*1
STATE OF MONTANA,
Aрpellee,
Plaintiff and
DANIEL ANDREWS, JR.,
Appellant.
Defendant
No. DA 09-0209.
Argued
December
2009.
Submitted December
2009.
July 14,
Decided
For Hon. Steve Appellee: (argued), Helena; Krauss, Attorney General M. Assistant Jonathan Attorney, Poison. Young, County Lake Mitch of the Court. Opinion McGRATH delivered the CHIEF JUSTICE denying his Court’s order appeals from the District felony charge to a motion to withdraw to distribute. We affirm. with intent possession dangerous *2 denied properly on the District Court appeal The issue whether ¶2 motion Andrews’ to withdraw BACKGROUND
PROCEDURAL AND FACTUAL March, Drug Task 2007, agents working the Northwest with ¶3 selling drugs, using investigated suspected individuals of Force several investigation. the part of drug purchases an informant who made to that she Judy report Harlow contacted the informant On March go to who told him to to sell. The informant called Harlow Andrews, make the sale. and to who would speak her residence Andrews, residence, met and The informant went to Harlow’s ¶4 money Andrews left with a gave purchase methamphetamine. him to later. The Sonya named Bullcalf and returned 20 minutes woman reported and to the Task Force informant left Harlow’s residence giving bag powder him of he had obtained from Andrews. agent, gave gave him he reported powder, informant that Andrews the Andrews, gave money the to Bullcalf. money the to and that Andrews the agents monitored and recorded informant’s Task Force through hidden transmitter conversations with Andrews worn authorizing did have a search warrant agents informant. electronic surveillance. Agents to a search warrant. returned Harlow’s residence with and
They purse spoon in Harlow’s with methamphetamine found to oxycodone residue in a desk in Andrews’ room. Andrews admitted belonged him. using spoon and admitted that the to methadone 2,2007, charged On Andrews with one count of October State count criminal dangerous drugs criminal distribution of one of July 3,2008, On Andrews entered into possession dangerous drugs. Acknowledgement Agreement and Plea in which he Rights to felony enter an Alford one count of agreed to agreed with and the Stаte to dismiss the possession intent distribute in the charge. agreed that facts contained possession file the support of the motion for leave to information affidavit support a factual Andrews and established basis to Department that he committed to the agreed jointly recommend years, Corrections for seven years suspended with five tо be served on proposed presentence conditions investigation report. The plea agreement acknowledged that Andrews had the opportunity to charges against examine the him along with the file, investigative that he consulted with his attorney and that he was advised of and rights. understood his agreement acknowledged and right waived his objеct to and to move to suppress “any evidence that have been obtained in violation ofthe law or constitution.” Finally, agreement Andrews stated in the that his plea was voluntary and that fully understood the terms and conditions. The District Court held a hearing plea, Andrews’ reviewing the
rights that he
waiving by
entering the plea. Andrews
testified
he had reviewed the
evidence
him with his attorney, including
recordings,
audio
police report and
allegations
of the
information and
in support.
affidavit
Andrews testified that he
believed it
inwas
his best interest
to enter the
and that he was
certain that the State had enough evidence
prove
guilt beyond
a reasonable doubt. The District Court found that
acting
Andrews was
under
counsel,
the adviсe of competent
that he
rights,
understood his
that he understood
charges
possible punishments,
and that he
was not acting
under
defect or disability. The District Court
*3
accepted the plea and found
guilty
of the
charge.
amended
Andrews concedes that he
plea
entered the
agreement voluntarily.
On August
after Andrews was adjudged guilty but
before he
sentenced,
this Court announced its decision in State v.
withdraw
plea.
Both the prosecution and the
agreed
defense
that
there was no need for the District Court to
receive
evidence to
decide the motion.
argued
that if Goetz had been decided
bеfore his
he
plea
could have successfully suppressed the results ofthe
electronic monitoring, would not have
plea
entered the
agreement, and
proceeded
have
to trial. The District Court denied Andrews’
motion, concluding that he had received the benefits of
plea
agreement and that even if Goetz required suppressiоn of the
monitoring
had sufficient evidence
the State still
electronic
OF REVIEW
STANDARD
a
plea
a
a
defendant
to withdraw
permit
comb
46-16-105(2),
showing
“goodcause.” Section
charge upon a
Wise,
32,MT
DISCUSSION law at the voluntary light applicable A is made in of the plea by the not become vulnerable accepted court does time Brady judicial changes that law. a later because to a U.S., (1970), pled S. Ct. 1463 the defendant 397 U.S. penalty, only him to the death but kidnapping charge exposed that by jury. Brady a Years after was convicted he were convicted that allowed Supreme procedure Court invalidated the sentenced penalty. Brady attacked the judge impose but not a the death jury validity change in the law. The upon Supreme of his based made voluntary plea guilty intelligently “a in Court held that not because light applicable of the then law does become vulnerable faulty judicial rested on a later decisions indicate Brady, 90 S. at 1473. The Supreme 397 U.S. Ct. premise.” explained: Court further change Brady anticipate [a law] fact that did not does reliability truth or of his We find no impugn the
requirement the Constitution that a defendant must be open court permitted to disown solemn admission charged he is simply committed the act with which because develops later that the State would have had weaker case than thought penalty the defendant had or that the maximum then held applicable inapplicable subsequent assumed has been judicial decisions.
