State v. Thee, 00-494.

• Decision Date: 21 December 2001
• Docket Number: No. 00-494.,00-494.
• Citation: 307 Mont. 450,2001 MT 294,37 P.3d 741
• Parties: STATE of Montana, Plaintiff and Respondent. v. Douglas F. THEE, Jr., Defendant and Appellant.
• Court: Montana Supreme Court

37 P.3d 741

2001 MT 294

307 Mont. 450

STATE of Montana, Plaintiff and Respondent. v. Douglas F. THEE, Jr., Defendant and Appellant.

No. 00-494.

Supreme Court of Montana.

Submitted on Briefs February 8, 2001.

Decided December 21, 2001.

Douglas F. Thee, Jr., Pro Se, Deer Lodge, MT, For Appellant.

Honorable Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General, Helena, Montana Brant S. Light, Cascade County Attorney, Great Falls, MT, For Respondent.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Douglas F. Thee, Jr., appeals the denial by the Eighth Judicial District Court, Cascade County, of his petition for post-conviction relief. Pursuant to a plea agreement, Thee pleaded guilty to the charge of deliberate homicide under § 45-5-102(1)(b), MCA (1997), for aggravated assault resulting in the death of a 12 month old child. After the District Court entered judgment and sentence, Thee petitioned pro se for post-conviction relief, alleging he would not have pleaded guilty but for ineffective assistance of counsel. The District Court denied the petition. We affirm.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Kevin Gefroh died as a result of severe blunt force trauma to the head shortly after admission to a Great Falls emergency room on February 22, 1998. Due to the non-accidental nature of 12-month-old Kevin's injuries, medical personnel alerted the police, who began an immediate investigation. In questioning Kevin's mother, Julie Johnson, and her live-in boyfriend, Douglas Thee, regarding events preceding Kevin's death, the police found inconsistencies in Johnson's and Thee's statements. Detectives asked Thee to submit to further questioning at the police station. Police gave Thee a verbal Miranda warning and read him the waiver, which Thee signed prior to the interview. During questioning, Thee again changed his story about how Kevin was injured. Kevin died during the interview process, and Thee was placed under arrest. On March 4, 1998, Thee was charged with deliberate homicide under the felony murder rule under § 45-5-102(1)(b), MCA (1997). The Information alleged that in the course of committing felony assault upon Kevin, Thee caused the child's death.

¶ 3 The District Court assigned Eric Olson, lead attorney at the Cascade County Public Defender's office, to represent Thee, with the assistance of co-counsel Carl Jensen, also with the Public Defender's Office. The record shows defense counsel sought and obtained a court-ordered mental evaluation for Thee.

¶ 4 Thee signed and filed a Plea Agreement and an Acknowledgment of Waiver of Rights by Plea of Guilty on April 16, 1998, almost two months after his arrest. The agreement provided that the State would recommend a 100 year prison sentence in exchange for Thee's plea of guilty to the charge of deliberate homicide under § 45-5-102(1)(b), MCA. At the conclusion of the change of plea hearing, the court accepted Thee's guilty plea and ordered a pre-sentence evaluation. The District Court held a sentencing hearing, after which Thee received the sentence of 100 years at Montana State Prison with no eligibility for parole for 30 years.

¶ 5 On May 7, 1999, Thee filed the instant pro se petition for post-conviction relief, alleging he was denied his right to effective counsel prior to and during his change of plea hearing. For relief, Thee seeks withdrawal of his guilty plea and the opportunity to take his case to trial. To create a record for review, the District Court ordered transcripts of the change of plea and sentencing hearings. Defense counsel Eric Olson prepared a response to Thee's allegations that described, without abridging the attorney-client privilege, Olson's decision-making process during his representation of Thee. Olson recommended new counsel be appointed for Thee, given the fact that Thee would again be exposed to the possibility of the death penalty should his request to withdraw his plea be granted. Cascade County Attorney Brant Light filed a separate response to Thee's post-conviction petition. On May 3, 2000, the District Court issued findings that Thee's change of plea was voluntary and that Thee was afforded competent counsel. The court dismissed Thee's petition as a matter of law for failure to state a claim for relief under § 46-21-201(1)(a), MCA. We affirm.

