No. 03-786
IN THE SUPREME COURT OF THE STATE OF MONTANA
2005 MT 78
STATE OF MONTANA,
Plaintiff and Respondent,
v.
CHAD ALAN RAVE,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake, Cause No. DC 2002-158,
The Honorable Deborah Kim Christopher, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kristina Guest, Appellate Defender Office, Helena, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Jim Wheelis,
Assistant Attorney General, Helena, Montana
Robert Long, Lake County Attorney; Mark A. Russell,
Deputy County Attorney, Polson, Montana
Submitted on Briefs: August 31, 2004
Decided: March 29, 2005
Filed:
__________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 In 2002 Chad Alan Rave (“Rave”) was charged with sexual assault with bodily injury.
Rave, advised by counsel, accepted a plea agreement offered by the State and changed his
plea to guilty. Prior to sentencing Rave moved to withdraw his guilty plea claiming that his
counsel was ineffective. The District Court entered an order denying Rave’s motion and
sentenced Rave pursuant to the plea agreement; Rave appeals from the District Court’s
order. We reverse and remand.
¶2 Although Rave raises two issues on appeal, we conclude that the first issue is
dispositive and decline to address Rave’s ineffective assistance of counsel claim. We restate
the issue before us as follows:
¶3 Did the District Court err in denying Defendant’s motion to withdraw his guilty plea?
FACTS AND PROCEDURAL HISTORY
¶4 On December 13, 2002, Rave was charged by Information with sexual assault with
bodily injury, a felony in violation of § 45-5-502(3), MCA. The District Court appointed
attorney Ben Anciaux (“Anciaux”) to appear as counsel for Rave. Thereafter, Rave entered
a not guilty plea at his December 19, 2002, arraignment.
¶5 On February 6, 2003, pursuant to a plea agreement with the State, Rave executed an
Acknowledgment of Rights and Plea Agreement. The District Court held a change of plea
hearing, and Rave pled guilty pursuant to the plea agreement. The District Court accepted
the plea and set a date for sentencing.
¶6 On March 24, 2003, Rave contacted the District Court and requested a new attorney.
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The District Court held a hearing on Rave’s motion for new counsel. At the hearing Rave
complained of ineffective assistance of counsel claiming that Anciaux failed to investigate
and refused to take the case to trial. Rave further alleged that he had only agreed to the plea
agreement because Anciaux had assured him that he could withdraw his plea if he wanted
after reviewing all of the evidence and that he had requested Anciaux assist him in
withdrawing his guilty plea.
¶7 In addition to his criticism of Anciaux to the District Court, Rave had also filed a
complaint against Anciaux with the Montana Supreme Court Commission on Practice. The
District Court removed Anciaux and appointed Larry Nistler (“Nistler”) as Rave’s counsel
based upon Rave’s filing of that complaint.
¶8 On May 1, 2003, Rave, along with Nistler, appeared before the District Court. Nistler
informed the District Court that Rave wished to withdraw his guilty plea. However, Nistler
tempered this request by telling the court that he could not find any legal grounds for Rave
to withdraw his plea. The District Court ordered Nistler to draft a brief similar to an Anders1
brief outlining potential arguments Rave could assert in support of his motion to withdraw
his guilty plea. Nistler did file a brief with the District Court. Based upon Nistler’s position
that he could not find grounds to file a motion to withdraw Rave’s guilty plea and Rave’s
1
In Anders, the United States Supreme Court concluded that when counsel on
appeal finds the case to be wholly frivolous after a conscientious examination, counsel
should advise the court and move to withdraw. Anders v. California (1967), 386 U.S.
738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493. However, the request to withdraw must
be “accompanied by a brief referring to anything in the record that might arguably
support the appeal.” Anders, 386 U.S. at 744, 87 S.Ct. at 1400.
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insistence that such motion be filed, the District Court permitted Rave to file and argue such
a motion pro se. Despite disagreement as to withdrawal of the guilty plea Nistler continued
to represent Rave.
