State v. Warclub

No. 03-419

IN THE SUPREME COURT OF THE STATE OF MONTANA

2005 MT 149

STATE OF MONTANA,

Plaintiff and Respondent,

v.

WARREN WARCLUB,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone, Cause No. DC 2001-0767
The Honorable G. Todd Baugh, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Robert L. Kelleher Jr., Attorney at Law, Billings, Montana

For Respondent:

Honorable Mike McGrath, Montana Attorney General, C. Mark Fowler,
Assistant Attorney General, Helena, Montana; Dennis Paxinos, Yellowstone
County Attorney, Scott Twito, Deputy County Attorney, Billings, Montana

Submitted on Briefs: October 19, 2004

Decided: June 14, 2005
Filed:

__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Warren Warclub pled guilty to the offense of deliberate homicide in the Montana

Thirteenth Judicial District Court, Yellowstone County, on July 24, 2002. Shortly thereafter,

Warclub moved to withdraw his guilty plea. After a hearing, the District Court denied his

motion. Warclub appeals. We affirm.

ISSUE

¶2 Did the District Court err when it denied Warclub’s motion to withdraw his guilty

plea?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On October 5, 2001, Warclub was charged by information with deliberate homicide

in the death of Domingo Pacheco. On October 9, 2001, Warclub entered a plea of not guilty,

and the court appointed the Yellowstone County Public Defender’s Office to represent him.

Chief Public Defender L. Sanford Selvey, II, and Chief Deputy Public Defender Roberta

Drew assumed the responsibility of representing Warclub.

¶4 After a few continuances, Warclub’s trial was scheduled for July 30, 2002. Selvey

filed various motions on Warclub’s behalf. On July 12, 2002, Warclub filed a pro se Motion

to Dismiss Counsel, stating that he had sought counsel elsewhere and no longer desired the

services of the Public Defender’s Office. The District Court heard his motion that day.

Warclub explained that he intended to hire Kevin Gillen to represent him. The District Court

advised Warclub of his right to counsel and told the Public Defender’s Office to assist

Warclub in contacting Gillen. Warclub apparently never reached an agreement with Gillen,

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and the Public Defender’s Office remained his counsel.

¶5 Selvey filed various motions to suppress on Warclub’s behalf. Following a hearing

on July 18, 2002, the District Court granted a motion to suppress the results of hand swabs

conducted on Warclub. Selvey subsequently filed more pre-trial motions.

¶6 On July 24, 2002, Warclub appeared and entered a change of plea, pursuant to a plea

agreement with the State. The court reviewed a copy of the plea agreement which Warclub

and Drew had initialed at the bottom of each page. Warclub affirmed that he had read the

document, reviewed it with his attorney, and discussed his constitutional rights with his

attorney. The court ascertained that Warclub understood that he had a right to a jury trial,

and that he had had time to consider whether to change his plea to guilty. Selvey informed

the court that on July 23, 2002, he met with Warclub for about two hours and that Warclub’s

brother Robert also attended the meeting to give Warclub comfort and support. Selvey

further explained that Warclub had been brought to the courtroom on that day and the State

brought in the evidence that it intended to produce for trial so that Warclub could view it.

¶7 At the change-of-plea hearing, Warclub testified that on the night of Pacheco’s death,

they were drinking together. Pacheco touched him, so Warclub stabbed him in the stomach

with a dagger. The court asked Selvey if there was any evidence of self-defense, and Selvey

replied that it had been considered, but in light of his office’s investigation and the crime lab

results there was no credible evidence to support the defense.

¶8 The court asked Warclub, “Do you feel like you had to stab this guy to prevent him

seriously injuring or even killing you?” Warclub replied in the affirmative. After further

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questioning, the court stated that Warclub might have a defense to the crime of deliberate

homicide, and that while the Public Defender’s Office’s investigation could not confirm that

this was the case, Warclub was entitled to tell his story to a jury if he so chose. Warclub

became confused and Selvey requested a recess to discuss the case further with Warclub.

The hearing recessed for a few hours while the court attended to another matter.

