State v. Brinson

• Decision Date: 09 June 2009
• Docket Number: No. DA 07-0392.,DA 07-0392.
• Citation: State v. Brinson, 210 P.3d 164, 2009 MT 200, 351 Mont. 136 (Mont. 2009)
• Parties: STATE of Montana, Plaintiff and Appellee, v. Chance Lemar BRINSON, Defendant and Appellant.
• Court: Montana Supreme Court

210 P.3d 164

2009 MT 200

351 Mont. 136

STATE of Montana, Plaintiff and Appellee, v.Chance Lemar BRINSON, Defendant and Appellant.

No. DA 07-0392.

Supreme Court of Montana.

Submitted on Briefs April 1, 2009.

Decided June 9, 2009.

For Appellant: Katie Irene Olson, Jasper, Smith Olson, P.C., Missoula, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General, John Paulson, Assistant Attorney General, Helena, Montana Fred R. Van Valkenburg, Missoula County Attorney, Suzy Boylan, Deputy County Attorney, Missoula, Montana.

Justice JAMES C. NELSONdelivered the Opinion of the Court.

¶ 1 Pursuant to a plea agreement, Chance Brinson pleaded guilty in September 2006 to one count of sexual intercourse without consent, a felony, in violation of § 45-5-503, MCA.The Fourth Judicial District Court, Missoula County, then sentenced him to the Montana State Prison for 20 years, with 10 years suspended.In addition, the court imposed 56 terms and conditions on the suspended portion of the sentence.Thereafter, Brinson filed two motions to withdraw his guilty plea, which the District Court summarily denied.

¶ 2 Brinson now appeals, contending that the District Court erred in denying his motions to withdraw his guilty plea.Brinson also challenges three of the terms and conditions of his sentence.We affirm.

ISSUE 1: Brinson's motions to withdraw his guilty plea

¶ 3We review a district court's denial of a motion to withdraw a guilty plea de novo.State v. Warclub,2005 MT 149, ¶ 17, 327 Mont. 352, 114 P.3d 254.The question of whether a plea was entered voluntarily is a mixed question of law and fact, which we review de novo.State v. McFarlane,2008 MT 18, ¶ 8, 341 Mont. 166, 176 P.3d 1057.

¶ 4 In the Plea Bargain Agreement, the parties agreed to the following sentence as the appropriate disposition of the case:

Count 1: A maximum of 20 years all suspended on the condition that the Defendant complete a sex offender evaluation with an MSOTA [Montana Sexual Offender Treatment Association] qualified evaluator and that the evaluator concludes that the Defendant is a low risk to reoffend and can be treated in the community.In the event the evaluator concludes the defendant is not a low risk to re-offend and/or cannot be treated in the community, the State and Defendant will be free to argue for an appropriate sentence.

¶ 5The District Court accepted Brinson's guilty plea on September 14, 2006, and ordered a presentence investigation report (PSI).Meanwhile, Brinson obtained two psychosexual evaluations.The first evaluation (the Clodfelter Evaluation), dated October 23, 2006, was prepared by an MSOTA-qualified evaluator (Lindsay Clodfelter) who concluded that Brinson should be designated a level 2 offender, i.e., a "moderate risk" of a repeat sexual offense.The second evaluation (the Zook Evaluation), dated December 20, 2006, was prepared by a non-MSOTA-qualified evaluator (Donna Zook) who concluded that Brinson should be designated a level 1 offender, i.e., a "low risk" of a repeat sexual offense.See§ 46-23-509(2), MCA.The probation/parole officer who prepared the PSI reviewed both evaluations and recommended that Brinson be designated a level 2 offender and that he be sentenced to the Montana State Prison for 20 years with 10 years suspended.

¶ 6 At the sentencing hearing, the District Court interpreted the plea agreement as follows: If an MSOTA evaluator concludes that Brinson is a level 1 offender (low risk to reoffend), then the agreement is binding, but if an MSOTA evaluator gives a designation higher than level 1, then each side may argue for the appropriate sentence.Thus, the court reasoned that since the only MSOTA evaluation provided to the court stated that Brinson was a level 2 offender (moderate risk to reoffend), the 20-year, all-suspended sentence contained in the plea agreement was not binding.Notably, defense counsel stated that he"regret[ted]" having included the MSOTA language in the plea agreement, but he acknowledged that the prosecutor could argue any sentence that she felt was appropriate.The District Court ultimately adopted the sentencing recommendations in the PSI and sentenced Brinson to 20 years at the Montana State Prison with 10 years suspended.

