December 1 2010
DA 09-0583
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 252
STATE OF MONTANA,
Plaintiff and Appellee,
v.
THOMAS GREGORY FERRIS,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. CDC 08-117(d)
Honorable Dirk M. Sandefur, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Robin A. Meguire, Attorney at Law, Great Falls, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Jonathan M. Krauss,
Assistant Attorney General, Helena, Montana
John Parker, Cascade County Attorney; Susan Weber, Deputy
County Attorney, Great Falls, Montana
Submitted on Briefs: August 25, 2010
Decided: December 1, 2010
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Thomas Gregory Ferris appeals from the District Court’s August 26, 2009 order
denying his motion to withdraw his guilty plea. We affirm.
BACKGROUND
¶2 In March, 2008, the State charged Ferris with felony distribution of dangerous
drugs after he sold hydrocodone to an undercover informant. Law enforcement officers
electronically monitored the transaction through a body wire worn by the informant. The
monitoring was not authorized by a search warrant.
¶3 The State filed notice of its intent to treat Ferris as a persistent felony offender
based upon a prior felony drug conviction. Ferris, with representation by counsel,
subsequently pled guilty to felony criminal distribution of dangerous drugs. He executed
a document captioned “Acknowledgement of Waiver of Rights by Plea of Guilty” in
which he acknowledged, among other things, that the plea was voluntary and that “I fully
understand what I am doing.” His attorney signed a separate certification that Ferris had
been advised of his rights to go to trial and that he was voluntarily entering the plea.
¶4 Ferris also executed a written plea agreement which provided in part that “[e]ach
party understands and agrees that a plea of GUILTY entered to any charge pursuant to
this agreement cannot be subsequently withdrawn.” The State agreed to recommend a
ten-year sentence at the Montana State Prison with five years suspended, to run
concurrently with Ferris’ sentence for his prior conviction. The State also agreed to not
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seek designation as a persistent felony offender, even though Ferris had numerous prior
felony convictions.
¶5 The District Court conducted a change of plea hearing on August 7, 2008. The
District Court examined Ferris in detail as to his understanding of the plea agreement and
of the rights he waived by pleading guilty. Ferris testified that he was pleading guilty
voluntarily and that he understood the proceedings. The District Court specifically
inquired into the factual basis for the plea. Ferris acknowledged that he sold drugs to an
undercover informant who was wearing an electronic transmitting device. The District
Court accepted Ferris’ guilty plea. At a subsequent sentencing hearing Ferris’ attorney
noted that Ferris was “willing to enter into this [plea agreement] rather quickly so that he
can get this resolved, which I think is a benefit to the State and to all of us.” The District
Court sentenced Ferris according to the plea agreement.
¶6 After Ferris entered his guilty plea but before he was sentenced this Court decided
State v. Goetz, 2008 MT 296, 345 Mont. 421, 191 P.3d 489. That case held that a search
warrant was required for electronic monitoring of a defendant’s conversations with an
informant in his home notwithstanding the informant’s consent. Neither the attorneys nor
the District Court mentioned Goetz at the sentencing hearing.
¶7 In May, 2009, Ferris requested appointment of counsel to raise Goetz issues. The
Public Defender appeared for Ferris and on June 29, 2009, filed a motion to withdraw the
guilty plea so that Ferris could seek suppression of the surveillance evidence based upon
Goetz. After briefing, the District Court denied the motion to withdraw the plea based
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primarily upon Ferris’ failure to raise any Goetz issue prior to sentencing. This appeal
followed.
STANDARD OF REVIEW
¶8 A district court may permit a defendant to withdraw a guilty plea upon good
cause, § 46-16-105(2), MCA. An involuntary plea can justify withdrawal, but is not the
only basis for establishing good cause. State v. Wise, 2009 MT 32, ¶ 9, 349 Mont. 187,
203 P.3d 741. Good cause analysis has been based upon the adequacy of the district
court’s interrogation at the time the plea was entered; the promptness with which the
defendant attempts to withdraw the plea; and whether the plea resulted from a plea
bargain in which the guilty plea was given in exchange for dismissal of another charge.
State v. Boucher, 2002 MT 114, ¶ 25, 309 Mont. 514, 48 P.3d 21. The fundamental
purpose of allowing withdrawal of a plea is to guard against conviction of an innocent
person. Id. This Court reviews a denial of a motion to withdraw a guilty plea de novo.
State v. Usery, 2009 MT 227, ¶ 12, 351 Mont. 341, 212 P.3d 279.
DISCUSSION
¶9 Issue 1: Whether the District Court erred by denying Ferris’ motion to withdraw
his guilty plea. This case is controlled by our recent decision in State v. Andrews, 2010
MT 154, 357 Mont. 52, 236 P.3d 574. In that case this Court held that a guilty plea is
made on the basis of the law applicable at the time the plea is accepted by the district
court, and that the plea may not be withdrawn if a later judicial decision changes the law.
Andrews, ¶ 12. The Goetz decision that changed the law here was decided after Ferris
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entered his guilty plea, and therefore does not provide the necessary good cause for
withdrawing the plea.
