State v. McFarlane

• Decision Date: 29 January 2008
• Docket Number: No. DA 06-0655.,DA 06-0655.
• Citation: 341 Mont, 166,2008 MT 18,176 P.3d 1057
• Parties: STATE of Montana, Plaintiff and Appellee, v. Charles Osborne McFARLANE, Defendant and Appellant.
• Court: Montana Supreme Court

176 P.3d 1057

2008 MT 18

341 Mont, 166

STATE of Montana, Plaintiff and Appellee, v. Charles Osborne McFARLANE, Defendant and Appellant.

No. DA 06-0655.

Supreme Court of Montana.

Submitted on Briefs September 6, 2007.

Decided January 29, 2008.

For Appellant: Jim Wheelis, Chief Appellate Defender; Nicholas Miller, Legal Intern, Helena, Montana.

For Appellee: Honorable Mike McGrath, Attorney General; C. Mark Fowler, Assistant Attorney General, Helena, Montana.

Garry Bunke, County Attorney, Miles City, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Appellant Charles Osborne McFarlane (McFarlane) appeals from the judgment of the Sixteenth Judicial District Court, Custer County, denying his motion to withdraw his guilty plea. We affirm.

¶ 2 We consider the following issues on appeal:

¶ 3 1. Did the District Court err by denying McFarlane's motion to withdraw his guilty plea?

¶ 4 2. Did McFarlane's counsel for the motion to withdraw plea provide ineffective assistance of counsel by:

a. Citing to the improper legal standard for a plea withdrawal?

b. Failing to challenge the adequacy of the plea colloquy?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 On August 4, 2003, the Custer County Attorney filed an information charging McFarlane with burglary, a felony, and theft, a misdemeanor. Both charges arose from McFarlane's entry into Bill Hopkins' residence on or about May 27, 2003. McFarlane was arraigned on August 19, 2003, and was represented by Wyatt Glade (Glade). Thereafter, a change of plea hearing was held on January 14, 2004, during which McFarlane pled guilty to both the burglary and the theft, pursuant to a plea agreement. In exchange for McFarlane's guilty plea, the State agreed to move to dismiss the persistent felony offender status against McFarlane. Following the court's colloquy with McFarlane, the court accepted McFarlane's guilty plea. A sentencing hearing was then set for April 6, 2004.

¶ 6 However, McFarlane failed to appear at the sentencing hearing, instead fleeing the jurisdiction. McFarlane was a fugitive for two years until arrested on warrant issued by the District Court and returned to Montana by authorities. Glade withdrew as McFarlane's attorney of record on March 30, 2006, and the court appointed John Houtz as McFarlane's new counsel. Shortly thereafter, McFarlane filed a motion to withdraw his guilty plea to the burglary charge. In support of his motion, Houtz asserted that under the three-factor Huttinger test, the court should grant McFarlane's motion to withdraw his guilty plea. The court held a hearing on the motion and McFarlane testified. McFarlane told the court that Glade had instructed him "to answer [the court's] questions the way [he] did to get the Judge to accept the plea." During his testimony, McFarlane also asserted that Glade knew that McFarlane possessed a key to the Hopkins' residence.

¶ 7 The District Court denied the motion to withdraw, determining that McFarlane's plea "was an intelligent and voluntary plea. He had an opportunity to review the plea agreement with his attorney. He said that he was satisfied with his attorney.... this is an opportunistic attempt at getting the best parts of [the] bargain ..." McFarlane appeals.

STANDARD OF REVIEW

¶ 8 We review a district court's denial of a motion to withdraw a guilty plea de novo, State v. Warclub, 2005 MT 149, ¶ 17, 327 Mont. 352, ¶ 17, 114 P.3d 254, ¶ 17, as the issue of whether a plea was entered voluntarily is a mixed question of law and fact. Warclub, ¶ 17. We review the underlying factual findings to determine if they are clearly erroneous. Warclub, ¶ 23. Findings of fact are clearly erroneous if they are unsupported by substantial evidence, the court misapprehended the effect of the evidence, or review of the record convinces us that a mistake has been made. Warclub, ¶ 23. We then review the district court's interpretation of the law, and application of the law to the facts, for correctness. Warclub, ¶ 23.

DISCUSSION

¶ 9 1. Did the District Court err by denying McFarlane's motion to withdraw his guilty plea?

¶ 10 McFarlane contends that his guilty plea was entered both involuntarily and unintelligently. He advances three arguments in support of his contention. First, McFarlane argues that his plea was involuntary because his attorney, Glade, rendered ineffective assistance of counsel by inadequately preparing him for the change of plea, hearing.

