Montalto v. State

• Decision Date: 20 August 2013
• Docket Number: No. 2011–CP–01625–COA.,2011–CP–01625–COA.
• Citation: 119 So.3d 1087
• Court: Mississippi Court of Appeals
• Parties: Stephen MONTALTO a/k/a Stephen Daniel Montalto a/k/a Stephen D. Montalto, Appellant v. STATE of Mississippi, Appellee.

119 So.3d 1087

Stephen MONTALTO a/k/a Stephen Daniel Montalto a/k/a Stephen D. Montalto, Appellant

v.STATE of Mississippi, Appellee.

No. 2011–CP–01625–COA.

Court of Appeals of Mississippi.

April 30, 2013.

Rehearing Denied Aug. 20, 2013.

Stephen Montalto, appellant, pro se.

Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.

Before LEE, C.J., ISHEE and ROBERTS, JJ.

ROBERTS, J., for the Court:

¶ 1. Stephen Daniel Montalto entered his best-interest guilty pleas to two counts of aggravated assault in cause number 17937, one count of kidnapping in cause number 18213, and one count of aggravated assault also in cause number 18213. The Rankin County Circuit Court accepted Montalto's pleas on September 16, 2008, and sentenced him on September 22, 2008. Montalto filed two motions for post-conviction relief (PCR), one motion per cause number, on September 9, 2011. Subsequently, the circuit court entered an order summarily dismissing Montalto's motions. It is from this summary dismissal that Montalto currently appeals and requests this Court grant him immediate release from the custody of the Mississippi Department of Corrections (MDOC), or, in the alternative, to set aside his guilty pleas.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 20, 2006, a Rankin County grand jury indicted Montalto in cause number 17937 for two counts of aggravated assault ¹ and one count of grand larceny stemming from events occurring on June 22–23, 2005. Then, on November 4, 2006, Montalto was involved in a series of incidents in Rankin County after he had been released on bail in September 2005. These later incidents resulted in the grand jury indicting Montalto in cause number 18213 for one count of aggravated assault, one count of kidnapping, and one count of escape.

¶ 3. Montalto initially hired the Honorable Victor Carmody to represent him. However, after his preliminary hearing, Montalto hired the Honorable Sam Wilkins as his attorney. Prior to his plea hearing, Montalto hired the Honorable Arthur R. Harris to represent him. At Montalto's request, Dr. Gerald O'Brien evaluated Montalto at the Rankin County Detention Center on November 17, 2006. Dr. O'Brien reported that he had no opinion as to whether Montalto could rationally understand the proceedings against him, but he did have questions as to whether Montalto could sufficiently communicate with his attorney. According to his report, Dr. O'Brien stated that Montalto may be suffering from a significant affective disorder, possibly bipolar disorder. Dr. O'Brien recommended Montalto undergo a comprehensive evaluation to determine his competency. The circuit court subsequently entered an order in October 2007 for a mental evaluation and treatment for Montalto. The order stated that the evaluation was a result of Montalto's motion to be transferred to Whitfield pursuant to Mississippi Code Annotated section 99–13–11 (Rev.2007) and Uniform Rule of Circuit and County Court 4.08. Among other things, the circuit court ordered Montalto's transfer and evaluation to determine whether he was competent to stand trial.

¶ 4. In February 2008, Dr. Criss Lott filed his detailed, eighteen-page evaluation report on Montalto. He evaluated Montalto on two occasions: the first on February 4, 2008, at the Rankin County Detention Center; and the second on February 8, 2008, at Dr. Lott's office. In his report, Dr. Lott provided the following findings:

It is my opinion, to a reasonable degree of psychological certainty, that [Montalto] has the sufficient present ability to confer with his attorney with a reasonable degree of rational understanding, and he has a good rational and factual understanding of the nature and object of the legal proceedings against him. [Montalto] recognizes the nature and possible consequences of the charges against him. He [understands] the roles of the major participants in the court[,] and he noted that he had not had any difficulty communicating with his attorney. He had a very good understanding of the plea process.... [Montalto] should have no difficulty comprehending and communicating with his attorney about his case.

