State v. Usrey

• Decision Date: 01 July 2009
• Docket Number: No. DA 08-0050.,DA 08-0050.
• Citation: 212 P.3d 279,2009 MT 227,351 Mont. 341
• Parties: STATE of Montana, Plaintiff and Appellee, v. Ricky Joe USREY, Defendant and Appellant.
• Court: Montana Supreme Court

212 P.3d 279

2009 MT 227

351 Mont. 341

STATE of Montana, Plaintiff and Appellee, v. Ricky Joe USREY, Defendant and Appellant.

No. DA 08-0050.

Supreme Court of Montana.

Submitted on Briefs November 26, 2008.

Decided July 1, 2009.

For Appellant: Jim Wheelis, Chief Appellate Defender; Roberta R. Zenker, Assistant Appellate Defender, Helena, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General; Sheri K. Sprigg, Assistant Attorney General, Helena, Montana, Mike Weber, Richland County Attorney, Sidney, Montana.

Justice JOHN WARNER delivered the Opinion of the Court.

¶ 1 Ricky Joe Usrey was convicted by his plea of guilty of the offense of sexual intercourse without consent. He later moved to withdraw his guilty plea. The Seventh Judicial District Court, Richland County, denied Usrey's motion and he appeals.

¶ 2 Usrey raises the following issues on appeal:

¶ 3 Issue 1: Did the District Court err in concluding that Usrey's plea of guilty was voluntary?

¶ 4 Issue 2: Did the District Court err in admitting the testimony of Usrey's former attorney?

BACKGROUND

¶ 5 Pursuant to an order transferring the case from Youth Court to District Court, the State filed an information charging Usrey, who was 17 years old at the time, with sexual intercourse without consent for forcing himself on a 6-year-old girl.

¶ 6 Usrey, after a consultation with his appointed counsel, pled not guilty to the charge on August 17, 1999. Later, again with the advice of counsel, Usrey entered into a written plea agreement wherein he acknowledged, inter alia, that he waived the right to have the jury instructed on a lesser offense, that the court was not bound by the State's recommendations, and that he could be sentenced to the maximum penalty provided by law.

¶ 7 At the continued arraignment, where Usrey changed his plea to guilty, the District Court confirmed he read through the agreement carefully, went over it with his attorney, and understood it. The court outlined the agreement's waiver of rights provisions and asked Usrey if he understood the consequences of the agreement. Usrey said he understood what rights he was waiving and described why he thought he was guilty. Further details of the plea colloquy are discussed below. The District Court then committed Usrey to the Montana Department of Corrections (DOC) for placement in an appropriate facility or program for a period of 15 years, with all but five years of the commitment suspended. After serving four years at Montana State Prison, Usrey was released to the suspended portion of his commitment upon the conditions he attend sex offender treatment, register as a sex offender, notify his probation officer if he changed his residence, and abstain from alcohol and drugs.

¶ 8 Several months after his release from prison, the District Court revoked Usrey's probation and recommitted him to DOC for ten years with the entire commitment suspended. A couple of months later, Usrey again violated the conditions of his probation. As a result, the District Court revoked his DOC commitment and again recommitted him to DOC for ten years, with all but five years suspended. Usrey then filed the motion to withdraw his guilty plea at issue in this case. His motion alleged that he entered his plea involuntarily because he is "mentally retarded" and his attorney failed to sufficiently explain the plea agreement to him. He alleged he did not understand the agreement he signed seven years earlier, and the District Court did not adequately explain to him the rights he was waiving at the continued arraignment.

¶ 9 The District Court conducted a hearing on Usrey's motion to withdraw his guilty plea. At the hearing, a psychologist retained by Usrey's attorney to evaluate his "limited cognitive and academic abilities," testified Usrey had below average intelligence, with an IQ of 71, and read at a second-grade level, but is not "mentally retarded." The psychologist opined that for Usrey to fully understand the plea agreement, someone would have to verbally communicate its details to him.

¶ 10 The State offered the testimony of Thomas Halvorson, the attorney who represented Usrey during plea negotiations and at the continued arraignment. Usrey objected to Halvorson testifying on the grounds that it would violate his attorney-client privilege. The District Court overruled the objection. Halvorson testified that he explained the plea agreement to Usrey in a series of phone calls, letters, and face-to-face meetings.

¶ 11 The District Court denied Usrey's motion to withdraw his guilty plea, concluding that Halvorson had sufficiently explained the written plea agreement to him, the sentencing court's colloquy with him when he pled guilty was adequate, and Usrey was mentally competent to enter the guilty plea. Usrey appeals, reiterating his claims that the plea colloquy was inadequate, that he did not understand to what he was pleading, and that the District Court erred in relying on the testimony of Halvorson because his testimony violated the attorney-client privilege.

