State v. Lindsey

March 16 2011

DA 09-0655

IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 46

STATE OF MONTANA,

Plaintiff and Appellee,

v.

WAYNE PERCY LINDSEY,

Defendant and Appellant.

APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DC 07-168
Honorable James A. Haynes, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Joslyn Hunt, Chief Appellate Defender; Lisa S. Korchinski,
Assistant Appellate Defender, Helena, Montana; Helena, MT

For Appellee:

Steve Bullock, Montana Attorney General; Micheal S. Wellenstein,
Assistant Attorney General, Helena, Montana

George H. Corn, Ravalli County Attorney; William Fulbright,
Deputy County, Hamilton, Montana

Submitted on Briefs: February 9, 2011

Decided: March 16, 2011

Filed:

__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Wayne Percy Lindsey was convicted of sexual assault pursuant to a plea

agreement. He appeals contending that he was deprived of due process in the District

Court’s proceedings, and that he received ineffective assistance of counsel. We affirm.

BACKGROUND

¶2 In December, 2007, the State charged Lindsey by information in District Court

with sexual intercourse without consent and sexual assault based upon incidents that

occurred when he was 16 and 17 years old and his victim was 5 and 6 years old. The

incidents took place between May 2005 and May 2006. Lindsey was 18 when charged

and jurisdiction to file the charges by information was found in § 41-5-206, MCA.

¶3 Public Defender Carol Johns represented Lindsey, and the case against him

progressed through pre-trial proceedings until late in 2008 when the District Court noted

that there had been no hearing under § 41-5-206(3), MCA. That section provides, in

cases where a youth is charged by information in district court:

Within 30 days after leave to file the information is granted, the district
court shall conduct a hearing to determine whether the matter must be
transferred back to the youth court, unless the hearing is waived by the
youth or by the youth’s counsel in writing or on the record.

Section 41-5-206(3), MCA. The district court may transfer a case to youth court upon a

finding that youth court disposition will serve the interests of community protection; that

the nature of the offense does not warrant prosecution in district court; and that the best

interests of the youth warrant youth court disposition. Section 41-5-206(3)(a)-(c), MCA.

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¶4 The District Court conferred with counsel on the transfer hearing issue and

determined that Lindsey did not want to waive his right to the hearing. The District Court

set a date for the transfer hearing and for the trial. These were each re-set several times,

in part to allow Lindsey to secure a psychological evaluation by Dr. William Stratford in

support of transferring the case to youth court. In March, 2009, the District Court held

the transfer hearing. Dr. Stratford testified about his evaluation and opinions of Lindsey.

Stratford concluded by recommending that there was sufficient chance of Lindsey’s re-

offending that he should be under extended youth court supervision until age 25, and then

under an alternative adult sentence that could be imposed if Lindsey failed to comply

with conditions until age 25. Dr. Stratford recommended that if such a dual sentence

were not possible, the case should not be transferred to youth court, and that an adult

sentence was required to protect the community.

¶5 The District Court concluded, on the record and in a subsequent written order, that

he would consider transfer to youth court only if the extended jurisdiction dual sentence

that Stratford recommended could be imposed, as provided in § 41-5-1602, MCA.

Lindsey’s attorney told the District Court at the hearing and again in a brief that Lindsey

agreed that a dual youth court-adult sentence was appropriate.

¶6 The State had not yet filed a brief on the dual sentence issue and the District Court

had not entered a final order when Lindsey and the State entered a plea agreement on the

District Court charges. The agreement provided that Lindsey would plead guilty to an

amended information charging him with felony sexual assault; that the State would

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dismiss the charge of sexual intercourse without consent; and that either side was free to

make a sentencing recommendation.

¶7 Lindsey executed and filed a guilty plea and waiver of rights form in which he

recited that the plea was voluntary, and not the result of pressure, threats or offers of

anything of value. He also represented that there was no agreement as to the amount or

kind of punishment the District Court could impose. The form also recited Lindsey’s

satisfaction with his attorney’s representation and with his opportunity to consult with

and obtain advice from the attorney. The form recited that Lindsey was not suffering

from any emotional or mental disability, that he believed after reviewing the evidence

that he would be found guilty by a jury, and that he sexually assaulted the victim.

