State v. Schaff

Decision Date04 May 1998
Docket NumberNo. 97-094,97-094
Citation958 P.2d 682,1998 MT 104,288 Mont. 421
PartiesSTATE of Montana, Plaintiff and Respondent, v. Richard D. SCHAFF, Defendant and Appellant.
CourtMontana Supreme Court

William F. Hooks, Appellate Defender Office, Helena, for defendant and appellant.

Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Billings, for plaintiff and respondent.

HUNT, Justice.

¶1 Richard D. Schaff (Appellant) was charged with one count of attempted deliberate homicide, one count of aggravated kidnaping, two counts of sexual intercourse without consent, one count of sexual assault, and one count of witness tampering. Pursuant to a plea agreement, Appellant pled guilty to attempted deliberate homicide and witness tampering in exchange for the State's dismissal of the remaining charges. Prior to sentencing, Appellant moved to withdraw his guilty pleas. The Thirteenth Judicial District Court, Yellowstone County, denied Appellant's motion. The District Court thereafter sentenced Appellant according to the terms of the plea agreement. Appellant now appeals the District Court's denial of his motion to withdraw his guilty pleas. We affirm.

¶2 The sole issue presented for our review is whether the District Court erred in denying Appellant's motion to withdraw his guilty pleas.


¶3 On September 28, 1995, Appellant met V.F., a 14-year old girl, in downtown Billings and offered to drive her to the west end of town. V.F. accepted Appellant's offer. Instead of taking V.F. to the west end, Appellant drove out to the country and began making sexual advances toward her. Appellant fondled V.F.'s breasts, inserted his finger in her vagina, and forced her to perform oral sex. When V.F. refused to continue with oral sex, Appellant hit V.F., dragged her out of the truck, and stabbed her several times with a small knife. V.F. dropped to the ground and played dead. Appellant then dragged V.F. off the road to a grassy field and left her. Appellant wiped off his knife, washed his hands in a nearby stream, and drove away. V.F. managed to make it to a nearby house where she called the police. V.F. described her attacker and his truck to the authorities, who then disseminated the information to the local media. An anonymous tip led authorities to Appellant and he was later apprehended.

¶4 On October 19, 1995, Appellant was charged by information with one count of attempted deliberate homicide, one count of aggravated kidnaping, and two counts of sexual intercourse without consent. The information was amended on January 8, 1996, to include one count of sexual assault, and amended again on July 19, 1996, to include one count of witness tampering.

¶5 On September 12, 1996, Appellant and the State of Montana (State)entered into a written plea agreement. Appellant agreed to plead guilty to attempted deliberate homicide and witness tampering in exchange for the State's dismissal of the remaining charges. The State also agreed that it would bring no further charges against Appellant for any actions concerning V.F. or her family for any of the transactions then known to the State. Further, the State agreed to recommend that Appellant be sentenced to a prison term of 40 years, plus an additional consecutive term of 10 years for use of a weapon. The plea agreement provided that if the court did not accept the State's recommendations for sentencing, Appellant could withdraw his guilty pleas.

¶6 A change of plea hearing was held on September 12, 1996. The District Court asked Appellant whether he had read the plea agreement and discussed it with his attorney to which Appellant replied that he had. The court informed Appellant that he was not required to plead guilty and that he was entitled to a jury trial. The court also informed Appellant of the State's burden to prove his guilt beyond a reasonable doubt, and reviewed with Appellant his right to remain silent, his right to present witnesses on his behalf, and his right to confront witnesses against him. Finally, the court asked Appellant whether he was satisfied with the services of his attorney and Appellant replied that he was.

¶7 The court then questioned Appellant about the offenses to establish a factual basis for his guilty pleas. However, before Appellant [Appellant's] plea is, in fact, a compromise of what we perceive to be validly a contested case. We have done extensive investigation and research on this matter, and we do believe that while there is a substantial risk of conviction of the offenses to which he is pleading guilty, and perhaps a substantial risk of conviction on the other offenses as well, that he also had the opportunity to present lesser-included offense instructions and arguments to the jury, which could very well have proved persuasive. But in light of the overwhelming upside risk in this case, which would be somewhere around 520 years if all counts were proven and the court imposed maximum consecutive sentences, I have advised him frankly that this is a wise decision on his behalf. And with that proviso, Your Honor, Mr. Schaff is prepared to address your question.

answered, his attorney spoke up and informed the court that Appellant had been advised to keep his factual statements to a minimum so that, in the event Appellant later withdrew his guilty pleas, his basic right to remain silent would be preserved. Appellant's attorney also explained to the court the nature of Appellant's guilty pleas:

The District Court and Appellant thereafter engaged in the following exchange:

THE COURT: Mr. Schaff, I understand the predicament that the court's question poses to you; nonetheless, we do have to have a brief admission on the record as to what you have done in order that the court might be able to accept your plea of guilty, so--

MR. SCHAFF: Well--

THE COURT: --have at it.

