*1 OF MONTANA, STATE Appellee, Plaintiff and v. SHANNON BULLPLUME, Appellant. Defendant No. DA 07-0001. September on Briefs Submitted 2008. April Decided 2009.
¶ enhancement) (weapon an offense weapon to commit dangerous in District Court Glacier jury a trial in the Ninth Judicial following Montana years to 80 in the Bullplume court sentenced County. The conviction, additional with an Prison on the deliberate homicide State charge. Bullplume enhancement years weapon 10 consecutive conviction, his and we reverse. appeals
BACKGROUND in Bullplume was involved During evening April ¶2 Omeasoo, Jr., from a knife wound. dead fight a that left Pernandel girlfriend had stabbed initially Bullplume’s believed that Investigators individual that, had assaulted another Bullplume Omeasoo and while melee, in the crime was primary his involvement during 26, 2005, the State filed April actions. On covering up girlfriend’s conduct, assault, disorderly with charging Bullplume an Information evidence. justice, tampering with obstruction that it was investigators to conclude investigation Further led ¶3 The State had stabbed Omeasoo. girlfriend, not his who Bullplume, Information, charging leave to file an Amended granted weapon. a homicide and assault with Bullplume with deliberate response charge was later dismissed weapon assault with by Bullplume. motion filed charge, and to the deliberate homicide pled guilty not Bullplume followed, negotiations and on for trial. Plea
his case was scheduled counsel, signed 26,2005, prosecutor and the Bullplume, his September agreement, the State the terms of the plea agreement. Under mitigated homicide to charge from deliberate agreed to reduce homicide, Bullplume deliberate to which enter a would parties jointly agreed contendere. The recommend sentence of 28 Prison, years in Montana with of the years State sentence suspended. a further agreement, As condition State agreed charges during to dismiss other that had Bullplume’s arisen incarceration. nor plea agreement acknowledgment Neither the of rights,
filed plea agreement, with the informed that the court was not plea agreement bound or or consequences what procedure be if the to reject plea agreement. would court were to the plea agreement, Pursuant the State filed a Second Information, Amended charging Bullplume mitigated deliberate possible homicide. The maximum sentence for years. 45-5-103(4), homicide is 40 Section MCA. The parties appeared 28, 2005, in court on September
Bullplume’s plea to the amended Prior to accepting Bullplume’s plea, it informed that was not bound by the plea agreement, and if the court ultimately reject decided to plea agreement, Bullplume would be any ... to may
allow[ed] [he] have entered guilty and plead not to whatever still pending are before *3 in matter, this court this and that may well be the original Information. The State come may and ask to refile the Deliberate charge.... Homicide
Following appropriate colloquy, an Bullplume entered his nolo to mitigated contendere the deliberate homicide The court accepted plea, the ordered a presentence report, and scheduled sentencing hearing. presentence report prepared filed, and but after it,
reviewing the court “Rejection entered order entitled of Plea Agreement” following which contained the language:
This Court informed the Defendant if the Court to determined accept plea agreement it would impose jointly the sentence recommended in that agreement, and if the Court to determined reject plea agreement it would allow Defendant any withdraw nolo contendere and proceed to trial on the charges in Information.
Accordingly, pursuant 46-12-211(4), MCA, to Section permitted Defendant will be to his proceed trial on the pending. now The Defendant maintaining his nolo contendere persists advised if he is than that may be less favorable of this case disposition plea agreement. contemplated by originally the date scheduled in court on appeared The parties place following discussion took and the sentencing hearing, and counsel:
between plea agreement previously rejected The Court PROSECUTOR: means that all into, process I understand the which as entered withdrawn, and the State will off, guilty plea are that the bets need Information, and what we Homicide refile the Deliberate on that one .... today is a trial date step here. Mr. procedural me take care of a
COURT: First let accepted time that I his your client at the Hudspeth, as I informed accept matter, that if I determined not guilty plea in this guilty plea; have a to withdraw his he would plea agreement right? he to exercise that does wish does, your He Honor.
