State v. Nelson
| Decision Date | 16 November 1995 |
| Docket Number | No. 95-042,95-042 |
| Citation | 906 P.2d 663,52 St.Rep 1069,274 Mont. 11 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Michael Ray NELSON, Defendant and Appellant. |
| Court | Montana Supreme Court |
Joseph P. Mazurek, Attorney General; Patricia Jordan, Asst. Attorney General, Helena, George Corn, Ravalli County Attorney, Hamilton, for Respondent.
Michael Ray Nelson (Nelson) appeals from the judgment entered by the Twenty-First Judicial District Court, Ravalli County, on his guilty plea to the offenses of felony assault, criminal mischief, and resisting arrest. We affirm.
On September 7, 1994, Nelson was charged by information with three counts of felony assault, one count of misdemeanor assault, one count of misdemeanor resisting arrest and one count of misdemeanor criminal mischief. Two weeks later, Nelson entered pleas of not guilty to all charges. At the arraignment, the county attorney presented a psychological evaluation of Nelson. Defense counsel did not object to the admission of the evaluation.
On October 4, 1994, Nelson entered into a plea agreement in which the State dismissed two counts of felony assault and one count of misdemeanor assault. Nelson then pled guilty to one count of felony assault and the two misdemeanors of resisting arrest and criminal mischief.
On October 4, 1994, Nelson signed a Plea of Guilty and Waiver of Rights. Nelson's Plea of Guilty and Waiver of Rights stated that Nelson voluntarily plead guilty, explained the rights being waived, outlined the sufficiency of his attorney's representation, detailed in his own words the factual basis for his guilty plea, and asserted that he was not under the influence of drugs or alcohol.
The next day, during the court's interrogation at the change of plea hearing, the District Court confirmed Nelson's understanding of the nature and potential penalties for each of the charges against him. The court confirmed Nelson's understanding of the rights he waived in entering pleas of guilty and that he had no right to withdraw his guilty pleas. The court determined that Nelson had not been threatened or forced into pleading guilty and that he had not consumed any drugs or alcohol that could affect his judgment or ability to communicate. Nelson admitted that his counsel was competent and had advised him well. Nelson explained, in his own words, the facts upon which the charges and his guilty pleas were based.
At the change of plea hearing, the court inquired whether Nelson understood that the county attorney was not recommending any particular sentence, and that regardless of the actual sentence, Nelson would have no right to withdraw his pleas. Nelson responded that he understood. The court accepted the plea agreement and found Nelson guilty as charged. Defense counsel then moved the court to release Nelson on his own recognizance (hereinafter "OR") pending sentencing. While this release was not part of the plea agreement, the State had no objection to the motion. After a brief discussion regarding Nelson's sentencing date and bail, the court declined to release Nelson on OR and the following colloquy occurred:
Nelson raises three issues on appeal. First, did the District Court fail to adequately advise Nelson of the consequences of pleading guilty and, as a result, were his pleas knowingly, intelligently and voluntarily entered. Second, did the District Court err in considering the mental evaluation report, prepared at the direction of the State, without counsel present and without Nelson having been advised of his rights. Finally, did the District Court fail to consider alternatives to imprisonment for a nonviolent felony offense pursuant to §§ 46-18-225, and 46-18-201(10), MCA, before sentencing Nelson to a term of imprisonment.
Nelson argues that he should have been allowed to withdraw his guilty pleas because the District Court did not adequately advise him of the consequences of pleading guilty, specifically the possibility that he could be designated a dangerous offender thus restricting his eligibility for parole.
The principles governing the entry and withdrawal of guilty pleas are set forth in both case law and statutes. State v. Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175, 177. District courts must meet the statutory requirements found in §§ 46-12-210 and 46-16-105(1), MCA, before accepting a guilty plea. Section 46-16-105(2), MCA, regarding the withdrawal of a guilty plea, provides:
At any time before or after judgment the court may, for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.
This Court has consistently stated that no set rule or standard exists under which a district court addresses a request to withdraw a guilty plea, and that each case must be considered in light of its unique record. Enoch, 887 P.2d at 177; State v. Radi (1991), 250 Mont. 155, 158-59, 818 P.2d 1203, 1206. The grant or denial of a motion to withdraw a guilty plea is within the discretion of the district court. Radi, 818 P.2d at 1206. Our standard in reviewing a district court's denial of a motion to withdraw a guilty plea is whether the district court abused its discretion. Enoch, 887 P.2d at 177; State v. Reynolds (1992), 253 Mont. 386, 390-91, 833 P.2d 153, 155.
When pleading guilty to a criminal charge a defendant waives numerous constitutionally based rights and protections. Radi, 818 P.2d at 1206. In light of the significance of the rights that are waived upon a plea of guilty, it is well-settled that a guilty plea must be a voluntary, knowing, and intelligent choice among the alternative courses of action open to the defendant. North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162; Radi, 818 P.2d at 1206.
This Court balances three factors when considering a criminal defendant's attempt to withdraw a guilty plea: (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; and (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. Enoch, 887 P.2d at 177.
In the present case, we need not engage in an analysis of the above three factors because, although Nelson sought to withdraw his pleas due to his misunderstanding as to release on recognizance, Nelson did not attack the voluntary nature of his pleas. See State v. Mason (1992), 253 Mont. 419, 424, 833 P.2d 1058, 1061. The record reveals that Nelson did not move to withdraw his guilty pleas on the grounds that the District Court failed to adequately advise him that he could be designated a dangerous offender for parole purposes. Rather, Nelson objected solely to the District Court's decision to set bail instead of releasing him on his own recognizance prior to sentencing.
Release on his own recognizance was not included in Nelson's plea agreement and, in response to Nelson's objection, his attorney specifically denied that release on OR was part of the plea agreement. Thus, Nelson can not argue that his objection to bail instead of OR was related to the voluntary nature of his guilty pleas because OR was not a condition of his plea agreement. In other words, he did not plead guilty in order to gain release on OR, he pled guilty on the condition that the State drop two of the felony assault charges. In fact, Nelson's Plea of Guilty and Waiver of Rights states: "I am not entering this plea of guilty in order to get released from jail." Nor can he relate his objection to being denied OR to the issue he now raises that he was not adequately advised that he could be designated a dangerous offender for parole purposes.
Nelson's objection and motion to withdraw did not raise any of the grounds on which he now appeals. This Court does not review issues which were not preserved for appeal in the court below. Sections 46-20-104 and 46-20-701, MCA. We have held that failure to raise an issue before the district court bars a defendant from raising the issue on appeal under § 46-20-104, MCA. State v. Arlington (1994), 265 Mont. 127, 151, 875 P.2d 307, 321. We hold that Nelson's contemporaneous motion to withdraw his pleas did not raise a question as to the adequacy of the court's interrogation. Further, although § 46-16-105(2), MCA, would have allowed a post-judgment motion attacking the voluntariness of the pleas, no so such motion was made in the District Court. Thus, Nelson is barred from raising the issue of...
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...sentencing hearing for a particular sentence does not constitute an objection to the sentence actually imposed. State v. Nelson, 274 Mont. 11, 18, 906 P.2d 663, 667 (1995). we must determine, as a threshold matter, whether Garrymore's failure to object in the District Court to its impositio......
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