Montana v. Wright

• Decision Date: 21 September 2021
• Docket Number: DA 20-0091
• Parties: State of MONTANA, Plaintiff and Appellee, v. Mary Darlean WRIGHT, Defendant and Appellant.
• Court: Montana Supreme Court

405 Mont. 383

495 P.3d 435

State of MONTANA, Plaintiff and Appellee,

v.Mary Darlean WRIGHT, Defendant and Appellant.

DA 20-0091

Supreme Court of Montana.

Submitted on Briefs: July 28, 2021

Decided: September 21, 2021

For Appellant: Chad Wright, Appellate Defender, Alexander H. Pyle, Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Bree Gee, Assistant Attorney General, Helena, Montana Kent M. Sipe, Fergus County Attorney, Jean Adams, Deputy County Attorney, Lewistown, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Defendant and Appellant Mary Darlean Wright (Wright) appeals from the October 11, 2019 Sentencing Order and Judgment issued by the Tenth Judicial District Court, Fergus County, which imposed a four-year suspended sentence for her convictions for Criminal Possession of Dangerous Drugs (CPDD), a felony; CPDD - Marijuana, a misdemeanor; and Criminal Possession of Drug Paraphernalia (CPDP), a misdemeanor, following a jury trial.

¶2 We address the following restated issue on appeal:

Whether Wright received ineffective assistance of counsel when her counsel, while arguing for a deferred sentence, failed to inform the District Court of its authority to impose an alternative sentence under § 45-9-202, MCA.

¶3 We reverse and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 In October of 2018, pursuant to a search warrant, officers from the Fergus County Sheriff's Department conducted a search of Wright's residence. Officers found both drugs and drug paraphernalia in the residence. Wright was arrested and ultimately charged with two felony counts of CPDD, one misdemeanor count of CPDD, and one misdemeanor count of CPDP. One of the felony CPDD charges was dismissed before trial. After a two-day jury trial, Wright was convicted of the three remaining charges. The District Court thereafter ordered a presentence investigation report (PSI). On August 14, 2019, the PSI was filed in this matter. Relevant to the present appeal, the PSI disclosed that Wright was previously convicted of a non-drug-related felony in Texas in 1995. The author of the PSI, Probation and Parole Officer Bonnie Boettger (PO Boettger), wrote in the PSI that she "believes that Defendant is ineligible for a deferred sentence."

¶5 The District Court held a sentencing hearing on September 12, 2019. PO Boettger was unavailable and did not testify at the hearing. With no witnesses from either side, the court proceeded directly to recommendations from the parties. Relevant to this appeal, the State asked for a five-year commitment to the Montana Department of Corrections (DOC), with no time suspended, on the felony CPDD conviction. Wright asked for a three-year deferred sentence on the felony CPDD conviction. The District Court then reminded counsel for Wright that the PSI stated she was not eligible for a deferred sentence and asked if she disagreed with that conclusion. Counsel for Wright pointed the District Court to § 46-18-201(1)(b), MCA, which states that the "imposition of sentence in a felony case may not be deferred in the case of an offender who has been convicted of a felony on a prior occasion, whether or not the sentence was imposed, imposition of the sentence was deferred, or execution of the sentence was suspended," and argued the language of "may not be deferred" was permissive, rather than mandatory, such that the court would have the discretion to impose a deferred sentence under that statute. The State responded that Wright was not eligible for a deferred sentence under § 46-18-201(1)(b), MCA, and the exceptions found in § 46-18-222, MCA, and objected to the request for a deferred sentence.

¶6 The District Court then pronounced its sentence in this case: a four-year DOC commitment, with all four years suspended, for the felony CPDD charge; a $250 fine, with $200 suspended, on the misdemeanor CPDD charge; and six months in the county jail, with six months suspended, on the misdemeanor CPDP charge. Wright appeals.

STANDARD OF REVIEW

¶7 Ineffective assistance of counsel claims are mixed questions of law and fact which we review de novo. State v. Larsen , 2018 MT 211, ¶ 6, 392 Mont. 401, 425 P.3d 694 (citing State v. Jefferson , 2003 MT 90, ¶ 42, 315 Mont. 146, 69 P.3d 641 ).

DISCUSSION

¶8 Whether Wright received ineffective assistance of counsel when her counsel, while arguing for a deferred sentence, failed to inform the District Court of its authority to impose an alternative sentence under § 45-9-202, MCA.

