STATE OF MONTANA, Plaintiff and Respondent, v. CHARLES THOMPSON, Defendant and Appellant.
No. 96-425.
STATE OF MONTANA
Decided May 19, 1999.
1999 MT 108 | 56 St.Rep. 444 | 294 Mont. 321 | 981 P.2d 778
Submitted on Briefs March 11, 1999.
JUSTICE TRIEWEILER delivered the opinion of the Court.
¶1 The defendant, Charles Thompson, filed a motion to correct an erroneous sentence in the District Court for the Third Judicial District in Powell County. He asserted that he was erroneously charged with felony escape. The District Court denied Thompson‘s motion. Thompson appeals the District Court order denying his motion. We affirm the judgment of the District Court.
¶2 The following issues are presented on appeal:
¶3 1. Is Thompson entitled to the appointment of new counsel because his present counsel filed a motion tо withdraw in which he represented that he was unable to find any nonfrivolous issue to raise on appeal?
¶4 2. Were Thompson‘s constitutional and statutory rights violated when he wаs prosecuted in a different county than the county where the alleged offense was committed?
FACTUAL BACKGROUND
¶5 On November 16, 1995, Charles Thompson was charged by information filed in Powell Cоunty with felony escape in violation of
¶6 Michaеl Grayson was appointed to represent Thompson. On November 30, 1995, Thompson pled guilty to the charge of felony escape and signed an acknowledgment оf waiver of rights by plea of guilty. Thompson entered his guilty plea as part of a plea agreement in which the prosecuting attorney agreed to recommend а two year sentence to be served consecutive to the sentence for the underlying offense. The court then imposed that sentence and ordered that it be served in the custody of the Department of Corrections.
¶7 On March 1, 1996, Thompson, appearing pro se, filed a motion to correct erroneous sentencе, asserting that the felony escape charge was erroneous, and that the court could only properly have charged him with misdemeanor escape. Thе court denied Thompson‘s motion. Thompson then filed an appeal of the District Court “Order Denying
¶8 On September 11, 1998, Thompson‘s appellate counsel filed a motion to withdraw as counsel of record. He filed a supporting brief asserting that he found no nonfrivolous issues to raise on appeal.
¶9 We, however, concluded that a nonfrivolous issue existed related to venue, and denied the appellate defender‘s motion to withdraw as counsel for Thompson.
ISSUE 1
¶10 Is Thompson entitled to the appointment of new counsel because his present counsel filed a mоtion to withdraw in which he asserted that he was unable to find any nonfrivolous issue to raise on appeal?
¶11 In September 1998, William Hooks, Thompson‘s counsel, filed a motion tо withdraw in which he represented that he was unable to find any nonfrivolous issue to raise on direct appeal. Hooks also filed an Anders brief as required by
If counsel finds the dеfendant‘s case on appeal to be wholly frivolous, counsel shall advise the court of that fact and request permission to withdraw. The request to withdraw must be acсompanied by a memorandum referring to anything in the record that might arguably support the appeal. The defendant is entitled to receive a copy of counsel‘s memorandum and to file a reply with the court.
In his Anders brief, Hooks raised as an arguable issue that Thompson‘s case was not prosecuted in the proper venue, and that Thompson‘s constitutional and statutory rights were violated.
¶12 On December 1, 1998, we concluded that a nonfrivolous issue existed “as to whether Thompson should have beеn prosecuted in Yellowstone County rather than Powell County.” We, therefore, denied Hooks’ motion to withdraw.
¶13 Hooks now asserts that there may be a conflict of interest. His concern arises from his motion to withdraw in which he asserted that the case was wholly frivolous. Because he is now required to argue the merits of the venue issue, he pоints out that his ability to effectively do so might be reasonably questioned.
¶15 We, therefore, conclude that it is not necessary to appoint new counsel.
ISSUE 2
¶16 Were Thompson‘s constitutional and statutory rights violated when he was prosecuted in a different county than the county where the alleged offense was committed?
¶17 Thompson argues that he had a right to be prosecuted in Yellowstone County because all the acts on which the charges of escape were based occurred in Yellowstone County. The charges, however, were filed and he was prosecuted in Powell County.
A charge for violation of
45-7-306 [the felony escape statute] after imposition of a state prison sentence or after commitment to the department of corrections may, at the discretion of the county attorney for the county in which the person was arrested and without objectiоn from the person charged, be filed in any county in the state.
However, subsection (2) did not become effective until after Thompson was charged with escape and, therefore, is inapplicable.
¶18 Finally, Thompson argues that “venue,” for purposes of proving that the crime was committed in the county where the charges were filed, “is a jurisdictional fact that must be proved at the trial, the same as any other material fact in a criminal prosecution.” In support of his argument, he cites to State v. Preite (1977), 172 Mont. 318, 323, 564 P.2d 598, 601, State v. Johnson (1993), 257 Mont. 157, 161, 848 P.2d 496, 498, and State v. Jackson (1979), 180 Mont. 195, 200, 589 P.2d 1009, 1013. Thоmpson contends that the court lacks jurisdiction if the
¶19 In Johnson, 257 Mont. at 161, 848 P.2d at 498, we stated that “[a]lthough venue is not an element of the crime, it is a jurisdictional fact that must be proven at trial just as any other materiаl element.” Likewise, in Preite and Jackson, we concluded that venue, while not an element of the crime, was a jurisdictional fact that had to be proven. Preite, 172 Mont. at 323, 564 P.2d at 601; Jackson, 180 Mont. at 200, 589 P.2d at 1013.
¶20 The present case differs from Johnson, Preite, and Jackson in that the defendants in those cases did not plead guilty, and jury trials were had in all three instances. In those cases, the State had the burden of proving where the crimes were committed. In contrast, Thompsоn pled guilty and admitted that he committed the crime of escape in Yellowstone County. The question of whether evidence at a criminal trial was sufficient to establish venue is different than a claim of improper venue after the defendant has pled guilty and admitted committing the crime with which he was charged.
¶21 Montana law specifically provides that in criminal cases venue is waived if not raised prior to the first witness being sworn.
¶22 It is well-settled in this state that the statutory right to venue can be waived. See McGuinn v. Risley (1984), 210 Mont. 349, 351-52, 681 P.2d 699, 700; State v. Feeley (1976), 170 Mont. 227, 231, 552 P.2d 66, 68. Likewise, federal courts have held that the
CHIEF JUSTICE TURNAGE and JUSTICES HUNT, LEAPHART and NELSON concur.