State v. Morgan, 02-626.

• Decision Date: 04 August 2003
• Docket Number: No. 02-626.,02-626.
• Citation: 2003 MT 193,74 P.3d 1047
• Parties: STATE of Montana, Plaintiff and Respondent, v. David Theodore MORGAN, Sr., Defendant and Appellant.
• Court: Montana Supreme Court

74 P.3d 1047

2003 MT 193

STATE of Montana, Plaintiff and Respondent, v. David Theodore MORGAN, Sr., Defendant and Appellant.

No. 02-626.

Supreme Court of Montana.

Submitted on Briefs April 25, 2003.

Decided August 4, 2003.

David Theordore Morgan, Sr., pro se.

Honorable Mike McGrath, Attorney General; Mark W. Mattioli, Assistant Attorney General, Helena, Montana, George H. Corn, County Attorney, Hamilton, Montana, for Respondent.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 David Theodore Morgan, Sr. (Morgan), pro se, appeals from the District Court's order denying his request for postconviction relief. We affirm. The two issues on appeal are the following:

¶ 2 1. Did the District Court err in concluding that Morgan did not receive ineffective assistance of counsel?

¶ 3 2. Did the District Court abuse its discretion in denying Morgan's motion to withdraw his guilty plea?

Factual and Procedural Background

¶ 4 On June 24, 2000, while driving a stolen truck, Morgan engaged in a high-speed chase with Idaho police. During the chase, Morgan rammed a patrol vehicle, causing it to set on fire, and forced another patrol vehicle into a ditch. Morgan ultimately succeeded in eluding the Idaho police. Four days later, a detective with the Ravalli County Sheriff's Office noticed a pickup driving erratically through Hamilton. When officers attempted to approach the vehicle, Morgan began to speed north on Highway 93 during the beginning of the afternoon rush hour. During the chase, Morgan reached speeds in excess of 100 miles per hour and forced a number of vehicles off the road. Eventually, Morgan drove over a nail strip set by Montana Highway Patrol Officer Tom Hamilton (Officer Hamilton) and was forced to pull the vehicle off the highway. At that point, Morgan ran to a store and from behind a fence he shot at Officer Hamilton's vehicle. One bullet passed through the vehicle's door and hit Officer Hamilton in the right elbow before lodging itself in his bullet proof vest. Morgan also shot at two other officers attempting to capture him before he was shot in the knee and apprehended.

¶ 5 Following his arrest, Morgan was charged with eight felonies, including three counts of attempted deliberate homicide and two counts of assault with a deadly weapon. Larry Mansch (Mansch) of the Ravalli County Public Defender's office was appointed to represent Morgan. In January 2001, Morgan entered into an open and non-binding plea agreement. In exchange for Morgan's plea of no contest to three counts of attempted deliberate homicide and one count of assault with a weapon, the State agreed to, and in fact did, amend the original information to charge four of the eight felony counts. The agreement contained the following bolded disclosure of the consequences of pleading guilty:

The Defendant understands that this is an open plea to the charges contained in the Amended Information. This means the judge is free to impose any sentence allowed by law for such crimes.... THE DEFENDANT UNDERSTANDS THAT THE MAXIMUM PENALTY FOR THE CHARGES TO WHICH HE IS PLEADING GUILTY IS 320 YEARS OR LIFE IMPRISONMENT....

¶ 6 After ordering a presentence investigation, the District Court sentenced Morgan to three life sentences for the attempted deliberate homicide charges and 20 years for the assault charge. The Sentence Review Division, comprised of three Montana District Court judges, held a hearing in July 2001 to review Morgan's sentence and Mansch again represented Morgan. The Division unanimously affirmed Morgan's sentence. In February 2002, Morgan filed a petition for postconviction relief which the District Court denied.

Standard of Review

¶ 7 The standard of review of a district court's denial of a petition for postconviction relief is whether the district court's findings of fact are clearly erroneous and whether its conclusions of law are correct. Watson v. State, 2002 MT 329, ¶ 6, 313 Mont. 209, ¶ 6, 61 P.3d 759, ¶ 6; State v. Charlo, 2000 MT 192, ¶ 7, 300 Mont. 435, ¶ 7, 4 P.3d 1201, ¶ 7. Claims of ineffective assistance of counsel are mixed questions of law and fact for which our review is de novo. State v. Turner, 2000 MT 270, ¶ 47, 302 Mont. 69, ¶ 47, 12 P.3d 934, ¶ 47; Iaea v. Sunn (9th Cir.1986), 800 F.2d 861, 864. Discretionary rulings in postconviction relief proceedings, including rulings related to whether to hold an evidentiary hearing, are reviewed for an abuse of discretion. Watson, ¶ 6; State v. Hanson, 1999 MT 226, ¶ 9, 296 Mont. 82, ¶ 9, 988 P.2d 299, ¶ 9.

