State v. Gordon

• Citation: 1999 MT 169,983 P.2d 377
• Decision Date: 15 July 1999
• Docket Number: No. 98-260.,98-260.
• Parties: STATE of Montana, Plaintiff and Respondent, v. Joe E. GORDON, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

983 P.2d 377

1999 MT 169

STATE of Montana, Plaintiff and Respondent, v. Joe E. GORDON, Defendant and Appellant.

No. 98-260.

Supreme Court of Montana.

Submitted on Briefs April 15, 1999.

Decided July 15, 1999.

Herman A. Watson, III and Anne H. Watson; Watson Law Office, Bozeman, Montana, Patricia L. Day-Moore, Attorney at Law, Whitehall, Montana, For Appellant.

Joseph P. Mazurek, Attorney General, Tammy K. Plubell, Assistant Attorney General, Helena, Montana, Valerie D. Wilson, Jefferson County Attorney, Mark Mattioli, Deputy County Attorney, Boulder, Montana, For Respondent.

Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 Joe E. Gordon (Gordon) appeals from the judgment and sentence entered by the Fifth Judicial District Court, Jefferson County, on his plea of guilty to the felony charge of aggravated kidnapping. We affirm.

¶ 2 Gordon presents the following issues:

¶ 3 1. Were Gordon's constitutional rights violated by the District Court's failure to sentence Gordon pursuant to a cooperation agreement? ¶ 4 2. Did the District Court err in sentencing Gordon?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 On February 7, 1996, the mother of Michael Fox (Fox) reported to the Bonneville County, Idaho, Sheriff's Office (BCSO) that her son had been missing for several days. She provided a description of the clothing worn by Fox when last seen, as well as a description and license number of his vehicle. The BCSO placed an "attempt to locate" Fox and the vehicle owned and driven by him into the national law enforcement computer system.

¶ 6 On February 9, 1996, a Montana Highway Patrol officer stopped a vehicle occupied by Gordon and Burly Grimes (Grimes) in Billings, Montana. Based on information obtained from running the vehicle's license number through the law enforcement computer system, the officer determined that the vehicle was registered to Fox, who was listed as missing. Gordon and Grimes were placed in custody and Gordon told law enforcement authorities a story he and Grimes previously had rehearsed about why they were in possession of Fox's vehicle.

¶ 7 Idaho law enforcement personnel subsequently assumed custody of Gordon and Grimes, returned them to Idaho, and charged them with grand theft for stealing Fox's vehicle. By that time, Idaho authorities were investigating Fox's disappearance as a homicide and the Bonneville County prosecutor, David Johnson (Johnson), decided to seek the cooperation of either Gordon or Grimes. To that end, Johnson contacted Gordon's public defender.

¶ 8 On April 2, 1996, Johnson entered into a Cooperation Agreement (First Agreement) with Gordon on behalf of the Bonneville County Prosecuting Attorney's Office and its investigative agencies (hereinafter, collectively, Idaho). Gordon agreed to provide "complete and detailed information concerning the names and roles of all persons known or suspected by him to be involved in the homicide of Michael Fox during the month of February, 1996[;]" the information was to be the "whole truth and nothing but the truth...." An initial interview date was set, at which time Gordon was "obligated only to provide information leading to the whereabouts of the alleged victim[.]" Gordon was to provide all other information needed by Idaho to successfully investigate the criminal activities at issue during a subsequent interview, and Gordon agreed to appear at any hearings or trials required by Idaho. In exchange for Gordon's promises, Idaho agreed to enter into and continue negotiations with Gordon "with the good faith intention of providing an acceptable plea agreement to defendant and his attorney, whether it be a reduction in charges, a sentencing agreement, or both." Idaho reserved the right to void the First Agreement if Gordon failed to comply with its terms, including "complete truthfulness as to all matters."

¶ 9 During the initial interview with Idaho authorities under the First Agreement, Gordon disclosed that Fox's body was somewhere in Mulligan Canyon in Montana. He stated that he did not know the precise location of the body because he was not present when the murder occurred. Fox's body subsequently was located in Mulligan Canyon, in Jefferson County, Montana, at the end of a two-day search. Johnson later determined that Gordon had not been completely truthful in the interview. After Fox's body was found, Johnson made a courtesy telephone call to the Jefferson County Attorney to advise that Fox's body had been located in that county. He continued negotiations with Gordon.