Brady,
the Goetz case did not Moreover, de-criminalize Andrews’ conduct. as the District Court stated at the plea hearing, even Goetz required suppression ofthe electronic monitoring recordings, the State still had evidence available to investigating informant аnd testify officers could still and make a case Andrews. Other Brady states follow the rule of the case and hold that a
post-plea change in the law does not invalidate
plea. People
(N.Y.
Trank,
872 N.Y.S.2d
App. 2009);
Brazer,
596-97
State v.
(Neb.
N.W.2d 619, 630
2008);
Commonwealth,
Sims v.
Andrews failed to make a shоwing good cause to allow him to required by 46-16-105(2), withdraw the as MCA, upon § based subsequent decision in the Goetz case. The District properly Court denied Andrews’ motion to Affirmed. MORRIS,
JUSTICES SEELEY, RICE and DISTRICT JUDGE sitting for RETIRED JUSTICE WARNER concur. LEAPHART,
JUSTICE
dissenting.
46-16-105(2), MCA,
dissent. Section
provides that a court may,
good
shown,
cause
permit
to be withdrawn. An
involuntary plea
can constitute
cause” to
withdraw the
State v.
2009 MT
349 Mont.
¶
standard justifying withdrawal identifying “good cause” circumstances Turner, alleged the district codefendant Smith guilty plea.1 by denying motion to withdraw his sentencing court erred his “allege discovered newly The court held that Smith did not for other reason intеrvening circumstances guilty. did withdrawing guilty plea pleaded his not exist when Instead, Turner, his making 898 F.2d at when United States 713. being “I request, merely feel that I am Smith stated: Turner, a lot of do.” States v. blamed for stuff didn’t United at 713. intervening argument regarding Andrews’s Goetz exist withdrawing guilty plea
constitutes a “reason for his that did not “intervening as an pleaded guilty” when he as well circumstance.” prior August decisiоn did not exist Since Goetz July an on the Goetz decision “did not entered argument at the time of also falls within the exist” his Andrews’s “intervening category justifications cause” for “good circumstances” Ortega-Ascanio, withdrawing guilty plea. United States v. held Circuit that a district
F.3d Ninth denying pre-sentencing court abused its motion discretion just and for withdraw a where there existed “a fair rеason plea, namely, Supreme an withdrawing intervening Court decision plausible him a precedent gave ground that overruled Circuit and added).2 (emphasis Similarly, of his before dismissal indictment” just” identically-worded, language not and is the federal While “fair language. mirroring why equivalent of Montana’s cause” This state-federal is may justify Elk we invoked the Circuit’s list of circumstanсes that Lone Ninth guilty plea. withdrawal of a tangentially has that are related The Court cited other Ninth Circuit decisions Ortega-Aseanio directly point specific scenario in Andrews. is with Andrews’s regarding intervening higher argument cited court decision. None the decisions by Further, specific cites are the Court address this scenario. the decisions the Court Ortegа-Aseanio in 2008. from 1995 and while was decided sentencing, Supreme
Andrews’s the Montana Court decided Brown, prior precedent which overruled decision, As a that P.2d 1364 result of plea, arguing moved to withdraw his that if had been decided Goetz successfully recordings, he could have suppressed before agreement, would proceeded have entered the have trial. motion, concluding The District Court denied Andrews’s that he agreement the benefits of had received that even if Goetz required suppression monitoring, of the electronic the State still could majority agreed. other evidence it use to convict. The has This is problematic providing any because the Court has embraced-without reason—the improper standard of review used the District Court.3 question for District Court not whether the court believes *6 whether, anyway, light Defendant will be convicted but in ofthe Goetz decision, a the person position reasonable in defendant’s would have guilty Henderson, or insisted to pleaded going trial. State v. MT Ninth language just” Circuit’s under the “fair and analogous. standard is Garcia, United States v. 1011-12 the court held that it is sufficient that the reason for “could have at least a plausibly person motivated in reasonable Garcia’s position pled guilty not to have had he prior known about the evidence pleading.” to in person Andrews contends that a reasonable his position plea agreement
not have entered the
of
light
intervening
our
decision in
He
Goetz.