¶8 The District Court conducted a change-of-plea hearing and initially inquired about

the issue of the transfer to youth court. Lindsey’s attorney stated that she believed the

transfer issue was still alive, but the State responded that the plea agreement was made as

to the charge of sexual assault filed by information in District Court. If the transfer could

still be ordered, the State said the plea agreement would be rescinded. The District Court

offered Lindsey time to consider the situation and suggested that the change-of-plea

hearing be continued. Lindsey and his attorney conferred and then informed the District

Court that Lindsey would waive his claim to have the case transferred to youth court. The

District Court asked whether Lindsey fully understood the ramifications of proceeding as

an adult, and Lindsey and his attorney conferred again. Lindsey’s attorney then informed

the District Court that Lindsey had a “full understanding of the differences that would

occur from youth court to adult court and he wishes to proceed now.” The District Court

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inquired a third time whether Lindsey’s attorney had sufficient time to discuss the

transfer issue with him so that he had a full and knowing understanding of the situation.

Lindsey’s attorney responded that while it was a complicated issue they had reviewed it

several times and she believed that he understood the distinctions between proceeding in

youth and adult court. With those assurances, the District Court proceeded with the

change-of-plea hearing.

¶9 The District Court then asked Lindsey again if he had any questions about

proceeding in adult court and informed him that he would have a second felony on his

record because he had recently pled guilty to a separate charge of felony theft. Lindsey

said he had no questions, that he understood what he was doing and that he had no

disability or impairment that would interfere with his understanding of the proceeding.

The District Court informed Lindsey of the registration requirements attendant to

conviction of a sexual offense and of the differences in registration requirements between

youth and adult courts. The District Court offered an additional opportunity for Lindsey

to confer with his attorney about these issues and, after conferring with his attorney, he

stated that he wished to proceed.

¶10 Lindsey listened to the elements of the sexual assault charge and the possible

maximum punishment for the crime. Lindsey said that he understood and wanted to

plead guilty. He answered questions indicating that there was no force, pressure or

coercion applied to cause his guilty plea, that it was voluntary, that it was his own

independent judgment to do so, that he knew the implications of changing his plea, and

that he believed it was in his best interests to do so. He stated that he was satisfied with

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the representation by his attorney and that he understood that the District Court was not

bound by the plea agreement and could sentence him to any term up to the maximum

sentence. After additional assurances from Lindsey that he understood what he was

doing and that there was a factual basis for the plea, the District Court accepted Lindsey’s

guilty plea to sexual assault.

¶11 About two months later, in May, 2009, and prior to sentencing, Lindsey appeared

with new retained counsel and moved to withdraw his guilty plea. In July, 2009, the

District Court conducted a hearing on the motion. Lindsey testified that he never wanted

to plead guilty, that he was pressured by his Public Defender attorney to do so, that he

thought he would receive a suspended sentence and would be released from jail. He

testified that his attorney had told him that if he went to trial he would be convicted and

receive a life sentence. Lindsey also claimed that he suffered from attention deficit

disorder and did not understand the proceedings at the change-of-plea hearing. Therefore

he argued that he did not voluntarily agree to the guilty plea. The District Court inquired

whether Lindsey was raising a claim of ineffective assistance as to his former attorney.

Lindsey’s new attorney responded that they were not raising such a claim at that time.

The District Court informed the State that in light of this representation, there was no

need for the State to carry through its plan to call Lindsey’s former attorney or her

supervisor to make a record on a claim of ineffective assistance.

¶12 After considering post-hearing briefs, the District Court entered an order denying

Lindsey’s motion to withdraw his guilty plea to sexual assault. The District Court

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sentenced Lindsey to 25 years with the Department of Corrections, with 20 suspended.