¶ 7 Brinson argues on appeal that his plea was not voluntary and that involuntariness constitutes "good cause" for withdrawing a plea.Furthermore, citing State v. Deserly,2008 MT 242, ¶ 15, 344 Mont. 468, 188 P.3d 1057, andState v. Lone Elk,2005 MT 56, ¶ 21, 326 Mont. 214, 108 P.3d 500, he argues that a defendant's plea is not voluntary if it was induced, "however slightly," by misrepresentation, including unfulfilled or unfulfillable promises.Brinson claims that such circumstances occurred here and, therefore, that he should have been allowed to withdraw his guilty plea.Specifically, he explains that he pleaded guilty with the understanding that the Zook Evaluation, in which he was found to be a level 1 offender, would "carry the same weight" at sentencing as the Clodfelter Evaluation, in which he was found to be a level 2 offender.Yet, according to Brinson, the Zook Evaluation turned out to be "useless" because Zook was not MSOTA qualified.Brinson thus contends that his belief that the sentencing judge would accept the Zook Evaluation and impose the sentence contained in the plea agreement was "an unfulfillable promise."Brinson further argues that, "by some degree, `however slight,'" his attorney misled him (albeit "unintentionally") into thinking that the Zook Evaluation would satisfy the terms of the plea agreement.Thus, Brinson concludes that he was induced by a misrepresentation and an unfulfillable promise to change his plea to guilty and that his plea, therefore, was not voluntary.

¶ 8 Brinson is correct that involuntariness constitutes "good cause" for withdrawal of a guilty plea under § 46-16-105(2), MCA.SeeLone Elk,¶ 19.Brinson is also correct that a defendant's plea of guilty is not voluntary if the court, the prosecutor, defense counsel, or some other party induced the plea by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g., bribes).SeeDeserly,¶ 12;Lone Elk,¶ 21;Brady v. United States,397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747(1970).But the "however slightly" standard that Brinson accurately quotes from Deserly,¶ 15, andLone Elk, ¶ 21, is not correct.

¶ 9 In Warclub,we explained that the Court in Lone Elk had inadvertently adopted the "however slightly" language from a portion of the Brady opinion in which the Supreme Court discussed Bram v. United States,168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568(1897), and the voluntariness of confessions, not guilty pleas.SeeWarclub,¶ 18 and n. 1;see also e.g.State v. Reavley,2003 MT 298, ¶ 16, 318 Mont. 150, 79 P.3d 270.We stated that our intention in Lone Elk had been to adopt Brady's standard for the voluntariness of guilty pleas, but without incorporating Bram's"however slight" standard for the voluntariness of confessions.SeeWarclub,¶ 18;accordState v. Leitheiser,2006 MT 70, ¶¶ 18-19, 331 Mont. 464, 133 P.3d 185.Nevertheless, we recently quoted the "however slightly" language from Lone Elk in Deserly,¶¶ 15, 19.¹Although this language was not critical to our decision in Deserly, it was, in any event, incorrect.Accordingly, so as to eliminate any further confusion and inconsistency in this area of law, we again disapprove the "however slightly" language contained in Deserly,¶¶ 15, 19, andLone Elk,¶¶ 21, 22, and we overrule these two cases on this specific point.

¶ 10 Our reaffirmation that the "however slightly" standard does not apply to the analysis of a plea's voluntariness does not change our decision in this case.As the State correctly points out, Brinson's decision to plead guilty could not have been influenced in any way by the Zook Evaluation or any expectation arising out of that evaluation for the simple reason that he signed the plea agreement and entered his plea of guilty before any psychosexual evaluation had been completed.²Indeed, Brinson acknowledges that he did not even request an evaluation by Zook until after he had received the Clodfelter Evaluation in October 2006(a month after he had entered his guilty plea).

¶ 11 Brinson asserts that when he entered into the plea agreement, he was "armed with the good faith belief" that he would be designated a low risk to reoffend.Brinson further asserts that after receiving the Zook Evaluation, his "reasonable expectation of the potential of a suspended sentence was bolstered."As we explained in Deserly, however, the issue is whether, at the time the defendant entered his guilty plea,he was induced to do so by any of the circumstances contemplated by Brady or Lone Elk.Deserly,¶ 18.Any sentencing expectations that arise subsequent to his change of plea do not determine whether the plea was voluntary at the time it was entered.Thus, the fact that Brinson's expectations were "bolstered" three months after he entered his guilty plea is totally irrelevant to whether his plea was voluntary at the time it was entered.

¶ 12 Furthermore, we explained in State v. Humphrey,2008 MT 328, 346 Mont. 150, 194 P.3d 643, that "while a defendant's subjective perceptions shed light on his state of mind, which in turn bears on the voluntariness of his plea, allegations of having had certain mental impressions at the time of the plea must be supported by objective proof in the record."Humphrey,¶ 23.Here, the plea agreement clearly states that a sentence of 20 years, all suspended, is the appropriate sentence "on the condition that the Defendant complete a sex offender evaluation with an MSOTA qualified evaluator and that the evaluator concludes that the Defendant is...