State v. Lemay

• Decision Date: 22 December 2011
• Docket Number: DA 10–0538.,Nos. DA 10–0535,DA 10–0536,s. DA 10–0535
• Citation: 266 P.3d 1278,2011 MT 323,363 Mont. 172
• Parties: STATE of Montana, Plaintiff and Appellee, v. Bryan Dean LEMAY, Defendant and Appellant.
• Court: Montana Supreme Court

2011 MT 323

266 P.3d 1278

363 Mont. 172

STATE of Montana, Plaintiff and Appellee,

v.Bryan Dean LEMAY, Defendant and Appellant.

Nos. DA 10–0535

DA 10–0536

DA 10–0538.

Supreme Court of Montana.

Submitted on Briefs Nov. 2, 2011.Decided Dec. 22, 2011.

For Appellant: Joslyn Hunt, Chief Appellate Defender, Lisa S. Korchinski, Assistant Appellate Defender, Helena, Montana.

For Appellee: Steve Bullock, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana, Mike Weber, Richland County Attorney, T.R. Halvorson, Deputy County Attorney, Sidney, Montana.

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

[363 Mont. 173] ¶ 1 Bryan LeMay appeals the Judgment and Sentence of the District Court for the Seventh Judicial District, Richland County, convicting him of numerous offenses ranging from disorderly conduct to assault with a weapon, in three separate causes of action. We affirm.

¶ 2 Because many of LeMay's issues and arguments in these three causes of action overlap, we have consolidated them into this one Opinion in which we address the following five issues:

¶ 3 1. Whether the District Court erred when it denied LeMay's motion to dismiss on the grounds of outrageous government conduct.

¶ 4 2. Whether LeMay received ineffective assistance of counsel.

¶ 5 3. Whether the District Court erred when it denied LeMay's motion to withdraw his nolo contendere pleas.

¶ 6 4. Whether the District Court erred when it denied LeMay's motion to suppress for lack of particularized suspicion to conduct an investigative stop.

¶ 7 5. Whether the District Court erred when it denied LeMay's motion to dismiss for lack of state criminal jurisdiction.

Factual and Procedural Background

¶ 8 LeMay moved to Fairview, Montana, in June 2009. He testified at his sentencing hearing that he loves to ride motorcycles and that he had hoped to open a repair shop in the area. According to LeMay, immediately upon moving to Fairview, he began to receive tickets from law enforcement officers who mistakenly believed he was part of a motorcycle gang. He claims that in a matter of a few months, he received approximately 40 tickets for various offenses.

¶ 9 This appeal concerns various traffic and criminal offenses allegedly committed by LeMay on July 11 and 15, and August 26, 2009. The facts giving rise to each of these offenses, as reported in the Affidavit and Application for Permission to File an Information in each case, are detailed below.

DA 10–0538 (District Court Cause No. DC 09–48)

¶ 10 On July 11, 2009, Donna Goff of the Richland County Coalition Against Domestic Violence reported to law enforcement officers that an individual named Bryan was leaving threatening notes under the door of Laurie Ketterling at the Sunrise Inn in Sidney, Montana. Goff also reported that this Bryan rides a motorcycle. Later that evening, Ketterling twice called the Richland County Law Enforcement Center regarding LeMay. In the first call, Ketterling stated that LeMay was on his way to her room to physically harm her. In the second call, Ketterling reported that LeMay was outside her room.

¶ 11 When Sheriff's Deputy Michael Lange arrived on the scene, he saw LeMay pull out of the motel parking lot on his motorcycle. Lange conducted an investigative stop wherein he determined that LeMay was under the influence of alcohol. Because LeMay failed various field sobriety tests, he was arrested for Driving Under the Influence of Alcohol or Drugs (DUI) in violation of § 61–8–401, MCA. LeMay consented to provide a blood sample, which, upon testing by the state crime lab, revealed that his BAC was 0.14. Since it was determined that LeMay had five prior convictions for DUI between 1977 and 2002, this offense was charged as a felony.

DA 10–0535 (District Court Cause No. DC 09–31)

¶ 12 On July 15, 2009, Fairview Police Officer Richard Hollenbeck saw an individual on a motorcycle make an illegal U-turn as it left the Waterhole No. 3 Saloon. Officer Hollenbeck followed the motorcycle and made a traffic stop. Officer Hollenbeck noted at that time that the individual's pupils were pin-pointed, he smelled strongly of alcohol, he had trouble keeping his balance when he got off the motorcycle, and he had trouble finding his driver's license in his wallet. Eventually the individual produced a North Dakota driver's license identifying him as LeMay. Officer Hollenbeck administered a preliminary alcohol screening test which showed that LeMay's BAC was 0.185. LeMay was charged with felony DUI under § 61–8–401, MCA. In addition, the North Dakota Department of Transportation confirmed that LeMay did not have a Class M motorcycle license; thus he was also charged with Operating a Motorcycle Without Motorcycle Endorsement, a misdemeanor, in violation of § 61–5–102, MCA.

