State v. Liefert

• Decision Date: 19 March 2002
• Docket Number: No. 01-337.,01-337.
• Citation: 43 P.3d 329,2002 MT 48,309 Mont. 19
• Parties: STATE of Montana, Plaintiff and Respondent, v. David Arnold LIEFERT, Defendant and Appellant.
• Court: Montana Supreme Court

43 P.3d 329

2002 MT 48

309 Mont. 19

STATE of Montana, Plaintiff and Respondent, v.David Arnold LIEFERT, Defendant and Appellant.

No. 01-337.

Supreme Court of Montana.

Heard January 15, 2002.

Submitted January 15, 2002.

Decided March 19, 2002.

Rehearing Denied March 28, 2002.

Michael Donahoe, Assistant Federal Defender, Federal Defenders of Montana, Helena, Montana, for Appellant.

Mike McGrath, Montana Attorney General, Cregg W. Coughlin, Assistant Montana Attorney General, Helena, Montana; John T. Flynn, Broadwater County Attorney, Townsend, Montana, for Respondent.

Justice JAMES C. NELSONdelivered the Opinion of the Court.

¶ 1David Liefert(Liefert) was charged under federal law with unlawfully possessing a firearm, 18 U.S.C. § 922(g)(9), after pleading guilty under state law to partner assault, § 45-5-206, MCA, in Justice CourtNo. 1, Broadwater County.After the federal violation was charged, Liefert sought to withdraw his guilty plea to the partner assault in Justice Court, arguing good cause to withdraw his plea because the Justice Court did not inform him of the federal prohibition on possessing a firearm as a result of his plea under state law.The Justice Court denied the motion, and Liefert appealed the denial to the First Judicial District Court, Broadwater County.¹The District Court also denied his motion, concluding Liefert did not have to be advised of the federal prohibition because it is a collateral consequence of Liefert's sentence.Liefert followed with this appeal, again arguing that his guilty plea was not voluntary because he was not informed of the federal limitations on possessing a gun upon conviction for domestic violence under state law.

¶ 2We address the following issue on appeal: Did the District Court err in denying Liefert's motion to withdraw his guilty plea because Liefert was entitled to be informed of the federal firearms prohibition that could result from a state conviction for partner assault?

¶ 3We affirm.

I.FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 On August 25, 1999, Liefert plead guilty to partner assault under § 45-5-206, MCA, in Justice CourtNo. 1, Broadwater County.The facts underlying the plea are not part of the record because justice courts are not courts of record.However, the briefs of the parties indicate that law enforcement responded to a 911 call regarding an argument between Liefert and his wife.

¶ 5 On May 18, 2000, Liefert was charged with violations of federal laws that prohibit possession of a firearm when someone receives qualifying state convictions.One charge arose under 18 U.S.C. § 922(g)(9) due to Liefert's guilty plea for domestic assault.The other charge arose under 18 U.S.C. § 922(g)(1) due to Liefert's Minnesota conviction for third degree assault.We are only concerned here with the federal charge arising from Liefert's guilty plea to partner assault in Montana.The facts that gave rise to Liefert's possession of a firearm are also not part of the record.However the briefs of the parties indicate that Montana Fish, Wildlife, and Parks authorities discovered Liefert's gun possession during a hunting investigation and reported this possession to the United States Attorney's Office for the District of Montana after learning of his prior convictions.

¶ 6 After Liefert was charged with the federal violations, he sought to withdraw his guilty plea in Justice Court.The Justice Court denied the motion.The basis for the Justice Court's decision is not part of the record because justice courts are not courts of record.

¶ 7 Liefert then appealed to the District Court.The District Court held that the Justice Court did not have to inform Liefert of the federal gun prohibition because under State v. Reynolds(1992), 253 Mont. 386, 833 P.2d 153, judges are not required to inform defendants of the collateral consequences of a guilty plea.Therefore, the District Court held that there was no good cause for Liefert to withdraw his plea.

¶ 8We have held that there is no appeal to a District Court from the denial of a motion to withdraw a guilty plea in Justice Court.State v. Feight,2001 MT 205, ¶ 22, 306 Mont. 312, ¶ 22, 33 P.3d 623, ¶ 22.Further, lack of proper jurisdiction can always be raised at any point in a proceeding.State v. LaPier(1998), 289 Mont. 392, 395, 961 P.2d 1274, 1276;§ 46-13-101(3), MCA.The State asserts here that jurisdiction was not proper in District Court and that Liefert's appeal should therefore be dismissed.However, the State also suggests that Liefert's appeal could be deemed as one for post conviction relief, which is an alternative not addressed in Feight.SeeState v. Feight,2001 MT 205, ¶ 16 n. 2, 306 Mont. 312, ¶ 16 n. 2, 33 P.3d 623, ¶ 16 n. 2.Without deciding the issue of whether a petition for post conviction relief is proper in all similarly situated cases, we accept the State's suggestion to deem this case a request for post conviction relief for purposes of this case only.Accordingly, we address the issue of whether Liefert had good cause to withdraw his plea.