STANDARDS OF REVIEW

¶ 12 We review the denial of a motion to withdraw a guilty plea de novo. State v. Tyler, 2009 MT 75, ¶ 10, 349 Mont. 461, 204 P.3d 685; State v. McFarlane, 2008 MT 18, ¶ 8, 341 Mont. 166, 176 P.3d 1057.

¶ 13 We accept a district court's findings of fact on a motion to withdraw a plea, unless they are clearly erroneous. Findings of fact are clearly erroneous if they are unsupported by substantial evidence, the district court misapprehended the effect of the evidence, or a review of the record convinces this Court that the district court made a mistake. McFarlane, ¶ 8. We review the district court's conclusions of law for correctness. McFarlane, ¶ 8.

¶ 14 We review issues involving the admission of evidence for an abuse of discretion. State v. Foston, 2009 MT 191, ¶ 10, 351 Mont. 85, 209 P.3d 262.

DISCUSSION

¶ 15 Issue 1: Did the District Court err in concluding that Usrey's plea of guilty was voluntary?

¶ 16 On appeal, Usrey first claims his plea was not voluntary because when he pled guilty, the District Court did not advise him of the maximum possible punishment for sexual intercourse without consent.

¶ 17 A plea of guilty is constitutionally valid only to the extent it is voluntary and intelligent. Tyler, ¶ 11; State v. Lone Elk, 2005 MT 56, ¶ 13, 326 Mont. 214, 108 P.3d 500 (citing Bousley v. United States, 523 U.S. 614, 618, 118 S.Ct. 1604, 1609, 140 L.Ed.2d 828 (1998)). The ultimate test for withdrawal of a guilty plea is whether it was voluntary. Tyler, ¶ 11; Lone Elk, ¶ 14. For a defendant's guilty plea to be voluntary, he must be "`fully aware of the direct consequences of the plea, including the value of any commitments made to him by the court, the prosecutor or his own counsel.'" Lone Elk, ¶ 21 (quoting Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970)). In our assessment of voluntariness, we consider the facts of each case, which may include the adequacy of the court's interrogation of a defendant who pleads guilty. State v. Swensen, 2009 MT 42, ¶ 12, 349 Mont. 268, 203 P.3d 786. For a plea to be voluntary, the defendant must be mentally competent and able to understand the plea. Lone Elk, ¶ 21. Montana law requires a district court to determine that a defendant understands certain consequences of his guilty plea, such as the maximum penalty for the defendant's crime. Section 46-12-210(1)(a)(iii), MCA.

¶ 18 Although the written plea agreement does not state the specific maximum penalty upon a conviction of sexual intercourse without consent and the District Court did not state the penalty when Usrey pled guilty, the District Court did ask Usrey if he was mindful of the maximum penalty for sexual intercourse without consent. He said he was. The maximum penalty is clearly stated in the information. The transcript of the continued arraignment indicates that the District Court had previously discussed the maximum penalty with Usrey, and he does not argue that this is not so. Further, the plea bargain called for a sentence far less than the maximum penalty. The sentence imposed, that Usrey bargained for, is far less than the maximum. We conclude Usrey understood the maximum penalty for sexual intercourse without consent when he pled guilty.

¶ 19 Usrey next argues that his plea was not voluntary because the District Court did not advise him at the time he changed his plea to guilty that if it did not accept the plea agreement, he might not be allowed to withdraw his plea. Section 46-12-210(1)(d), MCA, provides:

Before accepting a plea of guilty or nolo contendere, the court shall determine that the defendant understands . . . that if the defendant pleads guilty or nolo contendere in fulfillment of a plea agreement, the court is not required to accept the terms of the agreement and that the defendant may not be entitled to withdraw the plea if the agreement is not accepted pursuant to 46-12-211[.]

¶ 20 Usrey's plea agreement states that the court is not bound by the plea agreement and that if Usrey chose to plead guilty, all that remains for the court to do is sentence him. The District Court advised Usrey that if he pled guilty there would be no trial, and again reminded him that the court was not bound by the agreement. Usrey was, in essence, advised that his guilty plea would be final, even if the court did not accept the sentencing recommendation. The District Court accepted the terms of the plea agreement and imposed the bargained-for sentence.

¶ 21 Any variance from the required plea bargain procedure that does not affect the substantial rights of the defendant must be disregarded. Section 46-12-213, MCA. We conclude Usrey was not misled to his detriment simply because the District Court did not tell him, using the exact words of § 46-12-210(1)(d), MCA, that he might not be allowed to withdraw his guilty plea if the plea bargain was rejected.

¶...