State v. Lindsey, DA 09–0655.

• Decision Date: 16 March 2011
• Docket Number: No. DA 09–0655.,DA 09–0655.
• Citation: 2011 MT 46,249 P.3d 491,359 Mont. 362
• Parties: STATE of Montana, Plaintiff and Appellee,v.Wayne Percy LINDSEY, Defendant and Appellant.
• Court: Montana Supreme Court

359 Mont. 362

249 P.3d 491

2011 MT 46

STATE of Montana, Plaintiff and Appellee,

v.Wayne Percy LINDSEY, Defendant and Appellant.

No. DA 09–0655.

Supreme Court of Montana.

Submitted on Briefs Feb. 9, 2011.Decided March 16, 2011.

For Appellant: Joslyn Hunt, Chief Appellate Defender; Lisa S. Korchinski, Assistant Appellate Defender, Helena, Montana; Helena, MT.For Appellee: Steve Bullock, Montana Attorney General; Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana, George H. Corn, Ravalli County Attorney; William Fulbright, Deputy County, Hamilton, Montana.Chief Justice MIKE McGRATH delivered the Opinion of the Court.

[359 Mont. 363] ¶ 1 Wayne Percy Lindsey was convicted of sexual assault pursuant to a plea agreement. He appeals contending that he was deprived of due process in the District Court's proceedings, and that he received ineffective assistance of counsel. We affirm.

BACKGROUND

¶ 2 In December, 2007, the State charged Lindsey by information in District Court with sexual intercourse without consent and sexual assault based upon incidents that occurred when he was 16 and 17 years old and his victim was 5 and 6 years old. The incidents took place between May 2005 and May 2006. Lindsey was 18 when charged and jurisdiction to file the charges by information was found in § 41–5–206, MCA.

¶ 3 Public Defender Carol Johns represented Lindsey, and the case against him progressed through pre-trial proceedings until late in 2008 when the District Court noted that there had been no hearing under § 41–5–206(3), MCA. That section provides, in cases where a youth is charged by information in district court:

Within 30 days after leave to file the information is granted, the district court shall conduct a hearing to determine whether the matter must be transferred back to the youth court, unless the hearing is waived by the youth or by the youth's counsel in writing or on the record.

Section 41–5–206(3), MCA. The district court may transfer a case to youth court upon a finding that youth court disposition will serve the interests of community protection; that the nature of the offense does not warrant prosecution in district court; and that the best interests of the youth warrant youth court disposition. Section 41–5–206(3)(a)–(c), MCA.

¶ 4 The District Court conferred with counsel on the transfer hearing issue and determined that Lindsey did not want to waive his right to the hearing. The District Court set a date for the transfer hearing and for the trial. These were each re-set several times, in part to allow Lindsey to secure a psychological evaluation by Dr. William Stratford in support of transferring the case to youth court. In March, 2009, the District Court held the transfer hearing. Dr. Stratford testified about his evaluation and opinions of Lindsey. Stratford concluded by recommending that there was sufficient chance of Lindsey's re-offending that he should be under extended youth court supervision until age 25, and then under an alternative adult sentence that could be imposed if Lindsey failed to comply with conditions until age 25. Dr. Stratford recommended that if such a dual sentence were not possible, the case should not be transferred to youth court, and that an adult sentence was required to protect the community.

¶ 5 The District Court concluded, on the record and in a subsequent written order, that he would consider transfer to youth court only if the extended jurisdiction dual sentence that Stratford recommended could be imposed, as provided in § 41–5–1602, MCA. Lindsey's attorney told the District Court at the hearing and again in a brief that Lindsey agreed that a dual youth court-adult sentence was appropriate.

¶ 6 The State had not yet filed a brief on the dual sentence issue and the District Court had not entered a final order when Lindsey and the State entered a plea agreement on the District Court charges. The agreement provided that Lindsey would plead guilty to an amended information charging him with felony sexual assault; that the State would dismiss the charge of sexual intercourse without consent; and that either side was free to make a sentencing recommendation.

