State v. Garner

• Decision Date: 25 November 2014
• Docket Number: No. DA 13–0242.,DA 13–0242.
• Citation: 2014 MT 312,377 Mont. 173,339 P.3d 1
• Court: Montana Supreme Court
• Parties: STATE of Montana, Plaintiff and Appellee, v. Daniel Eugene GARNER, Defendant and Appellant.

377 Mont. 173
339 P.3d 1
2014 MT 312

STATE of Montana, Plaintiff and Appellee
v.
Daniel Eugene GARNER, Defendant and Appellant.

No. DA 13–0242.

Supreme Court of Montana.

Submitted on Briefs Oct. 8, 2014.
Decided Nov. 25, 2014.

339 P.3d 2

For Appellant: Wade Zolynski, Chief Appellate Defender, Kristen L. Larson, Assistant Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana, William Fulbright, Ravalli County Attorney, Hamilton, Montana.

Opinion

Justice LAURIE McKINNON delivered the Opinion of the Court.

377 Mont. 174

¶ 1 Daniel Eugene Garner appeals from an order of the Twenty–First Judicial District Court, Ravalli County, denying his motion to withdraw guilty plea. We affirm.

¶ 2 The following issues are presented for review:

1. Whether Garner's motion to withdraw plea was time-barred.

2. Whether the District Court erred when it concluded Garner's guilty plea was voluntary, knowing, and intelligent.

BACKGROUND

¶ 3 Garner is a developmentally disabled 40–year–old man. In the summer of 2009, Garner lived in a trailer at the Bitterroot Family Campground near Hamilton. He sometimes babysat four-year-old A.D., whose grandmother also lived in the campground. In October 2009, A.D. disclosed to his mother that Garner had put his mouth on A.D.'s penis. During a forensic interview the following month, A.D. used dolls to demonstrate that Garner had touched A.D.'s penis with his hand, put his mouth on A.D.'s penis, placed his penis in A.D.'s mouth, and inserted his penis into A.D.'s rectum or buttocks.

¶ 4 On November 19, 2009, Detective Jesse Jessop of the Ravalli County Sheriff's Office interviewed Garner. Garner said he remembered spending time with A.D. the previous summer. Garner initially denied the allegations of sexual conduct, saying he could not remember because of his “brain problems.” As the interview progressed, Detective Jessop asked Garner if he had touched A.D.'s penis with his hand. Garner nodded his head, indicating an affirmative response. A few minutes later, Detective Jessop repeated the question. Garner again nodded his head. Garner continued to deny the allegations of oral and anal intercourse.

¶ 5 On December 4, 2009, Garner was charged with three counts of felony sexual intercourse without consent, in violation of § 45–5–503(1), (4), MCA (2007).¹ His initial appearance was set for December 10, 2009. Garner was represented at that appearance by Nick Miller.

377 Mont. 175

Miller advised the court of Garner's possible disability, and requested a continuance of the initial appearance to allow an evaluation of his fitness to proceed. At the continued initial appearance on December 22, 2009, Garner was represented by David Stenerson. Stenerson informed the court that a full evaluation had not yet been completed, but that Garner appeared to have “an obvious difficulty with reading and retention and understanding difficult tasks....” Defense counsel retained a psychiatrist to perform a “full-blown evaluation” to address “overall mental disease and defect.” Dr. Paul Moomaw evaluated Garner and determined that he was fit to proceed to trial, although he scored “very low” on language intelligence testing. Dr. Moomaw did not issue a written report, but informed defense counsel of his findings.

¶ 6 At Garner's arraignment on February 11, 2010, Stenerson advised the District Court that Dr. Moomaw had “come to the conclusion that [Garner] can proceed with trial, and we'll withdraw any objection to that

339 P.3d 3

at this point.” Garner initialed and signed an acknowledgement of rights form. The District Court asked Garner if he had any concerns about his ability to proceed, and Garner said he did not. Garner also said he understood his rights, felt comfortable asking questions of his attorney, and understood the arraignment proceeding. Garner was informed that he was charged with three counts of sexual intercourse without consent, each of which was punishable by a term of 100 years. Garner pled not guilty to each count and said he understood the maximum punishment.

