*1 MONTANA, OF STATE Respondent, Plaintiff HENDERSON, ALAN B. Appellant.
Defendant No. 03-553. March Briefs Submitted on 30, 2004. Decided June
JUSTICE LEAPHART Opinion delivered the of the Court. charged possession dangerous Henderson was with criminal drugs. pled guilty charge He to the five-year and received a sentence. Afterwards, petition postconviction Henderson filed a for relief asserting County the ineffective assistance of counsel. The Missoula Public opposed petition, Defender’s office and the District Court appointed evidentiary hearing, other counsel for Henderson. After an petition the District Court denied Henderson’s He relief. now appeals the District Court’s denial of relief. reverse the District We Court. underlying original charge stop facts ofthe stem from a traffic 14,1996;
of a DUI suspected at 4:25 a.m. on March Henderson was the passenger. performing stop reported One of the sheriffs officers empty pill observed an and unlabeled bottle on the floor of the vehicle, asking vehicle. After out of the the officer step Henderson yellow-colored pills saw six on the seat. Henderson claims that he did his, pills not know the were there and that were not but pills placed pills, The officer seized rather, the driver. belonged to St. Patrick’s and drove to car patrol the back of his Henderson as pills identified pharmacist where Hospital, then took The officer sulfite, narcotic. a controlled dextroamphetemine it discovered jail, where search, and, white booked, during a routine Henderson was probation. were never pills Those pocket. in his were found yellow pills pills planted. pocket in his claims identified. Henderson abused the District Court is that appeal sole issue on ineffective that he received denying his assertion its discretion are of counsel of ineffective assistance counsel. Claims assistance of (1984), 466 Washington v. fact. Strickland of law and questions mixed 674, Therefore, 700. 80 L.Ed.2d 104 S.Ct. U.S. 2003 MT Jefferson, review is de novo. State our process trial be fair. requires that the The Due Process clause the fairness of Amendment ensure of the Sixth requirements procedure: the accused shall prosecutions,
In all criminal enjoy the State and jury of public impartial an speedy committed, which the crime shall have been district wherein *3 law, by and to be ascertained previously shall have been district accusation; to be the nature and cause informed of him; compulsory to have against with the witnesses confronted favor, and to have obtaining witnesses in his process for for his defense. Assistance of Counsel Const, 2063, 685, 104 Strickland, at VI; 466 U.S. at S.Ct. U.S. amend. under the guaranteed is also at 691-92. The to counsel 80 L.Ed.2d Constitution, II, 24. The effective assistance Article Section Montana lack of justice; system to our adversarial of counsel is critical fairness of may the fundamental impinge effective counsel 687, 696, 104 466 U.S. at challenged. being proceeding 693, adopted the two- 2064, 2069, at 699. We 80 L.Ed.2d S.Ct. ineffective assistance measuring claims of Strickland test for part 829, 147, 143, P.2d (1985), Mont. Boyer counsel. State v. must show counsel’s a defendant part, Under the first that he must show Second, the defendant was deficient. defendant must performance. deficient prejudiced that, deficient for counsel’s but probability a reasonable show within have been different. proceeding the result of the performance, test, show petitioner must the Strickland part Under the first functioning that counsel made such serious errors that counsel as the “counsel” guaranteed under both the United States and Montana Constitutions. Our standard is highly deferential attorney, actions of the eschewing the distorting effects of hindsight. indulge We a strong presumption that counsel’s conduct falls within range the wide professional assistance. Under the first part, require we establishing record the reasoning, why or the of an attorney’s strategic 159, 17, decisions. State v. Turnsplenty, 2003 MT ¶ 275, 17, 70 1234, 316 Mont. P.3d given ¶ 17. The deference ¶ on review to an attorney’s strategic rarely decisions is such that we grant relief if there is some However, evidence that strategic. decision was attorney when the makes no discretion, decision or exercises no we give Rose, little 342, deference. In State v. 18, 1998 MT 292 Mont. ¶ 350, 18, 321, 18, 972 P.2d we could ¶ discern no tactical advantage ¶ attorney’s actions when attorney failed to request jury instruction to view an accomplice’s testimony distrust, with and we concluded the part first Similarly, Strickland test was met. it was outside range competence required attorneys in criminal cases the attorney, reason, when for no strategic neglected request a “failure agree” jury instruction which would have jury allowed the to consider a lesser included offense before first acquitting the defendant of the greater charge. State v. Rogers, 2001 MT ¶ 306 Mont. 32 P.3d 13. In State v. Jefferson, ¶ 2003 MT ¶ plausible no justification existed for an admitting guilt to the defendant’s on a lesser included during statement, offense the opening because the admission undermined purpose defendant’s in previously withdrawing his guilty plea to trial. case, present In the Henderson’s counsel appointed