¶ 11 Section 46-16-105(2), MCA, allows a court to withdraw a guilty plea and substitute a not guilty plea where good cause is shown. "Good cause" includes involuntariness of the plea, but may also include other criteria. Warclub, ¶ 16. In fact, we have recognized that "ineffective assistance of counsel constitutes `good cause' for withdrawal of a guilty plea[.]" Hans v. State, 283 Mont. 379, 410, 942 P.2d 674, 693 (1997) (internal citations omitted). "Where a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." Hans, 283 Mont. at 411, 942 P.2d at 693 (internal quotations omitted). Following the Strickland test for ineffective assistance of counsel in regard to a guilty plea, the defendant must show (1) that his counsel's advice fell outside the range of competence demanded of a criminal attorney and (2) but for counsel's deficient performance, he would not have entered a guilty plea. Hans, 283 Mont. at 410-11, 942 P.2d at 693.

¶ 12 McFarlane asserts that Glade did not adequately prepare him for the change of plea hearing, specifically arguing that Glade told him "he had to answer yes to all questions asked by the court in the change of plea hearing." McFarlane also asserts that Glade failed to inform him of the available defense of "permission" despite Glade knowing that McFarlane had a key to the Hopkins' residence. However, McFarlane makes this argument for the first time on appeal. In the District Court, McFarlane did not raise an ineffective assistance of counsel claim as a basis for withdrawal of his guilty plea. Neither the briefing in support of his motion to withdraw nor the hearing on the motion directly raises an ineffective assistance argument. While the District Court commented upon McFarlane's testimony that there "may be an ineffective assistance of counsel claim or something like that involved," the District Court was not squarely presented with the issue. We have repeatedly held that this Court considers issues presented for the first time to be untimely and will not consider them. State v. Adgerson, 2003 MT 284, ¶ 12, 318 Mont. 22, ¶ 12, 78 P.3d 850, ¶ 12. We refuse to consider new arguments and changes in legal theory on appeal "because it is fundamentally unfair to fault the trial court for failing to rule on an issue it was never given the opportunity to consider." Adgerson, ¶ 12. Accordingly, we decline to reach the merits of this ineffective assistance of counsel claim.

¶ 13 To be clear, we are not presented here with a separate, stand-alone ineffective assistance of counsel claim, but rather an argument that counsel's ineffectiveness impacted the voluntariness of McFarlane's plea. As McFarlane's briefing states, "[a] separate claim of ineffectiveness is not properly addressed in this appeal because ... the record does not fully explain why [Glade] took [the] particular action[.]" We have explained that "[o]nly when the record will fully explain why counsel took, or failed to take, action in providing a defense for the accused may this Court review the matter on direct appeal." State v. White, 2001 MT 149, ¶ 20, 306 Mont. 58, ¶ 20, 30 P.3d 340, ¶ 20 (emphasis added).

¶ 14 Second, McFarlane argues that his plea was unintelligent because "he was not made aware of a legislatively created defense to the charge of burglary, vis-à-vis, permission." McFarlane complains that not only did his attorney fail to inform him of the permission defense, but the court's plea colloquy failed to address the "specifics" of possible defenses. Therefore, McFarlane asserts that the "complete absence of an explanation to the defendant at or before the change of plea hearing of the defense of permission requires vacating the guilty plea...."

¶ 15 However, as with his first argument, McFarlane challenges the inadequacy of the plea colloquy for the first time on appeal. We note that, while waiting to review the plea hearing transcript, McFarlane stated in his motion to withdraw that "Defendant anticipates the court's interrogation will be found to be adequate." Thereafter, McFarlane's counsel, then Houtz, did not attack the sufficiency of the plea colloquy at the plea withdrawal hearing. Accordingly, we also decline to review this assertion because it was not presented to the District Court. See Adgerson, ¶ 12.

¶ 16 Third, McFarlane attacks the voluntariness of his plea on the ground that he did not "understand what acts amount to being guilty of [burglary]," and thus contends his guilty plea was not entered intelligently. The State responds that McFarlane's plea was "voluntarily and intelligently made" because "McFarlane knew the direct consequences of his plea" and points to several case specific considerations in support of the District Court's denial of McFarlane's motion. We review this claim under the Brady standard to determine if McFarlane entered his guilty plea voluntarily.

¶ 17 The Brady standard considers a guilty plea to be "voluntary only when the defendant is `fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel....'" State v. Lone Elk, 2005 MT 56, ¶ 21, 326 Mont. 214, ¶ 21, 108 P.3d 500, ¶ 21 (quoting Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970)); see also Warclub, ¶ 18 (reaffirming "our...