State v. Humphrey

• Decision Date: 23 September 2008
• Docket Number: No. 05-726.,05-726.
• Citation: State v. Humphrey, 2008 MT 328, 194 P.3d 643, 346 Mont. 150 (Mont. 2008)
• Court: Montana Supreme Court
• Parties: STATE of Montana, Plaintiff and Appellee, v. James Lee HUMPHREY, Defendant and Appellant.

194 P.3d 643

2008 MT 328

346 Mont. 150

STATE of Montana, Plaintiff and Appellee, v.James Lee HUMPHREY, Defendant and Appellant.

No. 05-726.

Supreme Court of Montana.

Submitted on Briefs March 7, 2007.

Decided September 23, 2008.

For Appellant: Nancy G. Schwartz, Attorney at Law, Billings, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General, Mark W. Mattioli, Assistant Attorney General, Helena, Montana Dennis Paxinos, Yellowstone County Attorney, Gayle Stewart, Deputy County Attorney, Billings, Montana.

Justice JAMES C. NELSONdelivered the Opinion of the Court.

¶ 1James Lee Humphrey appeals from the sentence imposed by the District Court for the Thirteenth Judicial District, Yellowstone County, following his plea of guilty.We affirm.

BACKGROUND

¶ 2The State filed a petition for revocation in CauseNo. DC 00-230, alleging that Humphrey had violated the conditions of a previously imposed suspended sentence.In addition, in three separate cases, the State charged Humphrey with the following offenses: felony theft and five counts of misdemeanor unsworn falsification to authorities (DC 03-075), felony criminal possession of dangerous drugs (DC 04-962), and felony criminal possession with intent to distribute (DC 05-154).

¶ 3The State and Humphrey ultimately negotiated a plea agreement under § 46-12-211(c), MCA, to dispose of all four cases.The agreed-upon sentencing recommendations were as follows:

• DC 00-230: four years at the Department of Corrections("DOC").

• DC 03-075: ten years at DOC with three years suspended, plus a concurrent six-month jail term which was suspended except for time served.

• DC 04-962: five years at DOC.

• DC 05-154: ten years at DOC with five years suspended.

The four sentences were to run concurrently.Thus, the net effect of the plea agreement was a ten-year sentence at DOC with three years suspended.

¶ 4 At the change-of-plea hearing on May 24, 2005, the District Court advised Humphrey of the maximum possible penalty for each offense.The court also advised Humphrey that "this is a non-binding plea agreement on the Court, and if the Court does not follow the plea agreement, you will not be allowed to withdraw your plea of Guilty as a matter of law."See§ 46-12-211(2), MCA.Humphrey responded, "Yes, sir, I do understand that."

¶ 5 Just prior to the court's accepting Humphrey's guilty pleas, the prosecutor interrupted the proceeding and pointed out that the sentence recommended in DC 03-075 (ten years at DOC with three years suspended) was illegal because all but the first five years of a sentence to DOC must be suspended.See§ 46-18-201(3)(d)(i),MCA(2001).The prosecutor suggested amending the plea agreement to reflect a recommendation under DC 03-075 of ten years at the Montana State Prison("MSP") with three years suspended.

¶ 6 Defense counsel stated that he had already "explained to Mr. Humphrey that even though the plea offer said DOC, the reality was probably going to be MSP, given the amount of time."Humphrey then suggested suspending five years instead of three.He also stated he did not want a sentence that would preclude him from getting treatment for his drug addiction.The following colloquy ensued:

[The Court]: Mr. Humphrey, um, let me just try to explain a couple of things if I could.I understand that you're, I think you said "I'd like to get a five DOC suspended."Well, the reality is, you've got four different cases here.I don't know how many felonies.Like, five felonies, and you have a criminal possession with intent to distribute, which is a very egregious crime.Nobody's going to give you a five-year suspended and, um, I certainly am not going to, in fact, I think ten MSP with three suspended is very generous.That's basically what you're looking at.You have all these different charges that are running concurrent.And so, I guess, I want to make sure, do you want to go forward?You are looking at a plea agreement of a ten-year Montana State Prison, with three suspended.Do you, are you willing to go forward, knowing that that is truly what the recommendation is going to be?

[Humphrey]: Yes, sir, I am.The reason I said that sir, is `cause I want treatment for my drug addiction problem.And the way I understand it, the only way to do that is if it's below five, you know.

[The Court]: I don't think that's true.I don't know where you got that.

[Humphrey]: That was my understanding, that's the only reason I said that, `cause, like I told my attorney here, I want to get treatment, I want to get well so if I come back out here, I don't gotta do this stuff all over again.I don't want to be back in here no more.