Lindsey appeals, raising issues that we restate as follows:

¶13 Issue 1. Whether Lindsey is entitled to have the charge against him dismissed

because a transfer hearing was not held within the time provided in § 41-5-206(3), MCA.

¶14 Issue 2. Whether the District Court erred in denying Lindsey’s motion to

withdraw his guilty plea.

¶15 Issue 3. Whether the District Court erred in failing to respond to Lindsey’s

request for new counsel.

¶16 Issue 4. Whether Lindsey received ineffective assistance of counsel from his first

attorney when she failed to move to dismiss the charges against him because a transfer

hearing was not held within the time provided in § 41-5-206(3), MCA.

DISCUSSION

¶17 Issue 1. Whether Lindsey is entitled to have the charge against him dismissed

because a transfer hearing was not held within the time provided in § 41-5-206(3), MCA.

¶18 Lindsey argues that he had an absolute due process right to a transfer hearing

within 30 days after the information was filed as provided in § 41-5-206(3), MCA, and

that failure to strictly comply with the statute is a sufficiently egregious violation of due

process to warrant dismissal of the charges against him. The statutory transfer hearing is

based upon due process concerns arising from the often wide differences in punishment

provided by youth courts and adult courts. State v. Butler, 1999 MT 70, 294 Mont. 17,

977 P.2d 1000, overruled as to the timing of the hearing, State v. McKee, 2006 MT 5,

330 Mont. 249, 127 P.3d 445.

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¶19 In this case it is clear that Lindsey waived any claim that he was denied due

process by the late transfer hearing. First, he pled guilty to the felony charge of sexual

assault in District Court. It is well established that a valid guilty plea is a waiver of all

non-jurisdictional defects and defenses, including claims of constitutional violations that

occurred prior to the plea. State v. Turcotte, 164 Mont. 426, 428, 524 P.2d 787, 788

(1974); Hagan v. State, 265 Mont. 31, 35, 873 P.2d 1385, 1387 (1994); State v. Pavey,

2010 MT 104, ¶ 11, 356 Mont. 248, 231 P.3d 1104. A transfer hearing is not

jurisdictional because the District Court had jurisdiction over the case as provided in §

41-5-206, MCA. As a matter of law, therefore, by pleading guilty Lindsey waived any

due process claim he may have had.

¶20 In addition, Lindsey specifically and affirmatively waived his rights to conclude

the transfer proceeding. As noted above, at the time of the change-of-plea hearing, the

District Court conducted the transfer hearing just days earlier. A primary witness was Dr.

Stratford, the professional hired by Lindsey to evaluate him and support transferring the

case to youth court. At the close of the hearing, the District Court concurred with Dr.

Stratford’s recommendation that protection of the community required that Lindsey’s

case be transferred to youth court only as an extended jurisdiction proceeding which

could be transferred back to adult court if Lindsey failed to comply with the conditions

imposed in youth court. Lindsey’s attorney told the District Court at the hearing and

again in a brief that Lindsey agreed that a dual youth court-adult sentence under § 41-5-

1601, MCA, was appropriate. While the District Court awaited briefing from the State,

Lindsey pled guilty to the sexual assault charge in adult court.

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¶21 At the change-of-plea hearing, the District Court offered Lindsey time to consider

the pending transfer situation and suggested that the change-of-plea hearing be continued

to allow him time to do so. Lindsey and his attorney then conferred and informed the

District Court that Lindsey would waive his claim to have the case transferred to youth

court. The District Court asked whether Lindsey fully understood the ramifications of

proceeding as an adult, and Lindsey and his attorney conferred again. Lindsey’s attorney

then informed the District Court that Lindsey had a “full understanding of the differences

that would occur from youth court to adult court and he wishes to proceed now.” It is

clear that Lindsey and his attorney, after conferring, informed the District Court more

than once that Lindsey knew what he was doing, that he waived the transfer to youth

court, and that he wanted to proceed in adult court. The District Court recognized

Lindsey’s rights regarding the transfer hearing and the record demonstrates that those

rights were protected but waived. Lindsey cannot now claim any residual rights arising

from the timing of the transfer hearing.

