State Of Mont. v. Pavey

• Decision Date: 05 May 2010
• Docket Number: No. DA 09-0409.,DA 09-0409.
• Parties: STATE of Montana, Plaintiff and Appellee,v.Bruce Allen PAVEY, Defendant and Appellant.
• Court: Montana Supreme Court

356 Mont. 248

231 P.3d 1104

2010 MT 104

STATE of Montana, Plaintiff and Appellee,v.Bruce Allen PAVEY, Defendant and Appellant.

No. DA 09-0409.

Supreme Court of Montana.

Submitted on Briefs March 17, 2010.

Decided May 5, 2010.

For Appellant: Joslyn Hunt, Chief Appellate Defender, Helena, Montana Lisa B. Kauffman, Attorney at Law, Missoula, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana, Marty Lambert, Gallatin County Attorney, Todd Whipple, Eric N. Kitzmiller, Deputy County Attorneys, Bozeman, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 This consolidated appeal is from two criminal prosecutions in the Eighteenth Judicial District Court, Gallatin County. Bruce Allen Pavey was convicted of criminal possession of dangerous drugs and issuing a bad check (common scheme). We affirm.

ISSUES

¶ 2 There are two issues on appeal:

1. Did Pavey reserve his right to appeal the denial of his motion to dismiss on speedy trial grounds?

2. Did the District Court err in denying Pavey's request that he be given credit for time served?

BACKGROUND

¶ 3 In October 2006, Pavey was sentenced to the Montana Department of Corrections (DOC) for five years on an offense committed in Jefferson County. In May 2007, he was sentenced to DOC for five years on an offense committed in Silver Bow County. This sentence was to run concurrently with the Jefferson County sentence. In December 2007, Pavey was granted conditional release and placed under the supervision of the Bozeman probation and parole office. However, from February 14 to April 15, 2008, he absconded from supervision. He was taken back into custody on April 15, 2008, at which time a disciplinary hearing was held. Pavey was then placed at the Montana State Prison (MSP), where he remained during the pendency of the charges in the present case.

¶ 4 On May 8, 2008, the State filed an information in District Court charging Pavey with failing to register as a violent offender, a felony in violation of § 46-23-507, MCA, committed in March and April 2008. This prosecution was numbered “DC-08-105C.” On July 21, 2008, the State filed a second information charging Pavey with criminal possession of dangerous drugs (methamphetamine), a felony, in violation of § 45-9-102, MCA, committed in April 2008. This prosecution was numbered “DC-08-196AX.” Meanwhile, on May 9, 2008, the State filed a complaint in Gallatin County Justice Court charging Pavey with issuing a bad check, common scheme, a felony, in violation of § 45-6-316, MCA, committed in March, April, and May 2008. This case was transferred to District Court on September 2, 2008, where it was numbered “DC-08-240BX.”

¶ 5 Pavey initially entered not-guilty pleas to all three charges, and the prosecutions were consolidated for further proceedings. But on November 19, 2008, pursuant to a plea agreement reached with the State, he changed his pleas to guilty in all three cases. A sentencing hearing was set for December 31, 2008. On December 29, however, Pavey filed a motion to withdraw his guilty pleas because his counsel had given him erroneous legal advice regarding the possibility of his designation as a persistent felony offender. The State filed a response stating that it did not oppose Pavey's motion. Accordingly, the District Court issued an order on February 8, 2009, permitting the withdrawal of Pavey's guilty pleas.

¶ 6 On March 12, 2009, the court scheduled jury trials for June 16 (DC-08-105C), June 17 (DC-08-196AX), and June 18 (DC-08-240BX). Pavey then filed motions in all three cases to dismiss for violation of his constitutional right to a speedy trial. He briefed this claim under the four-factor balancing test set out in State v. Ariegwe, 2007 MT 204, 338 Mont. 442, 167 P.3d 815. The State filed its response, and Pavey filed a reply. The District Court held a hearing and subsequently denied Pavey's motions. The court agreed with the State's argument, based on State v. Sanders, 163 Mont. 209, 516 P.2d 372 (1973), that the speedy trial clock stopped when Pavey entered his guilty pleas and was reset when Pavey was allowed to withdraw those pleas. Thus, with respect to each of the three cases, the court determined as follows: first, the interval between accusation (when the charge was filed) and the date Pavey entered his guilty plea (November 19, 2008) was less than 200 days; and second, the interval between the withdrawal of his guilty plea (February 8, 2009) and the scheduled trial date (June 16, 17, or 18) was likewise less than 200 days. As such, the court concluded that further speedy trial analysis was not warranted.¹See Ariegwe, ¶ 62 (“If [the interval between accusation and trial is less than 200 days], then further analysis is unnecessary and the claim should be denied.”).

