly situated cases, we accept the State’s suggestion to deem this case a
request for post conviction relief for purposes of this case only. Accordingly, we address the issue of
whether Liefert had good cause to withdraw his plea.
II. STANDARD OF REVIEW
¶9 In order for a guilty plea to validly waive constitutional protections, the defendant’s guilty plea
must be a voluntary, knowing, and intelligent choice among options. State v. Radi (1991), 250 Mont.
155, 159, 818 P.2d 1203, 1206 (citing North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.
Ed.2d 162); see § 46-12-210, MCA. The defendant must be aware of the rights waived including such
rights as the right to a jury trial, to counsel, or the right against self incrimination. State v. Yother
(1992), 253 Mont. 128, 130, 831 P.2d 1347, 1348.
¶10 A district court may permit the withdrawal of a guilty plea for good cause. Section 46-16-105(2),
MCA. “The fundamental purpose of allowing the withdrawal of a guilty plea is to prevent the possibility
of convicting an innocent [person].” State v. Johnson (1995), 274 Mont. 124, 127, 907 P.2d 150, 152.
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This Court reviews denial of a motion to withdraw a guilty plea for abuse of discretion. State v. Bowley
(1997), 282 Mont. 298, 304, 938 P.2d 592, 595. We consider three factors in this review:
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;
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.
Bowley, 282 Mont. at 304, 938 P.2d at 595. In this case, there was no plea agreement and
the State does not dispute that Liefert’s attempt to withdraw his plea was prompt.
Therefore, the only factor at issue is whether the Justice Court’s plea colloquy was
adequate even though it did not inform Liefert of the consequence of the federal
prohibition on possession of firearms as a result of a state conviction for domestic
violence, in this case, partner assault.
III. DISCUSSION
A. Issues Not Addressed in this Opinion
¶11 Before we turn to the issue presented to this Court, it is important that we clarify the issues this
Opinion does not address. These issues were noted by the parties in briefs and at oral argument, but
were not otherwise presented to the Justice Court, District Court, or this Court for decision. First, we do
not address whether, under Montana state law, Liefert’s civil rights were restored when he completed his
sentence for partner assault. Liefert noted that he presented different issues in disputing his charges in
federal court. In federal court, Liefert argued that under 18 U.S.C. § 921(a)(20) and (a)(33)(B)(ii), a
defendant should no longer be subject to the federal prohibition if that defendant’s civil rights were
restored by state law, i.e., if the state considered the punishment complete. Liefert argued in federal
court that the determination of when rights are restored is a matter of state law and that Liefert’s rights
should be considered restored under Montana law because he completed his sentence. However, Liefert
did not present the issue of the restoration of his rights in state court. Therefore, we do not address
whether under state law, Liefert’s rights were restored.2
2The United States District Court for Montana ruled that Liefert's
rights were restored when he completed his sentence. United States
v. Liefert, CR 00-9-H-7798 (D.Mont. Sept. 27, 2000). The Ninth
Circuit reversed this decision in an unreported opinion. No. 00-
30327, 2001 WL 868037 (9th Cir. July 30, 2001). Liefert has a
pending petition for certiorari on this issue. U.S. Oct. 19, 2001
(No. 01-7615).
The United States Supreme Court has accepted certiorari on the
related issue of whether a federal court can restore a defendant's
gun rights upon petition under 18 U.S.C. § 925(c) when the
administrative process for restoration of gun rights has not yet
taken place. Bean v. Bureau of Alcohol, Tobacco and Firearms
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(5th Cir. 2001), 253 F.3d 234, cert. granted, __ U.S. __, __
¶12 Second, the State noted that under United States v. Akins (9th Cir. 2002), __ F.3d __, 2002 WL
24358, Liefert’s plea might not be adequate for the purposes of 18 U.S.C. § 922(g) in part because it was
not taken in a court of record with the consequence that the plea colloquy was not detailed in a record.
