Monette v. Weber

• Decision Date: 19 August 2009
• Docket Number: No. 25050.,25050.
• Citation: 2009 SD 77,771 N.W.2d 920
• Parties: Mitchell James MONETTE, Petitioner and Appellant, v. Douglas WEBER, Warden of the South Dakota State Penitentiary, Respondent and Appellee.
• Court: South Dakota Supreme Court

771 N.W.2d 920

2009 SD 77

Mitchell James MONETTE, Petitioner and Appellant, v. Douglas WEBER, Warden of the South Dakota State Penitentiary, Respondent and Appellee.

No. 25050.

Supreme Court of South Dakota.

Considered on Briefs May 26, 2009.

Decided August 19, 2009.

Manuel J. de Castro, Jr., de Castro Law Offices, PLLC, Madison, South Dakota, Attorneys for petitioner and appellant.

Lawrence E. Long, Attorney General, John M. Strohman, Assistant Attorney

General, Pierre, South Dakota, Attorneys for respondent and appellee.

SEVERSON, Justice.

[¶ 1.] Mitchell Monette appeals the habeas court's rulings that his no contest plea was voluntary, intelligent and knowing; that he received effective assistance of counsel; and that denial of a firearms expert did not violate his constitutional rights.

FACTS

[¶ 2.] On October 28, 2003, Monette's then wife Cindy returned home intoxicated. An altercation ensued, which ended with Cindy receiving disfiguring facial injuries from a gun shot. Monette was arrested on October 29, 2003, and counsel was appointed to represent him. Monette was indicted on November 5, 2003, with Count 1: Aggravated Assault (SDCL 22-18-1.1(2)) and Count 2: Attempted First Degree Murder (SDCL 22-16-4 and 22-4-1). He was arraigned on November 17, 2003, at which time he was fully advised of his statutory and constitutional rights. Monette pleaded not guilty to both counts.

[¶ 3.] On March 1, 2004, the State filed a new indictment charging Monette with Count 1: Aggravated Assault (SDCL 22-18-1.1(5)); Count 2: Aggravated Assault (SDCL 22-18-1.1(2)); and Count 3: Attempted First Degree Murder (SDCL 22-16-4 and 22-4-1). The State also filed a habitual offender information. On this date, Monette was arraigned on the new indictment and the habitual offender information. He was again informed of his rights and pleaded not guilty to all counts.

[¶ 4.] On March 8, 2004, Monette entered a change of plea pursuant to a plea agreement. The sentencing circuit court in Lake County, with Judge Tucker presiding, was informed that Monette would plead no contest to Count 1 of the indictment and admit to being a habitual offender. In exchange, the State agreed to dismiss all other charges. The sentencing court then set forth the elements the State would have to prove in Count 1 and the habitual offender information, which Monette acknowledged he understood. Then the court stated: "Now, I've gone through, I guess, multiple times with you and advised you of all the rights that you have, both your constitutional and statutory rights. Do you have any questions concerning any of these matters?" Monette responded that he had no questions. The sentencing court advised Monette of the maximum possible sentence he could receive upon an admission of Count 1 and the habitual offender information, and that a plea of no contest still counted as a conviction and was subject to the maximum possible penalty. Monette indicated he understood and responded he had no questions before entering his plea. Monette pleaded no contest to Count I and admitted to the habitual offender information. The State provided a factual basis. On March 22, 2004, Monette was sentenced to twenty-five years in the state penitentiary.

[¶ 5.] Monette filed a petition for writ of habeas corpus on August 27, 2004, and a hearing was held on March 31, 2006, before Judge Steele. A direct appeal was filed. Monette therefore requested that the writ be dismissed without prejudice until the direct appeal was over. An amended petition for writ of habeas corpus was filed on November 24, 2007, and a hearing occurred on December 31, 2007, before Judge Foley. Ultimately, the habeas court denied the writ on October 30, 2008. Monette appeals, raising the following issues:

1. Whether the habeas court erred in finding Monette's plea constitutional.

2. Whether the habeas court erred in finding Monette was provided effective assistance of counsel.

3. Whether the habeas court erred in finding Monette's due process rights were not violated even though he was denied a court-appointed firearms expert.

STANDARD OF REVIEW

[¶ 6.] Our standard of review for habeas decisions is well established:

Our review of habeas corpus proceedings is limited because it is a collateral attack on a final judgment. The review is limited to jurisdictional errors. In criminal cases, a violation of the defendant's constitutional rights constitutes a jurisdictional error. The [petitioner] has the burden of proving he is entitled to relief by a preponderance of the evidence.