¶ 7 On June 15, 2010, the State filed an amended information adding a charge of felony sexual assault, in violation of § 45–5–502(1), (3), MCA. On June 18, 2010, Garner was informed that if convicted of that charge, he could receive life imprisonment or a prison sentence of not less than four years or more than 100 years. Garner said he understood the charge and the maximum possible punishment. He pled not guilty to the charge of sexual assault.

¶ 8 A jury trial began on September 7, 2010. Stenerson and Miller represented Garner during the trial. On the third day of trial, Garner agreed to plead guilty to sexual assault under § 45–5–502(1), (3), MCA, in exchange for which the State agreed to dismiss the three counts of sexual intercourse without consent. Garner signed a plea agreement, guilty plea, and waiver of rights. The agreement was an “open plea,” meaning that the State did not agree to make any particular sentencing recommendation and remained free to argue for the maximum possible sentence.

¶ 9 The plea agreement, guilty plea, and waiver of rights were submitted to the District Court. The District Court questioned Garner

377 Mont. 176

extensively to determine his understanding of the proceedings. Garner said he had understood most of the trial so far, and had been able to rely on his attorneys to explain things to him. He said he felt comfortable asking his attorneys for an explanation if he had difficulty understanding anything about the change of plea process. The District Court asked Garner if he wanted to speak to his attorney before proceeding, and Garner said he did not.

¶ 10 The District Court then explained the charge of sexual assault and the possible penalty of not less than four years or more than 100 years. Garner said he understood the maximum possible penalty. The District Court asked Garner if he was entering his plea voluntarily, and Garner said yes. The District Court asked Garner if he believed the plea was in his best interests, and he said yes. Garner said he had been given sufficient time to review his rights with his attorneys, and had no questions about them. He agreed he had full knowledge of the rights he was waiving. He said he was satisfied with the services of his attorneys.

¶ 11 Stenerson then questioned Garner about the factual basis for the plea. Garner said he touched A.D.'s penis with his hand during the summer of 2009, when A.D. was four years old. The District Court then additionally advised Garner that because the victim was under 16 years of age, Garner would be required to serve at least 30 days in jail. The State then recited the terms of the plea, including Garner's understanding and agreement that he could not withdraw his plea once entered. The District Court accepted the plea, ordered a psychosexual evaluation, and dismissed the three counts of sexual intercourse without consent. The jury was excused.

¶ 12 Dr. Robert Page conducted the psychosexual evaluation. Dr. Page observed that Garner presented with some cognitive delays which may affect his comprehension, and therefore recommended a full neuropsychological evaluation. Dr. Page concluded that Garner was dependent on others and tended to seek reassurance. During the evaluation, Garner was able to describe the allegations against him. He understood that as part of his plea agreement, if he admitted to sexual assault, the State would dismiss the other charges. Garner could not tell Dr. Page the potential sentence for sexual assault, and said he wanted to go home to care for his cats. Garner was aware Dr. Moomaw had evaluated him and found him fit for trial, and Garner said he felt “somewhat capable.”

339 P.3d 4

¶ 13 A neuropsychological evaluation was performed by Dr. Paul Bach. Dr. Bach concluded that Garner's cognitive abilities were in the low-average range. He concluded Garner was not mentally retarded,

377 Mont. 177

although he was functioning at a “borderline abnormal level.” Dr. Bach observed that Garner was competent with hands-on tasks and capable of learning, but at a disadvantage when required to “mentally conceptualize with language.” Dr. Bach concluded that Garner read at a seventh-grade level, which was a fair indication of his cognitive level in most life situations. Dr. Bach described Garner as an “extraordinarily simple, unbright individual who is significantly depressed and anxious at this time.”

¶ 14 A sentencing hearing was held on March 22, 2011. During the hearing, Stenerson objected to the State's presentation of evidence, arguing that it amounted to “retrying this case; and if that is the case, I think I need to ask to withdraw the guilty plea and go to trial.” The District...