¶ 7 Lindsey executed and filed a guilty plea and waiver of rights form in which he recited that the plea was voluntary, and not the result of pressure, threats or offers of anything of value. He also represented that there was no agreement as to the amount or kind of punishment the District Court could impose. The form also recited Lindsey's satisfaction with his attorney's representation and with his opportunity to consult with and obtain advice from the attorney. The form recited that Lindsey was not suffering from any emotional or mental disability, that he believed after reviewing the evidence that he would be found guilty by a jury, and that he sexually assaulted the victim.

¶ 8 The District Court conducted a change-of-plea hearing and initially inquired about the issue of the transfer to youth court. Lindsey's attorney stated that she believed the transfer issue was still alive, but the State responded that the plea agreement was made as to the charge of sexual assault filed by information in District Court. If the transfer could still be ordered, the State said the plea agreement would be rescinded. The District Court offered Lindsey time to consider the situation and suggested that the change-of-plea hearing be continued. Lindsey and his attorney conferred and then informed the District Court that Lindsey would waive his claim to have the case transferred to youth court. The District Court asked whether Lindsey fully understood the ramifications of proceeding as an adult, and Lindsey and his attorney conferred again. Lindsey's attorney then informed the District Court that Lindsey had a “full understanding of the differences that would occur from youth court to adult court and he wishes to proceed now.” The District Court inquired a third time whether Lindsey's attorney had sufficient time to discuss the transfer issue with him so that he had a full and knowing understanding of the situation. Lindsey's attorney responded that while it was a complicated issue they had reviewed it several times and she believed that he understood the distinctions between proceeding in youth and adult court. With those assurances, the District Court proceeded with the change-of-plea hearing.

¶ 9 The District Court then asked Lindsey again if he had any questions about proceeding in adult court and informed him that he would have a second felony on his record because he had recently pled guilty to a separate charge of felony theft. Lindsey said he had no questions, that he understood what he was doing and that he had no disability or impairment that would interfere with his understanding of the proceeding. The District Court informed Lindsey of the registration requirements attendant to conviction of a sexual offense and of the differences in registration requirements between youth and adult courts. The District Court offered an additional opportunity for Lindsey to confer with his attorney about these issues and, after conferring with his attorney, he stated that he wished to proceed.

¶ 10 Lindsey listened to the elements of the sexual assault charge and the possible maximum punishment for the crime. Lindsey said that he understood and wanted to plead guilty. He answered questions indicating that there was no force, pressure or coercion applied to cause his guilty plea, that it was voluntary, that it was his own independent judgment to do so, that he knew the implications of changing his plea, and that he believed it was in his best interests to do so. He stated that he was satisfied with the representation by his attorney and that he understood that the District Court was not bound by the plea agreement and could sentence him to any term up to the maximum sentence. After additional assurances from Lindsey that he understood what he was doing and that there was a factual basis for the plea, the District Court accepted Lindsey's guilty plea to sexual assault.

¶ 11 About two months later, in May, 2009, and prior to sentencing, Lindsey appeared with new retained counsel and moved to withdraw his guilty plea. In July, 2009, the District Court conducted a hearing on the motion. Lindsey testified that he never wanted to plead guilty, that he was pressured by his Public Defender attorney to do so, that he thought he would receive a suspended sentence and would be released from jail. He testified that his attorney had told him that if he went to trial he would be convicted and receive a life sentence. Lindsey also claimed that he suffered from attention deficit disorder and did not understand the proceedings at the change-of-plea hearing. Therefore he argued that he did not voluntarily agree to the guilty plea. The District Court inquired whether Lindsey was raising a claim of ineffective assistance as to his former attorney. Lindsey's new attorney responded that they were not raising such a claim at that time. The District Court informed the State that in light of this representation, there was no need for the State to carry through its plan to call Lindsey's former attorney or her supervisor to make a record on a claim of ineffective assistance.

¶ 12 After considering post-hearing briefs, the District Court entered an order denying Lindsey's motion to withdraw his guilty plea to sexual assault. The District Court sentenced Lindsey to 25 years with the Department of Corrections, with 20 suspended. Lindsey appeals, raising issues that we restate as follows:

¶ 13 Issue 1. Whether Lindsey is entitled to have the charge against him dismissed because a transfer hearing was not held within the time provided in § 41–5–206(3), MCA.

¶ 14 Issue 2. Whether the District Court erred in denying Lindsey's motion to withdraw his guilty plea.

¶ 15 Issue 3. Whether the District Court erred in failing to respond to...