July 14 2010
DA 09-0209
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 154
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DANIEL ANDREWS, JR.,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DC 07-181
Honorable Deborah Kim Christopher, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joslyn Hunt, Chief Appellate Defender; Koan Mercer, Assistant
Appellate Defender (argued), Helena, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; Jonathan M. Krauss,
Assistant Attorney General (argued), Helena, Montana
Mitch Young, Lake County Attorney, Polson, Montana
Argued: December 9, 2009
Submitted: December 22, 2009
Decided: July 14, 2010
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Andrews appeals from the District Court’s order denying his motion to withdraw
his Alford plea to a charge of felony criminal possession of dangerous drugs with intent
to distribute. We affirm.
¶2 The issue on appeal is whether the District Court properly denied Andrews’
motion to withdraw his plea.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 In March, 2007, agents working with the Northwest Drug Task Force investigated
several individuals suspected of selling drugs, using an informant who made drug
purchases as part of the investigation. On March 11 Judy Harlow contacted the
informant to report that she had drugs to sell. The informant called Harlow who told him
to go to her residence and speak to Andrews, who would make the sale.
¶4 The informant went to Harlow’s residence, met Andrews, and gave him money to
purchase methamphetamine. Andrews left with a woman named Sonya Bullcalf and
returned 20 minutes later. The informant left Harlow’s residence and reported to the
Task Force agent, giving him a bag of powder he had obtained from Andrews. The
informant reported that Andrews gave him the powder, that he gave the money to
Andrews, and that Andrews gave the money to Bullcalf. Task Force agents monitored
and recorded the informant’s conversations with Andrews through a hidden transmitter
worn by the informant. The agents did not have a search warrant authorizing the
electronic surveillance.
2
¶5 Agents returned to Harlow’s residence with a search warrant. They found
methamphetamine in Harlow’s purse and a spoon with oxycodone residue in a desk in
Andrews’ room. Andrews admitted to using methadone and admitted that the spoon
belonged to him.
¶6 On October 2, 2007, the State charged Andrews with one count of criminal
distribution of dangerous drugs and one count of criminal possession of dangerous drugs.
On July 3, 2008, Andrews entered into an Acknowledgement of Rights and Plea
Agreement in which he agreed to enter an Alford plea to one count of felony criminal
possession with intent to distribute and the State agreed to dismiss the possession charge.
Andrews agreed that the facts contained in the affidavit in support of the motion for leave
to file the information established a factual basis to support the plea. Andrews and the
State agreed to jointly recommend that he be committed to the Department of Corrections
for seven years, with five years suspended to be served on conditions proposed in the
presentence investigation report.
¶7 The plea agreement acknowledged that Andrews had the opportunity to examine
the charges against him along with the investigative file, that he consulted with his
attorney and that he was advised of and understood his rights. In the agreement Andrews
acknowledged and waived his right to object to and to move to suppress “any evidence
that may have been obtained in violation of the law or constitution.” Finally, Andrews
stated in the agreement that his plea was voluntary and that he fully understood the terms
and conditions.
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¶8 The District Court held a hearing on Andrews’ plea, reviewing the rights that he
was waiving by entering the plea. Andrews testified that he had reviewed the evidence
against him with his attorney, including the audio recordings, police report and the
allegations of the information and affidavit in support. Andrews testified that he believed
it was in his best interest to enter the plea, and that he was certain that the State had
enough evidence to prove his guilt beyond a reasonable doubt. The District Court found
that Andrews was acting under the advice of competent counsel, that he understood his
rights, that he understood the charges and possible punishments, and that he was not
acting under any defect or disability. The District Court accepted the plea and found
Andrews guilty of the amended charge. Andrews concedes that he entered the plea
agreement voluntarily.
¶9 On August 20, 2008, after Andrews was adjudged guilty but before he was
sentenced, this Court announced its decision in State v. Goetz, 2008 MT 296, 345 Mont.