¶10 Ferris argues in his reply brief on appeal that notwithstanding Andrews, his guilty
plea was not voluntary or “at the very least, the fact that he was not informed of Goetz
undermines the voluntariness of his plea.” As noted above, the written plea agreement as
well as the colloquy conducted by the District Court at the time the plea was accepted
clearly indicated that the plea was entered voluntarily. In addition, he admitted he sold
drugs to an undercover informant and he received the benefit of the plea agreement.1 The
basis for Ferris’ argument is the assertion that Ferris’ trial attorney had the obligation to
advise him that the Goetz appeal was pending but undecided at the time of his guilty plea.
Ferris cites no law in support of this proposition. We decline to adopt a standard that
requires trial counsel to be aware of the issues in all cases pending on appeal, and to
advise clients on how each of those cases might affect his situation.
¶11 Issue 2: Whether Ferris’ attorney provided ineffective assistance. Ferris contends
that his attorney provided ineffective assistance by failing to raise the Goetz issue at the
time of sentencing and that no record review is necessary because no plausible
justification exists for the failure to do so. This Court reviews ineffective assistance of
1
As in Andrews, even if Goetz applied to Ferris’ case, the State could still have had
evidence to convict based upon the testimony of the confidential informant, the drugs
recovered and the observations of the officers. Ferris argues on appeal that there was
“no indication in the record that the CI ever agreed to testify” and that it is unlikely that
the CI would be called as a witness. To the contrary, the Information charging Ferris
with the offense specifically listed the CI as a witness for the State and nothing appears to
indicate that the CI would not or could not testify. See State v. Schwartz, 2009 MT 234,
351 Mont. 384, 212 P.3d 1060.
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counsel claims under the principles set out in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052 (1984). The defendant must establish that his attorney’s performance
was deficient and that the deficient performance prejudiced the defense. Baca v. State,
2008 MT 371, ¶ 16, 346 Mont. 474, 197 P.3d 948. Counsel’s performance is deficient if
it falls below an objective standard of reasonableness measured under prevailing
professional norms and in light of the surrounding circumstances. Whitlow v. State, 2008
MT 140, ¶ 20, 343 Mont. 90, 183 P.3d 861. The defendant must overcome a strong
presumption that counsel’s actions were within a broad range of reasonable professional
assistance. Baca, ¶ 17. The defendant must demonstrate prejudice by showing a
reasonable probability that the result of the proceeding would have been different but for
counsel’s deficient performance. Id.
¶12 Ferris’ attorney could have asserted Goetz as a ground for withdrawing the guilty
plea at the time of the sentencing, assuming that Ferris would have chosen to try to
withdraw his plea at that time. However, the District Court could have denied a motion to
withdraw on the ground that the plea was knowingly and voluntarily entered, and could
have decided, as this Court did in Andrews, that a change in the case law is not a
sufficient ground for withdrawing a plea. So, while Ferris’ attorney could have raised
Goetz at the time of sentencing, Ferris cannot demonstrate prejudice or that there is a
reasonable probability that the result would have been different and that he would be
allowed to withdraw his plea. Absent a conclusion that the result would have been
different, we cannot determine that Ferris’ attorney was ineffective for failing to raise
Goetz at the sentencing hearing.
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¶13 Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ MICHAEL E WHEAT
/S/ JIM RICE
/S/ BRIAN MORRIS
Justice Patricia O. Cotter dissents.
¶14 I dissent. I would conclude that Ferris’s counsel provided ineffective assistance in
failing to timely raise Goetz in an effort to withdraw Ferris’s guilty plea, and would
reverse and remand to allow Ferris to renew his motion to withdraw his guilty plea.
¶15 The majority concludes that this case is controlled by our decision in State v.
Andrews, 2010 MT 154, 357 Mont. 52, 236 P.3d 574 (Leaphart, Cotter & Nelson, JJ.,
dissenting). In Andrews, we held that a court decision which changes the law, and which
is rendered after a defendant voluntarily changes his plea to guilty, does not provide the
necessary good cause for withdrawing a guilty plea. Andrews, ¶ 12. In dissent, Justices
Leaphart and Cotter argued that, under State v. Lone Elk, 2005 MT 56, ¶ 19, 326 Mont.
214, 108 P.3d 500, overruled in part on other grounds, State v. Brison, 2009 MT 200,
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¶ 9, 351 Mont. 136, 210 P.3d 164, “intervening circumstances or any other reason for [a
defendant] withdrawing his guilty plea that did not exist when he pleaded guilty”
constituted good cause for withdrawing a plea, and that a change in the law occurring
after a change of plea was just such a circumstance justifying the withdrawal of the guilty
plea. Andrews, ¶ 17 (Leaphart & Cotter, JJ., dissenting). Justice Nelson, writing
separately, opined that “a new rule for the conduct of criminal prosecutions is to be
applied retroactively to all cases, state or federal, pending on direct review or not yet
final,” id. at ¶ 25 (quoting Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716
(1987)), and that because Andrews’ conviction was not yet final when the new rule was
announced, there was “good cause” for him to withdraw his guilty plea. Id. at ¶ 27.