DEFENSE COUNSEL: Bullplume of Shannon this Alright, COURT: withdrawn. matter is considered to refile the would move for leave
PROSECUTOR: The State herein. originally Information filed you have Bullplume to refile. Mr. grant your request
COURT: I’ll Information. not-guilty pleas on that already entered of his acknowledgment had not executed written consequences of understanding possible rights and of his hearing during he never asked withdrawing plea, and was The court consequences. those understanding affirm his single who did not utter a Bullplume, any inquiries did not make hearing. during word granted leave orally sought the State had and been though Even Information, file an Amended it did not original
to refile the original (charging Information reinstating either the Information assault, conduct, justice, disorderly obstruction Bullplume with evidence) (charging Amended Information or the First tampering with homicide). Amended The Second with deliberate homicide, Information, charging Bullplume day until the Information in the case recently the most filed *4 remained later, 13, 2006. on November year more than a began the trial sought the State leave an On November to file Amended Information,1 adding weapon pending enhancement count 13,2006, day trial, granted November On first Information, Amended leave the State file the and the during attorney was morning, Information filed. That conference in prior dire, the following place chambers voir discussion took counsel, between the court and on regarding which being was tried: Deliberate, Your underlying PROSECUTOR: It’s Honor. The Mitigated was I included, offense Deliberate as a lesser it, charged believe he’s with Deliberate We Homicide. amended sorry, my original I’m mistake. charged Information Weapon Homicide, With Assault A and Deliberate and the defense, counsel, through prior defense moved to strike Assault Weapon With A and we to that. consented I thought COURT: I saw here an Amended Information that charged case, only Mitigated. If we’re going that’s then on Mitigated.
PROSECUTOR: That’s fine. That means there is no lesser included. Nope.
COURT: could But I be mistaken. Let me find it. Here we go, Information, Second Amended Document 25. PROSECUTOR: I redid it. Mitigated
COURT: Deliberate. mistake. my PROSECUTOR: That was I would withdraw our instruction for lesser included offenses. You get your
COURT: will count you second because have to charge that to get Weapons Enhancement. You’re entitled to ask for that Anything enhancement. else?
PROSECUTOR: No. Okay. Well,
COURT: let me ready know when we’re to start with jurors. Honor, PROSECUTOR: may, Your if I as as long that was a typographical my I part, may proceed error on under Deliberate? you guys object? Do Surely, object.
DEFENSE COUNSEL: we OTHER object. DEFENSE COUNSEL: We It’s going Mitigated. COURT: to be tried as ultimately Five Informations this were filed in the final three of which are entitled, all “Second Amended Information.” *5 outset, court informed began, and at the selection Jury ¶13 charge being tried Bullplume was jury that jury panel, examined the had parties After the homicide. deliberate returned challenges, they preemptory exercised their they but before counsel, the from argument hearing After additional chambers. to Information, charging file a new Amended the State to permitted commit the weapon to homicide and use deliberate Bullplume with amendment, the court minute allowing this last remedy crime. As additional voir dire and ask reopen counsel to Bullplume’s permitted charge. to the new jury panel relating questions following in the chambers, engaged leaving Before ¶14 exchange Bullplume: with matter, Mr. taking care of this we’re all here
COURT: While filed, in effect a has now what’s State of Montana Bullplume, that that, and it’s a Count Count, I have let them do and second act, doing that and so you’re found to have committed says if ask to have the sentence weapon, they can you act used separate it as a them to file requires The statute enhanced. Count, but the criminal separate I’m not sure it’s a Count. Court it, Supreme as a result of some has mandated Legislature has occurred. You decisions, you inform that that so I need to you you have [that] that I have informed have the same silent; you remain have You have the this matter. here, unless in this matter. Your counsel right to counsel different, [your] a not on something I’ll enter I hear that you do understand behalf, plea; to the extent we need some Bullplume? Mr. Yeah.
BULLPLUME: selected, jury and the returned proceeded, the trial jury was ¶15 weapon and the charge the deliberate homicide guilty verdicts on both years on the was later sentenced to 80 charge. Bullplume enhancement for use of a years an additional 10 charge, homicide deliberate consecutively. to rim deadly weapon, the sentences ISSUE restate the issues as follows: We ¶16 determined properly the District Court 1.Whether
¶17 to stand waiving statutory right intentionally voluntarily was charge mitigated on his nolo homicide. were Bullplume’s process rights 2. Whether due violated when granted permission charge amend District Court the State had deliberate homicide after trial commenced. properly on arraigned weapon 3. Whether
enhancement OF
STANDARD REVIEW The voluntariness ofa withdrawal question involves mixed fact, Muhammad, oflaw which reviews this Court de novo. State v. 234, 12, 397, 121 2005 MT 328 Mont. P.3d 521. ¶