However, Liefert noted that the federal charges against him have not been dismissed. Accordingly, we
assume for purposes of this appeal that 18 U.S.C. § 922(g)(9) applies to Liefert, regardless of the Akins
issue.
¶13 Third, the State noted that it believed there was a possible issue that Congress exceeded its power
in enacting 18 U.S.C. § 922(g)(9) by imposing such a restriction on firearms when a gun is not used in
the underlying domestic violence case. Again, this issue was not presented here and it would not be
within the purview of this Court’s power to decide this issue, in any event.
¶14 Finally, regarding the adequacy of the plea colloquy, Liefert did not assert that gun possession is
such that every defendant in every case is entitled to be informed that as a result of a conviction, the
defendant’s possession of firearms may be limited. In other words, Liefert did not assert that a judge
must inform every defendant of the affect of a guilty plea on gun possession, the same as a judge must
inform a defendant of trial related rights such as the right to trial by jury, to be represented by counsel,
the right against self incrimination, or other like rights. See Yother, 253 Mont. at 130, 831 P.2d at 1348;
Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. Rather, Liefert only presented
the issue of whether a trial court must inform a defendant during its plea colloquy of the federal
limitations on gun possession in 18 U.S.C. § 922(g) when a defendant is charged with partner assault
under § 45-5-206, MCA. We now turn to that issue.
B. The Parties’ Positions
¶15 In support of his argument that the Justice Court’s plea colloquy was inadequate and that his
resultant guilty plea was not voluntary, Liefert notes that a trial court is required to inform a defendant of
the maximum penalty allowed by law. See § 46-12-210(a)(iii) and § 46-16-105(1), MCA. He also cites
United States v. Batchelder (1979), 442 U.S. 114, 123, 99 S.Ct. 2198, 2204, 60 L.Ed.2d 755, observing
that a sentencing statute, like any other punitive statute, must give fair warning of the punishment that
can result from a violation. Further, Liefert points out that under the state statutes, § 45-5-206(7) and §
46-18-202(1)(b), MCA, the gun restriction is discretionary, whereas in the federal statute, 18 U.S.C. §
922(g), the gun restriction is not discretionary, but mandatory.
¶16 Based on these uncontroverted points, Liefert asserts that by reading the state statute, § 45-5-206,
MCA, and the federal statute, 18 U.S.C. § 922(g)(9), together, the federal law preempts the state law
such that there is a mandatory restriction on firearms. He further asserts that by reading the state and
federal statutes together, due process requires that the Justice Court should have informed Liefert of the
federal prohibition in order to give him fair warning regarding gun restrictions. By reading the state
statute alone, Liefert argues a defendant is given a “negative implication” that the defendant’s gun rights
are completely at the discretion of the state court judge.
¶17 Liefert also points out that under § 46-12-210(f), MCA, courts are required to inform defendants
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in Montana that a guilty plea may have consequences under federal immigration law. Liefert asserts that
defendants should similarly be informed of the federal consequences and restrictions on gun possession
when pleading guilty to partner assault under state law.
¶18 In contrast, the State asserts that judges are not required to inform defendants of the collateral
consequences of a plea. The State argues that under our precedent, 18 U.S.C. § 922(g) is a collateral
consequence. Further, the State asserts that the requirement regarding federal immigration law was a
policy determination made by the Legislature and that any similar requirements regarding gun
possession must also be based on legislative action.
C. The Federal Restrictions of 18 U.S.C. § 922(g) are Collateral Consequences.
¶19 In Montana, if a defendant is convicted of partner assault under § 45-5-206, MCA, the trial court
“may prohibit an offender convicted under this section from possession or use of the firearm used in the
assault.” Section 45-5-206(7), MCA; see also § 46-18-202(1)(b), MCA (providing judges with the
general discretion to restrict gun possession for any state crimes). The federal statute at issue, 18 U.S.C.
§ 922(g)(9), reads:
It shall be unlawful for any person . . . who has been convicted in any court of a
misdemeanor crime of domestic violence, to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive
any firearm or ammunition which has been shipped or transported in interstate or foreign
commerce.
