*1 MONTANA, OF STATE Appellee, Plaintiff ROBINSON, LYN PATRICK Appellant. Defendant DANo. 07-0553. 1, 2008. on Briefs October Submitted May Decided MT 170. Mont. 493.
For Wellenstein, Micheál S. Attorney General, Assistant Helena; Mitchell Young, County A. Lake Attorney, Poison.
JUSTICE WARNER delivered the Opinion of the Court. Lyn Patrick pled guilty in the District Court of the District, Twentieth Judicial County, Lake to driving under the (DUI) offense, influence fourth felony; driving insurance; *2 driving and while his license suspended. year later, About a but sentenced, before he was Robinson moved to withdraw his The District Court denied his motion and sentenced him. We restate the issues raised ¶2 as follows: 1. Did the District Court denying ¶3 Robinson’s motion to withdraw his because it was not voluntarily? made 2. Did the District Court err in denying Robinson’s motion to withdraw his because one of the necessary three prior DUI convictions was constitutionally infirm? 3. Did the District Court err in denying Robinson’s motion to guilty
withdraw his plea because trial counsel was ineffective?
BACKGROUND The information in this case was filed on November 2004. charged DUI, felony driving insurance, driving while his license suspended. He had three prior convictions for DUI and his driver’s license was still suspended as a result of his most recent conviction. lengthy After pretrial proceedings, Robinson and the State
entered into a agreement on March 2006. Robinson agreed to plead guilty felony charged in this case and to dismiss appeals of previous two of his DUI convictions. The agreed defer prosecution of separate charges against Robinson alleging non- support and contempt. Notwithstanding provisions of 46-18- § (sentence 101(3)(a),MCA, punishment is to be imposed in a timely fashion) (sentence and 46-18-102(3), MCA, § must be pronounced and judgment rendered within a time), reasonable Robinson and the State agreed that sentence would not be imposed for a year, provided Robinson paid child during year. The day same he signed the plea agreement, March appeared in District Court and entered of guilty to
DUI, felony. The District accepted plea. Also ignoring 46-18-101(3)(a), -102(3), MCA, §§ the District Court set sentencing for March 2007. day On the set for sentencing, Robinson appeared and moved for new counsel. obtain so he could four weeks
a continuance
After more
April
until
continued
Sentencing guilty plea on
a motion to withdraw
continuances,
filed
State, the District
and the
by Robinson
briefing
After
30, 2007.
May
July
the motion on
an order
Court entered
which sentence
agreement,
provided
as
was sentenced
(2003).
appeals.
He now
61-8-731(1), MCA
by
required
REVIEW
OF
STANDARDS
oflaw
question
a mixed
is
ofwhether a
The issue
of a motion to withdraw
court’s denial
review a district
and fact. We
42, 9, 349Mont.
Swensen,
MT
de novo. State
defendant’s
McFarlane,
(citing
268,
DISCUSSION motion to denying Robinson’s Court err in 1. Did the District voluntarily ? made it was not guilty plea because withdraw in his motion Court erred asserts the District Robinson colloquy Court’s guilty plea because to withdraw concluding his motion Court erred in the District inadequate; voluntary that timely; guilty plea not was not because it was made distress. under extreme emotional MCA, 46-12-212(1), provides “may accept Section that a court determining a that there factual guilty plea is a basis for the resulting in charges in felonies or misdemeanors incarceration.” the District did not an adequate plea asserts conduct it colloquy specifics because did not into the of all four DUI’s inquire felony in leading charge to the DUI this case. clearly pled guilty The record that at the shows time charge case, this he admitted to the District Court that previously had been convicted of DUI three times and that he was 46-12-212(1), MCA, to a
pleading guilty felony. Section does not require the district court to extract an from the admission defendant every Frazier, v. element crime. State 81, 153 Muhammad, (citing P.2d 18 It sufficient that the District Court assure that the defendant admits the acts committed charged. Frazier, the offense 21. The colloquy sufficient. Robinson also the District agreed asserts Court erred when it argument untimely State’s the motion to withdraw was filed already major because it was after he reaped had benefit of the Setting bargain. aside the ofthe questionable plea bargain nature provision delayed imposition year, sentence for a full it cannot gainsaid that Robinson waited until it to impose was time sentence before filing a motion to his guilty plea. This fact constitutes circumstantial evidence relevant to whether Robinson’s voluntary. 26-1-102(1), Section MCA. This is the kind of case specific fact that may be considered voluntariness standard adopted Swensen, (citing McFarlane, Lone Elk. See Elk, Lone 23); M. R. Evid. argues Robinson also that his was not
because it made under extreme emotional pressure. duress and However, Robinson did not present District Court with what description caused such duress it pressure why rendered his On plea involuntary. appeal, does not cite anything in the record which why indicates his mental state at the Also, time he pled guilty involuntary. rendered it no cites *4 authority proposition. for this We do consider unsupported arguments not and are under no
obligation legal to do for a party. Tyler, research State Humphrey, P.3d denying District Robinson’s motion Issue 2: Did the necessary prior one the three to his because constitutionally DUI convictions was infirm? convictions, four claims the of his DUI first Thus, claims constitutionally he his infirm. occurred in DUI, offense, felony, must reversed. fourth conviction of prior attaches to a criminal conviction presumption regularity A prior presumed A conviction is to punishment. that is used to enhance contrary. presumption, to To the be valid evidence the overcome absent irregularity. State v. present the must direct evidence of defendant Mann, support in his nothing affidavit Robinson filed There is he indicating to his claimed his
