No. DA 06-0271
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 40
STATE OF MONTANA,
Plaintiff and Respondent,
v.
GARY GENE FRAZIER, JR.,
Defendant and Appellant.
APPEAL FROM: The District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 05-630,
Honorable G. Todd Baugh, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Frank A. Piocos, Deputy Public Defender, Billings, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; Pamela P. Collins,
Assistant Attorney General, Helena, Montana
Dennis Paxinos, County Attorney, Missoula, Montana
Submitted on Briefs: December 6, 2006
Decided: February 13, 2007
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Defendant Gary Frazier appeals the District Court’s denial of his motion to
withdraw the guilty plea he made in Justice Court to partner or family member assault.
We reverse and remand to the District Court.
¶2 We restate the issue as follows:
¶3 Did the District Court err in denying Frazier’s motion to withdraw his guilty plea?
BACKGROUND
¶4 On June 26, 2005, Frazier called 9-1-1 to report that his wife, Chrissy Frazier, was
beating him and was impeding him from leaving their home. Based upon his wife’s
subsequent statement to the police that Frazier had pushed her to the ground and caused
her fear, Frazier was charged with one count of partner or family member assault
(PFMA).
¶5 On June 27, 2005, while at the Yellowstone County Detention Center, Frazier,
without legal counsel or the benefit of a plea agreement, appeared via video before the
Yellowstone County Justice Court for arraignment. The court advised Frazier of his
constitutional rights and the minimum and maximum penalties for the offense charged.
The court apparently also asked Frazier if he understood that by pleading guilty, he was
admitting the facts contained in the notice to appear and complaint. However, the court
did not specifically ask Frazier what the factual basis was for his plea. In other words,
the court did not ask Frazier to relate what he did that constituted the offense of PFMA.
¶6 Frazier then entered a plea of guilty to PFMA, which the court accepted. The
court sentenced Frazier to pay a fine of $1,000, and serve twelve months in jail, but
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suspended this sentence for twelve months with the requirement that Frazier pay a $350
fine, complete forty hours of anger management counseling, have no contact with the
victim, and not possess any firearms or ammunition.
¶7 On June 28, one day after he pled guilty, Frazier filed a motion to withdraw his
guilty plea, stating that he only pled guilty because he thought it was the fastest way to be
released from jail, that he would like to speak to the public defender, and that he was
strapped for money. After the Justice Court denied Frazier’s motion, Frazier filed a
notice of appeal to the District Court. On October 26, 2005, the District Court held an
evidentiary hearing on Frazier’s motion to withdraw his guilty plea, at the conclusion of
which the court denied the motion. Frazier subsequently filed this appeal.
STANDARD OF REVIEW
¶8 We review a defendant’s motion to withdraw a guilty plea to determine if the
guilty plea was voluntary. Our determination of whether a plea was voluntary is a mixed
question of law and fact, which we review de novo. State v. Muhammad, 2005 MT 234,
¶ 12, 328 Mont. 397, ¶ 12, 121 P.3d 521, ¶ 12 (citing State v. Warclub, 2005 MT 149,
¶ 23, 327 Mont. 352, ¶ 23, 114 P.3d 254, ¶ 23).
DISCUSSION
¶9 Did the District Court err in denying Frazier’s motion to withdraw his guilty
plea?
¶10 To determine whether a defendant entered a plea voluntarily, and whether the
district court erred in denying a defendant’s motion to withdraw a guilty plea, we
examine “case-specific considerations,” including the adequacy of the court’s
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interrogation and whether there was a dismissal of another charge via plea bargain.
Muhammad, ¶ 14 (citing Warclub, ¶ 19). However, a claim of actual innocence does not
affect the voluntariness of a plea because “a defendant’s belief in his innocence or his
fear of going to trial do not preclude him from making a voluntary and intelligent choice
between possible alternative courses of action.” Muhammad, ¶ 16 (quoting State v. Lone
Elk, 2005 MT 56, ¶ 25, 326 Mont. 214, ¶ 25, 108 P.3d 500, ¶ 25).