DISCUSSION Under facts of this does the record support *6 Bullplume voluntary conclusion that made intentional waiver statutory plea of his to stand on the he entered agreement? under the plea 46-12-211(1), MCA, provides Section agree
¶22 that the State can in (a) plea a agreement any following: do of the of move dismissal (b) charges; agree specific other that a sentence is the appropriate (c) case; disposition recommendation, of the or a agree make or not oppose particular the defendant’s for a request, sentence. Under the statute, may reject any the court ofthe three of types plea agreements. 46-12-211(2), Section MCA. If the court rejects plea agreement, whether the or not defendant her plea can withdraw his or of or guilty nolo depends contendere upon type provisions which of are contained in plea agreement. the If plea agreement the the type provision, contains third of wherein
the State recommends a sentence or agrees oppose not to the recommendation, defendant’s the defendant is not entitled to withdraw plea his or her guilty rejects If, if the court the recommendation. however, agreement the plea contains either of the first of types two provisions-dismissal of charges other or agreement upon specific 46-12-211(4),MCA, the provides sentence-§ defendant an election to either on the previously stand entered plea or to withdraw it:
If rejects agreement the court a plea type specified (l)(a) (l)(b), shall, record, subsection or the court the on inform the parties this fact and the advise defendant that the court by plea not bound the agreement, afford the defendant an opportunity plea, to withdraw the advise defendant that persists guilty if the defendant in the or nolo contendere plea, the than to the defendant may less favorable case be ofthe disposition agreement. plea contemplated that 46-12-211(4), MCA. Section a dismissal both in this case contained agreement plea The Thus, sentence. specific for a and a recommendation charges
other required court was plea agreement, rejected when the plea.” opportunity the defendant an “afford parties and advised agreement rejected however, order, contained The court’s in a written order. rejection its example, For election. Bullplume’s confusing statements about his nolo if he to withdraw that were Bullplume order advised charges to trial on “proceed plea, he would contendere Information was time, only charge in At that Information.” order, Bullplume in the charge. Later homicide mitigated deliberate he plea, nolo contendere to withdraw his that if he were was advised Again, the pending.” now to trial “proceed would charge that was only charge was deliberate homicide mitigated pending. then maintaining his that Bullplume also informed The order he sentence than in a “less favorable” could result
contendere consistent This advisement is agreement. the plea receive under would it goes, far as it but and is correct as language of the statute with the withdrawing his nolo that did not inform great could several times as be him at risk of sentence put would not to if he elected he could receive the maximum sentence as that before appreciates The Court plea. withdraw his homicide to the nolo contendere entered his by the District essentially correct information given he was charge, *7 by however, was later tainted that information Unfortunately, Court. subsequent contained in the incomplete statements confusing written order. or plea guilty a of accepting rule that before long It has been the “voluntary, a contendere, plea that the is the court must establish
nolo
action
alternative courses of
among
choice
knowing,
intelligent
136, 14, 294
Sanders,
MT
Mont.
v.
1999
¶
the defendant.” State
open to
Deserly, 2008
State v.
1015,
grounds,
on other
539, 982 P.2d
overruled
MCA,
fact, 46-12-210,
In
12,
468,
thoroughness
entry
guilty
plea
that the
of a
is
or
contendere
Radi,
155,
rights.
of
entails a waiver
constitutional
State v.
250 Mont.
(1991)
1203,
159,
(citing
1206
v.
400
Alford,
818 P.2d
North Carolina
(1970)).
U.S.
as does entail a of not waiver Nevertheless, 46-12-211(4), MCA, rights.2 constitutional does create § statutory a for a to stand or her if guilty plea defendant on his rejects plea of a agreement. rejection plea agreement automatically which, does not prosecutor create a situation in as the asserted in “all off.” simply this bets are Nor is it “a procedural step,” accepted Bullplume’s as the court stated before it counsel's statement of his client’s wish to plea withdraw his nolo contendere the lesser charge. Until a defendant exercises the election to withdraw entered previously guilty plea, the defendant retains whatever protection may be by afforded the maximum sentence that could be imposed for the crimes to which the pled guilty defendant under the plea agreement. The withdrawal of a after a court’s rejection plea agreement formality, is not a mere particularly when the exposes withdrawal to the possibility defendant significantly greater punishment. rejects After the court plea agreement entered under 46-12- §
211(l)(a)
MCA,
(b),
or
even if the
guilty
withdrawal of the defendant’s
or nolo
does not involve a waiver of constitutional
rights, it does involve the waiver of a statutory right. Waiver is defined
as the voluntary abandonment of a
A
right.
known
waiver cannot be
presumed.
There can be
no waiver
one who
not
does
know his
waiving.
Bird,
or what
35-36,
he is
State
2001
v.