motion withdraw in appears The conviction first mention this claim was.infirm. the motion filed in the District Court in to reply brief brief, the stating In after conviction withdraw his this “counted,” should stated he would submit the not be for review of “necessary either under seal in camera verifications ever submitted. The District Court the Court.” No “verifications” were claim motion. did not mention this in its order the failing Court erred in to address this Robinson asserts alleged appeal, In his initial brief on infirmity. constitutional 1993 DUI cannot alleges for the first time that the conviction stand After the judge because the had a conflict of interest. presiding in pointed out in its answer brief that there was the record assertion, in he reply this claimed brief was supporting precluded presenting the facts to District Court because the Montana Judicial Standards Commission are proceedings before 3-1-1105, confidential. See MCA. obligation present It was Robinson’s to the District Court
any may concerning irregularity have evidence claimed Mann, 1993 DUI conviction. 15. The Judicial Standards Commission only complaints judicial officers ethical considers have breached 3-1-1106, authority for Section MCA.Robinson cites no standards. proposition that a decision of the Judicial Standards commission criminal collaterally constitute a attack a conviction.1 This basis Conduct, January Code The new Montana of Judicial effective litigants specifically change that the Code is intended to be the for to seek to states basis other, decision, against judge’s or to to seek collateral remedies each obtain Conduct, proceedings advantages of Judicial tactical before a court. Montana Code Scope, p.2.
Court no conduct research that lend obligation legal is under position. Ray to a v. Montana Tech. Univer. party’s of Montana, 21, 59, 13; MT P.3d Tyler, 335 Mont. ¶ ¶ Humphrey, ¶ proceedings The fact before the Judicial Standards preclude
Commission are confidential did not
presenting
any irregularity
the District Court
direct evidence of
so,
proceedings
the
which led to his 1993 conviction. As he did not do
there is
supports
argument.
record which
We do not
8(2).
App.
to consider
outside
record.
P.
matters
M. R.
the
Issue 3: Did
Robinson’s motion
to withdraw his
because his trial counsel was ineffective?
guilty
Robinson further
contends
was not
due
to ineffective
assistance
counsel. Robinson claims his trial counsel
was ineffective because
investigation
counsel conducted no
into the
underlying
charge
facts
the DUI
and
discovery.
failed to conduct
claims
guilty
involuntary
thus
because he
woefully
ofthe
ignorant
strength
unaware
or weakness ofhis case.
To
determine whether there was constitutionally ineffective
counsel,
assistance
the
apply
we
test
two-prong
adopted by the
Supreme
United States
Washington,
Court in Strickland v.
U.S.
(1984).
668, 687, 104
2052, 2064
Ct.
requires
S.
The test
the defendant
(1)
(2)
prove
performance
deficient,
that counsel’s
performance prejudiced
counsel’s deficient
the defense. Whitlow v.
State,
2008 MT
343 Mont.
Claims
trial
omissions of
counsel
often
are
ill-suited for
direct appeal.
Russell,
301, 198
347 Mont.
P.2d 271 (citing State Meyers,
230, 10, 339
160, 168
v.
645).
P.3d
explains
If the record on appeal
“why” counsel
do
did not
something,
will then
appeal.
we
address
issue on
If the claim is
based on matters outside the
on appeal,
record
we will not
address
claim and
allow
defendant to file a postconviction proceeding
where a
can
“why”
record
as to
developed
counsel omitted some
counsel’s
whether
the court to determine
action,
allowing
thus
v. St.
decision. State
merely a tactical
ineffective
performance
(citing State
17,
in Issues on 46-16- 1, with the result based my agreement § As to Issue plea and to withdraw a 105(2), MCA, “allows a court cause is shown.” good where a not substitute If the P.3d 1057. McFarlane, 2008 MT cause for the good involuntary, that will plea is defendant’s Warclub, 46-16-105(2), MCA. State plea of a withdrawal Elk, 254; State v. Lone 327 Mont. from P.3d 500. Aside 56,MT cause for good also constitute involuntariness, other reasons Warclub, McFarlane, of the under the statute. withdrawal Elk, 16; Lone that his to demonstrate either view, wholly failed my In cause existed for withdrawal involuntary that other or plea was the cause or nature explain failed to His affidavit plea. of his he was under when he claims pressure emotional duress and extreme hearing there was change At the plea. entered his he distress extreme emotional he was under to indicate contrary in his represented he pressure-indeed that he entered into Rights. He stated Acknowledgement of ofits terms knowledge full voluntarily and with “freely and agreement any mental the influence of not under and that was and conditions” make ability have affected chemical that would disease, defect or change At the voluntary plea. intelligent and knowing, attorney and satisfied with that he was hearing, Robinson stated was not suffering any emotional, physical or mental disability. He stated that he was not forced or coerced entering into into his plea, promises were made to him. short, In Robinson failed to any good demonstrate cause under § 46-16-105(2), MCA. We need go no further than that. That Robinson buyer’s suffered year remorse a after entering is not good cause to him allow it. foregoing For the reasons I concur in the result of Issue 1.