¶9 " Article II, Section 24, of the Montana Constitution and the Sixth Amendment to the United States Constitution, as incorporated through the Fourteenth Amendment, guarantee a defendant the right to effective assistance of counsel." Larsen , ¶ 7 (citing State v. Kougl , 2004 MT 243, ¶ 11, 323 Mont. 6, 97 P.3d 1095 ). In assessing ineffective assistance of counsel claims, we apply the two-pronged test set forth in Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). Kougl , ¶ 11. Under the Strickland test, the defendant must (1) demonstrate that "counsel's performance was deficient or fell below an objective standard of reasonableness" and (2) "establish prejudice by demonstrating that there was a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Kougl , ¶ 11 (quoting State v. Turnsplenty , 2003 MT 159, ¶ 14, 316 Mont. 275, 70 P.3d 1234 ).

¶10 When a defendant raises ineffective assistance of counsel claims on direct appeal, we must first determine whether the claims are more appropriately addressed in a postconviction relief proceeding. Larsen , ¶ 8 (citing Kougl , ¶ 14 ). "[A] record which is silent about the reasons for the attorney's actions or omissions seldom provides sufficient evidence to rebut" the strong presumption that counsel's conduct falls within the wide range of reasonable professional conduct. State v. Sartain , 2010 MT 213, ¶ 30, 357 Mont. 483, 241 P.3d 1032 (citing State v. White , 2001 MT 149, ¶ 13, 306 Mont. 58, 30 P.3d 340 ). Ineffective assistance of counsel claims are appropriate for review on direct appeal, however, when "no plausible justification" exists for the actions or omissions of defense counsel. Kougl , ¶ 15 (citing Jefferson , ¶ 50 ).

¶11 On appeal, Wright argues she received ineffective assistance of counsel at her sentencing hearing when her counsel argued for a deferred sentence and then, when asked by the District Court to give authority for her eligibility for a deferred sentence, pointed the court to a statute which would make her ineligible for a deferred sentence, rather than to the Alternative Sentencing Authority (ASA), § 45-9-202, MCA. The State, in response, claims that Wright's ineffective assistance of counsel claim is not appropriate for review on direct appeal, and, if this Court chooses to review the claim on direct appeal, that Wright has not demonstrated prejudice.

¶12 We first address the State's contention that Wright's claim of ineffective assistance of counsel is not appropriate for review on direct appeal because the record does not demonstrate "why" Wright's counsel did not raise the ASA during sentencing. In a case such as this, it is unnecessary to ask "why" in the first instance, because this is the "relatively rare situation where there is ‘no plausible justification’ for what defense counsel did." Kougl , ¶ 15. When there is "no plausible justification" for the actions of counsel, the claim is appropriate for review on direct appeal. State v. Fender , 2007 MT 268, ¶ 10, 339 Mont. 395, 170 P.3d 971 (quoting Jefferson , ¶ 50 ).

¶13 After the PSI indicated Wright was not eligible for a deferred sentence, Wright and her counsel nevertheless arrived at the sentencing hearing to argue for a deferred sentence. Wright was convicted of felony CPDD, in violation of § 45-9-102, MCA. Typically, judges have discretion to defer sentences, even for felonies, see § 46-18-201(1)(a), MCA, and for first-offense felony CPDD charges, an offender is "presumed to be entitled to a deferred imposition of sentence of imprisonment." § 45-9-102(4), MCA (2017).¹ An important exception to this discretionary scheme is found in § 46-18-201(1)(b), MCA, which states, "[e]xcept as provided in 46-18-222, imposition of sentence in a felony case may not be deferred in the case of an offender who has been convicted of a felony on a prior occasion, whether or not the sentence was imposed, imposition of the sentence was deferred, or execution of the sentence was suspended."² When called upon by the District Court to provide support for the claim Wright was eligible for a deferred sentence, counsel for Wright responded:

Your Honor I believe Ms. Boettger indicated that she did not think she was eligible. There is a felony that is 20 plus years in Mary Wright's past and I have reviewed the statutes and you know I find the [c]ourt's ability, the statu[t]es regarding the sentences that may be imposed contained in 46-18-201 use the term "may". The [c]ourt may sentence in a felony case may not be deferred. I interpret that language as being permissive to the [c]ourt. It does not say shall or must and I would request the [c]ourt use the discretion regarding this sentence.

¶14 Counsel for Wright's argument before the District Court that the language "may not be deferred" in § 46-18-201(1)(b), MCA, is permissive, rather than mandatory, is clearly incorrect. See Van Der Hule v. Mukasey , 2009 MT 20, ¶ 11, 349 Mont. 88, 217 P.3d 1019 ("[C]ourts that have construed legislative use of the phrase ‘may not’ have consistently held that the phrase is mandatory."). Under § 46-18-201(1)(b), MCA, then, the District Court would not have discretion to defer Wright's sentence. As this was the only statute cited by Wright's counsel at sentencing, her client had no real opportunity to receive a deferred sentence.

¶15 Section 46-18-201(1)(b), MCA, is not the only st...