April 22 2009
DA 08-0210
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 142N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
ROBERT LEE CRAWFORD,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. DC-05-351
Honorable Dirk M. Sandefur, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender; Roberta R. Zenker,
Assistant Appellate Defender; Helena, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; Matthew T. Cochenour;
Helena, Montana
Brant S. Light, Cascade County Attorney; Susan Weber, Deputy County
Attorney; Great Falls, Montana
Submitted on Briefs: February 11, 2009
Decided: April 22, 2009
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent. It shall be filed
as a public document with the Clerk of the Supreme Court and its case title, Supreme
Court cause number and disposition shall be included in this Court's quarterly list of
nonciteable cases published in the Pacific Reporter and Montana Reports.
¶2 Robert Lee Crawford (“Crawford”) appeals from the judgment of the Eighth
Judicial District Court, Cascade County, denying his motion to withdraw his guilty plea
to criminal possession with intent to distribute. We affirm.
¶3 The issues on appeal are as follows:
¶4 1. Did the District Court err in denying Crawford’s motion to withdraw his guilty
plea?
¶5 2. Did the District Court hold an adequate hearing on Crawford’s complaints
against his first court-appointed counsel?
¶6 3. Did Crawford’s first court-appointed counsel render ineffective assistance by
failing to interview witnesses or by failing to question the initial search of Crawford’s
residence?
FACTUAL AND PROCEDURAL BACKGROUND
¶7 On June 28, 2005, Great Falls police detectives assisted in a probation search of
Crawford’s residence. During the search, officers discovered a portable scale and a black
nylon bag containing two tablets of morphine sulfate, plastic baggies, and nine
individually packaged baggies of methamphetamine (“meth”), weighing a total of 18.25
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grams. Officers also discovered three hypodermic needles, an empty pen tube of the type
commonly used to snort or smoke meth that appeared to contain residue, and Crawford’s
wallet, which contained $741 in cash and papers with the names of known drug users and
dealers.
¶8 Following the discovery of the drugs and paraphernalia, Crawford was informed
of his rights and agreed to speak with the officers. Crawford then admitted that he was a
meth dealer and that he owned the drugs and paraphernalia. Crawford claimed that he
dealt drugs to gain the trust of other drug dealers whom he planned to eventually turn in
to police. Crawford also admitted that he had not held a legitimate job for weeks and that
he had no other source of income. At the time of the search, Crawford was on probation
for distributing illegal drugs and evidently failed a urine analysis (“UA”) test conducted
by a probation officer, which precipitated the search of Crawford’s residence. Crawford
was charged with two counts of criminal possession with intent to distribute and one
count of criminal possession of drug paraphernalia. The State also sought to designate
Crawford as a persistent felony offender.
¶9 Crawford was arraigned and pleaded not guilty to the charges. The court
appointed Larry LaFountain (“LaFountain”) from the Cascade County Public Defender’s
office to represent Crawford. A few months after LaFountain’s appointment, Crawford
wrote an ex parte letter to the District Court complaining that he had only met twice with
LaFountain and that he needed a “more aggressive” attorney. The District Court
addressed Crawford’s complaints against LaFountain at a status hearing on February 16,
2006. During the hearing, the court heard testimony from both LaFountain and Crawford
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but determined that no action was necessary. LaFountain continued to represent
Crawford following the hearing, and appeared with Crawford at another status hearing in
March 2006. LaFountain subsequently withdrew as Crawford’s attorney, and Melody
Brown (“Brown”) from the Cascade County Public Defender’s office took over as
Crawford’s court-appointed counsel. Following her appointment, Brown requested
additional time to review a report on Crawford’s mental health, a report which
LaFountain had ordered. Brown also ordered a second mental health examination and
sought to reach a plea agreement with the State.
¶10 On January 17, 2007, Crawford entered into a plea agreement with the State in
which he agreed to plead guilty to one count of criminal possession with intent to
distribute. In exchange, the State agreed to drop the remaining two charges and to forego
its intent to treat Crawford as a persistent felony offender. The State also agreed to
recommend a sentence of twenty years with ten years suspended. Crawford
acknowledged the rights he was waiving by pleading guilty in an acknowledgment and
waiver of rights form, which included a wavier of the right to submit an instruction to the
jury regarding a lesser included offense. At the change of plea hearing, Brown
questioned Crawford about the rights he was waiving by pleading guilty, but she did not
raise the possibility of lesser included offenses. The District Court accepted Crawford’s
plea and sentenced him to 20 years with 10 years suspended to the Montana State Prison.
¶11 Following his sentencing, Crawford filed a pro se motion to withdraw his guilty
plea, and the District Court appointed new counsel to represent him and conduct a
hearing. Crawford’s primary argument in the District Court was that his interrogation at
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the change of plea hearing was inadequate because he was not specifically advised that he
might have been found guilty at trial of the lesser included offense of possession. During
the hearing Crawford stated that he knew generally what a lesser included offense was
but argued that he did not know it was an option in his case. The District Court denied
the motion and concluded at the close of the hearing that Crawford “was fully aware of
the direct consequences of his change of plea.”