See also 18 U.S.C. §§ 922(g)(8), (d)(8) and (d)(9)3. The federal law also provides for its effect on state
law as follows:
No provision of this chapter shall be construed as indicating an intent on the part of the
Congress to occupy the field in which such provision operates to the exclusion of the law
of any State on the same subject matter, unless there is a direct and positive conflict
between such provision and the law of the State so that the two cannot be reconciled or
consistently stand together.
Title 18, U.S.C. 927. These statutes serve as the basis of Liefert’s appeal.
¶20 Under the age old maxim that people are presumed to know the law, Liefert is of course presumed
to be aware of both the state and federal statutes. State v. Lynn (1990), 243 Mont. 430, 435-36, 795
P.2d 429, 433. Therefore, his actual knowledge is not at issue. Rather, the issue is whether the state
trial court had a duty to inform Liefert of the federal consequences of a state guilty plea.
318 U.S.C. § 922(g)(8) reads:
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It shall be unlawful for any person . . . who is subject to a court
order that--
(A) was issued after a hearing of which such person received
actual notice, and at which such person had an opportunity to
participate;
(B) restrains such person from harassing, stalking, or threatening
an intimate partner of such person or child of such intimate partner
or person, or engaging in other conduct that would place an
intimate partner in reasonable fear of bodily injury to the partner or
child; and
(C) (i) includes a finding that such person represents a credible
threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or
threatened use of physical force against such intimate partner or
child that would reasonably be expected to cause bodily injury,
. . . to ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or ammunition; or
to receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.
¶21 Because it is impossible for a judge to inform a defendant of every possible consequence of a
guilty plea, most courts have adopted the prevailing rule that judges are only required to inform
defendants regarding the direct consequences of a guilty plea and are not required to inform defendants
regarding the collateral consequences. See Torrey v. Estelle (9th Cir. 1988), 842 F.2d 234, 235. While
we have not explicitly adopted this rule in Montana, we have actually applied this rule on a case by case
basis by analyzing specific consequences to determine whether a district court must inform a defendant
of that consequence before accepting a guilty plea. See State v. Buckman (1989), 236 Mont. 37, 43, 768
P.2d 1361, 1365 (court not required to inform defendant of all implications regarding parole eligibility);
State v. Skroch (1994), 267 Mont. 349, 357, 883 P.2d 1256, 1262 (court not required to inform
defendant of requirement to register as a sex offender until sentencing hearing); State v. Thomas (1997),
285 Mont. 112, 122, 946 P.2d 140, 146 (§ 46-12-210, MCA, is modeled after Fed.R.Crim.P. 11(c);
defendant not entitled to be informed of all conceivable consequences regarding parole eligibility). We
now explicitly adopt the rule that under § 46-12-210, MCA, and related statutes, district courts are only
required to inform defendants of the direct, rather than the collateral, consequences of a guilty plea.
¶22 The question presented in this appeal thus turns on whether the federal consequences of Liefert’s
plea are direct or collateral. A consequence is direct if it has a “definite, immediate, and largely
automatic effect” on the defendant. United States v. Bouthot (1st Cir. 1989), 878 F.2d 1506, 1511. In
contrast, a consequence is collateral if a defendant has control over whether or not the consequence
occurs. Torrey, 842 F.2d at 236. In addition, a consequence is collateral if it is not under the control of
the sentencing judge or it is a procedure under the control of a different sovereign or different agency.
United States v. Long (7th Cir. 1988), 852 F.2d 975, 979.
¶23 Long addressed the same general issue presented here, but from the perspective of a federal court.
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In Long, the court stated:
[T]he state and federal systems are separate and distinct, and the defendant need only be
informed of the direct consequences he may face within the particular system. Therefore,
the state court, even if knowledgeable about federal criminal law, need not undertake to
inform the defendant of his potential federal criminal liability: the nature of the state
sentence was unaffected by the federal prosecution and sentence.