¶9 When court reconvened, Warclub asserted that he desired to enter a guilty plea, and

that he had not acted in self-defense. The State made an offer of proof of the evidence it had

intended to submit at trial. Ultimately, the court accepted Warclub’s plea.

¶10 Three days later, on July 27, 2002, Warclub sent a “kite,” or Inmate Special Request

Form, to Selvey, indicating in one sentence that he wanted to withdraw his guilty plea. On

September 10, 2002, the District Court convened a hearing at which Selvey explained that

he had received a letter from Warclub in which Warclub complained that he was dissatisfied

with his legal representation, and that he wished to withdraw his guilty plea because he did

not believe he had been adequately advised. The court deemed the proceeding a Stage I

Finley hearing, pursuant to the process set forth in State v. Finley (1996), 276 Mont. 126,

915 P.2d 208 (overruled on other grounds by State v. Gallagher, 2001 MT 39, ¶ 21, 304

Mont. 215, ¶ 21, 19 P.3d 817, ¶ 21).

¶11 In response to the District Court’s queries, Warclub explained that he did not believe

his attorneys came to see him often enough while he was in jail, and he felt that his counsel

was “against” him. Upon further inquiry, Warclub denied any recollection of the July 24

change-of-plea hearing, even after attempts were made to refresh his memory. Because

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Warclub was unable to recall a lengthy hearing which had occurred less than two months

previously, the court stated that it could not determine whether Warclub’s complaints about

his counsel were seemingly substantial, and the court ordered that a psychiatric exam occur

prior to Warclub’s sentencing hearing, for a determination of his competency. The court

stated that after Warclub’s competency was determined, it would then decide what action to

take on his ineffective assistance claims.

¶12 On October 1, 2002, after a psychiatric evaluation of Warclub, the court held another

Stage I Finley hearing, at which the State, without objection, moved for investigation of

Warclub’s claims. The court appointed Melissa Edwards as Warclub’s counsel to investigate

his ineffective assistance claims. Warclub subsequently claimed that Edwards was also

ineffective; however, after a hearing inquiring into Warclub’s claims against Edwards on

October 24, 2002, the District Court ordered that she remain on the case.

¶13 On December 23, 2002, Warclub, through his counsel Edwards, moved to withdraw

his guilty plea pursuant to § 46-16-105(2), MCA, alleging that the District Court erred when

it failed to ask Warclub if he was satisfied with his counsel when it accepted his change of

plea. Following briefing by the parties, the District Court conducted a Stage II Finley

hearing and a hearing on Warclub’s motion to withdraw his plea on January 7, 8, and 9,

2003. After the parties’ closing arguments, the court orally pronounced that Warclub’s

counsel had not been ineffective, and further denied Warclub’s motion to withdraw his plea.

On January 13, 2003, Edwards withdrew from the case and the Public Defender’s Office

resumed its representation of Warclub.

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¶14 On March 14, 2003, Warclub filed a pro se motion to dismiss District Court Judge

G. Todd Baugh and Deputy Public Defender Carl Debelly, who had represented Warclub in

the later stages of his case. The court denied the motion and ordered Warclub’s sentencing

to go forward as scheduled. Warclub then filed a series of pro se motions, and the District

Court held another hearing on April 1, 2003, to deal with these motions and determine the

status of Warclub’s counsel. After hearing testimony from Warclub, his Public Defender,

and the County Attorney’s Office, the court determined that the issues that Warclub had most

recently raised pro se regarding alleged ineffective assistance of counsel had already been

considered and resolved by the court, and that the Public Defender’s Office would remain

Warclub’s counsel for his upcoming sentencing hearing. The court then heard arguments on

each of Warclub’s remaining pro se motions and denied them in turn.

¶15 On April 15, 2003, the District Court sentenced Warclub to the Montana State Prison

for fifty-five years on the count of deliberate homicide, with an additional ten years for the

use of a weapon, to be served consecutively. From the court’s denial of his motion to

withdraw his guilty plea, Warclub appeals.

