Bone v. State, 96-143

• Decision Date: 15 April 1997
• Docket Number: No. 96-143,96-143
• Parties: Robert Henry BONE, Petitioner and Appellant, v. STATE of Montana, Respondent and Respondent. . Heard
• Court: Montana Supreme Court

Page 734

944 P.2d 734

284 Mont. 293

Robert Henry BONE, Petitioner and Appellant, v. STATE of Montana, Respondent and Respondent.

No. 96-143.

Supreme Court of Montana.

Heard April 15, 1997.

Submitted April 22, 1997.

Decided Aug. 28, 1997.

Rehearing Denied Oct. 2, 1997.

William F. Hooks (argued), Appellate Defender Office, Helena, for Appellant.

Joseph P. Mazurek, Attorney General, John Paulson (argued), Assistant Attorney General, Helena, Mark Harshman, Blaine County Attorney, Chinook, for Respondent.

REGNIER, Justice.

On March 11, 1987, Robert Bone was charged in the Seventeenth Judicial District Court, Blaine County, with the offenses of deliberate homicide, in violation of §§ 45-5-101(1) and -102(1)(a), MCA (1985), and, deliberate homicide by accountability, in violation of §§ 45-2-302(3) and 45-5-101(1) and -102(1)(a), MCA (1985). On April 13,1987, Bone entered pleas of guilty to both counts pursuant to a plea agreement. The District Court sentenced Bone to two concurrent terms of 100 years at the State Prison, with two consecutive terms of two years each for the use of a weapon during the commission of the offense. Bone submitted a petition for post-conviction relief to the District Court, which was denied. Bone appeals the District Court's denial of his amended petition for post-conviction relief. We affirm.

The issues on appeal are as follows:

1. Are the District Court's findings of fact concerning Bone's claims of ineffective assistance of counsel supported by substantial evidence in the record, and did the court correctly apply the appropriate legal standards in review of these claims?

2. Did the District Court err in concluding that the court's guilty plea colloquy was adequate?

3. Did the District Court err in concluding that Bone was not denied his rights to due process and access to the courts?

4. Did the District Court err in concluding that Bone was not prejudiced by the violation of the attorney-client privilege?

FACTUAL BACKGROUND

In late February 1987, Bone was arrested on the charges of deliberate homicide and deliberate homicide by accountability for the deaths of Bernadette and Richard Cowan. After his arrest, Bone remained in custody Suagee first met with Bone on March 2, 1987. During this meeting, Suagee was informed of Bone's prior criminal history, his family history, and of Bone's treatment by a Havre psychiatrist, Dr. Earle. Suagee obtained an authorization and release from Boneto obtain information from Dr. Earle.

throughout the proceedings. The District Court appointed Mark Suagee, a contract public defender, to represent Bone in March 1987.

Suagee spoke with Dr. Earle and viewed his records before Bone authorized entering a plea. Suagee ascertained from Dr. Earle's records that Bone had previously undergone a psychiatric evaluation at the Montana State Hospital in 1977. Suagee also learned from Dr. Earle that Bone was receiving prescription medications for "depression" and auditory hallucinations. These medications included the prescription drugs Haldol, Norpramin, and Desyrel. Suagee relied upon Dr. Earle to inform him of any changes made in the medications given to Bone while he was in custody.

Suagee stated that at the time he represented Bone he was aware of the decision in Ake v. Oklahoma (1985), 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53, under which Bone would have been entitled to seek the appointment of a psychiatrist to assist in "evaluation, preparation, and presentation of the defense." Ake, 470 U.S. at 83, 105 S.Ct. at 1096. Suagee testified that he talked with Dr. Earle regarding Bone's mental competency and from those conversations he had developed no "articulable concern" that there was a problem with Bone's competency to stand trial. Suagee did not seek an additional mental evaluation or the appointment of a psychiatrist to aid in the preparation of Bone's defense.

In Suagee's deposition, he stated that he believed the presence or indicia of premeditation ruled out mitigated deliberate homicide as a viable or possible defense. The charge of mitigated deliberate homicide was referred to by the county attorney in the sense of being a "crime of passion." Suagee aggressively sought a plea bargain on the lesser offense of mitigated deliberate homicide; however, the county attorney steadfastly refused to consider his, as he believed he had a strong case for deliberate homicide.