421, 191 P.3d 489. Goetz held that electronic monitoring and recording of a defendant’s
conversations in his home with an informant constitute a search subject to the warrant
requirement of the Montana Constitution, despite consent of the informant. On October
21, 2008 Andrews moved to withdraw his plea because the Goetz case cast doubt on
whether the results of the electronic monitoring could have been used against him.
¶10 The District Court held a hearing on Andrews’ motion to withdraw his plea. Both
the prosecution and the defense agreed that there was no need for the District Court to
receive any evidence to decide the motion. Andrews argued that if Goetz had been
decided before his plea he could have successfully suppressed the results of the electronic
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monitoring, would not have entered the plea agreement, and would have proceeded to
trial. The District Court denied Andrews’ motion, concluding that he had received the
benefits of the plea agreement and that even if Goetz required suppression of the
electronic monitoring the State still had sufficient evidence to convict.
STANDARD OF REVIEW
¶11 The court may permit a defendant to withdraw a plea to a criminal charge upon a
showing of “good cause.” Section 46-16-105(2), MCA; State v. Wise, 2009 MT 32, ¶ 9,
349 Mont. 187, 203 P.3d 741. Good cause for withdrawing a plea can be found in
reasons other than voluntariness of the plea. Wise, ¶ 9. This Court reviews de novo a
defendant’s motion to withdraw a guilty plea. State v. Usrey, 2009 MT 227, ¶ 12, 351
Mont. 341, 212 P.3d 279.
DISCUSSION
¶12 A voluntary plea is made in light of the law applicable at the time the plea is
accepted by the court and does not become vulnerable because of a later judicial decision
that changes the law. In Brady v. U.S., 397 U.S. 742, 90 S. Ct. 1463 (1970), the
defendant pled to a kidnapping charge that exposed him to the death penalty, but only if
he were convicted by a jury. Years after Brady was convicted and sentenced the
Supreme Court invalidated the procedure that allowed a jury but not a judge to impose
the death penalty. Brady attacked the validity of his plea based upon the change in the
law. The Supreme Court held that “a voluntary plea of guilty intelligently made in the
light of the then applicable law does not become vulnerable because later judicial
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decisions indicate that the plea rested on a faulty premise.” Brady, 397 U.S. at 757, 90 S.
Ct. at 1473. The Supreme Court further explained:
The fact that Brady did not anticipate [a change in the law] does not
impugn the truth or reliability of his plea. We find no requirement in the
Constitution that a defendant must be permitted to disown his solemn
admission in open court that he committed the act with which he is charged
simply because it later develops that the State would have had a weaker
case than the defendant had thought or that the maximum penalty then
assumed applicable has been held inapplicable in subsequent judicial
decisions.
Brady, 397 U.S. at 757, 90 S. Ct. at 1473-74. A defendant who waives his state court
remedies and enters a plea to the charges against him “does so under the law then
existing.” McMann v. Richardson, 397 U.S. 759, 774, 90 S. Ct. 1441, 1450 (1970). A
favorable change in the law does not entitle a defendant to withdraw a knowing and
voluntary plea. U.S. v. Cortez-Arias, 425 F.3d 547, 548 (9th Cir. 2005); U.S. v. Johnson,
67 F.3d 200, 202 (9th Cir. 1995). Later developments in the law that expand a right a
defendant has waived in a plea agreement does not “make the plea involuntary or
unknowing or otherwise undo its binding nature.” U.S. v. Quinlan, 473 F.3d 273, 279
(6th Cir. 2007).
¶13 While some courts have allowed withdrawal of a plea when a subsequent change
in the law were such that the conduct was no longer a crime, see U.S. v. Andrade, 83 F.3d
729, 731 (5th Cir. 1996), the Goetz case did not de-criminalize Andrews’ conduct.
Moreover, as the District Court stated at the plea withdrawal hearing, even if Goetz
required suppression of the electronic monitoring recordings, the State still had evidence
6
available to convict. The informant and investigating officers could still testify and make
a case against Andrews.
¶14 Other states follow the rule of the Brady case and hold that a post-plea change in
the law does not invalidate the plea. People v. Trank, 872 N.Y.S.2d 595, 596-97 (N.Y.
