Mallak v. State

• Decision Date: 27 February 2002
• Docket Number: No. 00-812.,00-812.
• Citation: 308 Mont. 314,2002 MT 35,42 P.3d 794
• Court: Montana Supreme Court
• Parties: Burhan MALLAK, Plaintiff and Appellant, v. STATE of Montana, Defendant and Respondent.

42 P.3d 794

2002 MT 35

308 Mont. 314

Burhan MALLAK, Plaintiff and Appellant, v. STATE of Montana, Defendant and Respondent.

No. 00-812.

Supreme Court of Montana.

Submitted on Briefs January 10, 2002.

Decided February 27, 2002.

Jay F. Lansing, Moses Law Firm, Billings, MT, For Appellant.

Mike McGrath, Montana Attorney General, Jennifer Anders, Assistant Montana Attorney General; Dennis Paxinos, Yellowstone County Attorney, Mark A. English, Deputy Yellowstone County Attorney, Billings, MT, For Respondent.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Burhan Mallak (Mallak) appeals from the Thirteenth Judicial District Court's denial of his petition for postconviction relief. We reverse and remand.

¶ 2 The following issue is presented:

¶ 3 Did the District Court err in denying Mallak's Petition for Postconviction Relief?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 In 1982, Mallak left Iraq and entered the United States under refugee status. He now lives in Billings, Montana. On September 14, 1988, the Yellowstone County Attorney filed an Affidavit and Motion for Leave to File Information alleging Mallak sold cocaine and LSD to an undercover detective. Mallak pled not guilty, and defense counsel was appointed. In the omnibus hearing form, Mallak indicated that he would rely on a defense of insanity, and he claimed incompetency. He stated that the general nature of his defense was diminished mental responsibility, entrapment and a general denial. Mallak also moved for a psychiatric examination to evaluate his mental capabilities and determine whether he was brain damaged and/or susceptible to being easily taken advantage of in view of his intellectual ability. In addition, when Mallak later moved for a continuance of his trial, he notified the District Court that his ability to speak English was marginal.

¶ 5 Approximately two months later, Dr. Steven C. Wagner evaluated Mallak. In Dr. Wagner's report, he concluded that Mallak had an IQ of 65 and was mildly mentally retarded. Dr. Wagner could not determine whether Mallak's mental retardation stemmed from a head injury he suffered at the age of six. Regarding Mallak's English vocabulary skill, Dr. Wagner found that Mallak functioned at approximately the level of a four-year-old child. At this level, Mallak could only understand very simple one step instructions. Dr. Wagner also concluded that due to Mallak's borderline intellectual abilities, he could be very easily led. Altogether, Dr. Wagner diagnosed Mallak with adjustment disorder, borderline personality disorder and mild mental retardation.

¶ 6 Following receipt of Dr. Wagner's report, Mallak filed his Notice of Defenses. He once again indicated that he would rely on the defenses of psychological defects and entrapment. With respect to the entrapment charge, Mallak believed that he was acting as an undercover agent for law enforcement when he sold drugs to an undercover detective.

¶ 7 On August 15, 1989, Mallak signed an Acknowledgment of Waiver of Rights in which he agreed to plead guilty to both felony counts of criminal sale of dangerous drugs. There was no plea agreement, no charges were dismissed or reduced, and the Yellowstone County Attorney did not offer a sentencing recommendation in exchange for Mallak's guilty plea. In Mallak's affidavit in support of his petition for postconviction relief (Affidavit), Mallak stated that he met with his attorney only a couple of times, and that his brother had to accompany him because of his limited understanding of English. Mallak also stated that he did not understand the Waiver form, but his attorney told him to plead guilty and "things would go easy" for him. He claimed the handwritten portion of the Waiver form setting forth the facts of his offense was not completed in his handwriting. Mallak does not recall his attorney mentioning that he could be deported if he pled guilty.

¶ 8 On August 24, 1989, Mallak entered a plea of guilty to both felony counts. Unfortunately, the record of these proceedings was destroyed. In his Affidavit, Mallak states that he does not recall the presence of an interpreter during these court proceedings. Furthermore, Mallak does not recall the District Court judge or anyone else informing him that he could be deported if he pled guilty. He states that he would not have pled guilty had he been so informed.

¶ 9 On September 28, 1989, Mallak was sentenced to five years imprisonment at the Montana State Prison with all five years suspended. He completed his sentence on September 28, 1994.

¶ 10 In 1999, Mallak applied to become a United States citizen. When the United States Immigration and Naturalization Service discovered Mallak's 1989 drug conviction, it began deportation proceedings. On March 9, 2000, Mallak resisted deportation by filing an Application for Asylum alleging that he would be killed if he returned to Iraq due to his previous political affiliations and that he would be separated from his wife and children who are United States citizens.