MT ¶¶
308 Mont.
75,
accepting plea MCA, by 46-12-210, withdrawal as are mandated § accepting entry of guilty or nolo contendere in the first Nevertheless, instance. rejects agreement when a court a plea 46-12-211(l)(a) type set (b), forth in or MCA, § before accepting withdrawal of guilty the defendant’s nolo contendere, or court must be satisfied that the defendant understands her his or Leaphart concurring opinion jeopardy Justice asserts in his attaches accepts guilty plea. Among jurisdictions whenever the court this of the that have considered question, opinion jeopardy acceptance there is division of whether attaches if the guilty conditional, e.g. Patterson, inas this case. See U.S. v. 406 F.3d (9th 2005). Cir. *8 and understands to on the statutory right stand waiving right. that consequences of possible right to voluntarily relinquished his Bullplume or not Whether ¶31 specific case considerations. plea nolo contendere involves stand on his withdrawal, plea purported The this case are that before the facts of inaccurate, incomplete gave conflicting, Bullplume the court No withdrawing plea. his consequences about the of information understanding of the Bullplume to his questions were asked of assess not plea, nolo and he did withdrawing his contendere of consequences very understanding. Until the acknowledgment of his sign a written court, unknown, that would day trial, Bullplume it even of was homicide, together weapon charge with be tried on a of deliberate enhancement raising the issue of Bullplume State faults for not
¶32 in the proceeding. of withdrawal earlier plea voluntariness his However, until the the last minute amendment permitted homicide, mitigated homicide to deliberate charge from deliberate purported had from the withdrawal Bullplume prejudice suffered no charge of When motion to amend the plea. his nolo contendere trial had granted, homicide after the commenced deliberate object to the virtually completed, Bullplume voir had did dire been amendment, if not tie to the objection purported even he did his year than a earlier. plea, of his nolo contendere more withdrawal accepting facts this before unique Under of plea, his nolo the court erred Bullplume’s withdrawal of contendere obtaining acknowledgment Bullplume not from that he understood his of his making voluntary and was an intentional and waiver charge statutory right to stand on his to the mitigated deliberate homicide. Having effectively concluded that did not charge, mitigated
his deliberate homicide nolo contendere -unnecessary other on it is for this Court to consider the issues raised appeal. urges reverse on the crimes of us to his convictions for weapon homicide and remand the case back
deliberate and use mitigated Bullplume’s on the homicide. sentencing crime of fully if he had been aware appeal premised position that possible and of the his to maintain his nolo contendere right, not have waiving he would withdrawn consequences charge himself mitigated exposed deliberate homicide ultimately he which was penalties to more severe crimes of remanding sentencing convicted. conclude that the case for on We not charge, being deliberate homicide bound remedy. rejected plea agreement, proper is the and remanded for further consistent with proceedings Reversed *9 this opinion. MORRIS, RICE, WARNER,
JUSTICES COTTER and DISTRICT SHERLOCK, sitting JUDGE for former CHIEF JUSTICE GRAY concur. LEAPHART, specially concurring.
JUSTICE
Although
I
I
result
specially
by
concur.
concur with the
reached
Court,
suggestions
the
I take issue
the
in paragraphs
Court’s
28
guilty
and 29 that
entail
plea
withdrawal
does not
a waiver of
a
right.
agree
constitutional
I would
that if a defendant is allowed to
plea
a
accepts plea,
right
a
before a
no constitutional
(as here)
is implicated. However,
accepts
when a court
guilty
a
plea
then,
juncture,
reject
and
at
later
to
decides
allow
plea,
defendant to
withdraw the
constitutional
are implicated.
jury
This is so
emplaneled
sworn,
because once a
has been
Crist
Bretz,
28, 35,
2156,
v.
(1978),
437 U.S.
98 S. Ct.
2161
or the court
accepts
guilty, jeopardy
has attached under the Fifth
to
Amendment
the United States
II,
Constitution and Article
25 of
§
general rule,
“[a]s
Montana Constitution.
jeopardy
in a
attaches
criminal
at the
case
time the district court
accepts
defendant’s
(9th
guilty plea.”
Patterson,
See U.S.
2004),
v.
¶38 Once has a defendant has the constitutional right to proceed judgment before jury the chosen or tribunal as the charges pending when his accepted. That being the court cannot allow a defendant to withdraw a without advising first doing so, that in foregoing right defendant he is his again not to be placed jeopardy exposing charges himself to new which carry Further, significantly greater punishment. any consent waive the jeopardy protection double must come from the defendant himself, record, orally or, 46-12-210(2), either consistent with § MCA, through a acknowledgment. written appears It that the confusion in this case arises from the fact that the District Court accepted Bullplume’s guilty plea first and set the later, matter sentencing. Only reviewing presentence after did the report, change reject Court its mind and decide to the plea. Rather, This is not the procedure envisioned the statues. the Court should allow the defendant plea pursuant to enter his/her to the time, agreement. may At that the Court “accept reject or agreement may or defer its decision as to the acceptance rejection or until there has been an opportunity presentence consider the 46-12-211(2), report.” However, Section MCA. accepts once Court plea, If, jeopardy here, has attached. as the Court accepts seeing before cannot presentence report, it subsequently change its mind without addressing the fact that jeopardy has attached. Thus, I concur with this Court’s conclusion that the District Court satisfy
must itself that the defendant statutory right understands his to stand on the guilty plea. However, importantly, and more I would hold that the District Court that, must advise the defendant (1) withdrawing plea, his waiving he is constitutional not to (2) placed again be in jeopardy, and he exposing himself to the filing new which carry significantly greater punishment. *10 Secondly, court must obtain the defendant’s specific acknowledgment that he understands and consents to the above jeopardy.