¶9 On June 5, 2003, Rave presented his handwritten pro se motion to withdraw his guilty
plea. In this motion Rave informs the District Court that he was ignorant of the law at the
time he entered the guilty plea and that he “would have never plead [sic] guilty to this charge
had [defense counsel] not mislead him in the way of law . . . .” The District Court granted
the State time to reply and sentencing was continued until August 7, 2003. The State
submitted a response arguing that Rave had failed to establish ineffective assistance of
counsel. Responding to the State, Rave more specifically stated the reasons for his motion
to withdraw his guilty plea as follows:
[Defense counsel] did not properly advice [sic] me about my case or about the
plea agreement. He did not discuss with me that sexual assault, a
misdemeanor was a lesser included offence [sic].
¶10 On August 5, 2003, the District Court entered its order denying Rave’s motion to
withdraw his guilty plea. On August 7, 2003, Rave was sentenced, pursuant to the
recommendations contained in the plea agreement, to 30 years at the Montana State Prison
with 20 years suspended.
¶11 Additional facts are set forth below as necessary.
STANDARD OF REVIEW
¶12 We review Rave’s motion to withdraw his guilty plea to determine if it was voluntary.
See State v. Lone Elk, 2005 MT 56, ¶ 14, 326 Mont. 214, ¶ 14, ____ P.3d ____, ¶ 14. We
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review a district court’s determination of voluntariness in plea agreements de novo. Lone
Elk, ¶ 10.
DISCUSSION
ISSUE
¶13 Did the District Court err in denying Defendant’s motion to withdraw his guilty
plea?
¶14 A guilty plea is valid only if it represents a "voluntary, knowing, and intelligent choice
among the alternative courses of action open to the defendant." State v. Keys, 1999 MT 10,
¶ 12, 293 Mont. 81, ¶ 12, 973 P.2d 812, ¶ 12 (overruled on other grounds by Lone Elk).
¶15 Rave alleges his plea was not knowing, intelligent, or voluntary because he was not
advised that a lesser included offense of felony sexual assault with bodily injury is
misdemeanor sexual assault, carrying a maximum penalty of six months in jail and/or a fine
of $500. The record supports this contention.
¶16 The plea agreement which Rave signed, and presumably read, provides:
I understand that the SEXUAL ASSAULT, a Felony, under MCA 45-5-502,
with a maximum penalty provided by law of life imprisonment and a fine of
$50,000, may be a lesser included offense of the offense of SEXUAL
ASSAULT (WITH BODILY INJURY).
Acknowledgment of Rights and Plea Agreement at ¶ 5. The plea agreement erroneously
advised Rave that the supposed lesser included offense was a felony, not a misdemeanor, and
that the penalty was the same as the greater offense.
¶17 At the time he pled guilty, the District Court advised Rave as follows:
THE COURT: You understand that if you took this to trial, that the jury could
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consider lesser includeds, and by pleading guilty you’re waiving the right to
have them make that consideration.
THE DEFENDANT: Yes.
¶18 The record does not reflect that Rave had knowledge of or understood that sexual
assault is a misdemeanor, although the record does indicate that he was informed that sexual
assault was a lesser included offense of the felony, sexual assault with bodily injury. When
the court did not specifically advise Rave that the lesser included offense constituted a
misdemeanor, and what the possible penalties were, the error contained in the plea agreement
was exacerbated.
¶19 Because of the misinformation in the plea agreement compounded by the incomplete
information provided by the District Court when accepting his plea, it cannot be said that
Rave entered a knowing, intelligent, and voluntary plea. To make an intelligent choice as
to whether to plead guilty, a defendant is entitled to know the precise nature of his
alternatives. State v. Sanders, 1999 MT 136, ¶ 22, 294 Mont. 539, ¶ 22, 982 P.2d 1015, ¶
22 (overruled on other grounds by Lone Elk). The record leaves a doubt whether, at the time
he entered his plea, Rave understood that if he went to trial he might be convicted of a lesser
included offense for which the maximum punishment was six months in the county jail, and
not the 30 years in Montana State Prison with 20 years suspended provided in the plea
agreement. Any genuine doubt regarding whether a guilty plea was voluntarily or
intelligently made must be resolved in favor of the defendant. See Keys, ¶ 12. Under these
circumstances, Rave’s motion to withdraw his plea of guilty should have been granted.
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CONCLUSION
¶20 We reverse the District Court’s denial of Rave’s motion to withdraw his guilty plea
and remand for further proceedings consistent with this Opinion.
/S/ JOHN WARNER
We Concur:
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ JIM RICE
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