¶ 7The District Court then struck the term "DOC" on the plea agreement under DC 03-075 and wrote "MSP" in its place.Thus, the recommended sentence read: "Ten (10) years MSP with three (3) years suspended. ..."Both defense counsel and Humphrey initialed the revisions.Thereafter, the court accepted Humphrey's guilty pleas and his admissions to the alleged probation violations.

¶ 8 On August 30, 2005, a probation/parole officer with DOC filed a presentence investigation report ("PSI").Admittedly "stray[ing]" from the parties' plea agreement, the officer recommended sentences amounting to twenty-two years at MSP with seven years suspended.As grounds for this recommendation, she cited the "sheer volume of resources it has taken to stop this defendant's criminal activity in the community" and her determination that Humphrey "has not led a law-abiding life for any substantial period of time before the commission of these crimes."

¶ 9The parties appeared before the District Court that same day for purposes of sentencing and disposition.With respect to the State's recommendation, the prosecutor stated: "[T]he State would ask that the Court follow the plea agreement.I would state that the PSI author ... does disagree with the State's recommendation and the plea agreement."Defense counsel also urged the court to follow the plea agreement, acknowledging that it was "somewhat lenient" but arguing that it was appropriate in light of Humphrey's poor health.Humphrey then spoke on his own behalf, apologizing for "all the trouble"he had caused and requesting that the court go along with the plea agreement.Notwithstanding, the District Court adopted the recommendation of the probation/parole officer in the PSI and imposed the following sentences:

• DC 00-230: seven years at MSP, all suspended.

• DC 03-075: ten years at MSP, plus concurrent six-month jail terms, which were suspended except for time served.

• DC 04-962: five years at MSP.

• DC 05-154: ten years at MSP with five years suspended.

The sentences in DC 00-230, DC 03-075, and DC 04-962 are to run consecutively.The sentence in DC-05-154 is to run concurrently with the others.Thus, the net effect of the sentences is twenty-two years at MSP with seven years suspended.

¶ 10 Humphrey now appeals.

ISSUE

¶ 11 Humphrey's primary argument on appeal is that his guilty pleas were not voluntarily and knowingly made because he was "not adequately informed of the consequences" of pleading guilty.In addition, Humphrey makes a somewhat offhand assertion that the prosecutor breached the plea agreement when, at the sentencing hearing, she informed the court that the author of the PSI did not agree with the State's recommendation.Humphrey's corresponding argument, however, is a single sentence, in which he observes that "[r]equesting the sentencing court follow the plea agreement while at the same time specifically pointing out the pre-sentence author's disagreement with the sentencing recommendation is a questionable practice."Humphrey fails to explain why the prosecutor's statement amounts to a breach of the plea agreement; and while he cites State v. Bowley,282 Mont. 298, 311, 938 P.2d 592, 599(1997), in support of his position, Bowley appears to be distinguishable from the case at hand.

¶ 12 It is well-established that this Court will not consider unsupported issues or arguments and is under no obligation to locate authorities or formulate arguments for a party in support of positions taken on appeal.In re Marriage of McMahon,2002 MT 198, ¶ 6, 311 Mont. 175, ¶ 6, 53 P.3d 1266, ¶ 6;State v. Miller,2008 MT 106, ¶ 15, 342 Mont. 355, ¶ 15, 181 P.3d 625, ¶ 15.Accordingly, we will not address Humphrey's breach-of-agreement contention.Rather, we have determined the sole issue on appeal is whether Humphrey's guilty plea was involuntary because he was not adequately advised of the consequences of pleading guilty.

STANDARD OF REVIEW

¶ 13 The question of whether a plea was entered voluntarily is a mixed question of law and fact, which we review de novo.State v. Deserly,2008 MT 242, ¶ 9, 344 Mont. 468, ¶ 9, 188 P.3d 1057, ¶ 9.

DISCUSSION

¶ 14 Because the process of pleading guilty to a criminal charge involves a waiver of numerous constitutional rights and protections, a guilty plea must be a voluntary, knowing, and intelligent choice among the alternative courses of action open to the defendant.State v. Radi,250 Mont. 155, 159, 818 P.2d 1203, 1206(1991)(citingNorth Carolina v. Alford,400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162(1970)).To that end, before accepting a guilty plea, the trial judge must ensure that the defendant understands each of the considerations set out in § 46-12-210(1), MCA.Those include "the nature of the charge for which the plea is offered,""the maximum penalty provided by law" for each charge, and the fact that "if the defendant pleads guilty or nolo contendere in fulfillment of a plea agreement, the court is not required to accept the terms of the agreement."Section 46-12-210(1)(a)(i), (a)(iii), (d), MCA.

¶ 15 To determine the voluntariness of a guilty plea, this Court applies the standard set forth by the Supreme Court in Brady v. United States,397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747(1970).SeeDeserly,¶ 12;...