¶22 Lindsey argues that even though he waived completion of the transfer issue, the

State coerced him into doing so. He relies upon the State’s position at the change-of-plea

hearing that if transfer to youth court were still an option, then the plea agreement was

off. This, Lindsey contends, coerced him into waiving the transfer to youth court.

¶23 There is no factual support for this contention. First, the agreement to plead guilty

to a felony in adult court was inconsistent with a transfer to youth court. Section 41-5-

1604, MCA, requires, in extended jurisdiction cases, that there be a youth court

adjudicatory hearing under § 41-5-1502, MCA. The court must then impose both a youth

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court disposition and a conditional adult court sentence. At a minimum the plea

agreement here would have had to be re-negotiated prior to the plea hearing to reflect the

requirements of the youth court statutes. Second, the District Court gave Lindsey and his

attorney more than one opportunity, after the State’s comment about the plea agreement

being in jeopardy, to confer and to re-consider the transfer situation. They never

mentioned any concern about what the State had said or about Lindsey being coerced into

staying with the guilty plea following those attorney-client discussions.

¶24 Issue 2. Whether the District Court erred in denying Lindsey’s motion to

withdraw his guilty plea.

¶25 After the District Court held the change-of-plea hearing and accepted Lindsey’s

guilty plea to the adult charges, Lindsey appeared with retained counsel. He moved to re-

instate the briefing schedule on the transfer issue and to withdraw his guilty plea. The

District Court held the briefing schedule issue in abeyance pending determination of the

motion to withdraw the plea. The District Court held an evidentiary hearing on the

motion to withdraw, allowed Lindsey additional time to gather evidence to support his

claims, and set a post-hearing briefing schedule. After completion of the post-hearing

process the District Court filed an order on November 4, 2009, denying Lindsey’s

motion.

¶26 This Court reviews de novo the denial of a motion to withdraw a guilty plea,

because the issue is a mixed question of law and fact. State v. Tyler, 2009 MT 75, ¶ 10,

349 Mont. 461, 204 P.3d 685. A guilty plea is valid if the defendant knowingly and

intelligently enters the plea. State v. Usrey, 2009 MT 227, ¶ 17, 351 Mont. 341, 212 P.3d

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279. A plea is voluntary if the defendant is fully aware of the direct consequences of it,

including the value of any commitments made to him by the court, prosecutor or his own

attorney. Brady v. U.S., 397 U.S. 742, 755, 90 S. Ct. 1463, 1472 (1970). Voluntariness

is assessed under the facts of each case, including the adequacy of the district court’s

interrogation of the defendant, and the defendant’s mental competency and ability to

understand the plea. Usrey, ¶ 17. The issue is whether the plea was knowing and

voluntary at the time it was made. State v. Brinson, 2009 MT 200, ¶ 11, 351 Mont. 136,

210 P.3d 164. A defendant’s allegations that he had certain mental impressions at the

time may bear on voluntariness but must be supported by objective proof in the record.

Brinson, ¶ 12. We accept a district court’s findings of fact on a motion to withdraw a

plea unless they are clearly erroneous. Usrey, ¶ 13.

¶27 Lindsey contends that his guilty plea was not voluntary; that his attorney at the

time misrepresented the sentence he would receive; that he received no benefit from the

plea bargain; and that he lacked the capacity to understand the District Court colloquy at

the change-of-plea hearing. The District Court determined these issues against Lindsey.

¶28 The District Court first noted Lindsey’s experience with the criminal justice

system, beginning with a variety of juvenile offenses. In addition, after Lindsey was

charged in the present case he was separately charged with burglary and theft, both

felonies, and entered a plea agreement to felony theft. The District Court noted that

Lindsey raised no issue in the felony theft case about his inability to understand the

proceedings or the consequences of a guilty plea.

