Case Information
*1 NO. 95-042
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent, APPEAL FROM: District Court of the Twenty-First Judicial District,
In and the County of Ravalli, The Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, State Appellate Defender, Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Patricia Jordan, Ass't Attorney General, Helena, Montana
George Corn, Ravalli County Attorney, Hamilton, Montana
Submitted on Briefs: August 17, 1995 Decided: October 24, 1995 Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
Michael Ray Nelson (Nelson) appeals from the judgment entered by the Twenty-First Judicial District Court, Ravalli County, on his guilty plea to the offenses of felony assault, criminal mischief, and resisting arrest. We affirm.
On September 7, 1994, Nelson was charged by information with three counts of felony assault, one count of misdemeanor assault, arrest one count of misdemeanor resisting and one count of misdemeanor criminal mischief. Two weeks later, Nelson entered pleas of not guilty to all charges. At the arraignment, the county attorney presented a psychological evaluation of Nelson. Defense counsel did not object the admission of the evaluation.
On October 4, 1994, Nelson entered into a plea agreement which the State dismissed two counts of felony assault and one count of misdemeanor assault. Nelson then pled guilty to one count felony assault and the two misdemeanors of resisting arrest and criminal mischief.
On October 4, 1994, Nelson signed a Plea of Guilty and Waiver of Rights. Nelson's Plea of Guilty and Waiver of Rights stated that Nelson voluntarily plead guilty, explained the rights being waived, outlined the sufficiency of his attorney's representation, detailed in his own words factual basis for his guilty plea, and asserted that he was not under influence of drugs or alcohol.
The next day, during the court's interrogation at the change plea hearing, confirmed Nelson's *3 understanding of the nature and potential penalties for each of the charges against him. The court confirmed Nelson's understanding of the rights he waived in entering pleas of guilty and that he had no right to withdraw his guilty pleas. The court determined that Nelson had not been threatened forced into pleading guilty and that he had not consumed any drugs or alcohol that could affect his judgment or ability to communicate. Nelson admitted that his counsel was competent and had advised him well. Nelson explained, in his own words, the facts upon which the charges and his guilty pleas were based.
At change of plea hearing, court inquired whether Nelson understood that the county attorney was not recommending any particular sentence, and regardless of the actual sentence, Nelson would have no right to withdraw his pleas. Nelson responded he understood. The court accepted the plea agreement and Defense counsel then moved found Nelson guilty as charged. release Nelson on his own recognizance (hereinafter "OR") pending sentencing. While this release was not part the plea agreement, the State had no objection the motion. After a brief discussion regarding Nelson's sentencing date and bail, the court declined release Nelson on OR and following colloquy occurred: . Anything else?
THE COURT: . . . THE DEFENDANT: Yes, Your Honor. I'm not going to do This understanding -- this. This wasn't my agreement. I'd I'm not ready to plead yet. like you to send me over to Warm Springs, sir, because I can't take any more of it. They told me that they'd do I honest to God can't. an OR. I thought this was part the plea agreement. *4 That's not happening here, sir.
MR. STENERSON: Your Honor, record, I did not tell him it was part of the plea agreement. I told him if he took this plea agreement that Mr. Corn would not oppose an OR and that was still up to the Court.
THE DEFENDANT: Your Honor, in regard the guilty pleas __ THE COURT: Mr. Nelson, that's already a done deal. YOU plead guilty.
THE DEFENDANT: Your Honor, I can't take any more of this. You have to send me to Warm Springs. This isn't the deal --
THE COURT: Silence, Mr. Nelson, or I will have you removed.
THE DEFENDANT: Your Honor, can you do something -- THE COURT: I can have you removed. Sheriff?
Nelson raises three issues on appeal. First, did the District Court fail to adequately advise Nelson of consequences of pleading guilty and, as a result, were his pleas knowingly, intelligently and voluntarily entered. Second, did the District Court err in considering the mental evaluation report, prepared at the direction of the State, without counsel present and without Nelson having been advised his rights. Finally, did District Court fail to consider alternatives imprisonment for a nonviolent felony offense pursuant to 55 46-18-225, and 46-18- 201(10), MCA, before sentencing Nelson to a term of imprisonment. 1. Did fail to adequately advise Nelson consequences of pleading guilty and, as a result, were his pleas knowingly, intelligently and voluntarily entered?