STANDARD OF REVIEW

¶16 Pursuant to § 46-16-105(2), MCA, a court may for good cause permit a plea of guilty

to be withdrawn and a plea of not guilty substituted. “Good cause” includes the

involuntariness of the plea, but it may include other criteria. State v. Lone Elk, 2005 MT 56,

¶ 19, 326 Mont. 214, ¶ 19, 108 P.3d 500, ¶ 19.

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¶17 In Lone Elk, we adopted a new test to be applied in those cases in which a defendant

has sought to set aside a guilty plea. We said we would determine whether the plea was

entered voluntarily, and that, because determining whether the facts met the standard for

voluntariness was a mixed question of law and fact, we would review the matter de novo.

Lone Elk, ¶ 10. Before applying this test to the case before us, we wish to clarify our holding

in Lone Elk.

¶18 In Lone Elk, we relied upon Brady v. United States (1970), 397 U.S. 742, 90 S.Ct.

1463, 25 L.Ed.2d 747, in which the United States Supreme Court examined a defendant’s

guilty plea to determine whether he had pled voluntarily. The Supreme Court in Brady

stated:

A plea of guilty entered by one fully aware of the direct consequences,
including the actual value of any commitments made to him by the court,
prosecutor, or his own counsel, must stand unless induced by threats (or
promises to discontinue improper harassment), misrepresentation (including
unfulfilled or unfulfillable promises), or perhaps by promises that are by their
nature improper as having no proper relationship to the prosecutor’s business
(e.g. bribes).

Brady, 397 U.S. at 755, 90 S.Ct. at 1472, 25 L.Ed.2d at 760 (citation omitted). When we

paraphrased this language, we inadvertently conflated it with a quote from Bram v. United

States (1897), 168 U.S. 532, 542-43, 18 S.Ct. 183, 187, 42 L.Ed. 568, 573, which Brady

distinguished.1 We take the opportunity now to reaffirm our intention to use the Brady

1
Brady, 397 U.S. at 753, 90 S.Ct. at 1471, 25 L.Ed.2d at 759, explains that Bram, 168
U.S. at 542-43, 18 S.Ct. at 187, 42 L.Ed. at 573, holds: “To be admissible, a confession must be
‘free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained
by any direct or implied promises, however slight, nor by the exertion of any improper influence.’”

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standard for the voluntariness of guilty pleas, as articulated in Brady, but without

incorporating Bram’s test.

Brady, 397 U.S. at 754, 90 S.Ct. at 1472, 25 L.Ed.2d at 759, explains that Bram dealt with a
confession given by an unrepresented defendant during a custodial interrogation, and that in such
circumstances “even a mild promise of leniency was deemed sufficient to bar the confession, not
because the promise was an illegal act as such, but because defendants at such times are too
sensitive to inducement. . . .” It was the “however slight” language, which Brady distinguished as
applying only to unrepresented defendants during custodial interrogations, that we mis-attributed
as part of the Brady standard.

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¶19 Based upon our reliance on Brady, in Lone Elk, we rejected both the Miller standard2

and the Huttinger test3. We noted that Miller’s requirement of a “strong inducement” is not

precisely aligned with the Brady standard, which requires that the inducement be “improper.”

Lone Elk, ¶ 22. We further explained that, while two factors of the Huttinger test--the

adequacy of the district court’s interrogation and the dismissal of another charge via plea

bargain--may bear on the question of voluntariness, case-specific considerations may also

bear on that question which would not be analyzed under the Huttinger test. Lone Elk, ¶ 23.

Lone Elk does not direct that the Huttinger test factors are not to be considered; rather, it

posits that the test fails as an adequate measure of whether a plea was entered into

voluntarily. However, here, as the “case-specific considerations” of this particular case

demonstrate, the adequacy of the District Court’s interrogation is a key issue under

consideration here.