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¶29 The District Court reviewed in detail the plea colloquy with Lindsey prior to

accepting the guilty plea to sexual assault. After reviewing and quoting from the record,

the District Court concluded that the “objective proof” establishes that Lindsey was fully

informed when he waived his rights and changed his plea to guilty. The District Court

noted Lindsey’s repeated answers that he understood the proceedings, that he was

satisfied with his attorney, and that he understood the consequences of a guilty plea. The

District Court also noted the several instances in which Lindsey was given the specific

opportunity to consult with his attorney during the proceeding and in which Lindsey was

offered a continuation of the hearing to give him more time to consider and consult. The

District Court noted Lindsey’s testimony that he had inappropriately touched and had

rubbed his genitals on his young victim for his own gratification. In summary, the

District Court found that the plea colloquy “established the prima facie adequacy of the

Court’s interrogation of Lindsey.”

¶30 The District Court next considered Lindsey’s contention that he had been

pressured into pleading guilty by his Public Defender attorney and her supervisor. The

District Court determined that the specific questions and answers that Lindsey gave

during the change-of-plea hearing support an opposite finding, “that he was not misled,

pressured, or coerced into pleading guilty.” After listening to Lindsey’s testimony about

what the attorneys had told him, the District Court concluded that the evidence showed

that the attorneys did nothing “other than offer their frank professional assessment of the

State’s case against him.” The District Court concluded that Lindsey’s evidence

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“establishes no material threats, misrepresentations, pressure or omission that undermines

the voluntariness of his plea” and that his claim of involuntariness “is without merit.”

¶31 The District Court next considered Lindsey’s claim that he suffered from learning

disabilities that prevented him from understanding the proceedings at the change-of-plea

hearing. First the District Court found “no merit” in Lindsey’s “self-serving description

of himself as being limited to following direction like a ‘trained seal.’” To the contrary,

the District Court found that Lindsey had “consistently shown he can initiate meaningful

inquiry and understand the proceedings,” citing a letter Lindsey sent to the District Court

in 2007 pointing out the consequences he would suffer upon conviction. In addition, the

District Court noted that Lindsey expressed no learning disability concerns during any of

the proceedings in the felony theft case, in the pre-sentence investigation in that case, in

any of his bail hearings in the present case, or in Dr. Stratford’s evaluation presented in

support of transfer to youth court. The District Court reviewed in detail the school

records that Lindsey supplied after the hearing on the motion to withdraw the guilty plea.

These involved ability assessments when Lindsey was about age 12, and included the

evaluator’s comment that the results “may not be a true picture of [Lindsey’s] abilities

because of an apparent lack of effort during the testing.” The District Court noted a

conclusion from Dr. Stratford’s report that Lindsey was “clearly able to read and

comprehend the individual test items, [and] that he was attentive in considering his

responses.” The District Court concluded that Lindsey’s contention that he lacked the

ability to understand the proceedings was “without merit.”

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¶32 The District Court next considered Lindsey’s contention that he did not understand

the impact of sexual offender registration requirements. The court noted again the

December, 2007, letter from Lindsey in which he noted that the charges against him were

serious and that he would be considered a sex offender for the rest of his life. The

District Court noted the specific instances during the change-of-plea hearing in which the

registration requirements were discussed and explained, and during which Lindsey was

offered additional time to discuss that issue with his attorney. The District Court

concluded that Lindsey was “fully informed of the sexual offender registration

requirements;” that he declined offers of additional time to consult and consider, and that

he specifically stated that he understood the situation. The District Court concluded that

the argument had no merit.

¶33 The District Court additionally found that Lindsey did in fact receive benefit from

the plea agreement. Most obviously he benefitted from dismissal of the charge of sexual

intercourse without consent along with his exposure to its substantial penalties upon

conviction. Lindsey’s argument that he received no benefit from the plea is not

supported by the record. He risked conviction of two major felonies and substantial

sentences for both offenses. Clearly he realized substantial benefit from dismissal of the

sexual intercourse without consent charge as part of the plea agreement.