STANDARD OF REVIEW

¶ 6 We review a district court's denial of a petition for post-conviction relief to determine whether the findings are clearly erroneous and whether the conclusions of law are correct. Dawson v. State, 2000 MT 219, ¶ 18, 301 Mont. 135, ¶ 18, 10 P.3d 49, ¶ 18; Bone v. State (1997), 284 Mont. 293, 302, 944 P.2d 734, 739-40. When reviewing the district court's findings of fact to determine if they are clearly erroneous, we apply the following criteria:

(1) the Court will determine whether the findings are supported by substantial evidence; (2) if the findings are supported by substantial evidence, the Court will determine if the trial court has misapprehended the evidence; and (3) if the findings are supported by substantial evidence and that evidence has not been misapprehended, this Court may still find a finding is clearly erroneous when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.

Dawson, ¶ 18.

¶ 7 A defendant's right to assistance of counsel is guaranteed by Article II, Section 24, of the Montana Constitution and by the Sixth Amendment to the United States Constitution. We review claims of ineffective assistance of counsel on direct appeal or in post-conviction proceedings using the two-pronged test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See Dawson, ¶ 20; Kills on Top v. State (1995), 273 Mont. 32, 49, 901 P.2d 1368, 1379. The right to counsel means "the right to effective assistance of counsel." Strickland, 466 U.S. at 686,104 S.Ct. at 2063,80 L.Ed.2d at 692 (quoting McMann v. Richardson (1970), 397 U.S. 759, 771, n. 14, 90 S.Ct. 1441, 1449, n. 14, 25 L.Ed.2d 763, 773, n. 14). Strickland provides that a defendant is denied effective assistance of counsel if: (1) counsel made errors so serious that his conduct fell short of the range of competence required of attorneys in criminal cases; and (2) counsel's errors were prejudicial. Strickland, 466 U.S. at 687,104 S.Ct. at 2064,80 L.Ed.2d at 693; State v. Boyer (1985), 215 Mont. 143, 147, 695 P.2d 829, 831.

¶ 8 Judicial scrutiny of counsel's performance must be highly deferential and courts must indulge a strong presumption that counsel's actions regarding defense strategies fall within the wide range of reasonable and sound professional assistance. Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2064-65, 80 L.Ed.2d at 693-94. To constitute ineffective assistance, counsel's challenged actions must stem from ignorance or neglect rather than from professional deliberation. State v. Aliff, 2001 MT 52, ¶ 13, 304 Mont. 310, ¶ 13, 21 P.3d 624, ¶ 13 (citing State v. Gonzales (1996), 278 Mont. 525, 532, 926 P.2d 705, 710). Moreover, we maintain that counsel's strategic decisions deserve great deference and cannot be the basis upon which to find ineffective assistance of counsel. Hans v. State (1997), 283 Mont. 379, 392, 942 P.2d 674, 682 (citations omitted). However, we also noted in Hans, that counsel's duty to inform his client as to the nature and elements of the offense and the advisability of a plea are obligatory, not strategic. Hans, 283 Mont. at 392, 942 P.2d at 682.

¶ 9 The second prong of the Strickland test requires a defendant to show that counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. To show prejudice, the petitioner alleging ineffective assistance of counsel must demonstrate that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart (1985), 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

DISCUSSION

¶ 10 The issue on appeal is whether the District Court erred in denying Douglas Thee's petition for post-conviction relief.

¶ 11 Thee alleges in his petition that he was denied his right to effective assistance of counsel prior to and during his change of plea hearing. Thee's claim encompasses the following specific allegations:

a. Defense counsel induced Thee to plead guilty and threatened Thee by telling him he was "going to die" unless he pleaded guilty.

b. Defense counsel failed to address the alleged violent treatment Thee received from inmates and jail guards during Thee's incarceration in the Cascade County Jail.

c. Defense counsel failed to seek suppression of statements Thee made during police interrogation, which Thee alleged violated his Miranda rights.

d. Defense counsel failed to have Thee's mental or emotional stress at the time of the homicide evaluated by a qualified mental health examiner to prove circumstances that could be used to mitigate the deliberate homicide charge.

e. Defense counsel failed to inform Thee of a possibility of seeking conviction at trial of a lesser included offense.

As a result of the alleged ineffective assistance, Thee claims he did not reach his decision to plead guilty to deliberate homicide voluntarily or intelligently, and he seeks to have his plea vacated. We examine each allegation in turn.

a. Threats

¶ 12 Thee asserts defense counsel induced Thee to plead guilty by threatening "he was going to die unless he pled guilty." Thee further alleges his counsel told him, "since you won't sign the plea agreement, you can think about dying because this is where you are headed." Defense counsel Eric Olson, in his...