See also United States v. Maestas (5th Cir. 1991), 941 F.2d 273, 279; United States v. Jordan (7th Cir.
1989), 870 F.2d 1310, 1317 (“federal prosecution was only a possibility, over which the State's Attorney
had no control”); Bouthot, 878 F.2d at 1511 (“federal firearms prosecution [under 18 U.S.C. § 922] was
not a largely automatic, definite, or immediate consequence of the state guilty pleas”); United States v.
Campusano (1st Cir. 1991), 947 F.2d 1, 5.
¶24 We have previously briefly addressed the issue of whether trial courts must bring federal
consequences to the attention of a defendant. In Reynolds, a case closely analogous to the case at bar,
the defendant attempted to withdraw his guilty plea in state court after being charged with illegal
possession of a weapon in federal court under 18 U.S.C. § 922(g)(1). Reynolds, 253 Mont. at 390, 833
P.2d at 154. The defendant attempted to withdraw his plea in part on the grounds that his plea was
involuntary because he was not informed of the federal consequences of 18 U.S.C. § 922(g)(1), which
prohibits anyone convicted of a state felony from possessing a weapon. Reynolds had pled guilty in
state court to issuing a bad check, a felony, and to forgery, a misdemeanor. Reynolds, 253 Mont. at
387, 833 P.2d at 154. We held that trial courts do not have to inform defendants of “every illegal action
that could affect the defendant upon entering a guilty plea” and we agreed with the trial court that there
was no specific affirmative requirement to inform the defendant of the federal ramifications in that case.
Reynolds, 253 Mont. at 392, 833 P.2d at 156-57; see also State v. Miller (1991), 248 Mont. 194, 196-98,
810 P.2d 308, 309-10 (failure to inform client regarding federal consequences of guilty plea does not
constitute fundamental mistake in plea agreement).
¶25 Turning to this case, Liefert had discretionary control over whether he would be in violation of
federal law upon entry of his guilty plea. He would be in violation of federal law if he chose to possess
a weapon; he would not be in violation of federal law if he made the opposite choice. Further, Liefert’s
federal prosecution is under the control of a different sovereign entity. Therefore, we hold that the
consequence of a potential federal firearms prosecution under 18 U.S.C. § 922 is a collateral
consequence because the consequence is not an automatic, definite, or immediate consequence of a state
guilty plea and because the consequence is under the control of the federal government. See also Saadiq
v. Iowa (Iowa 1986), 387 N.W.2d 315, 325 (holding that restriction on firearms under a different section
of Iowa law was a collateral consequence); Reponte v. State (Haw. 1976), 556 P.2d 577, 584 (restriction
on holding a gun is a collateral consequence). Accordingly, the trial court was not required to inform
Liefert of this collateral consequence, and Liefert’s guilty plea was properly accepted as a voluntary and
knowing plea.
¶26 Regarding Liefert’s due process/federal preemption/“negative implication” argument, Liefert cites
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Batchelder in support of the proposition that statutes must give fair warning. However, he does not cite
authority for the proposition that federal and state statutes, when taken and read together, must give fair
warning. While we agree that 18 U.S.C. § 922 applies here, see Caron v. United States (1998), 524 U.S.
308, 316, 118 S.Ct. 2007, 2012, 141 L.Ed.2d 303 (applying 18 U.S.C. § 922 to state convictions and
citing other similar federal cases), we do not agree that federal prohibitions contingent on a state
conviction or any other predicate offense requires reading those statutes together in the context of
accepting guilty pleas. In fact, Batchelder explicitly dealt with the notice given by two federal statutes
when read together, and held that the plain language of each is considered on its own:
The provisions in issue here, however, unambiguously specify the activity proscribed
and the penalties available upon conviction. . . . That this particular conduct may violate
both Titles does not detract from the notice afforded by each. Although the statutes create
uncertainty as to which crime may be charged and therefore what penalties may be
imposed, they do so to no greater extent than would a single statute authorizing various
alternative punishments. So long as overlapping criminal provisions clearly define the
conduct prohibited and the punishment authorized, the notice requirements of the Due
Process Clause are satisfied.