¶11 Frazier claims the District Court erred in denying his motion to withdraw his plea
because the plea colloquy was inadequate, there was no plea bargain, and there is
evidence that he is innocent. We may summarily dismiss Frazier’s actual innocence
claim because a defendant who believes he is innocent may still make the voluntary
choice to plead guilty. Additionally, we recognize that Frazier did not have the benefit of
a plea bargain which, while not dispositive, is a factor this Court may consider
concerning voluntariness. See Lone Elk, ¶ 16. We are thus left with Frazier’s inadequate
plea colloquy contention, which we conclude has merit and is discussed below.
¶12 A. Did Frazier fail to preserve his claim that the plea colloquy was inadequate by
not specifically raising the issue in his pro se motion to the Justice Court?
¶13 Section 46-17-203(2)(b), MCA, allows a defendant in justice court, who claims
that his plea of guilty was not entered voluntarily, to move to withdraw the plea. If the
motion is denied, the defendant may appeal to the district court.
¶14 The State asserts that Frazier failed to preserve his claim that the plea colloquy
was inadequate by failing to specifically raise the claim in his motion to withdraw his
guilty plea in Justice Court. According to the State, we must disregard the claim because
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it is fundamentally unfair to fault a court for failing to rule on an issue it was not given
the opportunity to consider.
¶15 Frazier’s motion to withdraw, which he submitted pro se to the Justice Court,
reads:
I would like to withdraw my guilty plea and enter a not guilty ple [sic]. I
plead [sic] guilty because I thought it was the fastes [sic] way to be released
from jail, and I would like to talk to a public defender to know what rights
and possibility’s [sic] I have. I had neck sugery [sic] on May 17th and am
unable to work. My wife is the sole provider of a family of 5 so we are
financual [sic] straped [sic] every penny brought in goes to our mortgage
and daily life for our family.
¶16 Admittedly, Frazier did not specifically raise the inadequate plea colloquy issue in
his written motion to the Justice Court. However, Frazier’s motion was summarily
denied without a hearing, and, despite his specific request for counsel, he was not
provided counsel who, judging from the issues raised in the District Court, would have
raised the issue in a hearing or a brief on Frazier’s motion to withdraw. Further, Frazier’s
motion is similar to, if not more inclusive, than the simplistic motion filed by the
defendant at the justice court level in State v. Boucher, 1 where we held, despite the fact
that the original motion did not specifically raise the inadequate plea colloquy issue, that
the District Court erred by not allowing Boucher to withdraw his guilty plea because the
court failed to advise Boucher that a plea of guilty would waive his right to appeal. 2002
MT 114, ¶ 28, 309 Mont. 514, ¶ 28, 48 P.3d 21, ¶ 28. Finally, policy dictates that if
there is any doubt that a plea was involuntary, the doubt should be resolved in favor of
1
Boucher’s motion read: “The plea was entered with the [Defendant’s]
understanding that he could continue driving. Subsequent events of no fault of any of the
parties have proven this to be impossible.” Boucher, ¶ 4.
5
the defendant. Boucher, ¶ 25 (citations omitted). Thus, we conclude that Frazier
adequately raised the plea colloquy issue in his general motion to withdraw his plea.
¶17 B. Was the Justice Court’s interrogation inadequate when the court failed to
require Frazier to explain what he did that constituted the crime?
¶18 Section 46-12-212(1), MCA, prohibits a court from accepting a guilty plea
“without determining that there is a factual basis for the plea in charges of felonies or
misdemeanors resulting in incarceration.” A person commits the offense of PFMA if the
person purposely or knowingly causes bodily injury, or reasonable apprehension of
bodily injury, to a partner or family member. Section 45-5-206(1), MCA. The penalty
for the offense includes a minimum jail sentence of twenty-four hours. Section 45-5-
206(3)(a)(i), MCA.