Nelson argues that he should have been allowed to withdraw his *5 guilty pleas because Court did not adequately advise him of consequences of pleading guilty, specifically possibility that he could be designated a dangerous offender thus restricting his eligibility for parole.
The principles governing the entry and withdrawal of guilty pleas are set forth in both case law and statutes. State v. Enoch 269 Mont. 8, 11, 887 P.2d 175, 177. District courts must (1994), meet the statutory requirements found in 55 46-12-210 and 46-16- 105(l), MCA, before accepting a guilty plea. Section 46-16-105(2), MCA, regarding the withdrawal of a guilty plea, provides:
At any time before or after judgment the court may, good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.
This has consistently stated that no set rule or standard exists under which a district court addresses a request and each case must be considered in withdraw a guilty plea, light of its unique record. Enoch , 887 P.2d at 177; State v. Radi 250 Mont. 155, 158-59, 818 P.Zd 1203, 1206. The grant (1991), denial of a motion to withdraw a guilty plea is within discretion of the district court. Radi 818 P.2d at 1206. Our -I standard reviewing a district court's denial of a motion withdraw a guilty plea is whether abused its discretion. Enoch, 887 P.2d at 177; State v. Reynolds (19921, 253 Mont. 386, 390-91, 833 P.2d 153, 155.
When pleading guilty to a criminal charge a defendant waives numerous constitutionally based rights and protections. -, Radi 818 P.2d at 1206. In light the significance rights are *6 waived upon a plea of guilty, it is well-settled that a guilty plea must be a voluntary, knowing, and intelligent choice among the alternative courses of action open the defendant. North Carolina v. Alford (1970), 400 U.S. 23, 91 S.Ct. 160, 27 L.Ed.2d 162; w, 818 P.2d at 1206.
This Court balances three factors when considering a criminal defendant's attempt to withdraw a guilty plea: (1) the adequacy of court's interrogation at time the plea was entered regarding the defendant's understanding of the consequences of the plea; (2) the promptness with which the defendant attempts withdraw the plea; and (3) the fact the plea was the result a plea bargain in which the guilty plea was given in exchange for dismissal of another charge. Enoch , 887 P.2d at 177.
In the present case, we need not engage in an analysis above three factors because, although Nelson sought to withdraw his pleas due to his misunderstanding as to release on recognizance, Nelson did not attack the voluntary nature of his pleas. See State v. Mason (19921, 253 Mont. 419, 424, 833 P.2d 1058, 1061. The record reveals that Nelson did not move to withdraw his guilty pleas on the grounds the District failed to adequately advise him that he could be designated a dangerous offender parole purposes. Rather, Nelson objected solely Court's decision to set bail instead of releasing him on his own recognizance prior to sentencing.
Release on his own recognizance was not included in Nelson's plea agreement and, in response to Nelson's objection, his attorney *7 specifically denied that release on OR was part of the plea agreement. Thus, Nelson can not argue that his objection to bail instead of OR was related the voluntary nature of his guilty pleas because OR was not a condition of his plea agreement. In other words, he did not plead guilty in order to gain release on OR, he pled guilty on the condition that the State drop two of the felony assault charges. In fact, Nelson's Plea of Guilty and Waiver of Rights states: "I am not entering this plea of guilty in order to get released from jail." Nor can he relate his objection to being denied OR to issue he now raises he was not adequately advised that he could be designated a dangerous offender for parole purposes.
Nelson's objection and motion to withdraw did not raise any of the grounds on which he now appeals. This Court does not review issues which were not preserved appeal court below. Sections 46-20-104 and 46-20-701, MCA. We have held failure raise an issue before bars a defendant from raising on appeal under § 46-20-104, MCA. State v. Arlington (1994), 265 Mont. 127, 151, 875 P.2d 307, 321. We hold that Nelson's contemporaneous motion to withdraw his pleas did not raise a question as the adequacy of the court's interrogation. MCA, would have allowed a post- Further, although § 46-16-105(2), judgment motion attacking the voluntariness the pleas, no so such motion was made in Court. Thus, Nelson is barred from raising issue of whether he was advised the possibility and consequences of being designated a dangerous offender on *8 appeal.
