State v. Newbary

• Decision Date: 02 June 2020
• Docket Number: DA 18-0646
• Parties: STATE of Montana, Plaintiff and Appellee, v. Zachary Brennan NEWBARY, Defendant and Appellant.
• Court: Montana Supreme Court

400 Mont. 210

464 P.3d 999

2020 MT 148

STATE of Montana, Plaintiff and Appellee,

v.Zachary Brennan NEWBARY, Defendant and Appellant.

DA 18-0646

Supreme Court of Montana.

Submitted on Briefs: March 18, 2020

Decided: June 2, 2020

For Appellant: Zachary Brennan Newbary, Self-Represented, Deer Lodge, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Aislinn W. Brown, Assistant Attorney General, Helena, Montana, Kirsten H. Pabst, Missoula County Attorney, Jennifer Clark, Deputy County Attorney, Missoula, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 Zachary Brennan Newbary appeals the order of the Fourth Judicial District Court denying his motion to withdraw his guilty plea. Newbary argues that the Montana Legislature's repeal of the Boot Camp Incarceration Program rendered his plea involuntary, placed the State in breach of the plea agreement, and constitutes an invalid ex post facto law. We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 On October 14, 2014, the State charged Newbary with Aggravated Assault, a felony, in violation of § 45-5-202, MCA, and Sexual Intercourse Without Consent, a felony, in violation of § 45-5-503, MCA. The latter offense carries a possible maximum sentence of life imprisonment. Section 45-5-503(2), MCA. Newbary pleaded guilty to both counts on May 21, 2015. In exchange for his guilty plea, the State agreed to recommend a sentence of twenty years, with twelve years suspended, for both offenses and that the sentences should run concurrently. The State also agreed to recommend placement in the Boot Camp Incarceration Program followed by pre-release and to recommend that the District Court automatically suspend the remainder of Newbary's sentence of imprisonment upon his successful completion of the boot camp program.

¶3 The District Court held a sentencing hearing on November 12, 2015, and the parties jointly recommended that the court follow the plea agreement. The District Court announced that it would add a four-year parole restriction to the recommended sentence. It continued the sentencing hearing at defense counsel's request to give Newbary time to consider the new sentence. At the continued sentencing hearing on November 25, Newbary accepted the plea with the added parole restriction. The court sentenced him to twenty years at Montana State Prison with twelve years suspended on each count; ordered the sentences to run concurrently; imposed a four-year parole restriction; and recommended that Newbary be placed in the boot camp program upon completion of the first four years of his sentence. The court listed over forty conditions of probation in its written judgment, including that "[i]f the Defendant enters and successfully completes the Boot Camp Incarceration Program after the first four years of incarceration, pursuant to § 53-30-402, MCA and upon Defendant's successful completion, the Court shall suspend all or part of the remainder of the sentence of imprisonment."

¶4 On July 1, 2017, the Montana Legislature repealed the statutes authorizing the Boot Camp Incarceration Program. See 2017 Mont. Laws ch. 384. That November, Montana Department of Corrections officials informed Newbary that he could not apply for or enroll in the program due to the repeal. Newbary filed a Motion to Withdraw Guilty Plea on April 30, 2018, arguing that the repeal of the boot camp program deprived him of the expected benefits of enrollment in the program and the possibility for a sentence reduction. Newbary contended that the repeal retroactively placed the State in breach of the plea agreement and rendered his plea involuntary. The District Court denied Newbary's motion. Newbary appeals.

STANDARDS OF REVIEW

¶5 When a criminal defendant appeals the denial of his motion to withdraw a guilty plea, we review the trial court's findings of fact to determine whether they are clearly erroneous and its conclusions of law to determine if they are correct. State v. Warclub , 2005 MT 149, ¶ 24, 327 Mont. 352, 114 P.3d 254. Whether a plea is voluntary is a mixed question of law and fact that this Court reviews de novo for correctness. Warclub , ¶ 24. Whether the State has breached a plea agreement is a question of law that we review de novo. State v. McDowell , 2011 MT 75, ¶ 12, 360 Mont. 83, 253 P.3d 812 (citing State v. Bullplume , 2011 MT 40, ¶ 10, 359 Mont. 289, 251 P.3d 114 ).¹

DISCUSSION

¶6 1. Did the District Court err in denying Newbary's motion to withdraw his guilty plea?

¶7 Newbary argues that the District Court erred in denying his motion to withdraw his guilty plea because the Legislature's repeal of the boot camp program retroactively rendered his plea involuntary and constitutes good cause for withdrawal.