represent Henderson in March of 1996. Counsel met with March, Henderson twice. At the meeting first explained that he was innocent and that the contraband was not At the his. postconviction hearing, Henderson’s testified that he performed no investigation, analysis, research or nor file any did he pretrial motions. Counsel’s file on Henderson reveals performed a total of four hours of work on Henderson’s case. The four orders, hours included clerical preparing transport work such as *4 Henderson, appearing of appearing behalf and then with change plea Henderson at the final of hearing. quarter One of case, hour, Henderson’s counsel’s time on spent the about one persuading plead Henderson to guilty. Henderson’s counsel would spent endeavor, one-half in hour this but he had to the repeat process when Henderson’s initial change plea accepted. Henderson’s behalf work on legal counsel’s total of sum signed then bargain and plea propose to county asked the bargain, the plea the 8. Under offer on June first prosecution’s the Department the years to for five sentence was recommended copy Henderson then sent counsel Henderson’s Corrections. “Please let me stated: letter which June with a bargain on
plea not, will you If do bargain. you plea you going accept are to know if August conference on At the status 1996.” September trial on go to advised Henderson, his counsel having heard from without theAt plea guilty. his to change to Henderson wished court that but denied guilty, hearing, pled Henderson change plea were pills that the knowledge lack of asserting crime of the elements In by the car’s driver. really owned there and that the unacceptable, plea indicated the county attorney response, the guilty plea, acceptable to make an did not wish that if Henderson hours. The forty-eight trial in go to to ready could be prosecution to seek increased he would be inclined attorney also indicated county After a felony offender. persistent as a punishment of Henderson explained an Alford Henderson’s counsel during which recess charge. pled guilty is to defense counsel duty of a criminal overai’ching meet, defendant, refute the case to test and advocate on behalf however, counsel, disregarded prosecution. Henderson’s true all of the client, accepting as of his while statements and wishes than Indeed, nothing more he did law enforcement. statements of of his client facilitate the conviction agreement request counsel, apply we assistance of In claims of ineffective without a trial. decisions, strategic to all standard Strickland highly deferential law, no two because artistry practice in the the inherent recognizing way. the same client particular defend a attorneys would L.Ed.2d at 695. at 104 S.Ct. 466 U.S. decisions, strategic but However, presented with we are not duty investigate to rather, counsel to honor complete failure of 252-53, P.2d (1993), Denny the case. State utterly failed to advocate Moreover, Henderson’s 228-29. appeared when it way. example, any meaningful For his client force and would acceptable not enter an Henderson would felony with threatened Henderson prosecutor have been status, though prosecution even offender Further, late date. notice at that filing such a barred from procedurally day’s trial in two ready go it could be indicated prosecution the State’s threat challenge Yet, counsel failed time. *5 74
seek felony offender status or to disabuse Henderson concerns engendered by this threat. The assistance of counsel as contemplated by the United
States and Montana Constitutions contemplates that counsel do more
than merely accompany the accused in court. Counsel must give
assistance in
advocate,
the role of
a role which is
just
critical to
results
in our
system
adversarial
justice. Strickland,
685,
show that
counsel’s deficient
prejudiced
defense,
the
that
the errors were so
deprive
serious as to
the defendant of a fair trial. In
the context
guilty plea,
of a
petitioner
a
prejudice by
establishes
showing that there
a
that,
reasonable probability
but for counsel’s
errors, he would not have pleaded guilty and would have insisted on
(1985),
to trial. Hill v.
Lockhart
U.S.
106 S.Ct.
88 L.Ed.2d
210. “Prejudice” is a
probability
that
the defendant would have insisted on going to trial had he not received
assistance,
ineffective
and a
probability”
“reasonable
is a probability
sufficient to undermine confidence in the outcome. Ostrander v. Green
(4th
1995),
Cir.