We hold that Nelson did not, either before or after judgment, move to withdraw his guilty pleas lack of voluntariness. The District Court did not abuse its discretion in denying Nelson's motion to withdraw his guilty pleas based solely upon his misunderstanding as to being released on his own recognizance. Did the District err in 2. Court considering the mental evaluation report, prepared at the direction of the State without counsel present and without Nelson having been first advised of his rights?
Nelson argues the District Court erred in considering and relying on an emergency mental health evaluation report prepared in violation of Nelson's Fifth Amendment rights. However, Nelson failed to object to the admission report either when report was incorporated into the Presentence Investigation Report or at the sentencing hearing. This Court does not review issues which were not preserved for appeal the court below. Sections 46-20-205 and 46-20-701, MCA. We have held failure raise an issue before bars a defendant from raising issue on appeal under 5 46-20-104, MCA. Arlinqton, 075 P.2d at 321. Thus, Nelson is barred from raising the mental health report on appeal.
3. Did fail consider alternatives imprisonment for a nonviolent felony offense pursuant to 55 46-l& MCA, before sentencing Nelson to a term of 225, and 46-18-201(10), imprisonment?
Nelson qualified as a nonviolent felony offender. He argues that Montana law, § 46-18-201(10), MCA, requires the sentencing *9 to consider alternatives to incarceration when sentencing nonviolent offenders.
In three recent cases in which the district courts failed to consider alternatives to incarceration for nonviolent offenders, we remanded for resentencing. State v. Pence (Mont. 1995), 902 P.2d 41, 52 St.Rep. 937; State v. LaMere (Mont. 1995), 900 P.2d 926, 52 St.Rep. 828; State v. Stevens (1993), 259 Mont. 114, 854 P.2d 336. However, in each of these cases the defendants raised the issue of consideration of alternatives to incarceration before the district court. In Pence, I' Ii1 mmediately following the District Court's oral ruling, Pence's counsel asked the judge to reconsider his pointing out the court was required to consider sentence, alternatives incarceration." Pence 52 St.Rep. at 939. In -, LaMere, we held that the defendant's objections to the sentence and request reconsideration were sufficient to preserve for appeal. LaMere, 900 P.2d at 928. Stevens also specifically raised issue of sentencing alternatives before court. Stevens, 854 P.2d at 337.
However, instant case, issue of consideration alternatives imprisonment was not raised before Court. Nelson did not object the court's failure to consider sentencing alternatives. The transcript of the sentencing hearing reveals that Nelson did not object to the sentence imposed nor did he request reconsideration. As we stated earlier, this Court does not review issues which were not preserved for appeal in the court below. Sections 46-20-104 and 46-20-701, MCA. We have held *10 to raise an issue before the district court bars a failure defendant from raising the issue on appeal under § 46-20-104, MCA. Arlincrton, 875 P.2d at 321. Thus, Nelson is barred from raising the of consideration of alternatives on appeal.
We note although enunciated reasons for its sentence, it did not specifically reference the statutory requirement it consider alternatives incarcerating a nonviolent offender the criteria set forth in § 46-18-225, MCA. Prior to sentencing a nonviolent felony offender imprisonment, court examine and take into account ten specific must criteria set forth in 5 46-18-225, MCA.
Section 225 requires consideration such things as where the needs of the offender would be best served. statutes do not provide with any These discretion. The legislature has directed trial courts make these considerations before any nonviolent offender is incarcerated.
LaMere, PO0 P.2d at 928 (emphasis added). Explicit, rather than consideration criteria makes implicit a much more meaningful appellate review. In future cases, we strongly encourage district courts, imposing sentence upon nonviolent offenders, to specifically recognize and address the criteria set forth in § 46-18-225, MCA.
Affirmed.
We c
MICHAEL RAY NELSON, )
Defendant and Appellant. ; On October 24, 1995, the Opinion of this Court in the above- entitled cause was filed. On November 2, 1995, appellant Michael Ray Nelson (Nelson) filed a Petitionfor Rehearing or Modification of Opinion. Nelson alleges this Court's Opinion of October 24, 1995 was in direct conflict with controlling decisions of this Court and that the Court overlooked material facts. The State of Montana filed its objections to Nelson's petition on November 6, 1995.