¶ 11 Shortly after filing his Application for Asylum, Mallak also filed a Petition for Postconviction Relief. Without holding an evidentiary hearing, the District Court denied the Petition. Mallak appeals the District Court's denial and requests remand for an evidentiary hearing.

STANDARD OF REVIEW

¶ 12 We review the denial of a petition for postconviction relief to determine whether the trial court's findings of fact are clearly erroneous and whether its conclusions of law are correct. Discretionary rulings in postconviction relief proceedings, including rulings relating to whether to hold an evidentiary hearing, are reviewed for abuse of discretion. State v. Hanson, 1999 MT 226, ¶ 9, 296 Mont. 82, ¶ 9, 988 P.2d 299, ¶ 9 (citation omitted).

DISCUSSION

¶ 13 Did the District Court err in denying Mallak's Petition for Postconviction Relief?

¶ 14 The District Court reviewed Mallak's petition captioned "Verified Petition for Postconviction Relief," as both a postconviction relief request and, in the alternative, a motion to withdraw a guilty plea. The court concluded that both were time-barred. As to the postconviction petition, the District Court relied upon the five-year statute of limitations in § 46-21-102, MCA (1987), and held that the statute was not tolled and had expired before Mallak filed his petition. Construing Mallak's postconviction petition as a motion to withdraw his guilty plea, Judge Barz relied on State v. Osterloth, 2000 MT 129, ¶ 24, 299 Mont. 517, ¶ 24, 1 P.3d 946, ¶ 24, and State v. Reynolds (1992), 253 Mont. 386, 391, 833 P.2d 153, 156, and concluded that it, too, was untimely, having been filed more than one year after Mallak entered into the plea agreement.

¶ 15 The only relief sought in Mallak's petition was the District Court's permission to withdraw his guilty plea; therefore, despite its caption, it will be viewed as such. This Court has held on numerous occasions that the substance of a document controls, not its caption. See Miller v. Herbert (1995), 272 Mont. 132, 136, 900 P.2d 273, 275; Moody v. Northland Royalty Co. (1997), 286 Mont. 89, 95, 951 P.2d 18, 22; Carr v. Bett, 1998 MT 266, ¶ 52, 291 Mont. 326, ¶ 52, 970 P.2d 1017, ¶ 52 (Nelson, J. concurring). Because the petition was a request to withdraw a guilty plea, the five-year statute of limitations in § 46-21-102, MCA (1987), relied upon by the District Court, is inapplicable. Rather, the applicable statutory provision is § 46-16-105, MCA (1987), which states "[a]t any time before or after judgment the court may, for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted."

¶ 16 The District Court cited State v. Osterloth and State v. Reynolds as authority for denying Mallak's motion to withdraw a guilty plea because it was filed more than one year after his plea was entered. However, neither of these cases establish so categorical a rule. In fact, there is no case in Montana that establishes any bright-line rule on the timeliness of a plea withdrawal motion. We have not established a rule or standard under which a trial court must address a request to withdraw a guilty plea; rather each case must be considered in light of its unique record. State v. Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175, 177.

¶ 17 This Court has, however, established three factors to be taken into consideration when determining whether "good cause" under § 46-16-105, MCA (1987), exists to permit the withdrawal of a guilty plea:

a. the adequacy of the district court's interrogation as to the defendant's understanding of his plea;

b. the promptness of the motion to withdraw the prior plea; and

c. the fact that the defendant's plea was apparently the result of a plea bargain in which the guilty plea was given in exchange for dismissal of another charge.

State v. Koepplin (1984), 213 Mont. 55, 59-60, 689 P.2d 921, 923; State v. Bowley (1997), 282 Mont. 298, 304, 938 P.2d 592, 595; State v. Knox, 2001 MT 232, ¶ 11, 307 Mont. 1, ¶ 11, 36 P.3d 383, ¶ 11. Each of these three prongs will be discussed as they apply to the case at bar.

¶ 18 The adequacy of the district court's interrogation of a defendant at the time of a plea establishes whether a defendant's plea is voluntary, knowing and intelligent. When a defendant does not understand the charges against him, the elements of the crime with which he is charged, or the consequences of the crime, he cannot enter into a guilty plea, waiving numerous constitutional rights, knowingly, intelligently or voluntarily. Knox, ¶ 17 (citing State v. Radi (1991), 250 Mont. 155, 159, 818 P.2d 1203, 1206). In this case, however, there is no record of the District Court's interrogation at the time Mallak entered his plea because the record has been destroyed. Absent such a record, our only recourse is to consider Mallak's petition and the State's response to his factual allegations concerning the circumstances...