¶20 In Lone Elk, we further observed that historically we reviewed a district court’s denial

of a defendant’s motion to withdraw a guilty plea to determine whether the court abused its

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“[A] plea of guilty will be deemed involuntary where it appears that the defendant was
laboring under such a strong inducement, fundamental mistake, or serious mental condition that
the possibility exists he may have pled guilty to a crime of which he is innocent.” State v. Miller
(1991), 248 Mont. 194, 197, 810 P.2d 308, 310 (emphasis removed). See also State v. Pelke
(1964), 143 Mont. 262, 271, 389 P.2d 164, 169, where this test appears to have been articulated
for the first time.
3
The three factors, among others, which are taken into consideration in determining
whether a district court should allow the withdrawal of a guilty plea are: (1) the adequacy of the
interrogation by the district court of the defendant’s understanding of the consequences of his
plea; (2) the promptness with which the defendant attempts to withdraw the previous 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. State v. Huttinger (1979), 182 Mont. 50, 54, 595 P.2d
363, 366.
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discretion. Lone Elk, ¶ 10 (citation omitted). “Abuse of discretion” is, by definition,

applicable to discretionary trial court rulings. See, e.g., Montana Rail Link v. Byard (1993),

260 Mont. 331, 337, 860 P.2d 121, 125 (abuse of discretion standard of review is applied to

discretionary rulings, such as trial administration issues, post-trial motions and similar

rulings); State v. Mummey (1994), 264 Mont. 272, 276, 871 P.2d 868, 870 (standard of

review for a district court’s denial of a motion for a new trial is whether the district court

abused its discretion).

¶21 Relying, in part, upon Lambert v. Blodgett (9th Cir. 2004), 393 F.3d 943, we held that

the voluntariness of a plea is not a discretionary ruling, but rather is a mixed question of fact

and law. Lone Elk, ¶ 10. In Lambert, the United States Court of Appeals for the Ninth

Circuit reversed the granting of a habeas petition by the United States District Court for the

Western District of Washington because that court “erroneously disregarded” the

Washington state court’s factual findings. Lambert, 393 F.3d at 949. The Court of Appeals

explained that the federal district court was statutorily mandated to review a state court’s

factual findings to determine if they were clearly erroneous. Lambert, 393 F.3d at 962.

However, the mixed question of law and fact in that case would be reviewed de novo.

Lambert, 393 F.3d at 965. The court explained that mixed questions of law and fact are

those in which “the historical facts are admitted or established, the rule of law is undisputed,

and the issue is whether the facts satisfy the statutory standard.” Lambert, 393 F.3d at 965

(quoting Pullman-Standard v. Swint (1982), 456 U.S. 273, 289 n.19, 102 S.Ct. 1781, 1790,

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72 L.Ed.2d 66, 80). Based upon the holding of the 9th Circuit and other jurisdictions--that

mixed questions may be reviewed de novo--we determined to do the same. Lone Elk, ¶ 10.

¶22 Lambert explains that the factual findings underlying a state court’s mixed question

determination are accorded a presumption of correctness, and adds further that new federal

statutes have restricted the scope of federal review so that de novo review of mixed questions

is no longer appropriate without according proper deference to the state court’s underlying

factual findings. Lambert, 393 F.3d at 976 (citations omitted). While voluntariness is a legal

conclusion not entitled to a presumption of correctness, the underlying findings that no

threats, misrepresentations, or improper promises occurred are facts entitled to a presumption

of correctness. Lambert, 393 F.3d at 976 (citation omitted).

¶23 Accordingly, to clarify our holding in Lone Elk, we will review the trial court’s

underlying factual findings, or “historical facts,” to determine if they are clearly erroneous.

Findings of fact are clearly erroneous if they are not supported by substantial evidence, the

court has misapprehended the effect of the evidence, or our review of the record convinces

us that a mistake has been made. State v. Eixenberger, 2004 MT 127, ¶ 13, 321 Mont. 298,

¶ 13, 90 P.3d 453, ¶ 13 (citation omitted). We will then review the ultimate, mixed question

of voluntariness de novo, to determine if the district court’s interpretation of the law--and

application of the law to facts--is correct.

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¶24 Henceforth, with respect to appeals from denials of motions to withdraw guilty pleas,

we will review the findings of fact of the trial court to determine if they are clearly

erroneous, and conclusions of law to determine if they are correct. When the voluntariness

of the plea is at issue, we will review that ultimate mixed question of law and fact de novo,

to determine if the trial court was correct in holding that the plea was voluntary.