46 F.3d
citing Strickland,
¶11
setting
performed
aside of a
where defense counsel had not
adequate
Strogen
an
State
investigation.
or reasonable
ex rel.
Trent
(W.Va. 1996),
¶12 pleaded or if he would insisted on we must Here, according surrounding look at facts and circumstances. police pills the officer viewed the on the car seat after reports, first step alleged he asked Henderson to out ofthe car. contraband was did by arresting a officers not visually pharmacist. identified after parole know that Henderson was on until he had been arrested. Lastly, actually pocket from his were never identified. facts, claims obvious Based on these there were issues would not
as to the and asserts that the State legality arrest the elements identify or prove have been able to the contraband presented testimony expert constructive Henderson also possession. thirty in a standard treatise fourth that mere minutes of research on the defense a colorable defense based amendment criminal revealed necessarily everyone of a proposition that not at the scene crime However, merits need not the actual party the crime. we address ultimately be theory whether motion based on the defense’s was at rather, the to illustrate there least successful; issue is one argument colorable in favor of position. Furthermore, at his attempt initial to plead guilty, Henderson essentially asserted his actual by denying innocence the elements of Only crime. when faced with the threat of a trial in very short time possible with a persistent felony offender sentence upof to 100 years knowing that his counsel had done nothing to him assist unprepared was for such a trial did Henderson ultimately enter an plea, whereby he continued to assert his actual innocence but Alford admitted he would likely be found guilty. In addressing prejudice prong test, of the Strickland-Hill we
pose following inquiry: do we remain confident that a reasonable shoes, defendant in Henderson’s with the benefit of diligent investigation of applicable facts and appropriate law and pre-trial motions, would have pleaded guilty anyway had he known that trial likely to occur in time, two hours’ time or in days’ two and that felony offender status possible 100-year with its sentence was not a possibility showing without a of good by cause prosecution? The simple answer is that we lack that confidence. Reasonable
people naturally will seek freedom from restraint. Although Henderson agreed plea bargain to a with the maximum years, sentence of five did so to avoid a potentially far more lengthy persistent felony offender sentence. subject any Counsel’s failures to portion of the prosecution’s case to the crucible of meaningful adversarial testing or to advocate for his client in meaningful way casts fairness of the proceeding into doubt. Henderson’s decision to enter an clearly Alford influenced lack of effective assistance of counsel. But for the *7 counsel, ineffective assistance of his Henderson would not have entered a guilty plea. This prejudice satisfies the prong of Strickland- Hill. 46-16-105(2), MCA, Pursuant
¶17 a § defendant is authorized to guilty plea withdraw a good for cause “good shown. The cause” requirement is satisfied if a petitioner can show both prongs of the ineffective assistance of resulting counsel and the prejudice petitioner. Lawrence, the State v. 2001 MT Having 12. established both prongs, Henderson must be allowed to withdraw his and proceed trial. We reverse the District Court’s denial of postconviction relief and remand for proceedings consistent with this opinion. COTTER,
JUSTICES REGNIER and RICE concur.
