IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 93-517
IN RE THE PETITION OF OPINION
i AND
WALTER JAMES MANULA ) ORDER
James Manula (Petitioner) has filed herein his petition for
postconviction relief. He claims, among other things, that he was
denied his right to an appeal. We disagree, and conclude that
ruling is also dispositive of his other claims for postconviction
relief. Petitioner's petition presents an issue of first
impression in Montana.
Backqround
In August 1990, Petitioner was charged by information in
Beaverhead County Cause No. DC 90-2355 with one count of sexual
intercourse without consent and one count of aggravated kidnapping,
both felonies alleged to have been committed on or about August 16,
1990. Petitioner appeared in court with appointed counsel, pled
not guilty to those charges and was released on bond.
While free on bond, Petitioner committed and was charged in
Beaverhead County Cause No. DC 90-2364 with other felonies
including sexual intercourse without consent, incest, aggravated
kidnapping and criminal mischief. Petitioner appeared with the
same appointed counsel and pled not guilty to those charges in
October 1990. Petitioner stood trial on those charges in July
1991, and was found guilty on all counts by a jury.
Prior to sentencing in Cause No. DC 90-2364, Petitioner
entered into a plea agreement with the State in order to dispose of
the outstanding charges in Cause No. DC 90-2355. The State agreed
to recommend specific sentences in both causes of action in
exchange for Petitioner's agreement not to pursue a direct appeal
of his jury convictions in Cause No. DC 90-2364 and in
consideration for his agreement to abide by various other
requirements and conditions attendant to his incarceration and
following his release on parole.
As a part of the plea agreement, Petitioner executed an
"Acknowledgement of Waiver of Rights" form setting forth the
agreed-upon terms and the specific rights which Petitioner was
waiving by entering into the plea agreement. The plea agreement
also contained Petitioner's handwritten "Alford" plea to the
charges in Cause No. DC 90-2355: "I believe the State can obtain
a guilty verdict from a jury."
In October 1991, Petitioner, appearing with counsel, changed
his plea to guilty to the charges in Cause No. DC 90-2355.
Following a sentencing hearing, the District Court adopted the
terms of the plea agreement and sentenced Petitioner on both causes
of action to 40 years' imprisonment with 20 years suspended, non-
dangerous. The District Court specifically noted that, in
accordance with the plea agreement, Petitioner was waiving his
right to appeal, although he was not barred from pursuing sentence
review.
On October 14, 1993, Petitioner filed this petition for
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postconviction relief alleging, among other things, denial of his
right to appeal, ineffective assistance of counsel, illegal
incarceration prior to being charged, lack of evidence and other
claims arising out of his jury convictions in Cause No. DC 90-2364.
I. Denial of Appeal
Petitioner alleges that he was denied his right of appeal by
reason of the failure of his attorney to file an appeal. That is
not the case, however. Here, Petitioner, as a part of his plea
agreement, specifically and in writing, waived his right to appeal.
While an issue of first impression in Montana, other federal
and state courts have adopted the rule that, as with other rights
which are waived upon entry of a guilty plea, a defendant's waiver
of his right to appeal will not be invalidated so long as his
waiver of that right is done intelligently, voluntarily and with an
understanding of the consequences. See, for example, United States
v. DeSantiago-Martinez (9th Cir. 1992), 980 F.2d 582, citing United
States v. Bolinger (9th Cir. 1991), 940 F.2d 478, 480, and United
States v. Navarro-Botello (9th Cir. 1990), 912 F.2d 318, 319, 321-
22, cert
-0 denied 112 S.Ct. 1488 (1992); United States v. Wiggins
(4th Cir. 1990), 905 F.2d 51; Barnes v. Lynaugh (5th Cir, 1987),
817 F.2d 336: Johnson v. United States (7th Cir. 1988), 838 F.2d
201; People v. Nichols (Ill. 1986), 493 NE 2d 677; State v. Perkins
(Wash. 1987), 737 P.2d 250; People v. Olson (Cal. App. Ct. 1989),
264 Cal. Rep. 817; People v. Seaberg (N.Y. 1989), 543 N.Y.S. 2d
968; People v. Rodriguez (Mich. 1991), 480 NW 2d 287; and the cases
collected at 89 ALR 3d 864.
In the instant case, the record reflects that Petitioner was
well aware that he was forfeiting his right of appeal by executing
the plea agreement. Not only did the Acknowledgement of Waiver of
Rights form which he signed specifically waive his "..right to
appeal any finding of Guilty...," but the Beaverhead County
Attorney's letter offering the plea agreement, attached to the
Acknowledgement of Waiver of Rights form, also unequivocally made
Petitioner's waiver of appeal of his convictions under Cause No. DC
90-2364 a condition for the State's entry into the agreement.
Furthermore, at the sentencing hearing the District Court made
specific inquiry of Petitioner's (counsel regarding the appeal
waiver, and counsel advised that he had thoroughly discussed the
pros and cons of the waiver with his client.
We conclude that Petitioner's waiver of his right to appeal
in this case conforms with the voluntary, intelligent and
understanding appeal waiver found and upheld by the Ninth Circuit
in DeSantiaso: the agreement signed by the defendant contained an
express waiver of the right of appeal, and the record reflects that
the waiver was discussed by the defendant with his counsel.
Accordingly, we hold that Petiti.oner, here, effectively waived
his right of direct appeal.
II. Procedural Bar of Other Postconviction Claims
From Petitioner's waiver of his right of direct appeal, it
follows that his other claims for postconviction relief are
procedurally barred.
Section 46-21-105(2), MCA, provides:
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When a petitioner has been afforded a direct appeal of
the petitioner's conviction, grounds for relief that
could reasonably have been raised on direct appeal may
not be raised in the original or amended petition.
We have applied that statutory bar consistently in order to
prevent the abuse of postconviction relief by criminal defendants
who would substitute those proceedings for direct appeal and in
order to preserve the integrity of the trial and direct appeal.
See, for example, In re the Petition of Evans (1991), 250 Mont.
172, 819 P.2d 156; Tecca v. McCormick (1990), 246 Mont 317, 806
P.2d 11; State v. Gorder (1990), 243 Mont 333, 792 P.2d 370; Duncan
v. State (lPPl), 243 Mont. 232, 794 P.2d 331; In re Petition of
Martin (1989), 240 Mont. 419, 787 P.2d 746.
Here, Petitioner was afforded the right of direct appeal, and
he voluntarily waived that right in his written plea agreement.
Accordingly, we hold that he is procedurally barred under 5 46-21-
105(2), MCA, from raising his various other claims for
postconviction relief.
ORDER
IT IS HEREBY ORDERED that Petitioner's petition for
postconviction relief should be and the same is, hereby, DENIED.
Dated this Jsfi day of December, 1993.
Chief Justice