Batchelder, 442 U.S. at 123, 99 S.Ct. at 2204, 60 L.Ed.2d 755. Batchelder also found the rule of lenity,
requiring ambiguous statutes to be interpreted in favor of a defendant, unavailing because the rule does
not overcome unambiguous statutory readings. See State v. Turner (1993), 262 Mont. 39, 49-50, 864
P.2d 235, 241 (§ 45-1-102(2), MCA, provides that penal statutes are not strictly construed, leniency only
applies when statutes create an ambiguity). In this case, the state and federal statutes each
unambiguously specify the punishment that may be brought by each entity. Therefore, we hold that
Liefert’s due process rights of fair warning were not violated. We note in making this holding, that
neither Liefert nor the dissent cite any authority in support of the "negative implication" argument.
¶27 In making the “negative implication” argument, Liefert attempts to distinguish Reynolds by noting
that the state statute on partner assault specifically mentions that a judge has the discretion to limit gun
possession, while the statute regarding issuing bad checks does not. However, as Liefert himself
concedes, this distinction is meaningless in light of the fact that trial courts can generally limit gun
possession for any crime under § 46-18-202(1)(b), MCA.
¶28 As to Liefert’s argument that Montana courts must inform defendants of federal restrictions on
gun possession because § 46-12-210(f), MCA, requires these courts to notify defendants of the federal
consequences of deportation, we note that currently under federal law, federal courts are not required to
inform defendants regarding deportation. See Fed.R.Crim.P. 11(c). To the contrary, federal circuit
courts generally hold that the consequences of deportation are collateral. United States v. Gonzalez (1st
Cir. 2000), 202 F.3d 20, 28. This indicates that Montana’s requirement under § 46-12-210(f), MCA, is a
purely statutory requirement. Consequently, if Montana’s courts are to inform defendants of other
collateral consequences of a state guilty plea, such as the possibility of federal gun restrictions, such a
requirement is properly left to the Legislature as a policy decision.
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¶29 Finally, we briefly note that Liefert cites no authority for his equitable argument that trial courts
should inform defendants of the federal restrictions because possessing a gun is more important in this
state than it would be in other states. We decline to establish a precedent based on no legal authority
whatsoever.
¶30 Further, we will not consider his equitable argument that he pled guilty because he could not
afford bail and he needed to get out of jail in order to timely harvest his wheat. We have held that a plea
is not involuntary simply because it was entered to avoid the possibility of a greater punishment at trial.
State v. Milinovich (1994), 269 Mont. 68, 71, 887 P.2d 214, 216 (citing Brady v. United States (1970),
397 U.S. 742, 751, 90 S.Ct. 1463, 1470, 25 L.Ed.2d 747). Likewise, a plea is not involuntary simply
because a defendant views its punishment as lesser than his immediate personal consequences.
CONCLUSION
¶31 The District Court did not err in denying Liefert’s motion to withdraw his guilty plea.
Affirmed.
/S/ JAMES
C. NELSON
We Concur:
/S/ KARLA M. GRAY
/S/ TERRY N. TRIEWEILER
/S/ JIM RICE
Justice Jim Regnier concurring.
¶32 While I concur with the ultimate result reached by the Court, I disagree with the Court’s
“postconviction relief” justification for its conclusion that the District Court had jurisdiction to hear
Liefert’s appeal. Here, as in Feight, Liefert simply filed a notice of appeal with the District Court
challenging the Justice Court’s denial of his motion to withdraw the guilty plea. This was the identical
mechanism for appeal employed by the defendants in Feight to challenge the validity of their guilty
pleas. Yet the Court in Feight curiously chose not to pursue the “postconviction relief” jurisdictional
analysis. The logic in treating these indistinct appeals altogether differently eludes me.