After review of this Court's opinion issued on October 24, 1995, and having considered Nelson's Petition for Rehearing or Modification of Opinion as well as the State's Objections Petition for Rehearing, we conclude that while following changes are necessary to clarify this Opinion regard to our previous opinions in Lenihan and Hatfield, the holding of our original opinion still stands. Therefore,
IT IS ORDERED:
1. The petition for modification of opinion is GRANTED. 2. Issue 3 of this Court's October 24, 1995, Opinion (Slip is hereby withdrawn and replaced with Op. pp. 8 through lo), following:
3. Did the District fail to consider alternatives imprisonment for a ncnviolent felony offense pursuant to §§ 46-18-225, and 46-18-201(11) [formerly (lo)], MCA, before Xelscr. to a term of imprisonment? ser?tsncir.g Nelson qualified as a rcnviolent felony offender. He argues *13 MCA, requires the sentencing that Montana law, 5 46-18-201(11), court to consider alternatives to incarceration when sentencing nonviolent offenders.
In three recent cases in which the district courts failed to consider alternatives to incarceration for nonviolent offenders, we State v. Pence (Mont. 1995), 902 P.2d remanded for resentencing. 41, 52 St.Rep. 937; State v. LaMere (Mont. 19951, 900 P.2d 926, 52 St.Rep. 828; State v. Stevens (1993), 259 Mont. 114, 854 P.2d 336. However, in these cases the defendants raised the issue of consideration of alternatives to incarceration before court, or, as in Stevens, the State conceded that the statute had not been followed. Stevens, 854 P.2d at 337. In Pence, tl[ilmmediately following the District Court's oral ruling, Pence's counsel asked the judge to reconsider his sentence, pointing out that the was required consider alternatives to incarceration." Pence 902 P.2d at 44. In LaMere, we held -r the defendant's objections sentence and request reconsideration were sufficient to preserve for appeal. LaMere, 900 P.2d at 928. issue of consideration
However, instant case, alternatives imprisonment was not raised before Court and the State did not concede that the statute had not been followed. The transcript the sentencing hearing reveals Nelson did not object to the court's failure to consider sentencing alternatives nor did he request reconsideration.
Nelson did request a deferred sentence at the sent3lcir.g *14 hearing and he argues this request is sufficient to preserve the for appeal. However, a request for a deferred sentence does not serve the same role as an objection to the sentence actually imposed. Nelson did not alert
alleged failure to consider alternatives imprisonment. Thus, the court was not able to correct any deficiency in the sentencing process.
As we stated earlier, this Court does not review issues which were not preserved for appeal in the court below. Sections 46-20- 205 and 46-20-701, MCA. We have held failure raise an issue before court bars a defendant from raising issue on appeal under § 46-20-104, MCA. Arlinston, 875 P.2d at 321.
An exception to this general rule is found in the holdings of State v. Lenihan (1979), 184 Mont. 338, 602 P.2d 997 and State v. Hatfield (1993), 256 Mont. 340, 846 P.2d 1025. In those cases we held that an appellate court may review any sentence imposed in a criminal case, if it is alleged that such sentence is illegal exceeds statutory mandates, even if no objection is made at time of sentencing. Lenihan, 602 P.2'd at 1000; Hatfield, 846 P.2d at 1029 (emphasis added). While not disturbing the holdings these cases, we find instant case distinguishable.
In Lenihan, the defendant pled guilty to burglary and his three-year sentence was deferred. He appealed from the sentencing condition requiring him to pay $250 as reimbursement for his public d&end*r 1 5 aEcorney's fees. Lenihan argued that because Montana *15 does not have a recoupment statute, the district court's order reimburse the county for attorney's fees was invalid. The State countered, inter alia, that Lenihan did not object to reimbursement in the district court. This Court held:
Traditionally, in both civil and criminal matters,
this Court has not accepted review issues which were not objected to at the trial level. . . .
This Court, however, has never specifically ruled on the question presented here. That is, whether an objection at trial level is a prerequisite the challenging has been ruled on in other of a sentencing order on appeal. This jurisdictions with varying results. . . .