Discussion

I

¶ 8 Did the District Court err in concluding that Morgan did not receive ineffective assistance of counsel?

¶ 9 A petitioner seeking to reverse a district court's denial of a petition for postconviction relief based on a claim of ineffective assistance of counsel bears a heavy burden. See Brown v. State (1996), 277 Mont. 430, 434, 922 P.2d 1146, 1148. When considering ineffective assistance of counsel claims in postconviction proceedings, this Court applies the two-pronged test set forth by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; see Hagen v. State, 1999 MT 8, ¶ 10, 293 Mont. 60, ¶ 10, 973 P.2d 233, ¶ 10. The Strickland test requires the defendant to show not only that his counsel's performance was deficient, but that the deficient performance was prejudicial to the defendant. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Pursuant to Strickland, a defendant alleging ineffective assistance of counsel must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

¶ 10 A court's scrutiny of counsel's actions must be highly deferential, and counsel's performance is strongly presumed to be within the wide range of reasonable professional assistance. See State v. Campbell (1996), 278 Mont. 236, 246, 924 P.2d 1304, 1311. When it is possible to dispose of an ineffective assistance of counsel claim based on the claim's failure to establish that the defendant was sufficiently prejudiced, it is best to follow that course. Dawson v. State, 2000 MT 219, ¶ 21, 301 Mont. 135, ¶ 21, 10 P.3d 49, ¶ 21.

¶ 11 With these legal precepts in mind, we turn to Morgan's claim of ineffective assistance of counsel. Morgan, who has the burden of proving that his counsel's performance was deficient and prejudicial, bases his claim on three assertions: (1) counsel incorrectly advised him that the State did not have to prove an essential element of the homicide charge; (2) counsel incorrectly informed Morgan that the judge was "looking favorable" on him and would give him a light sentence if he pled guilty; and (3) counsel inadequately represented Morgan at the sentence review hearing. We review each assertion in turn.

¶ 12 First, Morgan claims that his counsel misinformed him that the State would not have to prove the element of intent on the attempted deliberate homicide charge, and that but for this misinformation, he would have taken his chances at trial and would not have entered a guilty plea. To this end, Morgan makes the incredible claim that the State would not have been able to prove that Morgan intended to kill Officer Hamilton because "the shots were fired at the door and not his window at his head." Morgan's assertion that the State could not have proven intent is incredulous in light of the evidence presented by the State at Morgan's change of plea hearing. This evidence includes a videotape shot from the camera attached to Officer Hamilton's patrol vehicle which depicts the high-speed chase and the officer's voice the moment he was shot. As the District Court noted in its order denying Morgan postconviction relief, even if Morgan's counsel had incorrectly advised Morgan of the elements to attempted deliberate homicide, "such a misrepresentation would have been superfluous, in light of the overwhelming evidence of Morgan's actions and intentions in fleeing law officers and then firing at them." Therefore, we agree with the District Court that Morgan's claim fails the second prong of the Strickland test because no reasonable probability exists that Morgan would not have been found guilty of attempted deliberate homicide.

¶ 13 Secondly, Morgan claims that counsel informed him that the judge was "looking favorable" on him and would not give Morgan a harsh sentence if he pled guilty. Morgan contends that he based his decision to plead guilty on counsel's assurance that the judge would go easy on him; however, this allegation runs contrary to the clear language of the plea agreement signed by Morgan on January 3, 2001. Specifically, the agreement states that the plea is an open plea and that the "judge is free to impose any sentence allowed by law for such crimes.... THE DEFENDANT UNDERSTANDS THAT THE MAXIMUM PENALTY FOR THE CHARGES TO WHICH HE IS PLEADING GUILTY IS 320 YEARS OR LIFE IMPRISONMENT...." The plea clearly stated that the judge was free to impose whatever sentence he believed appropriate. Even if Morgan's counsel had informed him that the judge was looking favorably on him and would not impose a lengthy sentence, the plea agreement was explicit that the court made no promises about the length of sentence that Morgan would receive. Therefore, we conclude that this second allegation fails the second prong of Strickland. Any prejudice from counsel's alleged comment regarding the court's possible leniency was negated by the clear language of Morgan's plea agreement.

¶ 14 Lastly, Morgan contends that his counsel inadequately represented him at the sentence review hearing; however, Morgan does not cite any specific...