State v. Osterloth
| Decision Date | 11 May 2000 |
| Docket Number | No. 99-120.,99-120. |
| Citation | 1 P.3d 946,2000 MT 129,299 Mont. 517 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. William Joseph OSTERLOTH, Defendant and Appellant. |
| Court | Montana Supreme Court |
Edmund F. Sheehy, Jr.; Cannon & Sheehy, Helena, Montana, For Appellant.
Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General; Helena, Montana, Mike McGrath, Lewis and Clark County Attorney; Carolyn Clemens, Deputy Lewis and Clark County Attorney, Helena, Montana, For Respondent.
¶ William Osterloth (Osterloth) appeals from the judgment and commitment entered by the First Judicial District Court, Lewis and Clark County, sentencing him to 30 years imprisonment at the Montana State Prison (MSP), with 25 years suspended on conditions, and from its order denying his motion to withdraw his guilty plea. We affirm and remand with instructions.
¶ 2 We restate the issues on appeal as follows:
¶ 3 1. Did the District Court abuse its discretion in denying Osterloth's motion to withdraw his guilty plea?
¶ 4 2. Was Osterloth denied his Sixth Amendment right to effective assistance of counsel in the presentation of his motion to withdraw?
¶ 5 3. Did the District Court err in sentencing Osterloth without a psychosexual evaluation prepared by a qualified evaluator and in continuing his sentencing to allow him an opportunity to succeed in a community-based sex offender treatment program?
¶ 6 4. Did the District Court err in sentencing Osterloth by failing to comply with statutory requirements?
¶ 7 On July 10, 1997, the State of Montana (State) charged Osterloth by information with one count of felony sexual assault under §§ 45-5-502(1), (3) and (5), MCA, based on allegations that he sexually molested two of his nephews. Osterloth pled not guilty.
¶ 8 Osterloth subsequently moved to suppress a statement he had made to Detective Sam McCormack, and, after a hearing, the District Court denied his motion. At a change of plea hearing on October 30, 1997, Osterloth changed his plea to guilty. The District Court accepted the guilty plea, ordered a presentence investigation report with a sexual offender evaluation and scheduled sentencing for January 8, 1998. Osterloth moved "to allow the defense to have a sex offender evaluation done of the Defendant by a sex offender psychotherapist of the defense's choosing at county expense" and the District Court granted the motion.
¶ 9 Osterloth chose therapist Kevin Wyse (Wyse) to conduct the sex offender evaluation. Wyse determined that Osterloth "is at moderately high risk for sexual reoffense and is moderately amenable to sex offender treatment." On that basis, he recommended that
"Osterloth should participate in an intensive outpatient sex offender treatment program" on a six-month trial basis. Wyse explained that Wyse also recommended that, "[i]f Mr. Osterloth cannot succeed in an intensive outpatient program, based on the opinion of his primary treatment therapist or his probation officer, he should be incarcerated at the Montana State Prison...."
¶ 10 The State presented Wyse's recommendations at the sentencing hearing rescheduled to February 12, 1998. On the basis of those recommendations, the State and Osterloth jointly requested a continuance for several months to give Osterloth an opportunity to succeed at community-based sex offender treatment. In the event the treatment was unsuccessful, the State advised it would seek a prison sentence. The District Court accepted the recommendations and continued the sentencing hearing to August 6, 1998. Sentencing was later rescheduled at the parties' request.
¶ 11 Wyse terminated Osterloth from the community sex offender treatment program on September 1, 1998. He reported that Osterloth "has been either unwilling or unable to honestly report and take responsibility for the inappropriate sexual behaviors which led to the crime of Felony Sexual Assault."
¶ 12 The District Court resumed the sentencing hearing on October 16, 1998, at which time Osterloth moved to withdraw his guilty plea. The primary basis for the motion was that he was given poor advice by his attorney which he would have rejected if he were not so easily led by authority figures. He also requested, and obtained, a psychological evaluation for purposes of supporting his contention.
