State v. Lone Elk

Decision Date08 March 2005
Docket NumberNo. 04-423.,04-423.
Citation2005 MT 56,326 Mont. 214,108 P.3d 500
PartiesSTATE of Montana, Plaintiff and Respondent, v. Elvis LONE ELK, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: Robert L. Kelleher, Jr., Kelleher Law Office, Billings, Montana.

For Respondent: Honorable Mike McGrath, Attorney General; Ilka Becker, Assistant Attorney General, Helena, Montana, Dennis Paxinos, County Attorney; Scott Twito, Deputy County Attorney, Billings, Montana. Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Elvis Lone Elk appeals from the District Court's denial of his motion to withdraw his guilty plea. We affirm.


¶ 2 One night after eleven o'clock, Lone Elk went to the trailer of H.T. (Victim) looking for a woman named Jolene. It was November, and he was cold. Victim let him in and made him coffee. Lone Elk had no place to stay, so Victim made him a bed on the floor. He asked to hug her to say thank you. When Victim came close, Lone Elk grabbed her and took her into the bedroom. Three times, Victim tried to dial 911. The first two times, Lone Elk stopped her and the third time, he broke the phone. Victim screamed for help.

¶ 3 A neighbor in the trailer park knew Victim lived alone. He heard a frightened, panicked voice and muffled screams, so he ran to the nearest phone to call 911. Meanwhile, Lone Elk was forcing Victim to have vaginal intercourse. In a ploy to escape, Victim told Lone Elk she wanted a cigarette from the kitchen. By this time, the police had arrived. From outside the trailer, a police officer heard a woman ask for a cigarette and a man tell the woman that he did not want her screaming for help again. Seconds later, the door to the trailer burst open to reveal Victim running naked from the trailer. On her heels ran Lone Elk, naked also.

¶ 4 Lone Elk pleaded not guilty to sexual intercourse without consent, a crime with a maximum sentence of 100 years. Section 45-5-503(2), MCA (2001). He later decided to accept a plea bargain. Under the terms of the plea bargain, Lone Elk would plead guilty to burglary, and the prosecution would recommend a sentence of twenty years with five suspended. Lone Elk's attorney was free to argue for a lesser sentence. On September 18, 2002, Lone Elk signed an Acknowledgment of Waiver of Rights by Plea of Guilty that stated, "On November 7[,] 2001, I remained unlawfully in [Victim's] home with the intent to commit a sexual assault in Yellowstone County." The District Court made the following inquiries during the change of plea colloquy:

The Court: Mr. Lone Elk, I'll ask you then how you plead to the charge in the Amended Information of burglary, felony, alleged to have occurred in Yellowstone County, Montana, on or about November 7th through 8th, 2001?
Mr. Lone Elk: Guilty.
The Court: Do you also understand that, in my opinion, given the charge that you are pleading guilty to, that you could be required to complete sex offender treatment?
Mr. Lone Elk: No.
Ms. Anderson [Lone Elk's attorney, Kathy Anderson]: Judge, actually, we had not advised Mr. Lone Elk of that possibility.
The Court: Right. I'm advising him of it now.
Ms. Anderson: Okay.
The Court: Are you suffering any mental or emotional disability that would prevent you from understanding what you're doing today?
Mr. Lone Elk: No.
The Court: Are you under the influence of drugs, alcohol or prescription medication?
Mr. Lone Elk: No.
The Court: Tell me what it is that you did that makes you plead guilty to the burglary charge?
Ms. Anderson: Judge, if I might have just a second with my client.
(Whereupon, an off-the-record discussion took place between Ms. Anderson and Mr. Lone Elk. [Anderson later testified that, during this discussion, she told Lone Elk that she believed the judge could not require sexual offender treatment for burglary despite that the underlying felony was intent to commit sexual assault.])
Mr. Lone Elk: On November 7th, 2001, I remained unlawfully in [Victim's] home with the intent to commit assault in Yellowstone County.
The Court: What kind of assault did you intend to commit?
Mr. Lone Elk: Sexual assault.
The Court: And do you admit that you did in fact intend to commit a sexual assault on [Victim]?
Mr. Lone Elk: Yes.
The Court: And you understand what the requirements or elements of sexual assault are?
Mr. Lone Elk: Yeah.
Ms. Anderson: Do you understand that sexual assault is sexual contact of another without that person's consent?
Mr. Lone Elk: Yeah.
The Court: So you agree, now understanding the elements of sexual assault, that you intended to commit a sexual assault on [Victim]; is that what you're telling me?
Mr. Lone Elk: Yeah.
The Court: .... And no one has threatened you or made any promises to get you to enter into this plea of guilty to the burglary charge, correct?
Mr. Lone Elk: (Nods head.)
The Court: Is that correct?
Mr. Lone Elk: Correct.
The Court: Very well. The Court will accept your plea as being knowingly and voluntarily made. I will set this matter for sentencing, and I do wish to have a sex offender evaluation completed.