¶ 10 On May 6, 1996, Johnson entered into a Cooperation and Settlement Agreement (Second Agreement) with Gordon which again focused on Gordon's truthfulness. Gordon was required to provide Idaho with complete and detailed information relating to Idaho's investigation of physical injuries to, and the confinement and death of, Fox. In addition, Gordon agreed to submit to a polygraph examination relating to Fox's "kidnaping, attack, and/or homicide" on request. Finally, Gordon agreed to plead guilty to the offense of grand theft already charged by Idaho at that time; to second degree kidnapping, if such a charge were filed; and to accessory to first degree murder if it turned out that Gordon was physically present when Fox's body was removed from the trunk of his vehicle and if Gordon assisted in the criminal venture at that point in any way. Gordon was free to argue for any sentence he deemed appropriate.

¶ 11 In exchange for Gordon's promises, Idaho agreed in the Second Agreement to recommend that the fixed portion of any prison sentence imposed on Gordon not exceed 10 years on all charges. In addition, Idaho agreed to file no charges against Gordon in connection with Fox's death which were not referenced in the Second Agreement, to inform Gordon's family and certain Montana law enforcement authorities of dangers to Gordon's family that could arise because of his cooperation, and to notify Gordon and his family if Grimes were released from custody. As with the First Agreement, Idaho retained the ability to void the Second Agreement if Gordon violated any of its terms and, in that event, to file or refile any charges it could prove against him. Finally, Idaho agreed to "make a good faith effort to have the defendant serve any time to which he may be sentenced from this incident in Montana." If that could not be accomplished, Idaho would attempt to have Gordon serve his time in some state other than Idaho and in a state where neither Grimes nor a member of his immediate family was serving time.

¶ 12 Idaho's investigation continued for several months and Gordon took the polygraph examination required by the Second Agreement. After reviewing the polygraph results, other evidence, and inconsistent statements by Gordon, Johnson determined that Gordon had violated the Second Agreement by being untruthful. Idaho subsequently charged Gordon with murder, first degree kidnapping and robbery.

¶ 13 Thereafter, on motion by Grimes supported by Gordon's counsel, an Idaho magistrate determined that Montana had jurisdiction based on evidence that Fox's death occurred there rather than in Idaho. The State of Montana(State) subsequently charged Gordon and Grimes with the aggravated kidnapping, robbery, and deliberate homicide of Fox, and filed a notice of intent to seek the death penalty against both defendants.

¶ 14 Gordon and Grimes both pleaded not guilty to the charges and their cases were severed. Grimes proceeded to trial and a jury found him guilty of all three charges. The court sentenced Grimes to concurrent terms of 80, 40, and 80 years in the Montana State Prison (MSP), and ordered him ineligible for parole for 25 years. We affirmed Grimes' conviction in State v. Grimes, 1999 MT 145, ¶ 51, ___ Mont. ___, ¶ 51, 982 P.2d 1037, ¶ 51, 56 St.Rep. 566, ¶ 51.

¶ 15 Gordon's case proceeded separately and, on February 3, 1997, Gordon moved the District Court to enforce the Second Agreement between himself and Idaho and require the State to be bound by it. The State opposed the motion, arguing that Idaho could not bind it to a pretrial agreement in which it had not participated. The State also contended that Idaho previously had determined the Second Agreement to be void because of Gordon's failure to comply and, as a result, no Second Agreement existed by the time Montana assumed jurisdiction of the case. The District Court held a hearing on Gordon's motion and subsequently denied it.

¶ 16 Several days before the scheduled trial date in July of 1997, Gordon and the State entered into a plea agreement. Gordon agreed to plead guilty to aggravated kidnapping and, in exchange, the State agreed to dismiss the robbery and deliberate homicide charges and withdraw its notice of intent to seek the death penalty. The State also agreed to recommend an 80-year prison sentence. The plea agreement stated that "[t]he parties represent that there have [sic] been no other consideration promised."

¶ 17 On the date previously scheduled for trial, Gordon appeared before the District Court to change his plea pursuant to the plea agreement. The court inquired about his understanding of the agreement and explained that it was not bound by the State's sentencing recommendation, but could impose the maximum sentence of life imprisonment without eligibility for parole. The court also obtained Gordon's understanding of the rights he would give up by pleading guilty and specifically informed Gordon that he was giving up any appeal rights he might have. Gordon acknowledged that he was giving up his right to an appeal. The District Court accepted Gordon's guilty plea to the offense of aggravated kidnapping and dismissed the other charges.

¶ 18 Gordon's sentencing hearing occurred on October 24, 1997. Both parties presented witnesses and exhibits and made sentencing recommendations. The State informed the court that it had taken Gordon's cooperation with authorities into account in...