DISCUSSION

¶25 Did the District Court err when it denied Warclub’s motion to withdraw his guilty

plea?

¶26 Warclub argues that the District Court erred when it denied his motion to withdraw

his guilty plea. He claims that the District Court’s oral colloquy at his change-of-plea

hearing was inadequate because the court failed to inquire if he was satisfied with his

counsel and his counsel’s advice. This, he claims, is particularly significant because he had

previously communicated his dissatisfaction with the services of the Public Defender’s

Office, and twelve days before that hearing, had filed a pro se motion to dismiss his

attorneys. Six days before the change-of-plea hearing, he testified that he wanted another

lawyer because he did not know what was going on with his case or what his lawyers were

doing for him. Thus, he argues, he has demonstrated good cause for the withdrawal of his

plea, and the District Court erred in not allowing him to do so. Warclub further argues that

this Court has previously ruled that a district court’s failure to inquire into the competency

of counsel is not harmless error, citing State v. Bowley (1997), 282 Mont. 298, 938 P.2d 592.

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¶27 The State responds that Warclub’s challenge of the sufficiency of the court’s

interrogation relates to form and not substance. The fundamental purpose of the court’s

interrogation, the State argues, is to ensure that a defendant understands the consequences

of entering a guilty plea. Warclub has not argued that he did not understand the

consequences of entering such a plea, nor does he offer any explanation as to what his

counsel might have done which would have altered his decision to plead guilty.

¶28 The State further argues that Montana law does not require an open-court

interrogation about a defendant’s satisfaction with his counsel at a change-of-plea hearing,

especially in instances such as the present case when the defendant’s written and signed

Acknowledgment of Waiver of Rights--which the District Court reviewed with him at the

change-of-plea hearing--explicitly states that he was satisfied with the services and advice

of his counsel. The State further argues that § 46-12-210(2), MCA, mandates that a written

acknowledgment that a defendant understands his rights fulfills the requirements of the

court’s interrogation. Finally, the State argues that at the change-of-plea hearing, Warclub

orally confirmed his understanding of the Acknowledgment of Waiver of Rights, in which

he expressed his satisfaction with counsel.

¶29 In denying Warclub’s motion to withdraw his guilty plea on January 9, 2003, the court

found that Selvey and Drew were experienced trial attorneys, who were prepared and ready

to try the case had Warclub not changed his plea. The court concluded that Warclub’s

counsel had been effective, and thus his claim of ineffective assistance did not form a basis

for withdrawal of his plea. The court stated,

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 I recognize that before a change of plea that the defendant can’t be ignorant of
his rights, he can’t be under undue influence of hope or fear, can’t be
operating under mistaken impressions or misapprehensions and it’s got to be
a voluntary plea, and I recognize that if there are doubts, they need to be
resolved in favor of trial. The problem is here, I don’t have any doubts.

¶30 The court went on to state that while it was the court’s usual practice to inquire orally

as to whether the defendant was satisfied with his attorneys before accepting a plea, it

nonetheless did not automatically follow that failing to ask this question resulted in allowing

the defendant to withdraw the plea. The court stated that the purpose of such an inquiry

would be to alert the court to any dissatisfaction so that the court could then make further

inquiry to assure that the defendant had had effective assistance; in the case at hand, the

court had addressed that very issue in Warclub’s case less than a week before the change-of-

plea hearing. The District Court noted that at that inquiry, Warclub had been unable to

express any basis for concern about the effectiveness of his counsel, and in fact during that

inquiry, Warclub stated that he was willing to continue with his current counsel. Finally, the

court observed that Warclub’s written Acknowledgment of Waiver of Rights indicated that

he was satisfied with his attorneys, and that upon questioning by the District Court, Warclub

testified that he had read and understood the document. Thus, the District Court concluded,

Warclub pled guilty voluntarily, with a knowledgeable understanding and waiver of his

rights to a trial, and would not be granted leave to change his plea.

¶31 Warclub does not argue on appeal that his trial counsel was ineffective; rather, he

argues that because the District Court failed to inquire orally as to whether he was satisfied

with counsel at his change-of-plea hearing, the court’s interrogation was “inadequate as a

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matter of law,” and his motion to withdraw his plea must therefore be granted, because he

has good cause to withdraw his plea.