¶19 The Justice Court was therefore required to determine whether there was a “factual
basis” for Frazier’s plea of guilty to PMFA. The court did not, however, ask Frazier to
explain what he had done that constituted PMFA. Instead the Justice Court, at most,
asked Frazier if he understood that by pleading guilty he was admitting to the facts
alleged in the notice to appear and complaint. However, such an indirect and cursory
question does not meet the level of interrogation necessary to determine the “factual
basis” for the plea.
¶20 A court “need not extract an admission from the defendant of every element of the
crime in order to establish a factual basis for the guilty plea.” Muhammad, ¶ 22 (citations
omitted). However, the court must ascertain, from admissions made by the defendant at
the plea colloquy, that the acts of the defendant, in a general sense, satisfy the
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requirements of the crime to which he is pleading guilty. In fact, in all cases where we
have upheld the sufficiency of the lower court’s determination of a “factual basis,” at
least since our present voluntariness standard was established in Lone Elk, the lower court
determined the “factual basis” for a plea through interrogation wherein the defendant
stated what he or she did that constituted the offense. See e.g. Lone Elk, ¶ 4 (where the
court inquired not only about the elements of burglary, but also the elements of the
underlying felony of sexual assault); Warclub, ¶¶ 7-9 (where the court inquired not only
into the acts constituting deliberate homicide, but also into whether the defendant acted in
self-defense); and Muhammad, ¶ 19 (where the court insured that the defendant was
abandoning his “reasonable belief” defense concerning the charge of sexual intercourse
with an underage female before the defendant admitted to the elements of the charge).
¶21 We therefore interpret § 46-12-212(1), MCA, as requiring a court to solicit
admissions from a defendant regarding what acts the defendant committed that constitute
the offense charged. If a defendant is “unwilling to admit to any element of the offense,”
the court must reject the guilty plea or treat the plea as an “Alford plea” and apply the
stricter standards of § 46-12-212(2), MCA, which requires “strong evidence of guilt.”
See Commission Comments to § 46-12-212, MCA. As the Justice Court here failed to
properly interrogate Frazier concerning the elements of PFMA, the plea colloquy did not
meet the requirements of § 46-12-212, MCA, and was thus inadequate
CONCLUSION
¶22 The Justice Court’s interrogation was inadequate to determine whether there was
any factual basis for Frazier’s guilty plea. Since any doubts as to whether a plea was
7
voluntary should be resolved in favor of the defendant, we hold that the District Court
erred by not allowing Frazier to withdraw his guilty plea. Therefore, we reverse and
remand this matter to the District Court for further proceedings consistent with this
Opinion.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
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Justice John Warner dissents.
¶23 I dissent. The Court’s decision is neither fair to the Justice Court nor justified on
its merits.
¶24 The text of Frazier’s motion to withdraw his guilty plea in the Justice Court is set
out in full at ¶ 15. This Court acknowledges that Frazier did not claim the plea colloquy
was inadequate in this motion.
¶25 Montana law is well established that “it is fundamentally unfair to fault the trial court for
failing to rule on an issue it was never given the opportunity to consider.” State v. J.C., 2004
MT 75, ¶ 45, 320 Mont. 411, ¶ 45, 87 P.3d 501, ¶ 45; State v. Martinez, 2003 MT 65, ¶ 17,
314 Mont. 434, ¶ 17, 67 P.3d 207, ¶ 17. The Court, in ¶ 16, justifies ignoring the law in this
instance by saying: (a) the motion was summarily denied; (b) Frazier’s motion is as descriptive
as the motion in State v. Boucher, 2002 MT 114, 309 Mont. 514, 48 P.3d 21; and (c) when
there is some doubt whether a plea is voluntary the doubt should be resolved in favor of
the defendant, citing Boucher. In my view, none of these reasons are sufficient to justify
the unfair treatment of the Justice of the Peace, nor are they sufficient to reverse the
District Court.
¶26 Neither the Court nor the parties cite any authority which says that it is error to
summarily deny a motion which does not state grounds for relief, based on speculation
that a lawyer may have been able to raise a legitimate issue. 2 The motion itself does not
state any legitimate grounds for withdrawal of a guilty plea. Judge Herman was justified
2
Frazier makes no argument that he did not validly waive his right to have counsel at the time
he entered his plea. He makes no argument that he had requested counsel before he made his
motion to dismiss.