II.STANDARD OF REVIEW

¶ 9 In order for a guilty plea to validly waive constitutional protections, the defendant's guilty plea must be a voluntary, knowing, and intelligent choice among options.State v. Radi(1991), 250 Mont. 155, 159, 818 P.2d 1203, 1206(citingNorth Carolina v. Alford(1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162);see§ 46-12-210, MCA.The defendant must be aware of the rights waived including such rights as the right to a jury trial, to counsel, or the right against self incrimination.State v. Yother(1992), 253 Mont. 128, 130, 831 P.2d 1347, 1348.

¶ 10 A district court may permit the withdrawal of a guilty plea for good cause.Section 46-16-105(2), MCA."The fundamental purpose of allowing the withdrawal of a guilty plea is to prevent the possibility of convicting an innocent [person]."State v. Johnson(1995), 274 Mont. 124, 127, 907 P.2d 150, 152.This Court reviews denial of a motion to withdraw a guilty plea for abuse of discretion.State v. Bowley(1997), 282 Mont. 298, 304, 938 P.2d 592, 595.We consider three factors in this review:

1. the adequacy of the court's interrogation at the time the plea was entered regarding the defendant's understanding of the consequences of the plea;

2. the promptness with which the defendant attempts to withdraw the plea;

3. the fact that the plea was the result of a plea bargain in which the guilty plea was given in exchange for dismissal of another charge.

Bowley,282 Mont. at 304, 938 P.2d at 595.In this case, there was no plea agreement and the State does not dispute that Liefert's attempt to withdraw his plea was prompt.Therefore, the only factor at issue is whether the Justice Court's plea colloquy was adequate even though it did not inform Liefert of the consequence of the federal prohibition on possession of firearms as a result of a state conviction for domestic violence, in this case, partner assault.

III.DISCUSSION

A.Issues Not Addressed in this Opinion

¶ 11 Before we turn to the issue presented to this Court, it is important that we clarify the issues this Opinion does not address.These issues were noted by the parties in briefs and at oral argument, but were not otherwise presented to the Justice Court, District Court, or this Court for decision.First, we do not address whether, under Montana state law, Liefert's civil rights were restored when he completed his sentence for partner assault.Liefert noted that he presented different issues in disputing his charges in federal court.In federal court, Liefert argued that under 18 U.S.C. § 921(a)(20) and (a)(33)(B)(ii), a defendant should no longer be subject to the federal prohibition if that defendant's civil rights were restored by state law, i.e., if the state considered the punishment complete.Liefert argued in federal court that the determination of when rights are restored is a matter of state law and that Liefert's rights should be considered restored under Montana law because he completed his sentence.However, Liefert did not present the issue of the restoration of his rights in state court.Therefore, we do not address whether under state law, Liefert's rights were restored.²

¶ 12 Second, the State noted that under United States v. Akins(9th Cir.2002), 276 F.3d 1141, Liefert's plea might not be adequate for the purposes of 18 U.S.C. § 922(g) in part because it was not taken in a court of record with the consequence that the plea colloquy was not detailed in a record.However, Liefert noted that the federal charges against him have not been dismissed.Accordingly, we assume for purposes of this appeal that 18 U.S.C. § 922(g)(9) applies to Liefert, regardless of the Akins issue.

¶ 13 Third, the State noted that it believed there was a possible issue that Congress exceeded its power in enacting 18 U.S.C. § 922(g)(9) by imposing such a restriction on firearms when a gun is not used in the underlying domestic violence case.Again, this issue was not presented here and it would not be within the purview of this Court's power to decide this issue, in any event.

¶ 14 Finally, regarding the adequacy of the plea colloquy, Liefert did not assert that gun possession is such that every defendant in every case is entitled to be informed that as a result of a conviction, the defendant's possession of firearms may be limited.In other words, Liefert did not assert that a judge must inform every defendant of the affect of a guilty plea on gun possession, the same as a judge must inform a defendant of trial related rights such as the right to trial by jury, to be represented by counsel, the right against self incrimination, or other like rights.SeeYother,253 Mont. at 130, 831 P.2d at 1348;Boykin v. Alabama(1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.Rather, Liefert only presented the issue of whether a trial court must inform a defendant during its plea colloquy of the federal...