The findings of facts shall not be disturbed unless they are clearly erroneous. A claim of ineffective assistance of counsel presents a mixed question of law and fact. The habeas court's conclusions of law are reviewed de novo.

Owens v. Russell, 2007 SD 3, ¶ 6, 726 N.W.2d 610, 614-15 (quoting Vanden Hoek v. Weber, 2006 SD 102, ¶¶ 8-9, 724 N.W.2d 858, 861-62).

Constitutionality of Plea

[¶ 7.] Monette entered not guilty pleas on two occasions: the first on November 17, 2003, and the second on March 1, 2004. Monette does not contest that at those hearings he was fully advised of his constitutional rights and that the sentencing court inquired and ultimately determined the not guilty pleas were willingly and voluntarily entered.

[¶ 8.] A change of plea hearing was held on March 8, 2004. Monette's counsel set forth the terms of the plea agreement providing Monette would plead no contest to Count 1 of the indictment (aggravated assault alleging physical menace) and admit to the habitual offender information. In exchange, the State would dismiss all other charges. Thereafter, the following exchange occurred:

COURT: The [c]ourt did just go through with you, on the indictment, what the State would have to prove in Count 1, specifically that on or about October 28th of 2003, in Lake County, South Dakota, you did attempt by physical menace with a deadly weapon, to put Cynthia Monette in fear of imminent serious bodily harm. Do you understand what the State would have to prove against you?

MONETTE: Yes, sir.

COURT: Also, the State would have to prove every element of that offense beyond a reasonable doubt. If you are found guilty of that charge, the State would have to prove every element contained in the part 2 information for habitual offender beyond a reasonable doubt. Do you understand what the State would have to prove on that?

MONETTE: Yes, sir.

COURT: Again on that, the State would have to prove that on or about June 24th of 2002, in Hughes County, South Dakota, you were convicted of one count of possession of a controlled substance, a class 4 felony. Do you understand what the State would have to prove in the habitual offender information?

MONETTE: Yes, sir.

COURT: Now I've gone through, I guess, multiple times with you and advised you of all the rights that you have, both your constitutional and statutory rights. Do you have any questions concerning any of these matters?

MONETTE: No, sir.

COURT: The maximum sentence possible for Count 1 of the indictment upon admission of the habitual offender information would be 25 years in the South Dakota State Penitentiary and/or a $25,000 fine. Do you understand the maximum possible sentence which could be imposed?

MONETTE: Yes, sir.

COURT: Prior to entering a plea, do you have any questions?

MONETTE: No sir.

COURT: Finally, your attorney advised that you do wish to enter a plea of no contest. Do you understand that that would still count as a conviction of that charge of aggravated assault against you?

MONETTE: Yes, sir.

COURT: That it still bears with it the same maximum possible sentence, whether you plead guilty or no contest to that aggravated assault charge. Do you understand that?

MONETTE: Yes, sir.

COURT: And that if you plead no contest, the [c]ourt will ask the State to give a factual basis for this offense. I will then ask your attorney if you are contesting the facts as related by the State. If you are not contesting those facts, the court—if the court establishes a factual basis, would enter a finding that there is a factual basis for the plea to this charge. Do you understand that?

MONETTE: Yes, sir.

COURT: Okay. To the charge in the indictment then for the offense of aggravated assault, how do you plea?

MONETTE: No contest.

COURT: To the habitual offender, alleging that you have one prior felony offense, do you admit or deny that?

MONETTE: I admit it, sir.

COURT: Okay. ... [The court proceeded to find a factual basis and schedule a sentencing date.]

[¶ 9.] Before accepting the plea, the sentencing court made no inquiry to determine if the plea was entered voluntarily. Furthermore, during this exchange, the sentencing court failed to inquire if Monette waived his constitutional rights. Based on these deficiencies, Monette maintains his plea was unconstitutional. We agree.

[¶ 10.] In Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969), the United States Supreme Court recognized that "[a] plea of guilty is more than an admission of conduct; it is a conviction." Therefore, it is critical not only that a defendant be advised of his rights relating to self-incrimination, trial by jury, and confrontation, but also that the defendant intentionally relinquish or abandon known rights. Id. at 243 n. 5, 89 S.Ct. at 1712 n. 5, 23 L.Ed.2d 274 (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). The Court stated, "Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial." Id. at 243, 89 S.Ct. at 1712, 23 L.Ed.2d 274 (emphasis added). "We cannot presume a waiver of these three important federal rights from a silent record." Id. "[T]he record must affirmatively show the plea was voluntary, that the defendant understood the consequences of pleading guilty, and that the defendant explicitly waived the constitutional...