¶16 I appreciate that the foregoing analyses in Andrews were minority positions. I
submit, however, that our recent decision in State v. Reichmand, 2010 MT 228, 358
Mont. 68, ___ P.3d ___, underscores the correctness of the minority positions in Andrews
and compels us to reverse Ferris’s conviction and remand to allow Ferris to raise Goetz
and Reichmand in support of a renewed motion to withdraw his guilty plea.
¶17 In Reichmand, Reichmand was found guilty of two counts of criminal
endangerment. Reichmand, ¶ 1. At trial, the jury heard the taped conversations of a
confidential informant (CI) buying drugs from Reichmand, thanks to a warrantless
recording of those conversations arranged by a drug task force. Id. at ¶ 3. After the
verdict but before sentencing, our decision in Goetz came down, and in response,
Reichmand filed a motion to set aside the jury verdict. Id. at ¶ 4. The District Court
denied the motion, concluding that because Reichmand failed to assert a Goetz-type
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claim prior to or during trial, he was not “similarly situated” to the defendant in Goetz, as
required under our decision in State v. Foster-DeBerry, 2008 MT 397, 347 Mont. 164,
197 P.3d 1004. Id. at ¶ 5.
¶18 On appeal in Reichmand, we reversed, and in so doing, overruled Foster-DeBerry.
Reichmand, ¶ 11. We concluded that one need not have objected below in order to gain
the retroactive benefit of a new rule of criminal procedure. Id. at ¶ 12. We endorsed the
retroactivity principles announced in State v. Egelhoff, 272 Mont. 114, 125, 900 P.2d 260,
267 (1995), rev’d on other grounds, Montana v. Egelhoff, 518 U.S. 37, 116, S. Ct. 2013
(1996), and argued by Justice Nelson in his Andrews Dissent at ¶ 26, to the effect that “a
new rule for the conduct of criminal prosecutions is to be applied retroactively to all
cases, state and federal, pending on direct review or not yet final.” Reichmand, ¶ 14
(citing Egelhoff, 272 Mont. at 125, 900 P.2d at 267).
¶19 As the Court notes, Ferris had pled guilty but had not yet been sentenced when we
announced our decision in Goetz. Supra ¶ 6. Thus, his conviction was at that point “not
yet final.” The Court here concludes that although his counsel could have raised Goetz in
an effort to withdraw his guilty plea prior to sentencing, his failure to do so is not
ineffective assistance, as the District Court could have denied the motion in any event.
Supra ¶ 12. Respectfully, I disagree with the Court’s logic. Had Ferris’s attorney timely
raised Goetz in an effort to withdraw his guilty plea before sentencing, there is surely a
reasonable probability that the result of the proceeding would have been different, as it is
evident from its order that the District Court considered Ferris’s failure to raise Goetz
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prior to sentencing critical to its decision to deny the later motion to withdraw the guilty
plea.
¶20 The implications of Goetz undermine the voluntariness of Ferris’s plea, and
establish the requisite “good cause” for withdrawal of a guilty plea under § 46-16-105(2),
MCA. As we have held, any doubts as to whether good cause exists to withdraw a guilty
plea should be resolved in favor of a trial on the merits. State v. Tweed, 2002 MT 286,
¶ 25, 312 Mont. 482, 59 P.3d 1105, overruled on other grounds, State v. Deserly, 2008
MT 242, ¶ 12 n. 1, 344 Mont. 468, 188 P.3d 1057.
¶21 I would conclude that in failing to raise Goetz in support of a timely motion to
withdraw his guilty plea before Ferris was sentenced, Ferris’s counsel’s performance was
deficient. Given that the Goetz decision was potentially dispositive of Ferris’s case and
widely heralded among attorneys and in the press, it strains credulity that Ferris’s counsel
would not have known of it or understood its implications for his client. In this
connection, I would conclude that because there was no plausible justification for
counsel’s failure to raise Goetz and its binding warrant requirement before sentencing,
the error is reviewable on direct appeal. State v. Kougl, 2004 MT 243, ¶¶ 14, 19, 323
Mont. 6, 97 P.3d 1095. See also Whitlow, ¶ 18 (citing Lawhorn v. Allen, 519 F.3d 1272,
1275 (11th Cir. 2008) (“Tactical or strategic decisions based on a misunderstanding of
the law are unreasonable.”)).
¶22 Finally, for the reasons implicit in this argument, I would further conclude that
Ferris was prejudiced by this failure. Thus, the requisites of Strickland are met here.
While the Court is correct that there is no guarantee Ferris would have ultimately been
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successful in his efforts to withdraw his plea, all that is needed under Strickland and Baca
is a “reasonable probability” that the result of the proceeding would have been different.
Baca, ¶ 17. That reasonable possibility exists here.
¶23 I would reverse Ferris’s conviction and sentence on the grounds of ineffective
assistance of counsel, and remand to allow counsel to raise Goetz and Reichmand in
support of a renewed motion to withdraw Ferris’s guilty plea. I dissent from our failure
to do so.
/S/ PATRICIA COTTER
Justices James C. Nelson and W. William Leaphart join in the Dissent of Justice Patricia
O. Cotter.
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
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