¶33 Although Liefert did not file a petition for postconviction relief, in my view the Court deems his
appeal as such simply to rectify the jurisdictional quandary created by Feight. The Court’s effort to craft
such a subjective solution to the Feight dilemma necessarily results in arbitrary and unfair treatment of
the litigants who appear before us. Rather than construing Liefert's notice of appeal as a petition for
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postconviction relief, I would simply treat it as a notice of appeal and hold that the District Court had
jurisdiction to consider the appeal pursuant to §§ 3-5-303 and 46-20-104, MCA, as outlined in my
dissent in Feight.
/S/ JIM
REGNIER
Justice Patricia O. Cotter specially concurs,
¶34 I concur with Justice Regnier. As long as Feight is the law of the land for those who seek to
appeal from a justice court’s order denying a motion to withdraw a guilty plea, it should be consistently
and unfailingly applied to everyone who attempts to appeal from such an order. If on the other hand, we
have so little confidence in its correctness that we must devise methods to avoid its consequences, as we
do here, then we should say so. I would re-examine our holding in Feight, and correct the error we made
in that case.
¶35 In Justice Regnier’s dissent in Feight, in which Justice Trieweiler and I joined, Justice Regnier
concluded that the general right to appeal found in § 46-20-104, MCA, and § 3-5-303, MCA, should
have controlled the disposition of that case, in light of the fact that none of the statutes limiting appeals
from the justice court to the district court applied to the situation before the Court. Feight, ¶ 34
(Regnier, J., dissenting). Justice Regnier argued that the inquiry is not, as the majority in Feight
concluded, whether any specific statute authorizes an appeal. Rather, the inquiry should be whether any
statute precludes such an appeal. I agree. There is additional statutory authority for this proposition,
cited by Leifert, that was not addressed by either the majority or the dissent in Feight.
¶36 Leifert argued that, absent any specific statute precluding an appeal from an order denying a
motion to withdraw a guilty plea in justice court (and we agreed in Feight that there was none), he was
entitled to the benefit of § 46-1-103(1), MCA, which provides:
This title governs the practice and procedure in all criminal proceedings in the courts of
Montana except where provision for a different procedure is specifically provided by law.
The meaning of this language is clear. The rights afforded under Title 46 apply in all
criminal proceedings, except where a specific provision provides a countervailing
procedure.
¶37 In Feight, we held:
Accordingly, §§ 3-5-303, 46-17-203, 46-17-311 and 46-12-204, MCA, being the
specific legislative scheme defining the jurisdiction of district courts to hear appeals from
justice courts, these statutes control over § 46-20-104, MCA, which only generally defines
the scope of criminal appeals by the defendant.
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Feight, ¶ 21. Significantly, none of these listed statutes specifically strips from a justice court defendant
the right to appeal from a denial of a motion to withdraw a guilty plea. This being so, then the general
right of appeal found at § 46-20-104, MCA, is not displaced or superseded, and cannot, if § 46-1-103,
MCA, is to be given its clear meaning, be abrogated by the type of statutory construction in which the
majority engaged in Feight.
¶38 Contrary to our holding in Feight, the fact that § 46-20-104, MCA, is a general criminal statute
does not mean it is displaced by specific justice court statutes. In State v. Tweedy (1996), 277 Mont.
313, 922 P.2d 1134, we were confronted with the question of whether the provisions of § 46-18-116,
MCA (dealing with the requirement of a signed judgment), should apply to proceedings in justice court,
which were prescribed by the provisions of Chapter 17 of Title 46. Citing § 46-1-103(1), MCA, as our
authority, we concluded that unless a different procedure for justice court was specifically outlined, the
requisites of other chapters of Title 46 should be applied to criminal proceedings in justice court.
Tweedy, 277 Mont. at 317, 922 P.2d at 1136. The same result is compelled here.