DA 10–0536 (District Court Cause No. DC 09–39)

¶ 13 On the evening of August 26, 2009, Officer Hollenbeck noticed a motorcycle driving without its lights, and traveling 37 mph in a 25 mph zone. When Officer Hollenbeck initiated a traffic stop, the motorcyclist identified himself as LeMay's son. Officer Hollenbeck cited him for speeding, operating without lights, operating without insurance, and displaying a suspended driver's license.

¶ 14 As Officer Hollenbeck was sitting in his patrol car writing the last citation, LeMay arrived at the scene and approached the patrol car. Officer Hollenbeck got out of the car. As he did so, he told LeMay that he was close enough and that he should stop. LeMay refused and approached to within a foot of Officer Hollenbeck. Officer Hollenbeck ordered LeMay to back up, but again LeMay refused. Because LeMay was behaving in an agitated manner, Office Hollenbeck radioed for backup.

¶ 15 Officer Hollenbeck handed LeMay's son copies of the four citations, and told him that because the motorcycle's lights were defective, the motorcycle would have to be towed. LeMay began arguing with Officer Hollenbeck telling him that he could not tow his son's motorcycle. According to Officer Hollenbeck, LeMay used threatening, profane, and abusive language, and would not leave when instructed to do so.

¶ 16 When LeMay approached Officer Hollenbeck with his fists clenched, Officer Hollenbeck told LeMay that he was under arrest for obstructing a peace officer. Officer Hollenbeck instructed LeMay to turn around and place his hands in the small of his back, but LeMay refused. When Officer Hollenbeck attempted to place handcuffs on LeMay's wrists, LeMay jerked away from Officer Hollenbeck and attempted to pull something out of his right rear pocket, which Officer Hollenbeck believed to be a butterfly knife. After a struggle, Officer Hollenbeck managed to get the weapon away from LeMay and get him into the patrol car. At that time, Officer Hollenbeck identified the weapon as a pocket-sized Schrade multi-tool.

¶ 17 LeMay was charged with Disorderly Conduct, a misdemeanor, in violation of § 45–8–101, MCA; Obstructing a Peace Officer, a misdemeanor, in violation of § 45–7–302, MCA; Assault, a misdemeanor, in violation of § 45–5–201, MCA; Resisting Arrest, a misdemeanor, in violation of § 45–7–301, MCA; and Assault on a Peace Officer, a felony, in violation of § 45–5–210, MCA. The State later added a charge of Assault with a Weapon, a felony, in violation of § 45–5–213, MCA, as an alternative for the charge of Assault on a Peace Officer.

¶ 18 Originally, Jeff Nehring acted as LeMay's counsel in all three cases, but eventually, the court appointed Ali Moulton to represent LeMay on the charges in Cause Nos. 09–39 and 09–48. Nehring continued to represent LeMay in Cause No. 09–31 regarding one felony DUI charge and the charge of failure to have the proper motorcycle endorsement. Nehring filed several motions which the District Court applied to all three cases. These motions included a motion to dismiss for lack of jurisdiction; a motion to dismiss for outrageous government conduct; and a motion to suppress for lack of particularized suspicion.

¶ 19 In the first motion, LeMay argued that he is Indian and that since Richland County is Indian Country, the State of Montana does not have jurisdiction over him. On the second motion regarding outrageous government conduct, LeMay claimed that based on the numerous tickets he has received since moving to Fairview, he is being racially profiled and illegally harassed by law enforcement officers. As to the third motion, pertaining specifically to Cause No. 09–31, LeMay argued that Officer Hollenbeck lacked particularized suspicion to perform an investigative stop because LeMay did not make an illegal U-turn as Officer Hollenbeck claimed. LeMay's motions were denied by the District Court in one-page orders.

¶ 20 On March 31, 2010, LeMay entered into a plea agreement wherein he agreed to plead nolo contendere to all of the charges while reserving his right to appeal. However, prior to sentencing, LeMay filed a motion to withdraw his nolo contendere pleas in all three cases. Attached to his motion was a handwritten letter outlining the reasons he wished to withdraw his pleas. In his letter, LeMay claimed that during the scuffle with Officer Hollenbeck on August 26, 2009, Officer Hollenbeck slammed LeMay's head against the patrol car aggravating a prior brain injury. LeMay contends that because of this aggravated brain injury , he was unable to comprehend the legal proceedings. He further contends that he was not aware that he had pled guilty and that counsel must have entered a guilty plea on the charges without his consent. LeMay also claimed that his counsel and Officer Hollenbeck committed perjury, that the County Attorney's office had a conflict of interest, and that he was denied his right to a speedy trial.

¶ 21 Prior to the sentencing hearing on August 31, 2010, the District Court heard argument on LeMay's motion to withdraw his nolo contendere pleas. At that time, LeMay also informed the court that he was not happy with his legal...