App. 2009); State v. Brazer, 751 N.W.2d 619, 630 (Neb. 2008); Sims v. Commonwealth,
233 S.W.3d 731, 733 (Ky. App. 2007); and State v. Reid, 894 A.2d 963, 978-79 (Conn.
2006).
¶15 Having entered his plea agreement knowingly and voluntarily, Andrews failed to
make a showing of good cause to allow him to withdraw the plea as required by § 46-16-
105(2), MCA, based upon the subsequent decision in the Goetz case. The District Court
properly denied Andrews’ motion to withdraw his plea.
¶16 Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ BRIAN MORRIS
/S/ JIM RICE
/S/KATHY SEELEY
The Honorable Kathy Seeley, District Court
Judge, sitting for retired Justice John Warner
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Justice W. William Leaphart, dissenting.
¶17 I dissent. Section 46-16-105(2), MCA, provides that a court may, for good cause
shown, permit the plea of guilty to be withdrawn. An involuntary plea can constitute
“good cause” to withdraw the plea. State v. Wise, 2009 MT 32, ¶ 9, 349 Mont. 187, 203
P.3d 741 (citing State v. Lone Elk, 2005 MT 56, ¶¶ 17-19, 326 Mont. 214, 108 P.3d 500,
overruled on other grounds, State v. Brinson, 2009 MT 200, 351 Mont. 136, 210 P.3d
164). However, “good cause” can be found in reasons other than involuntariness. Id.;
State v. Jones, 2008 MT 331, ¶ 11, 346 Mont. 173, 177, 194 P.3d 86, 89; State v.
Warclub, 2005 MT 149, ¶ 16, 327 Mont. 352, 356, 114 P.3d 254, 257. In State v. Lone
Elk, we observed that the legislature, in adopting a broad good cause standard, “suggested
the possibility of criteria in addition to voluntariness.” Lone Elk, ¶ 19. We therefore held
that other reasons may exist. Lone Elk, ¶ 19. We included examples such as “newly
discovered evidence, intervening circumstances or any other reason for withdrawing his
guilty plea that did not exist when he pleaded guilty.” Lone Elk, ¶ 19 (quoting United
States v. Turner, 898 F.2d 705, 713 (9th Cir. 1990)). Andrews’s appeal is just such a
situation in which we should officially recognize the latter two. There still may be
others, but I would confine our analysis to only those circumstances applicable to
Andrews’s appeal.
¶18 Our invocation of United States v. Turner and the “fair and just” standard in Lone
Elk provides the appropriate framework for identifying “good cause” circumstances
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justifying the withdrawal of a guilty plea.1 In Turner, codefendant Smith alleged that the
district court erred at sentencing by denying his motion to withdraw his guilty plea. The
court held that Smith did not “allege newly discovered evidence, intervening
circumstances or any other reason for withdrawing his guilty plea that did not exist when
he pleaded guilty. United States v. Turner, 898 F.2d at 713. Instead, when making his
withdrawal request, Smith merely stated: “I feel that I am being blamed for a lot of stuff I
didn’t do.” United States v. Turner, 898 F.2d at 713.
¶19 Andrews’s argument regarding the intervening Goetz decision constitutes a
“reason for withdrawing his guilty plea that did not exist when he pleaded guilty” as well
as an “intervening circumstance.” The Goetz decision did not exist prior to August 20,
2008. Since Andrews entered an Alford plea on July 3, 2008, the Goetz decision “did not
exist” at the time of his plea. Andrews’s argument also falls within the “intervening
circumstances” category of “good cause” justifications for withdrawing a guilty plea. In
United States v. Ortega-Ascanio, 376 F.3d 879, 887 (9th Cir. 2008), the Ninth Circuit
held that a district court abused its discretion in denying a pre-sentencing motion to
withdraw a plea where there existed “a fair and just reason for withdrawing his plea,
namely, an intervening Supreme Court decision that overruled Circuit precedent and gave
him a plausible ground for dismissal of his indictment” (emphasis added).2 Similarly,
1
While not identically-worded, the “fair and just” language is the federal equivalent of Montana’s “good cause”
language. This state-federal mirroring is why in Lone Elk we invoked the Ninth Circuit’s list of other circumstances
that may justify the withdrawal of a guilty plea.