¶ 7 Pavey and the State ultimately reached another plea agreement; and, on June 2, 2009, he entered guilty pleas to criminal possession of dangerous drugs and issuing a bad check (common scheme). The State, in turn, dismissed the failing-to-register charge. At that same hearing, the District Court sentenced Pavey to MSP for five years, none suspended, on the drug possession offense and to MSP for ten years, with five years suspended, on the bad check offense. These sentences are to run concurrently with each other and with all other sentences Pavey is currently serving. Pavey now appeals.

DISCUSSION

¶ 8 Issue 1. Did Pavey reserve his right to appeal the denial of his motion to dismiss on speedy trial grounds?

¶ 9 Pavey argues that the District Court erred in denying his motions to dismiss for violation of his right to a speedy trial. As a threshold matter, however, we agree with the State that Pavey did not reserve this issue for appeal.

¶ 10 At the second change-of-plea hearing, held June 2, 2009, the District Court (at defense counsel's request) used the Defendant's Acknowledgement and Waiver of Rights by Plea of Guilty signed by Pavey and filed November 19, 2008, in conjunction with his prior change of plea. Among other things, this document states (with emphasis added):

3. I understand by pleading guilty I give up the following:

a. The presumption of innocence

b. The right to remain silent

c. The right to a jury trial

d The right to a speedy and public trial

e. The right to have the State prove each element of the offense(s) beyond a reasonable doubt.

f. The right to summon witnesses on your behalf;

g. The right to cross-examine the State's witnesses.

Pavey initialed just to the left of the “3.”; and during the colloquy with the District Court, he verbally affirmed that he recalled the Acknowledgement and Waiver document from his prior change of plea. In addition, the court asked Pavey whether he understood that by pleading guilty, he would be giving up various rights, including the right to a speedy trial, and Pavey stated that he understood this. The court then found that Pavey “has knowingly and voluntarily waived his rights” and “has knowingly and voluntarily entered pleas of guilty.” Pavey does not challenge either of these findings.

¶ 11 We have said that “a defendant waives the right to appeal all nonjurisdictional defects upon voluntarily and knowingly entering a guilty plea, including claims of constitutional violations which may have occurred prior to the plea.” State v. Violette, 2009 MT 19, ¶ 16, 349 Mont. 81, 201 P.3d 804. Consequently, after the plea, the defendant may attack only the voluntary and intelligent character of the plea, any jurisdictional defects, and any specified adverse pretrial rulings he has reserved the right to appeal. See Violette, ¶ 16. In this regard, § 46-12-204(3), MCA, provides that “[w]ith the approval of the court and the consent of the prosecutor, a defendant may enter a plea of guilty or nolo contendere reserving the right, on appeal from the judgment, to review the adverse determination of any specified pretrial motion ” (emphasis added). The alleged violation of the right to a speedy trial is a nonjurisdictional-defect claim. State v. Collier, 277 Mont. 46, 53, 919 P.2d 376, 381 (1996). As such, the right to obtain review of an adverse determination on a speedy trial motion must be reserved.

¶ 12 Pavey argues that the “thrust” of § 46-12-204(3), MCA, is that a defendant should not be able to appeal constitutional claims that he expressly “waived” per a plea of guilty. The language of the statute, however, clearly indicates that a claim must be specifically reserved in order to be appealable, not that a claim is automatically appealable unless it is expressly waived. Moreover, far from reserving his right to appeal the denial of his speedy trial motions, Pavey specifically waived that right in writing (in the Defendant's Acknowledgement and Waiver of Rights by Plea of Guilty) and verbally (during the colloquy with the District Court at the second change-of-plea hearing).

¶ 13 We therefore hold that Pavey did not reserve his right to appeal the denial of his speedy trial motions under § 46-12-204(3), MCA.

¶ 14 Issue 2. Did the District Court err in denying Pavey's request that he be given credit for time served?

¶ 15 Pavey requested at the sentencing hearing that he be given credit for the year he served in prison during the pendency of the charges. In this regard, § 46-18-403(1), MCA, states that “[a] person incarcerated on a bailable offense against whom a judgment of imprisonment is rendered must be allowed credit for each day of incarceration prior to or after conviction, except that the time allowed as a credit may not exceed the term of the prison sentence rendered.” The prosecutor objected on the ground that Pavey had been incarcerated under the prior Jefferson County and Silver Bow County convictions, not the new charges. The District Court denied Pavey's request, and Pavey now challenges the court's decision on appeal, noting that criminal possession of dangerous drugs and issuing a bad...