9
in denying the motion when he received it two days after the plea was entered. He had
no idea that counsel would later allege in District Court that the guilty plea was
involuntary because he did not ask Frazier to explain what he had done that constituted
the offense. This Court now faults Judge Herman for not ruling on an issue he was never
given the opportunity to consider.
¶27 What the defendant’s motion may have said in Boucher is of no relevance
whatever in this case. In Boucher, this Court did not discuss whether the Justice Court
should have been given the opportunity to consider the true grounds for the motion to
withdraw the guilty plea. Nor do the briefs filed in Boucher even mention, much less
argue, that the established rule of law stated in State v. J.C. should or should not be
applied. Of course, if an issue is not raised this Court will not consider it. State v.
Rodarte, 2002 MT 317, ¶ 15, 313 Mont. 131, ¶ 15, 60 P.3d 983, ¶ 15. It is inappropriate in
this case to cite Boucher as authority for ignoring the rule that the Justice Court should have had
the opportunity to consider the true grounds for Frazier’s motion.
¶28 I have no disagreement with the proposition that when there is some doubt whether a
plea is voluntary, the doubt should be resolved in favor of the defendant. However, I am
of the opinion that it is necessary to raise that doubt initially in the trial court, whether it
is a court of limited jurisdiction or a district court. If it is no longer the rule that an issue
must be presented to the trial court before it is brought to this Court, which is what the
Court seems to say in ¶ 16, the Court should so announce and advise the bar that the
legion of cases to the contrary are overruled.
10
¶29 Another reason why the Court’s conclusion in this case is unfair to Judge Herman
bears mentioning. There are two justice courts in Yellowstone County and they are not
courts of record. From the transcript of this case we know that these two courts handle
about 15,000 cases a year. Judge Herman candidly admitted that he cannot remember
each case he handles, which is no surprise. Frazier entered his guilty plea on June 27,
2005. Judge Herman was presented with Frazier’s motion to withdraw his plea two days
later on June 29, 2005. The motion was admittedly defective and it was denied that same
day. Judge Herman was called to testify about this case on October 26, 2005, some four
months and hundreds, maybe thousands, of cases later. He could not be expected to and
did not remember this particular case. He was justifiably unable to specifically recall his
consideration of this particular motion. He was thus unable to fairly defend this
particular decision. Under these circumstances, I do not think Judge Herman should be
faulted for denying a motion which does not even state the real grounds upon which it is
based.
¶30 The Court’s conclusion that the plea colloquy was inadequate is also flawed. The
record shows that Frazier knew exactly what he was alleged to have done to constitute
the offense when he entered his guilty plea.
¶31 Frazier admitted that he had been in an altercation with his wife the evening before
he appeared before the justice court. He knew that he was arrested because she alleged
he assaulted her. He admitted that he received a copy of the notice to appear and the
complaint. Frazier also acknowledged that the copy of the complaint contained a
11
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¶32 Frazier’s counsel stipulated in the District Court that his client can read. Also, any
argument that a medical condition caused an involuntary guilty plea was withdrawn in
District Court.
¶33 The practice of Judge Herman is to ask each defendant, before a plea of guilty is
accepted, whether they understand that by pleading guilty they admit the facts alleged in
the complaint. He also informs each defendant that by pleading guilty they are telling the
judge that they are conceding the facts that are in the complaint. Not only did Frazier
admit that he had a copy of the complaint set forth above, he did not deny that this
procedure was followed when he entered his guilty plea.
¶34 Judge Herman made notes at the time that Frazier pled guilty. These notes, in
pertinent part, state that in this instance Judge Herman went over the charges twice with
Frazier. Again, Frazier did not deny that the judge went over the charges, twice, with
him.
¶35 I conclude that the record clearly shows that Judge Herman did determine that
there was a factual basis for Frazier’s guilty plea before he accepted it, as required by §
46-12-212(1), MCA.
¶36 I dissent.
/S/ JOHN WARNER
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