STANDARD OF REVIEW
¶12 Whether a plea was entered voluntarily is a mixed question of law and fact, which
we review de novo. State v. McFarlane, 2008 MT 18, ¶ 8, 341 Mont. 166, 176 P.3d 1057
(internal citations omitted). We review the district court’s factual findings to determine if
they are clearly erroneous. McFarlane, ¶ 8. We review a district court’s interpretation of
the law and its application of the law to the facts for correctness. McFarlane, ¶ 8.
Ineffective assistance of counsel claims contain mixed questions of law and fact, which
we review de novo. Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d 861.
DISCUSSION
¶13 1. Did the District Court err in denying Crawford’s motion to withdraw his
guilty plea?
¶14 Crawford argues that there was “good cause” for the withdrawal of his guilty plea
for three reasons. First, Crawford argues that his guilty plea was involuntarily made
because he was not specifically advised during the plea colloquy of the possibility of
being convicted of the lesser included offense of possession. Second, Crawford contends
that the District Court, not defense counsel, had the obligation to inform him of the
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possibility of being convicted of a lesser included offense during the plea colloquy.
Third, Crawford argues that his first court-appointed counsel, LaFountain, should have
obtained the results of the UA test, and that his failure to do so constitutes “good cause”
for withdrawal of the plea.
¶15 Section 46-16-105(2), MCA (2007), allows a trial court, “for good cause shown,”
to permit a guilty plea to be withdrawn at any time before the judgment is entered or
within one year after the judgment becomes final. “Good cause” includes a plea that has
been involuntarily made but may also be demonstrated by other criteria such as
ineffective assistance of counsel. State v. Warclub, 2005 MT 149, ¶ 16, 327 Mont. 352,
114 P.3d 254; Hans v. State, 283 Mont. 379, 410-11, 942 P.2d 674, 693 (1997)
(overruled on other grounds). This Court has adopted the standard for voluntariness set
forth in Brady v. United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472 (1970), which
considers a guilty plea voluntary “only when the defendant is ‘fully aware of the direct
consequences, including the actual value of any commitments made to him by the court,
prosecutor, or his own counsel . . . .”’ State v. Lone Elk, 2005 MT 56, ¶ 21, 326 Mont.
214, 108 P.3d 500. To determine whether a plea was voluntarily made, we look at “case
specific considerations” such as the “adequacy of the district court’s interrogation, the
benefits obtained from a plea bargain, the withdrawal’s timeliness, and other
considerations that may affect the credibility of the claims presented.” McFarlane, ¶ 17.
¶16 In State v. Sanders, 1999 MT 136, 294 Mont. 539, 982 P.2d 1015 (overruled on
other grounds) and State v. Rave, 2005 MT 78, 326 Mont. 398, 109 P.3d 753, we
determined that “good cause” existed when there was doubt in the record about whether
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the defendants had been adequately informed about possible lesser included offenses. In
Sanders, we concluded that “[t]o make an intelligent choice as to whether to plead guilty,
a defendant is entitled to know the precise nature of his alternatives.” Sanders, ¶ 22.
Because the defendant in Sanders was not specifically informed about the possibility of
being convicted of a lesser included offense, compounded by the fact that the defendant
had been given erroneous information, we determined that “good cause” existed for the
withdrawal of the plea. Sanders, ¶ 23. We reached a similar conclusion in Rave,
determining that the record left doubt about whether the defendant understood that the
applicable lesser included offense was a misdemeanor rather than a felony. Rave, ¶ 18.
However, in a recent decision we concluded that “good cause” did not exist even though
the defendant had not been specifically advised about possible lesser included offenses
when the defendant could not demonstrate that the factual circumstances warranted a
lesser included offense instruction. In State v. Swensen, 2009 MT 42, ¶ 14, 349 Mont.
268, ___ P.3d ___, we affirmed the denial of a motion to withdraw a guilty plea when the
defendant’s on-the-record admissions about the injuries he inflicted on the victim
effectively eliminated the possibility of the defendant obtaining a lesser included offense
instruction. We noted that a criminal defendant is only “entitled to a lesser-included
offense instruction if the jury, ‘in light of the evidence presented, could be warranted in
finding the defendant guilty of the lesser, rather than the greater, offense.’” Swensen, ¶
14 (citing State v. Martinez, 1998 MT 265, ¶ 10, 291 Mont. 265, 968 P.2d 705).
