State v. Niederklopfer

• Decision Date: 18 July 2000
• Docket Number: No. 98-030.,98-030.
• Citation: 2000 MT 187,6 P.3d 448,300 Mont. 397
• Parties: STATE of Montana, Plaintiff and Respondent, v. Ronald Jer NIEDERKLOPFER, Defendant and Appellant.
• Court: Montana Supreme Court

6 P.3d 448

2000 MT 187

300 Mont. 397

STATE of Montana, Plaintiff and Respondent, v. Ronald Jer NIEDERKLOPFER, Defendant and Appellant.

No. 98-030.

Supreme Court of Montana.

Submitted on Briefs May 25, 2000.

Decided July 18, 2000.

Neil M. Leitch, Attorney at Law, Missoula, Montana, For Appellant.

Hon. Joseph P. Mazurek, Attorney General; Cregg W. Coughlin, Assistant Attorney General; Helena, Montana Fred R. Van Valkenburg, Missoula County Attorney, Missoula, Montana, For Respondent.

Justice TERRY N. TRIEWEILER delivered the Opinion of the Court.

¶ 1 The Petitioner, Ronald Jer Niederklopfer, filed a petition for postconviction relief in the Fourth Judicial District Court in Missoula County, in which he challenged his sentence because the State failed to give him timely notice that it sought to designate him a persistent felony offender. Niederklopfer appeals the District Court's denial of his petition. We affirm the order of the District Court.

¶ 2 The following issue is raised on appeal:

Did the District Court err when it denied Niederklopfer's petition for postconviction relief?

FACTUAL BACKGROUND

¶ 3 On January 8, 1996, the State charged Niederklopfer with deliberate homicide in violation of § 45-5-102, MCA, for the death of Tambi Weinberger.

¶ 4 On June 19, 1996, the District Court conducted Niederklopfer's omnibus hearing. A few weeks later, on July 1, 1996, the State filed its "Notice of Intent to Seek Increased Punishment," to notify Niederklopfer that it sought to designate him a persistent felony offender.

¶ 5 On August 6, 1996, Niederklopfer signed a document entitled "Plea of Guilty and Waiver of Rights," in which he wrote: "While under extreme emotional stress I caused the death of Tambi Weinberger—I kicked her in the head and caused other injuries from which she died." Niederklopfer also acknowledged his maximum possible punishment, and that the State sought to designate him a persistent felony offender, he wrote:

The maximum possible punishment provided by law for the above-named offenses is: Count I 40 yrs MSP [] or $50,000 also up to 100 years for persistent felony offender.

Pursuant to the plea agreement the State amended the Information and charged Niederklopfer with mitigated deliberate homicide in violation of § 45-5-103, MCA. The State also agreed to dismiss a felony assault charge and a misdemeanor assault charge pending against Niederklopfer. The State recommended a prison term of 80 years as a persistent felony offender, and that the District Court order that Niederklopfer not be eligible for parole for 40 years. On September 25, 1996, the District Court sentenced Niederklopfer in compliance with the plea agreement.

ISSUE

¶ 6 Did the District Court err when it denied Niederklopfer's petition for postconviction relief?

STANDARD OF REVIEW

¶ 7 On appeal from denial of postconviction relief, we review a district court's findings to determine if they are clearly erroneous, and the district court's conclusions to determine if the court correctly applied the law. State v. Wilson, 1999 MT 52, ¶ 11, 293 Mont. 429, ¶ 11, 976 P.2d 962, ¶ 11.

¶ 8 Section 46-21-101(1), MCA, provides:

A person adjudged guilty of an offense in a court of record who has no adequate remedy of appeal and who claims that a sentence was imposed in violation of the constitution or the laws of this state or the constitution of the United States, that the court was without jurisdiction to impose the sentence, that a suspended or deferred sentence was improperly revoked, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack upon any ground of alleged error available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy may petition the court that imposed the sentence to vacate, set aside, or correct the sentence or revocation order.

¶ 9 Niederklopfer contends that the portion of his sentence imposed because he was designated a persistent felony offender was unlawful because the State failed to comply with the notice provisions of § 46-13-108, MCA, before designating him a persistent felony offender pursuant to § 46-18-501, MCA. Niederklopfer also contends that because his trial counsel failed to object to the State's lack of compliance with the notice provision of § 46-13-108, MCA, he was denied effective assistance of counsel. The State responds that when Niederklopfer voluntarily and intelligently pled guilty, he waived his right to challenge the State's failure to comply with § 46-13-108, MCA. The State also contends that the timing of its notice did not prejudice Niederklopfer.