¶8 A plea must be voluntary because the defendant is waiving his constitutional rights to not incriminate himself and to a trial by jury. State v. Terronez , 2017 MT 296, ¶ 27, 389 Mont. 421, 406 P.3d 947 (citation omitted). This Court has adopted the standard articulated in Brady v. United States , 397 U.S. 742, 90 S. Ct. 1463, 25 L.Ed.2d 747 (1970), to determine whether a plea is voluntary:

A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper to the prosecutor's business (e.g. bribes).

Warclub , ¶ 18 (citing Brady , 397 U.S. at 755, 90 S. Ct. at 1472 ); see also Terronez , ¶ 27. The actual value of any commitments made to the defendant by the court, prosecutor, or his own counsel are of significant consequence in determining the voluntariness of a plea. State v. Hendrickson , 2014 MT 132, ¶ 29, 375 Mont. 136, 325 P.3d 694 (Cotter, J., dissenting) (citing State v. Lone Elk , 2005 MT 56, ¶ 21, 326 Mont. 214, 108 P.3d 500, overruled in part on other grounds by State v. Brinson , 2009 MT 200, ¶ 9, 351 Mont. 136, 210 P.3d 164 ). The defendant has the burden to show that his plea was involuntary. Terronez , ¶ 27 (citing State v. Robinson , 2009 MT 170, ¶¶ 17-18, 350 Mont. 493, 208 P.3d 851 ). "If any doubt exists on the basis of the evidence presented regarding whether a guilty plea was voluntarily and intelligently made, the doubt must be resolved in favor of the defendant." Terronez , ¶ 27 (quoting Hendrickson , ¶ 14 ). But a plea is not necessarily "vulnerable to later attack if the defendant did not correctly assess every relevant factor in entering into his decision." Lone Elk , ¶ 26 (quoting Brady , 397 U.S. at 757, 90 S. Ct. at 1473 ).

¶9 A defendant may withdraw his guilty plea within one year of final judgment for good cause.² Section 46-16-105(2), MCA.

"An involuntary plea can justify withdrawal, but is not the only basis for establishing good cause." Terronez , ¶ 32 (internal quotations and citations omitted). We analyze numerous case-specific considerations to determine whether good cause is shown to withdraw a guilty plea, including an inadequate colloquy, newly discovered evidence, intervening circumstances, or any other reason for withdrawal that did not exist when the defendant pleaded guilty. Terronez , ¶ 32 ; Robinson , ¶ 11.

¶10 Newbary argues that the Legislature's repeal of the boot camp program rendered his plea "at least [ ] involuntary." Newbary claims that the repeal deprived him of the opportunity for sentence reduction through completion of boot camp—which, he contends, he relied upon in agreeing to plead guilty.³ At the time of Newbary's sentencing, admission to the boot camp program rested solely within the discretion of the Department of Corrections screening committee. See Mont. Admin. R. 20.7.1201(4) (2012) ; see also VanSkyock v. Manley , 2017 MT 99, ¶ 12, 387 Mont. 307, 393 P.3d 1068 ("When a district court commits a criminal defendant to DOC for placement pursuant to § 46-18-201(3)(a)(iv)(A), MCA, the sentencing court has no authority to direct or control where or in what program DOC ultimately places the defendant for the term of sentence. ... The sentencing court may recommend a particular placement for DOC consideration but the recommendation is not binding on DOC."). The "actual value of the commitment made" to Newbary was thus the promise to recommend his placement in the boot camp program—a value he received when the State made its promised recommendation in the written plea agreement and at sentencing.

¶11 There is nothing in the record to suggest that Newbary was unaware that the actual value of this commitment was a recommendation, not a guarantee, to place him in boot camp. He acknowledges in his appellate brief that defense counsel "carefully negotiated a plea agreement" with the State and "kept Newbary reasonably informed." What's more, the District Court took measures to ensure that Newbary's plea was voluntary; after advising the parties that it would be adding a four-year parole restriction to Newbary's sentence, the court continued the sentencing hearing to allow Newbary and his counsel additional time to consider the terms of the agreement. Our review of the record thus convinces us that Newbary fully understood the direct consequences of his guilty plea and the "actual value of the commitment made to him." Brady , 397 U.S. at 755, 90 S. Ct. at 1472.

¶12 Newbary additionally contends that the repeal of the boot camp program constitutes an "intervening circumstance" or "other reason" showing good cause to withdraw his plea under the "trilogy" of Brady , Lone Elk , and State v. Humphrey , 2008 MT 328, 346 Mont. 150, 194 P.3d 643. We are unable to locate any support for his position in these decisions. In Brady , the defendant was charged with kidnapping in violation of 18 U.S.C. § 1201(a) ; pleaded guilty; and was sentenced to 50 years’ imprisonment. Brady , 397 U.S. at 743-44, 90 S. Ct. at 1466....