¶39 When the majority faulted Feight for his inability to point to any statutory authority for a right to
appeal to the District Court from a denial of a motion to withdraw a guilty plea (Feight, ¶ 17, emphasis
mine), the majority imposed upon Feight a burden that was not his, or that of any other defendant in a
similar situation, to carry. Simply put, the right of appeal from a final order exists unless abrogated by
specific statute. No such statute being found, it was error for this Court to judicially eliminate Feight’s
statutory right under § 46-20-104(1), MCA, to appeal from a final order affecting his substantial rights.
¶40 Finally, we also held in Tweedy that a party cannot consent to subject matter jurisdiction that is
lacking, or waive a want of jurisdiction. Tweedy, 277 Mont. at 315, 922 P.2d at 1135. Yet, this is what
occurred here when--contrary to our holding in Feight--we accepted jurisdiction pursuant to the State’s
creative (and, I submit erroneous) interpretation of our postconviction statutes.
¶41 As Justice Regnier urges, I would accept Leifert’s notice of appeal for just what it is, and would
hold the District Court had jurisdiction to consider it. In the process, I would overrule Feight.
/S/ PATRICIA COTTER
Justice Jim Regnier, concurs in the foregoing special concurrence,
/S/ JIM REGNIER
Justice W. William Leaphart dissenting.
¶42 I dissent. There is merit to Liefert’s “negative implication” argument. We engage in the legal
fiction that citizens such as Liefert are aware of the law, both at the federal and state level. However, in
the context of this case, awareness of the state and federal law, at best, results in a state of confusion.
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Liefert appeared before a state court judge to be sentenced for the offense of partner assault. Section 45-
5-206, MCA. The Montana statute setting forth the possible punishment for partner assault specifically
provides that the court “may” prohibit an offender from possession or use of the firearm used in the
assault. Section 45-5-206(7), MCA. Thus, the imposition of a firearm restriction appears to be
discretionary with the state court judge. Here, the state court judge exercised his discretion and chose
not to impose a firearm restriction. By negative implication, Liefert was free to possess a firearm. We
assume however, as we must, that Liefert is also aware of the federal law, 18 U.S.C. Sec. 922(g)(9),
which makes a firearm restriction mandatory upon a state court conviction for domestic abuse. Must we
assume, however, that Liefert is aware that, if there is a conflict between federal and state law, the
federal law controls and that, despite the wording of the state statute, the state court judge has no
discretion in the matter? If we are to assume that Liefert is aware of these jurisprudential nuances,
should not Liefert, in turn, be able to assume that the sentencing judge, who is certainly more schooled
than Liefert in these matters, would advise and warn Liefert that, regardless of what the state court does
or does not do with regard to firearm restriction, the federal law controls?
¶43 Liefert has a due process right to fair warning of conduct which would be considered criminal.
Art. II, Sec. 17, Mont. Const.; § 45-1-102(1)(c), MCA. Montana law specifically states that the common
law rule that penal statutes are to be strictly construed has no application to the Montana criminal law
code. Section 45-1-102(2), MCA. The Court acknowledges that ambiguous statutes are to be
interpreted in favor of a defendant. However, the Court concludes that this rule does not pertain here
since the statutes at issue each unambiguously specify the punishment that may be brought by each
entity. While that may be true if you look at each statute in a vacuum, the fact is that the federal
sanction is contingent upon the state conviction and, thus, the two statutes must be read in conjunction
with one another. When they are read together, to say there is an ambiguity is an understatement.
¶44 In my view, even if we assume Liefert was aware of state and federal law, we have merely
attributed to him a state of confusion. The federal sanction is triggered by a conviction under state law.
The state law, in turn, purports to give the state judge some discretion to impose firearm restrictions. It
is one thing to assume that Liefert is aware of the federal and state law. It is quite another to assume that
he has the legal acumen to discern that the state judge, before whom he appeared for sentencing, despite
the clear implication of the state statutory scheme, actually had no say in the matter of firearm
restrictions.
¶45 I conclude that Liefert was denied his due process right to fair warning.
/S/ W. WILLIAM
LEAPHART
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