2
The Court has cited other Ninth Circuit decisions that are tangentially related to the specific scenario in Andrews.
Ortega-Ascanio is directly on point with Andrews’s argument regarding an intervening higher court decision. None
of the decisions cited by the Court address this specific scenario. Further, the decisions the Court cites are from
1995 and 2005, while Ortega-Ascanio was decided in 2008.
9
before Andrews’s sentencing, the Montana Supreme Court decided Goetz, which
overruled prior precedent in State v. Brown, 232 Mont. 1, 755 P.2d 1364 (1988). As a
result of that intervening decision, Andrews moved to withdraw his plea, arguing that if
Goetz had been decided before his plea, he could have successfully suppressed the
recordings, would not have entered the plea agreement, and would have proceeded to
trial.
¶20 The District Court denied Andrews’s motion, concluding that he had received the
benefits of the plea agreement and that even if Goetz required suppression of the
electronic monitoring, the State still had other evidence it could use to convict. The
majority has agreed. This is problematic because the Court has embraced—without
providing any reason—the improper standard of review used by the District Court.3 The
question for the District Court is not whether the court believes a Defendant will be
convicted anyway, but whether, in light of the Goetz decision, a reasonable person in the
defendant’s position would have pleaded guilty or insisted on going to trial. State v.
Henderson, 2004 MT 173, ¶ 19, 322 Mont. 69, 74, 93 P.3d 1231, 1235. The Ninth
Circuit’s language under the “fair and just” standard is analogous. In United States v.
Garcia, 401 F.3d 1008, 1011-12 (9th Cir. 2005), the court held that it is sufficient that the
reason for withdrawal “could have at least plausibly motivated a reasonable person in
3
It appears the District Court may have been referencing the factors specific to the “voluntariness” category of
“good cause” circumstances warranting withdrawal of a guilty plea, which include case-specific considerations such
as the “adequacy of the district court’s interrogations, the benefits obtained from a plea bargain, and the
withdrawal’s timeliness. . . .” Wise, 2009 MT at ¶ 16, 203 P.3d at 743. Because these factors are specific to the
“voluntariness” analysis, they do not readily translate to the other circumstances we identified “good cause” for
withdrawal of a guilty plea.
10
Garcia’s position not to have pled guilty had he known about the evidence prior to
pleading.”
¶21 Andrews contends that a reasonable person in his position would not have entered
the plea agreement in light of our intervening decision in Goetz. He avers that the
recordings were critical to the dispositive issue of whether Andrews or Bullcalf was the
one dealing the drugs to the informant. Andrews argues that his defense at trial would
not have been that no sale occurred, but rather that he was not the one making the sale.
He contends that even if the informant testified, the absence of any recorded
corroboration that it was Andrews who sold the drugs—and the fact that Bullcalf drove to
get the drugs and ended the transaction in possession of the informant’s buy money—
would significantly weaken the State’s case against Andrews. Andrews argues that the
credibility of the confidential informant, her potential interest in Andrews’s conviction,
and the fallibility of human memory and perception are also subject to attack before a
jury, where as an electronic recording is not.
¶22 Moreover, an Alford plea is distinguished from a regular plea by the defendant’s
weighing of evidence against him. If the recordings had been deemed inadmissible under
Goetz, the volume and quality of evidence against Andrews would have changed
significantly. An Alford plea is unlike a simple plea of guilty in which a defendant
admits the offense. In entering an Alford plea, the defendant does not admit the offense.
Rather, the defendant maintains his innocence but looks at all the evidence in the hands
of the State and, in light of that evidence, agrees that a jury will probably convict. In
essence, the defendant concludes that “although I am not guilty, the weight of the
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evidence is such that as a practical matter I will be convicted, so I may as well get the
benefit of a plea bargain.” If qualitatively powerful evidence such as surreptitious
recordings had been deemed inadmissible under Goetz, a reasonable person’s calculation
of the probabilities of conviction most certainly would have changed.