¶34 We conclude that the District Court’s findings of fact concerning the issues raised

as to the validity of Lindsey’s guilty plea were not clearly erroneous, and that the District

Court’s conclusions were properly based upon applicable Montana law.

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¶35 Issue 3. Whether the District Court erred in failing to respond to Lindsey’s

request for new counsel.

¶36 In late December, 2007, Lindsey wrote a letter to the District Court complaining

about his Public Defender attorney. The District Court placed the letter in the court file

and directed that a copy of it be sent to the defense attorney and the prosecutor. On

appeal Lindsey contends that the District Court had an obligation to respond to the letter,

to investigate the circumstances, and to take action including holding a hearing if

warranted. Lindsey’s letter complained that attorney Johns was not communicating with

him; that he asked her to “bring things to the attention of the court which she did not do;”

that she does not return his phone calls; and that she wanted him to plead guilty.

¶37 Lindsey wrote the letter to the District Court only two weeks after Public Defender

Johns filed her notice of appearance and a week after Lindsey made his initial appearance

on the charges, accompanied by Johns. The record also shows that Lindsey made no

other complaints about his attorney during the course of the case and that at the change-

of-plea hearing he expressly testified that he was satisfied with the representation she

provided.

¶38 It is within the district court’s discretion to act on a defendant’s complaints about

his attorney. When a defendant alleges ineffective assistance of counsel, the district court

must determine if the complaint is substantial by inquiring into the nature of the

complaints. A court is required to hold a hearing only if it concludes that the defendant

has presented a “seemingly substantial” complaint. State v. Hendershott, 2007 MT 49, ¶

23, 336 Mont. 164, 153 P.3d 619. Lindsey cannot prevail on this issue without

15
establishing that the District Court’s response (sending the letter to Johns and the State)

prejudiced his substantial rights. Section 46-20-701, MCA; State v. Dewitz, 2009 MT

202, ¶ 92, 351 Mont. 182, 212 P.3d 1040.

¶39 Lindsey contends on appeal that at the time of the 2007 letter he had never met

with Johns, and that the “full extent of the conflict between Lindsey and his attorney

Johns is unknown. . . .” These assertions are not consistent with the facts. The letter

itself claims that Lindsey had asked Johns to “bring things to the attention of the court”

and that she wanted him to plead guilty. This, of course, would require communication

between Johns and Lindsey that he now contends never happened. In addition, Johns

and Lindsey appeared together at the initial appearance on December 20 just a week

before the letter was sent. Neither Lindsey’s letter nor his characterizations of it on

appeal are internally consistent and are not consistent with the facts. The letter was

insufficient to require further action by the District Court.

¶40 This happened at a time very early in the case, and if there had been any on-going

substance to Lindsey’s dissatisfaction with his attorney there was adequate time to raise

the issues again. To the contrary, Lindsey never broached any further complaints. On

January 2, 2008, just a few days after the letter, Johns and Lindsey both signed the

Omnibus Pretrial Hearing Memorandum. The next day, January 3, Johns and Lindsey

both appeared in District Court at the combined omnibus hearing and bail hearing.

Contrary to Lindsey’s claims, the record shows that he had multiple opportunities nearly

contemporaneous with the letter to confer with his attorney and to raise the ineffective

assistance issues with the District Court but did not do so. Later, when Lindsey changed

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his plea to guilty, he affirmatively represented to the District Court that he was satisfied

with the performance of his attorney.

¶41 Lindsey has failed to make a material showing that the District Court’s response—

sending the letter to defense and prosecution counsel—was an abuse of discretion under

the facts. Lindsey has not demonstrated that the outcome of his case would have been

different if the District Court had responded differently, and therefore has not

demonstrated that this prejudiced his substantial rights. Finally, this claim that the

District Court should have further investigated the circumstances of the letter is a non-

jurisdictional claim that is waived upon a plea of guilty, as discussed above. Turcotte,

164 Mont. at 428, 524 P.2d at 788; Hagan, 265 Mont. at 35, 873 P.2d at 1387; Pavey, ¶

11.