It appears to be the better rule to allow an appellate review any sentence imposed in a criminal case, if it is alleged that such sentence is even if no illegal or exceeds statutory mandates, objection is made at of sentencing. time
Lenihan, 602 P.2d at 1000 (emphasis added; citations omitted). Because court exceeded its statutory authority by requiring Lenihan to reimburse the county for attorney's fees, this remanded Lenihan's sentence with instructions to vacate condition of repayment of attorney's fees. Lenihan, 602 P.2d at 1001.
In State v. Hatfield, Hatfield appealed his convictions sale of dangerous drugs and conspiracy to sell drugs. Hatfield argued the court erred imposing following sentencing condition:
Defendant may be required to serve up to an additional _ one hundred-eighty days. at tile discretion tne supervising Probation Officer. . . The Probation Officer has the right to decide the amou3-l or cl-e to b,e u;, to t‘r.e entire o~-~e i-.-.;u:ldred served for any infraction, *16 eighty days. . .
Hatfield, 846 P.2d at 1029. This Court noted that Hatfield did not object the sentence at time it was entered. However, relying on the Lenihan holding that a criminal sentence may be reviewed on appeal if it is alleged to be illegal or in excess of The statutory mandates, the Court addressed the sentencing issue. Court stated: "We have long held that a district court has no power statutory impose a sentence in the absence of specific Hatfield, 846 P.2d at 1029. Holding the district authority." court had exceeded its statutory authority by delegating sentencing discretion to a probation officer and by imposing a condition could have resulted in Hatfield spending more time in jail than the the Court maximum sentence allowed, remanded case resentencing. where
Both Lenihan and Hatfield involved situations In Lenihan judgment was void due to lack of statutory authority. and Hatfield, courts' sentences were illegal excess of statutory authority because the courts lacked specific statutory authority impose the sentence.
Unlike Lenihan and Hatfield, Nelson's sentence is neither illegal nor does it exceed statutory authority. Sections 46-18- 201(11) and 46-18-225, MCA, do not preclude a court from sentencing Section 46-18-225, MCA, a nonviolent felony offender to prison. states: "Prior to sentencing a nonviolent 'felony offender to a term imprisonment . .I' the court shall take into account certain states: 1' If the offender is criteria. Section 46-18-201(11) *17 subsequently sentenced to the state prison . .'I the court shall state why alternatives to imprisonment were not selected. Although these statutes require consideration alternatives to imprisonment, such consideration would not have necessarily changed the court's final sentence for Nelson. Nelson's sentence of ten years is not in excess of the maximum statutorily authorized by § 45-5-202(3), MCA.
Sections 46-18-201(11) and 46-18-225, MCA, impose an affirmative duty upon the court to take certain matters into consideration in sentencing. If the court fails to abide by this requirement, the sentence is subject to challenge or objection. That does not mean, however, in the absence of an objection, is thereby illegal. The District Court, the sentence after in § 46-18-225, MCA, and stating considering the criteria its reasons why alternatives to imprisonment were not selected as required by § 46-18-201(11), MCA, could still have 'legally sentenced Nelson to ten years in prison. Thus, Nelson's sentence does not come within the exception found in Lenihan and Hatfield. Having failed to object sentence to move for reconsideration, Nelson is barred from raising issue of consideration of alternatives on appeal.
We note that although Court enunciated reasons its sentence, it did not specifically reference the statutory requirement it consider alternatives incarcerating a nonviolent offender or the criteria set forth in § 46-18-225, MCA. Prior to sentencing a nonviolent fe1cr.y offender imprisonment, *18 the court must examine and take into account ten specific criteria set forth in § 46-18-225, MCA.
Section 225 requires consideration of such things as where the needs of the offender would be best served. These statutes do not provide the court with any discretion. The legislature has directed trial courts make these considerations before any nonviolent offender is incarcerated.
LaMere, 900 P.2d at 928 (emphasis added). Explicit, rather than implicit consideration the criteria makes for a much more meaningful review. appellate In future cases, we strongly encourage district courts, imposing sentence upon nonviolent offenders, to specifically recognize and address the criteria set forth in § 46-18-225, MCA.
Affirmed
3. In all other respects, Nelson's Petition for Rehearing is DENIED. Let Remittitur forthwith.
4. The Clerk is directed copies of this order to mail counsel of record respective parties, West Publishing Company, State Reporter Publishing Company, and the Honorable Jeffrey H.
DATED