¶ 5 Immediately after the hearing, Lone Elk asked Anderson if he could withdraw his plea.

¶ 6 Lone Elk had been taking Zoloft for four weeks preceding his plea of guilty. George Sheckelton, M.D., testified that the side-effects of Zoloft include agitation, insomnia, and decreased libido. He further testified that lack of concentration is not a side-effect to taking Zoloft.

¶ 7 Lone Elk raises two issues ¶ 8 1. Did the District Court err in not allowing Lone Elk to withdraw his guilty plea which was entered out of fear of going to trial?

¶ 9 2. Did the District Court err in not allowing Lone Elk to withdraw his guilty plea that he entered while he was under the influence of anti-depressant medication?


¶ 10 Although we have historically reviewed a district court's denial of a defendant's motion to withdraw a guilty plea to determine whether the district court abused its discretion, State v. Martin, 2004 MT 288, ¶ 11, 323 Mont. 320, ¶ 11, 100 P.3d 146, ¶ 11, we now adopt a new test of voluntariness which in turn requires a new standard of review. Determining whether facts meet the standard for voluntary pleas is a mixed question of law and fact. We review mixed questions of law and fact de novo. Elliott v. State, 2005 MT 10, ¶ 7, 325 Mont. 345, ¶ 7, 106 P.3d 517, ¶ 7. Thus, the proper standard for reviewing questions of voluntariness in plea agreements is de novo. Other courts have held similarly. Lambert v. Blodgett (9th Cir.2004), 393 F.3d 943, 977 n. 23 (citing cases from the First, Second, Third, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth and Eleventh United States Circuit Courts of Appeal that hold the question of plea voluntariness is a mixed question of law and fact requiring de novo review). To the extent that the Martin line of cases have used the abuse of discretion standard, we overrule them.


I. Good Cause: The Huttinger Test

¶ 11 "At any time before or after judgment, the court may, for good cause shown, permit the plea of guilty or nolo contendere to be withdrawn and a plea of not guilty substituted." Section 46-16-105(2), MCA (2001). Historically, this Court has balanced three factors in determining whether "good cause" under § 46-16-105(2), MCA, exists to permit withdrawal of a plea: (1) whether the district court adequately interrogated the defendant to determine his understanding of his plea; (2) whether the defendant promptly filed his motion to withdraw the prior plea; and (3) whether the defendant's plea was the result of a plea bargain in which the prosecutor dismissed another charge. Martin, ¶ 13.

¶ 12 This Court created its current good cause test in State v. Huttinger (1979), 182 Mont. 50, 54, 595 P.2d 363, 366. The Huttinger test requires only the above three factors. Curiously, none of those factors requires that the court consider the voluntariness, knowledge, or intelligence of the defendant's plea. Nevertheless, a district court will permit a defendant to withdraw his plea if the defendant can demonstrate that he entered his plea unknowingly or involuntarily. State v. Miller (1991), 248 Mont. 194, 197, 810 P.2d 308, 310.

¶ 13 The United States Supreme Court acknowledges that "[a] plea of guilty is constitutionally valid only to the extent it is `voluntary' and `intelligent.'" Bousley v. United States (1998), 523 U.S. 614, 618, 118 S.Ct. 1604, 1609, 140 L.Ed.2d 828, 837. Although we have adopted this requirement in our cases, we have never specifically articulated it as part of the good cause test. State v. Morgan, 2003 MT 193, ¶ 18, 316 Mont. 509, ¶ 18, 74 P.3d 1047, ¶ 18. After exhaustive review, this Court has been unable to find a case in which we have allowed a defendant to withdraw his plea for good cause other than voluntariness.

¶ 14 The ultimate test for withdrawal of a plea is voluntariness. Although the three-part Huttinger test has two factors that bear on voluntariness, it neither lists all the factors, nor are all the factors it lists necessary. Whether a district court adequately interrogated the defendant to determine whether the defendant understood his plea bears on voluntariness because it tends to show that he had all the information necessary to make an informed decision.

¶ 15 Whether the defendant promptly filed his motion to withdraw the prior plea does not, however, bear on voluntariness. For example, the passage of fifteen years will neither make an involuntary plea more voluntary nor a voluntary plea more involuntary. But see State v. Haynie (1980), 186 Mont. 374, 380-81, 607 P.2d 1128, 1131-32 (concluding that, in waiting five and one-half years to seek withdrawal of a plea, the defendant had waited too long despite the District Court's violation of § 46-16-105(1)(b), MCA (1979), by failing to inform Haynie of the maximum possible term of his sentence)....

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