Montalto then filed a motion for an independent medical determination of his competency to stand trial. He also filed notice of his intent to use insanity as a defense at trial. At Montalto's request, Dr. Rodrigo Galvez performed an evaluation on Montalto. Dr. Galvez's report, dated June 2, 2008, stated that Montalto was mentally ill and should get psychiatric treatment before trial. The report also noted that he found no family history of psychiatric illnesses or treatments and that Montalto was of average intelligence. Further, Dr. Galvez found that Montalto was “in contact with reality” and that Montalto denied he suffered from any hallucinations, delusions, or illusions. Dr. Galvez's conclusion was that Montalto does suffer from bipolar disorder, rendering him unable to understand the consequence of his behavior during the November 4, 2006 crimes. Dr. Galvez further concluded that Montalto was unable to tell right from wrong at the time of the November 4, 2006 crimes.² However, the report did not contain any opinion about Montalto's competency to stand trial.

¶ 5. Montalto's cases were set for trial approximately eight times, with the final agreed order setting his trial for September 16, 2008. The day before his scheduled trial, on September 15, 2008, Montalto appeared before the circuit court to enter a best-interest plea. At this hearing, the State moved to amend the indictment in cause number 17937 to correct the spelling of Montalto's first name. Additionally the State sought to amend Count I in the same cause number. In that count, Montalto was charged with a violation of Mississippi Code Annotated section 97–3–7(2)(b); however, the intent language in the indictment was that of Mississippi Code Annotated section 97–3–7(2)(a).³ Montalto did not object to either amendment and specifically noted that the amended indictment heightened the State's burden of proof. After granting the State's motions to amend the indictment, the circuit court questioned Montalto as to whether he understood everything in his guilty-plea petition. Montalto indicated that he did not, so the circuit court allowed him to confer with his attorney. Montalto then stated that he understood everything in his guilty-plea petition, but when questioned as to whether everything in his guilty-plea petition was true and correct, Montalto responded no. The circuit court recessed the hearing and stated it could not accept Montalto's guilty pleas and that trial would commence as scheduled on the following day.

¶ 6. On September 16, 2008, Montalto again appeared before the circuit court prior to trial to enter his best-interest pleas. Montalto informed the circuit court that he was thirty-two years old with a high school diploma and six years of college education. The circuit court questioned Montalto's attorney if he was “of the opinion and belief [that Montalto] appreciates the nature and consequences of his actions.” Montalto's attorney responded: “I do, your Honor. And I have specifically asked him, over the course of the last couple of days, about his medications and whether or not it would make him become unaware of what he was doing, and he satisfied me that, despite the medications, ... he understood what he was doing.” The circuit court then asked Montalto's attorney whether Montalto had been able to assist in his defense; the response was “Yes, sir.” The circuit court then meticulously questioned Montalto about his guilty-plea petition. Montalto affirmed he had read and signed and that he understood his petition. The circuit court then explained all the elements of the crimes Montalto was pleading to committing, the minimum and maximum sentences possible, and the constitutional rights he would be waiving as a result of the pleas. Montalto indicated that he understood these explanations. The State presented its factual basis for each charge, and Montalto agreed that the State could prove each factual basis. Montalto also affirmed that he was entering his pleas not under any threat, force, intimidation, or promises of reward. The circuit court also questioned Montalto about his satisfaction with his attorney's performance. Montalto had no complaints about his attorney's performance and was satisfied with his representation. The State announced that, as a result of negotiations, the following recommendation would be presented: twenty years for Count I in cause number 17937, twenty years for Count I in cause number 18213, twenty years for Count II in cause number 17937, and twenty years for Count II in cause number 18213. The sentences in Count I of both cause numbers would run concurrently to one another. The sentences in Count II of both cause numbers would run concurrently to one another. The sentences in Counts I and II would run consecutively to one another. Further, and importantly, the sentences in Count II in both cause numbers would be suspended, and Montalto would be placed on five years of supervised probation. Montalto would also be subject to registration as a sex offender because the kidnapping offense involved a young child. The State also recommended that Counts III in both cause numbers would be dismissed upon the circuit court's acceptance of Montalto's pleas. After Montalto expressed some confusion regarding the recommendation, the circuit court stated that it “believe[d Montalto] underst [ood] what the recommendation was[,]” but that it was not too late to stop the hearing if Montalto desired. Montalto again expressed his desire to continue with the hearing and proceeded to plead guilty to the charges. The circuit court accepted Montalto's pleas as freely, voluntarily, and knowingly given and found that there was a sufficient factual basis provided.

¶ 7. The State then sought to put in the record that while Montalto had filed a...