¶42 Issue 4. Whether Lindsey received ineffective assistance of counsel from his first

attorney when she failed to move to dismiss the charges against him because a transfer

hearing was not held within the time provided in § 41-5-206(3), MCA.

¶43 It is well established that this Court analyzes claims of ineffective assistance of

counsel under the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052 (1984). The Strickland test requires the complaining defendant to show that his

attorney’s performance was deficient, and that the deficient performance prejudiced his

defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. A defendant must meet both

parts of the test to be entitled to relief, and an insufficient showing under one part

obviates the need to even address the other. Whitlow v. State, 2008 MT 140, ¶ 11, 343

Mont. 90, 183 P.3d 861. A claim of ineffective assistance that can be decided upon the

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district court record is a record-based claim that must be raised on direct appeal. In re

Petition of Hans, 1998 MT 7, ¶ 41, 288 Mont. 168, 958 P.2d 1175. The allegation that

counsel failed to object to an alleged error in the district court is a record-based claim of

ineffective assistance. Hagen v. State, 1999 MT 8, ¶ 20, 293 Mont. 60, 973 P.2d 233;

Hans, ¶ 42. Lindsey’s contention that his attorney was ineffective for failing to move to

dismiss the charges based on the lack of a timely transfer hearing is equivalent and is

record-based.

¶44 In this case, Lindsey’s claim of ineffective assistance of counsel must fail because

he has not met the second part of the Strickland test, which requires him to show that he

was prejudiced by the conduct of the attorney. Lindsey has not demonstrated that the

charges against him would have been dismissed if only his attorney had made such a

motion some time 30 days after the information was filed. Lindsey concedes that he has

not located any case law that requires dismissal of the charges if a transfer hearing is not

held within 30 days of the filing of the information. The statute itself provides no such

sanction. Section 41-5-206(3), MCA.

¶45 Dismissal of criminal charges is a severe sanction that has been limited to

instances of “egregious” or “outrageous” governmental misconduct. State v. Schauf,

2009 MT 281, ¶ 26, 352 Mont. 186, 216 P.3d 740. In other important instances of

governmental failure to protect discrete rights of the accused, remedies other than

dismissal of the charges have been applied. Brady v. Maryland, 373 U.S. 83, 83 S. Ct.

1194 (1963) (where prosecution fails to disclose exculpatory evidence the remedy is

retrial); Miranda v. Arizona, 384 U.S. 463, 86 S. Ct. 1602 (1966) (where law

18
enforcement fails to provide adequate custodial warnings the remedy is suppression of

evidence). Dismissal of charges can be warranted as a consequence of governmental

misconduct in rare situations. State v. Strong, 2010 MT 163, 357 Mont. 114, 236 P.3d

580 (dismissal ordered where defendant was held for 42 days without an initial

appearance before a magistrate).

¶46 Lindsey has not demonstrated that untimely transfer hearings are an on-going

problem that warrants any kind of severe sanction. In Lindsey’s case, as soon as the

District Court noted the absence of a transfer hearing he provided the hearing. Lindsey

was allowed the time he requested to prepare and present expert testimony in his favor,

and the District Court was considering transferring the case to youth court if it could be

accomplished under the extended jurisdiction statutes as discussed above. While the

transfer hearing happened past the time provided in the statute Lindsey has not

demonstrated any way in which he was substantially prejudiced by the delay. He has not

shown that his circumstances changed, that he lost evidence or witnesses or that the

outcome would have been any different in any way if the transfer hearing had been held

earlier. Lindsey had his transfer hearing and chose instead to truncate the process by

voluntarily entering a guilty plea.

¶47 Since Lindsey cannot meet the prejudice requirement of the Strickland test, his

claim of ineffective assistance of counsel must fail.

¶48 The District Court is affirmed.

/S/ MIKE McGRATH

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We concur:

/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ PATRICIA COTTER
/S/ JIM RICE

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