The prosecutor informed Suagee very early on that the State would seek the death penalty for Bone if he went to trial and was convicted. Suagee spoke with other attorneys who had experience with capital cases and he familiarized himself with the applicable law. Suagee did not believe that Bone would be sentenced to death in light of the mitigating evidence, but did advise Bone that he could not absolutely rule out the possibility of a death sentence in light of the existence of statutory aggravating circumstances.

Bone appeared in the District Court with Suagee for the first time on March 11, 1987. He did not enter a plea to the charges, as the arraignment was continued to April 13, 1987. During the period between his initial appearance and March 18, 1987, Suagee discussed with Bone a plea agreement which would include a 100-year sentence on the charges. The State agreed not to request the death penalty or seek any restrictions on his eligibility for parole in return for this plea of guilty. On March 18, 1987, Bone stated he was ready to enter a plea of guilty. The State, however, required a videotaped statement before the county attorney was willing to absolutely consummate the plea agreement. Bone provided this videotaped statement on March 18 prior to entering into the written plea agreement. At the time the statement was given and the plea agreement was entered into, Suagee was aware that Bone was taking prescription medications, although he was unaware of the side effects of those medications.

On April 13, 1987, Bone appeared in court for his arraignment and entered his pleas of guilty. Bone informed the court that he had been taking prescription medication but said that it did not affect him mentally or influence his actions in court. Bone also stated that he felt he had been adequately represented by counsel. In its plea colloquy, the District Court did not affirmatively discuss the possibility with Bone that he could be found guilty of mitigated deliberate homicide at trial. The court did not specifically discuss the mental states of purposely or knowingly.

The District Court accepted Bone's pleas of guilty and ordered preparation of a pre-sentence report. On July 6, 1987, the District Court sentenced Bone to a term of 100-years imprisonment on each charge to run concurrently, with an enhancement of two years on each count for use of a weapon, to run consecutively. The court file was sent to the Sentence Review Division in August 1987.

In October 1987, Bone sent the District Judge a letter in which he alleged ineffective assistance of counsel and asked to withdraw his guilty pleas. Bone wrote in this letter that his counsel did not advise him of all of his rights and that he felt he should have had the opportunity to have a thorough mental evaluation to determine his mental capacity. The District Court directed copies of this letter to be sent to Mark Suagee so that he could respond to Bone's allegations. The District Court entered an order on November 19, 1987, in which it noted that the file had been sent to the Sentence Review Division and that Bone's post-conviction claims could not be considered until the matter was returned to the District Court. Suagee filed an affidavit on January 11, 1988, discussing his representation of Bone. The District Court file was returned to the court by the Sentence Review Division on January 18, 1988. In March 1988, Bone wrote another letter to the District Court inquiring as to his case status and asking the court to render a decision "so I can continue with this action if need be."

The District Court directed Suagee to file a supplemental affidavit. In a file memorandum, the court stated its intention to "enter an Order closing out this case without the necessity of a hearing as allowed by statute." No order of dismissal was entered. Suagee filed his supplemental affidavit on April 18, 1988.

On September 17, 1991, Bone wrote to the clerk of court and inquired again as to the status of his case. On April 3, 1992, Bone filed a petition for post-conviction relief with this Court. The State responded to this by moving to dismiss the petition on the ground that the petition for post-conviction relief was still pending before the Seventeenth Judicial District Court. This Court dismissed the petition to allow the District Court to issue a final order.

On July 14, 1992, Bone filed in the District Court a motion to amend the petition for post-conviction relief, together with the amended petition and supporting documents. After receiving no response for four months, Bone filed with this Court a petition for writ of mandamus or supervisory control in which he requested that the District Court be ordered to assume jurisdiction and address his petition. On December 10, 1992, the District Court entered an order on the petition for post-conviction relief and appointed counsel for Bone.

The matter was set for an evidentiary hearing on June 3, 1993. Counsel for Bone moved to substitute the District Court Judge and continue the hearing date. The Honorable John Warner accepted jurisdiction and the hearing was continued. Bone was granted leave without objection by the State to file an amended petition.

The evidentiary hearing was held on August 21 and 22, 1995. Dr. Joseph Rich, M.D., a board certified psychiatrist, testified by deposition as to the nature and effect of the prescription medication Haldol, which Bone was taking at the varying rate of one to five pills daily while incarcerated. Daniel Donovan, a criminal defense attorney,...