¶ 10 Section 46-13-108, MCA, provides:

(1) Except for good cause shown, if the prosecution seeks treatment of the accused as a persistent felony offender, notice of that fact must be given at or before the omnibus hearing pursuant to XX-XX-XXX.

(2) The notice must specify the alleged prior convictions and may not be made known to the jury before the verdict is returned except as allowed by the Montana Rules of Evidence.

(3) If the defendant objects to the allegations contained in the notice, the judge shall conduct a hearing to determine if the allegations in the notice are true.

(4) The hearing must be held before the judge alone. If the judge finds any allegations of the prior convictions are true, the accused must be sentenced as provided by law.

(5) The notice must be filed and sealed until the time of trial or until a plea of guilty or nolo contendere is given by the defendant.

(Emphasis added.) "The purpose for providing such notice is to give the defendant an opportunity to file an objection to the criminal record relied upon in the notice and to hold a hearing should there be any such objections. See § 46-13-108(3),(4), MCA." State v. McQuiston (1996), 277 Mont. 397, 408, 922 P.2d 519, 526. Pursuant to both the Fourteenth Amendment to the United States Constitution and Article II, section 17 of the Montana constitution, no person shall be deprived of life, liberty, or property without due process of law. "The fundamental requisite of due process of law is the opportunity to be heard." Goldberg v. Kelly (1970), 397 U.S. 254, 267, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287 (quoting Grannis v. Ordean (1914), 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363). Further, due process requires timely and adequate notice. Goldberg, 397 U.S. at 267, 90 S.Ct. at 1020.

¶ 11 In McQuiston, we interpreted § 46-13-108, MCA, and concluded that the State complied with § 46-13-108(1), MCA, but it did not comply with § 46-13-108(5), MCA; that is, the State notified McQuiston of its intent to designate him a persistent felony offender, but it did not file notice with the district court. McQuiston, 277 Mont. at 408, 922 P.2d at 526. We held:

McQuiston was sent notice of the State's intent to seek persistent felony status over a month prior to the omnibus hearing and five months before trial. Furthermore, the notice was filed with the District Court five months prior to sentencing. We conclude that McQuiston was not prejudiced by the State's failure to file notice of its intent to treat McQuiston as a persistent felony offender prior to trial.

McQuiston, 277 Mont. at 409, 922 P.2d at 527. Our conclusion in McQuiston was based on State v. Madera (1983), 206 Mont. 140, 154, 670 P.2d 552, 559, where we interpreted a previous version of the persistent felony offender statute. Based on the statutory scheme in effect when we decided Madera, the State was required to notify the defense of its intent to seek persistent felony offender status prior to entry of a guilty plea or before trial. There was no good cause exception. The State was also required to file a notice with the court before sentencing. Madera, 206 Mont. at 154, 670 P.2d at 559; see also State v. Hawkins (1989), 239 Mont. 404, 407, 781 P.2d 259, 261

. The defendant in Madera had received written notice before trial but claimed the second notice was deficient. We stated that the first notice to the defense was jurisdictional while the second notice to the court was simply procedural. Madera, 206 Mont. at 155,

670 P.2d at 560. We held that the State's failure to file the second notice was not, prejudicial since the defendant had sufficient notice of the charge against him. We stated:

It is obvious from section 46-18-503, MCA, that the jurisdictional notice upon which the persistent felony designation must be founded is the first notice required to be given either before the entry of plea of guilty or before the case is called for trial upon a plea of not guilty. The record here positively indicates that the first notice was given. The second notice, however, is procedural rather than jurisdictional.

Madera, 206 Mont. at 155, 670 P.2d at 560.

¶ 12 Niederklopfer contends that since the State failed to provide him with timely notice that it sought to designate him a persistent felony offender, we must vacate that portion of his sentence attributable to his status as a persistent felony offender. The State responds that when Niederklopfer pled guilty he waived his right to challenge any constitutional or procedural defects.

¶ 13 A guilty plea that is voluntary and intelligent constitutes a waiver of nonjurisdictional defects and defenses. State v. Wheeler (1997), 285 Mont. 400, 402-03, 948 P.2d 698, 699; In re Petition of Hinman (1995), 271 Mont. 167, 168, 895 P.2d 609, 609 (citing Hagan v. State (1994), 265 Mont. 31, 35, 873 P.2d 1385, 1387). Our reasoning in Hagan was based on two cases, State v. Turcotte (1974), 164 Mont. 426, 428, 524 P.2d 787, 788 and Tollett v. Henderson (1973), 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235. In Turcotte we said:

The general rule is that a plea of guilty voluntarily and understandingly made constitutes a waiver of nonjurisdictional defects and defenses, including claims of violations of constitutional rights prior to the plea. The reasoning is that a person

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