¶ 13 After completion of the psychological evaluation and briefing on Osterloth's motion, the District Court deemed the motion submitted. It subsequently denied Osterloth's motion to withdraw on the basis that the "psychological evaluation produced no finding to show that the Court, or Defendant's attorney, somehow improperly influenced the Defendant." The court also recognized Osterloth's concession that its change of plea interrogation had been adequate, observed that the guilty plea was not the result of a plea bargain and concluded the motion to withdraw—filed nearly 12 months after Osterloth entered his guilty plea—was not prompt.
¶ 14 The District Court ultimately sentenced Osterloth to 30 years imprisonment at the MSP, with 25 years suspended on conditions, and ordered him ineligible for parole until he completed both phases of the MSP's sex offender treatment program. Osterloth appeals.
¶ 15 1. Did the District Court abuse its discretion in denying Osterloth's motion to withdraw his guilty plea?
¶ 16 A district court may permit a defendant to withdraw his guilty plea at any time, before or after judgment, for good cause shown. Section 46-16-105(2), MCA.
A change of plea will ordinarily be permitted if it fairly appears that the defendant was in ignorance of his rights and of the consequences of his act, or if influenced unduly and improperly either by hope or fear in making it, or if it appears that the plea was entered under some mistake or misapprehension. If there is any doubt that a plea is involuntary, the doubt should be resolved in the defendant's favor.
State v. Schaff 1998 MT 104, ¶ 17, 288 Mont. 421, ¶ 17, 958 P.2d 682, ¶ 17 (citation omitted).
¶ 17 In its order denying Osterloth's motion to withdraw, the District Court first properly quoted the Schaff principles. In discussing the reasons for its decision, however, it stated that "withdrawal was permissible only if it fairly appears that the defendant was ignorant of his rights and the consequences of his guilty plea, or if he was influenced unduly or improperly by hope or fear in the entry of his guilty plea, or if the guilty plea was entered by some mistake or misapprehension." (Emphasis added.)
¶ 18 Osterloth argues at the outset that, in substituting "only" for "ordinary" in determining whether to permit his plea to be withdrawn, the District Court misapplied Schaff. Given the language in Schaff, it is apparent that the District Court erroneously summarized Schaff in its second reference to that decision. This is not to say, however, that this error means the District Court necessarily misapplied the Schaff principles.
¶ 19 In this regard, the record reflects that Osterloth's motion was based primarily on his contention that his plea was involuntary because he is easily influenced by authority figures, namely, his attorney. He obtained a psychological evaluation in hopes of supporting his contention but, as the District Court found, that "evaluation produced no finding to show that the Court, or Defendant's attorney, somehow improperly influenced [him]." That finding, unchallenged by Osterloth, was the foundation for the court's later determination there was no reason, let alone any sound reason, to allow withdrawal of Osterloth's plea. The District Court went on to observe that, while Schaff requires any doubt regarding the voluntary nature of the plea to be resolved in the defendant's favor, "[i]n this case, there is no doubt that needs to be resolved one way or the other." Based on the record before us, Osterloth has not established that the District Court's error in summarizing the Schaff principles resulted in misapplication of Schaff.
¶ 20 In a somewhat similar vein, Osterloth contends his plea was involuntary because he was influenced unduly and improperly by hope he would be placed in a community-based sex offender treatment program and avoid the mandatory minimum two-year sentence. He urges that he moved to withdraw his guilty plea because community-based sex offender treatment was no longer available. The problem with Osterloth's argument is that it was not the basis for his motion to withdraw in the District Court. We do not address issues or theories raised for the first time on appeal. Schaff ¶ 26. Therefore, we decline to address this argument further.
¶ 21 We review a district court's denial of a motion to withdraw a guilty plea for abuse of discretion. Schaff, ¶ 18 (citation omitted). In determining whether an abuse of discretion occurred, we consider three factors:
Schaff, ¶ 18 (citations omitted).
¶ 22 The District Court briefly addressed these factors in its order. It observed that Osterloth had conceded the adequacy of its interrogation and observed there was no plea bargain in this case. Finally, the court noted that Osterloth's motion was filed nearly 12 months after he entered...
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