MR. SCHAFF: I cut the victim and left her on the road.

THE COURT: Okay. Now, can you tell me--when you say you cut the victim, can you give me any more detail than that?

MR. SCHAFF: Cut her with a pocket knife.

THE COURT: Okay. Now, do you--if my recollection is correct, the affidavit in support of this references stabbing, I believe as opposed to cutting. Do you draw a distinction between the two or are you trying to make a distinction?

MR. SCHAFF: Not really.

THE COURT: Okay. I mean, would the court be correct in assuming then that you are admitting that you did stab her on a number of occasions?


THE COURT: Was it your intent to do that?


THE COURT: I don't mean intent to commit deliberate homicide, was it your intent to stab her? Was it some sort of accident?

MR. SCHAFF: No, it wasn't an accident.

The State then interjected with the following offer of proof:

ATTORNEY FOR STATE: As to Count I, the State--for the attempt of deliberate homicide, the State had intended to introduce in excess of 100 exhibits as to this count, including hairs and articles of clothing. Specifically, the State would have introduced the hairs examined by the state crime lab, an expert would testify that microscopically those were of the victim, who is a minor.

And that that hair was cut hair, not pulled out by the roots, and not fallen hair, but hair that had been cut from a sharp instrument. That hair was found in defendant's vehicle. In addition, the minor victim's article of clothing, specifically a flannel shirt, was examined by the state crime lab and it would have had eight slits caused by a sharp instrument within that article of clothing and would examine--those would have been around the shoulder and neck area.

In addition, the emergency room physician, Dr. Theade of St. Vincent, treated the minor child and would have testified that she suffered from wounds committed by those consistent with a sharp instrument like a knife. She would also testify that those wounds were superficial and not life threatening.

However, if we went to trial the minor victim would have testified, and that would have been an issue of fact for that jury. Her testimony would have been that she ¶8 The court further questioned Appellant concerning the factual basis of the charge of witness tampering. The court then explained the maximum penalties for the offenses under the sentencing guidelines and informed Appellant of his right to withdraw his guilty pleas if the court ultimately refused the State's recommendations for sentencing. Upon Appellant's indication that he was sober, that no threats had been made to him, and that it was his desire to plead guilty, the court accepted Appellant's guilty pleas and set the date for sentencing.

played opossum after the attack took place, and she played dead. And the defendant eventually left her alone in the [sic] an isolated area southwest of Montana, but in Yellowstone County.

¶9 On November 12, 1996, before his sentencing, Appellant filed a motion to withdraw his guilty pleas. At the hearing on the motion, Appellant testified that he was not dissatisfied with his attorney, but that he simply made a wrong decision. Appellant testified that his attorney advised him of the possibility of a 520-year prison term if found guilty of the six felonies, but that a more likely prison term would be 110 years. Appellant testified that prior to entering the plea agreement, he had reviewed V.F.'s statement and the other evidence and was informed of the strengths and weaknesses of the State's case. Appellant testified that although he believed V.F. was lying, he went ahead and signed the plea agreement out of fear that the jury would find him guilty and that the court would impose a lengthy sentence.

¶10 Appellant further testified that the plea offer was made available for only one day and that he felt pressured to accept it. However, Appellant also testified that he and his attorney discussed plea negotiations a few days prior to the State's...

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23 cases
  • State v. Myers
    • United States
    • West Virginia Supreme Court
    • November 20, 1998
    ...presupposes fundamental fairness in the process of securing such an agreement between a defendant and the State. See State v. Schaff, 958 P.2d 682 (Mont.1998). Plea agreements are a form of contracts, their unique nature requires ordinary contract principles to be supplemented with a concer......
  • State v. Whitehorn
    • United States
    • Montana Supreme Court
    • March 26, 2002
    ...will consider for review only those issues raised in the pleadings or otherwise before the district court) (citation omitted); and State v. Schaff, 1998 MT 104, ¶ 26, 288 Mont. 421, ¶ 26, 958 P.2d 682, ¶ 26 (we will not address issues or theories raised for the first time on appeal) (citati......
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    ...the principle so often it has become mantra: This Court will not address an issue raised for the first time on appeal. See e.g. State v. Schaff, 1998 MT 104, ¶ 26, 288 Mont. 421, ¶ 26, 958 P.2d 682, ¶ 26; State v. Brown, 1999 MT 133, ¶ 19, 294 Mont. 509, ¶ 19, 982 P.2d 468, ¶ 19; State v. A......
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