JUSTICE dissenting. WARNER If only part one examines a the appears ¶18 record it that counsel in time and effort spent have more for Mr. Henderson could that, under not The entire record does show representing his client. Most circumstances, was deficient. representation Mr. Henderson analysis concerning whether importantly, the Court’s time on spend his did not more any prejudice suffered because counsel actually reading a fair record does not reflect what case shows. I must dissent. held six postconviction for relief was hearing petition on the
¶19 and, for Mr. years plea hearing expected, as would be counsel after the not the details of all of the events Henderson could remember appeared hearing testimony attorney who occurred. for Mr. Henderson postconviction expert on relief as an witness original of his counsel. attacked the very with The record shows that Mr. Henderson was familiar in the system. aggravated assault justice criminal He was convicted in late He and to prison 1970's. was convicted of sexual assault sent offense charged in He had been with a DUI paroled 1995. present after released on and he was arrested for the being parole, offense in March question, of his on the and his DUI charge Because arrest
arrest, parole was revoked. It clear from record that is major a reason his to meet with Henderson counsel unable is also person was because he was in the Montana State Prison. It by he clear that did contact with while counsel letter Henderson if further prison, was at the and counsel could not remember there was no there further contact. Henderson evidence that were not his attorney. conferences between himself and that it requested The record also indicates was Henderson who plea plea agreement After Henderson’s counsel solicited agreement. client, the county on the such instruction his was offered Lodge. agreement and a form was sent to Henderson at Deer written agreement, There indication that he did not receive this is no it, objected did he to its terms. not understand or that September hearing At the time of the plea back with his complained spent that he had not much time say that counsel, He did accepted representation. but said Thus, agreement not his. contraband date. A discussed a trial was discarded and counsel that Henderson and proceedings recess in the was ordered so matter, for trial could be counsel could and a date discuss the trial The record clear that did believe arranged. days. There is no evidence whatever couple would occur within *8 prosecution’s that the offer of a quick trial was a possibility. reasonable The District Court found as a matter of fact in its order denying postconviction relief that defense counsel was correct in opinion, his which was formed back in that the trial would not have been so quick. The record support does not the proposition that the offer of a quick any trial had coercive effect on Henderson whatever. The off-hand ¶24 statement of the county attorney might asking consider permission court for to file a notice of intent declare Henderson a felony offender may may or not have been the subject of a discussion between Henderson and his counsel during the remember, recess. Counsel did not and Henderson did not testify. What is known is that Henderson qualified as a persistent felony offender, and that procedurally the prosecution could not seek such status without a further hearing. Certainly, Henderson has presented any not evidence that he unduly coerced by county attorney’s statement. noted, As after determining that a guilty plea was inappropriate,
the court recessed so that Henderson could consult with his counsel. juncture At that in the proceedings way Henderson was in no bound plea agreement, had a right go had all the time he wanted to discuss the lawyer, matter with his and to make a decision as to whether he wished to stand on of not guilty and have a set, trial date plead guilty time, Then, that or plead guilty later. after Henderson’s consultation with his lawyer, parties returned courtroom, to the counsel announced that Henderson had decided he Plea,” would enter an “Alford and he did so. The court then determined that which was not an admission of guilt but an admission that the State had enough convict, evidence to was made with knowledge of the consequences voluntary. course, and was Of not did Henderson have considerable knowledge procedures ofthe because previous of his experiences, he had in this signed writing case acknowledged he rights. was aware of his imposed sentence exactly parties what the bargained for. A commitment Department years of Corrections for five for placement in 8m appropriate facility program, or gave which Henderson the possibility placement outside the wall after his sexual assault sentence was or he discharged parole. made In relief, this proceeding postconviction no evidence of a possibility that the question contraband, illegal, his arrest was or that a dispositive motion was available to him. The simply any record is devoid of real evidence that Henderson’s plea voluntary. issue, effect, is at Henderson, When pled guilty. deficient guilty, a verdict before
rather than *9 violation, must the defendant in a constitutional results not have performance he would that but for such deficient demonstrate v. Senn have on to trial. State pled guilty and would insisted 973, 975, (1990), Lockhart citing Hill v. 244 Mont. 795 P.2d (1985), 52, 59, 88 To S.Ct. L.Ed.2d 474 U.S. effective establish a constitutional violation in the the evidence must entry of counsel of assistance that, but for counsel’s probability show that there is a reasonable errors, pled A is one guilty. probability he would not have outcome. State v. that is to undermine confidence sufficient Turner, 270, 65, 69, 65, 934, 65. In MT my view, reviewing more like to have this means than would some job representation. seen a of It means that there is real better lawyer if the evidence that the outcome have been different would required better. The is that more than the have done standard is It that possibility of some influence on defendant. is a standard requires probable evidence to show that it is that a defendant would pled guilty. presented only attacking has evidence prior hearing September of counsel to the time of the 11,1996. no that He evidence would undermine confidence Contrary in the ultimate outcome the case. to the bold statements Court, ofthe that indicates influenced presented nothing he was prior contact with Not there no evidence lack counsel. knowledge the contrary, supports proposition the record that with possession dangerous surrounding charge real facts outcome, drugs, knowledge Henderson made probable and with informed admit prosecution conscious and decision to that the had enough to convict evidence him. It obligation complaint is the of the defendant on of ineffective affirmatively prejudiced by
assistance
counsel to
show
he was
(1984),
Washington
errors.
466 U.S.
alleged
Strickland v.
Contrary