avers that the
were
recordings
critical
the
dispositive issue of whether Andrews or Bullcalf was the
dealing
one
the
argues
informant. Andrews
that his
trial
defense at
occurred,
would not have
that
been
no sale
but rather that he was not
the one
the
making
sale. He
contends that even
the informant
testified,
absence of
recorded
corroboration that
the drugs-and
get
who sold
the fact that Bullcalf drove to
drugs and ended the
in possession
buy
transaction
of the informant’s
money-would significantly
against
weaken the State’s case
Andrews.
3 appears
referencing
It
specific
the District Court
have been
the factors
category
“good
warranting
the “voluntariness”
of
cause” circumstances
withdrawal of
guilty plea,
case-specific
“adequacy
a
district court’s
which include
considerations
as the
of
such
the
and the
interrogations,
plea bargain,
benefits obtained from
withdrawal’s
. . .”
MT
timeliness.
the defendant’s of Goetz, quality under the volume inadmissible deemed been Ajo. changed significantly. Andrews would have evidence Alford admits a defendant guilty which simple unlike a plea is admit the does not the defendant entering offense. In Alford at all looks maintains his innocence but Rather, dеfendant offense. and, light in the hands of the State the evidence essence, the defendant jury probably that a will agrees weight evidence guilty, I am not “although concludes convicted, may get I as I so well matter will be practical that as a such evidence such qualitatively powerful If plea bargain.” the benefit under inadmissible recordings had been deemed surreptitious most ofconviction probabilities calculation ofthe person’s a reasonable changed. certainly would have that a reasonable reasons, I and conclude dissent For above not have entered the position would in Andrews’s
person Alford therefore reverse in Goetz. would of our light motion to withdraw Court’s dеnial ofAndrews’s the District proceedings. and remand for further Justice dissenting Opinion of joins in the JUSTICE COTTER Leaphart. NELSON, dissenting.
JUSTICE
guilt
admits his
Regardless of whether a defendant
I dissent.
by jury,
he is
or is found
charges,
plea,1
enters an Alford
*7
that is
any
procedure
new rule of criminal
to the benefit of
entitled
final.
his conviction becomes
announced before
“a
rule for the conduсt
beyond dispute
now
new
It is
cases,
retroactively to all
state
applied
is to be
prosecutions
v.
federal,
yet
or not
final.”
on direct review
pending
or
Griffith
708,
(1987);
314, 328,
S. Ct.
716
accord
Kentucky, 479 U.S.
107
260,
(1995),
114, 125,
part
267
rev’d
272 Mont.
Egelhoff,
37,
2013
U.S.
116 S. Ct.
Egelhoff,
Montana v.
518
grounds,
on other
(1996).
us from
judicial
precludes
review that
is the nature of
“[I]t
review, using it
appellate
case from the stream of
‘[sjimply fishing one
25,
Alford,
S. Ct. 160
400 U.S.
North Carolina
aas vehicle for pronouncing
standards,
new constitutional
and then
permitting a stream ofsimilar cases subsequently
to flow unaffected
”
by that new rule.’ Griffith,
323, 107
479 U.S. at
S. Ct. at 713 (quoting
Mackey
States,
(1971)
667, 679,
United
401 U.S.
1160, 1173
91 S. Ct.
(Harlan, J., concurring
judgment)). Thus,
“once a new rule is
applied to the
rule,
defendant in the case announcing the
evenhanded
justice requirеs that
applied retroactively”
to all defendants
whose
pending
cases are
on direct
yet
review not
final. Teague v.
Lane,
288, 300,
(1989)
U.S.
109 S. Ct.
(plurality
opinion); Griffith,
before he was sentenced. At that point, Andrews had not been
“convicted”
any crime,
nor was his case final. See State v.
Bonamarte,
(a
2006 MT
Andrews then promptly moved to take advantage of our decision in
Goetz. Under
circumstances,
these
we
apply
must
the retroactivity
rules set forth in Griffith,
328, 107
497 U.S. at
S. Ct. at
which we
adopted in Egelhoff,
§ plea. By definition, “goodcause” includes the principle that all defendants whose convictions yet are not final are entitled to the benefit newly announced rule of criminal procedure. Andrews should be allowed to withdraw and take his chances at a trial where our Goetz decision imposed. will be Court holding errs in contrary. I dissent.