¶23 For the above reasons, I dissent and conclude that a reasonable person in
Andrews’s position would not have entered the Alford plea in light of our intervening
decision in Goetz. I would therefore reverse the District Court’s denial of Andrews’s
motion to withdraw his Alford plea and remand for further proceedings.
/S/ W. WILLIAM LEAPHART
Justice Patricia O. Cotter joins in the dissenting Opinion of Justice Leaphart.
/S/ PATRICIA COTTER
Justice James C. Nelson, dissenting.
¶24 I dissent. Regardless of whether a defendant admits his guilt to the charges, enters
an Alford plea,1 or is found guilty by a jury, he is entitled to the benefit of any new rule of
criminal procedure that is announced before his conviction becomes final.
¶25 It is now beyond dispute 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.” Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716 (1987); accord
1
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970).
12
State v. Egelhoff, 272 Mont. 114, 125, 900 P.2d 260, 267 (1995), rev’d in part on other
grounds, Montana v. Egelhoff, 518 U.S. 37, 116 S. Ct. 2013 (1996). “[I]t is the nature of
judicial review that precludes us from ‘[s]imply fishing one case from the stream of
appellate review, using it as a vehicle for pronouncing new constitutional standards, and
then permitting a stream of similar cases subsequently to flow by unaffected by that new
rule.’ ” Griffith, 479 U.S. at 323, 107 S. Ct. at 713 (quoting Mackey v. United States, 401
U.S. 667, 679, 91 S. Ct. 1160, 1173 (1971) (Harlan, J., concurring in the judgment)).
Thus, “once a new rule is applied to the defendant in the case announcing the rule,
evenhanded justice requires that it be applied retroactively” to all defendants whose cases
are pending on direct review or not yet final. Teague v. Lane, 489 U.S. 288, 300, 109
S. Ct. 1060, 1070 (1989) (plurality opinion); Griffith, 479 U.S. at 328, 107 S. Ct. at 716;
Egelhoff, 272 Mont. at 125-26, 900 P.2d at 267. It follows, therefore, as stated at the
outset, that a criminal defendant is entitled to take advantage of any new rule of criminal
procedure that is announced before his conviction becomes final.
¶26 Our decision in State v. Goetz, 2008 MT 296, 345 Mont. 421, 191 P.3d 489, was
announced after Andrews entered his Alford plea but before he was sentenced. At that
point, Andrews had not been “convicted” of any crime, nor was his case final. See State
v. Bonamarte, 2006 MT 291, ¶ 6, 334 Mont. 376, 147 P.3d 220 (a “final judgment of
conviction” does not exist until the final sentence is imposed); State v. Tomaskie, 2007
MT 103, ¶ 12, 337 Mont. 130, 157 P.3d 691 (a defendant is not “convicted” until
sentence is imposed). Andrews then promptly moved to take advantage of our decision
in Goetz. Under these circumstances, we must apply the retroactivity rules set forth in
13
Griffith, 497 U.S. at 328, 107 S. Ct. at 716, which we adopted in Egelhoff, 272 Mont. at
125, 900 P.2d at 267. Evenhanded justice requires that Goetz be applied retroactively to
all defendants whose cases are pending on direct review or not yet final. Teague, 489
U.S. at 300, 109 S. Ct. at 1070; Griffith, 479 U.S. at 328, 107 S. Ct. at 716; Egelhoff, 272
Mont. at 125-26, 900 P.2d at 267.
¶27 In my view, Andrews demonstrated “good cause” under § 46-16-105(2), MCA, to
withdraw his plea. By definition, “good cause” includes the principle that all defendants
whose convictions are not yet final are entitled to the benefit of a newly announced rule
of criminal procedure. Andrews should be allowed to withdraw his plea and take his
chances at a trial where our Goetz decision will be imposed. The Court errs in holding to
the contrary.
¶28 I dissent.
/S/ JAMES C. NELSON
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