¶32 In determining whether a district court erred in denying a request to withdraw a guilty

plea, we have looked to the adequacy of the district court’s interrogation at the time of the

plea regarding the defendant’s understanding of the consequences of the plea. State v. Keys,

1999 MT 10, ¶ 11, 293 Mont. 81, ¶ 11, 973 P.2d 812, ¶ 11 (overruled by Lone Elk, ¶ 23).

Under Brady, we will not overturn a district court’s denial of a motion to withdraw a guilty

plea if the defendant was aware of the direct consequences of such a plea, and if his plea was

not induced by threats, misrepresentation, or an improper promise such as a bribe. Brady,

397 U.S. at 755, 90 S.Ct. at 1472, 25 L.Ed.2d at 760. While voluntariness is a legal

conclusion not entitled to a presumption of correctness, the underlying findings that no

threats, misrepresentations, or improper promises occurred are facts entitled to a presumption

of correctness. Lambert, 393 F.3d at 976 (citation omitted). In the case at hand, the District

Court made no findings that Warclub was threatened, or had experienced misrepresentations

or improper promises made to him in exchange for his plea. Warclub does not claim that he

was unaware of the consequences of his guilty plea, nor does he claim to have been induced

into pleading guilty by threats, misrepresentation, or an improper promise. We therefore turn

to the question of whether the District Court erred as a matter of law when it concluded his

plea was not involuntary.

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¶33 Warclub maintains we have previously ruled that a district court’s failure to inquire

into the competency of counsel is not harmless error, citing State v. Bowley (1997), 282

Mont. 298, 938 P.2d 592. However, Bowley is readily distinguishable. There, not only did

the court not inquire into whether Bowley was satisfied with his counsel, but the written

acknowledgment of rights was not executed until two weeks after the change-of-plea

hearing--and after the defendant’s oral request to withdraw his guilty plea during the change-

of-plea hearing. Bowley, 282 Mont. at 301-02, 938 P.2d at 594. We concluded that the

written acknowledgment of rights did not satisfy the requirement that the trial court inquire

into the defendant’s satisfaction with his counsel specifically because the written

acknowledgment was untimely. Bowley, 282 Mont. at 307, 938 P.2d at 597. Moreover, in

Bowley, the District Court was unaware that Bowley was dissatisfied with his counsel until

after the court accepted Bowley’s guilty plea, and even then, it failed to inquire into

Bowley’s dissatisfaction. Bowley, 282 Mont. at 307-08, 938 P.2d at 597-98. In Warclub’s

case, his written acknowledgment was timely, and furthermore, the District Court was aware

of and had recently investigated Warclub’s dissatisfaction with his attorneys. Thus, Bowley

is inapposite.

¶34 It is undisputed that the District Court failed to ask Warclub specifically about

satisfaction with his counsel during its interrogation at the change-of-plea hearing. However,

the District Court had only a few days prior to this inquired into Warclub’s dissatisfaction

with his counsel and determined that Warclub was unable to articulate any ways in which

16
his counsel was deficient. The District Court also had before it a series of appropriate

motions and briefs filed by Warclub’s counsel throughout the proceedings, and Warclub’s

written, signed Acknowledgment of Waiver of Rights which stated that Warclub was

satisfied with his counsel. Furthermore, in this particular case, Warclub’s satisfaction or

dissatisfaction with counsel had no bearing upon whether he understood the consequences

of his plea, or whether his plea was induced by threats, misrepresentation, or an improper

promise. Brady, 397 U.S. at 755, 90 S.Ct. at 1472, 25 L.Ed.2d at 760. While we will

consider other factors that bear upon voluntariness, or that implicate good cause pursuant to

§ 46-16-105(2), MCA, we find none here.

¶35 Based upon the foregoing, we conclude that Warclub did not demonstrate good cause

to withdraw his plea. We therefore affirm the District Court.

/S/ PATRICIA O. COTTER

We Concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ JIM RICE

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