¶17 Like Swensen, Crawford cannot demonstrate that he would be entitled to a lesser
included instruction. Crawford admitted to officers during the search of his residence
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that he was a meth dealer and that he owned the drugs and paraphernalia. Crawford also
admitted that he had not held a legitimate job for weeks and that he had no other source
of income. Although the facts of this case differ from Swensen in that Crawford’s
admissions were not made during formal testimony, we conclude that Crawford’s
admissions to the officers and the substantial evidence regarding the nature of the offense
eliminated the possibility that Crawford would be entitled to an instruction on the lesser
included offense of possession. It follows that, since a lesser included offense instruction
would not have been warranted under the facts, any error in the court’s failure to advise
Crawford of such a possibility was harmless.
¶18 Finally, Crawford’s argument that his plea was involuntarily made because
LaFountain did not request the results of the UA test is not properly before us. While we
have held that ineffective assistance of counsel can affect the voluntariness of a
defendant’s guilty plea, we will not consider the issue for the first time on appeal. See
McFarlane, ¶ 12. Crawford did not raise ineffective assistance of counsel as a reason for
the withdrawal of his guilty plea at the hearing on his motion to withdraw the plea and
thus, the District Court did not have the opportunity to consider the issue. Therefore, we
decline to address the merits of Crawford’s contention that LaFountain’s representation
affected the voluntariness of his guilty plea.
¶19 2. Did the District Court hold an adequate hearing on Crawford’s complaints
against his first court-appointed counsel?
¶20 When a criminal defendant has made a pre-trial request for substitute counsel
together with allegations of ineffective assistance of counsel, a district court is required to
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conduct an adequate initial inquiry into the nature of the complaint to determine if it is
“seemingly substantial.” State v. Gallagher, 1998 MT 70, ¶¶ 14-15, 288 Mont. 180, 955
P.2d 1371. An initial inquiry may be adequate when the court “considered the
defendant’s factual complaints together with counsel’s specific explanations addressing
the complaints.” Gallagher, ¶ 15.
¶21 In his ex parte letter to the District Court, Crawford complained that he had met
only twice with LaFountain since his appointment, and that he needed “a more
aggressive” attorney. Because of Crawford’s complaints, the District Court held a
hearing in which it questioned both Crawford and LaFountain. After Crawford agreed
that LaFountain could continue with his representation, the District Court decided to take
no action on Crawford’s complaints. Crawford argues on appeal that the District Court’s
hearing was inadequate because the court failed to focus on the primary source of his
dissatisfaction—the “lack of proper investigation into the suppression issues prevalent in
his case.” However, Crawford did not raise the issue of the UA results to the District
Court as a basis of his dissatisfaction with LaFountain either in his ex parte letter to the
court or at the hearing on the adequacy of LaFountain’s representation. Because the
District Court was not required to either anticipate or create Crawford’s arguments
against LaFountain, it did not err by failing to address this issue. Further, as the State
notes, any deficiencies in the court’s inquiry were harmless since Crawford ultimately
obtained new counsel who negotiated Crawford’s plea agreement and questioned
Crawford at the change of plea hearing.
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¶22 3. Did Crawford’s counsel render ineffective assistance by failing to
interview witnesses or by failing to question the initial search of Crawford’s
residence?
¶23 The Sixth Amendment of the United States Constitution and Article II § 24 of the
Montana Constitution guarantee a defendant’s right to counsel in a criminal proceeding.
Ineffective assistance of counsel claims are analyzed under the two-part test set forth in
Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984), which
requires the defendant to show (1) that counsel’s performance was deficient, and (2) that
counsel’s deficient performance prejudiced the defense. The defendant must satisfy each
prong of the Strickland test in order to demonstrate ineffective assistance of counsel, but
there is no need to conduct the analysis in any particular order; if either prong cannot be
satisfied, the other need not be addressed. Whitlow, ¶¶ 10-11.
¶24 Crawford claims that LaFountain rendered ineffective assistance by failing to
question the search of his residence and by failing to interview witnesses. He claims that
LaFountain’s “failure to question the search clearly establishe[d] that his performance fell
below an objectively reasonable standard . . . .” However, we are not required to address
Crawford’s claim with respect the first prong since we conclude that Crawford cannot
establish that LaFountain’s performance prejudiced his case. To establish the second
Strickland prong, Crawford must show that LaFountain’s performance prejudiced his
case “to the extent that a reasonable probability exists that the result of the proceeding
would have been different had counsel not performed ineffectively.” Weaver v. State,
2005 MT 158, ¶ 15, 327 Mont. 441, 114 P.3d 1039. LaFountain represented Crawford
for the first eight months of the proceedings before Brown took over as Crawford’s
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counsel. Brown represented Crawford for approximately ten months until Crawford
pleaded guilty. During Brown’s representation, as noted by the State, Crawford’s mental
health evaluations were completed, the UA test results were requested, and Crawford
obtained an extremely beneficial plea bargain in which the State agreed to drop the
second felony count and to forego its pursuit of a persistent felony offender designation.
Since Brown either completed or undertook the actions Crawford now complains of, he
cannot demonstrate that his case would have been different had LaFountain taken those
actions. Thus, we conclude that LaFountain did not render ineffective assistance.
¶25 Affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ BRIAN MORRIS
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