State v. Warclub

Decision Date14 June 2005
Docket NumberNo. 03-419.,03-419.
Citation327 Mont. 352,2005 MT 149,114 P.3d 254
PartiesSTATE of Montana, Plaintiff and Respondent, v. Warren WARCLUB, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: Robert L. Kelleher Jr., Attorney at Law, Billings, Montana.

For Respondent: Honorable Mike McGrath, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana; Dennis Paxinos, Yellowstone County Attorney, Scott Twito, Deputy County Attorney, Billings, Montana. Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Warren Warclub pled guilty to the offense of deliberate homicide in the Montana Thirteenth Judicial District Court, Yellowstone County, on July 24, 2002. Shortly thereafter, Warclub moved to withdraw his guilty plea. After a hearing, the District Court denied his motion. Warclub appeals. We affirm.


¶ 2 Did the District Court err when it denied Warclub's motion to withdraw his guilty plea?


¶ 3 On October 5, 2001, Warclub was charged by information with deliberate homicide in the death of Domingo Pacheco. On October 9, 2001, Warclub entered a plea of not guilty, and the court appointed the Yellowstone County Public Defender's Office to represent him. Chief Public Defender L. Sanford Selvey, II, and Chief Deputy Public Defender Roberta Drew assumed the responsibility of representing Warclub.

¶ 4 After a few continuances, Warclub's trial was scheduled for July 30, 2002. Selvey filed various motions on Warclub's behalf. On July 12, 2002, Warclub filed a pro se Motion to Dismiss Counsel, stating that he had sought counsel elsewhere and no longer desired the services of the Public Defender's Office. The District Court heard his motion that day. Warclub explained that he intended to hire Kevin Gillen to represent him. The District Court advised Warclub of his right to counsel and told the Public Defender's Office to assist Warclub in contacting Gillen. Warclub apparently never reached an agreement with Gillen, and the Public Defender's Office remained his counsel.

¶ 5 Selvey filed various motions to suppress on Warclub's behalf. Following a hearing on July 18, 2002, the District Court granted a motion to suppress the results of hand swabs conducted on Warclub. Selvey subsequently filed more pre-trial motions.

¶ 6 On July 24, 2002, Warclub appeared and entered a change of plea, pursuant to a plea agreement with the State. The court reviewed a copy of the plea agreement which Warclub and Drew had initialed at the bottom of each page. Warclub affirmed that he had read the document, reviewed it with his attorney, and discussed his constitutional rights with his attorney. The court ascertained that Warclub understood that he had a right to a jury trial, and that he had had time to consider whether to change his plea to guilty. Selvey informed the court that on July 23, 2002, he met with Warclub for about two hours and that Warclub's brother Robert also attended the meeting to give Warclub comfort and support. Selvey further explained that Warclub had been brought to the courtroom on that day and the State brought in the evidence that it intended to produce for trial so that Warclub could view it.

¶ 7 At the change-of-plea hearing, Warclub testified that on the night of Pacheco's death, they were drinking together. Pacheco touched him, so Warclub stabbed him in the stomach with a dagger. The court asked Selvey if there was any evidence of self-defense, and Selvey replied that it had been considered, but in light of his office's investigation and the crime lab results there was no credible evidence to support the defense.

¶ 8 The court asked Warclub, "Do you feel like you had to stab this guy to prevent him seriously injuring or even killing you?" Warclub replied in the affirmative. After further questioning, the court stated that Warclub might have a defense to the crime of deliberate homicide, and that while the Public Defender's Office's investigation could not confirm that this was the case, Warclub was entitled to tell his story to a jury if he so chose. Warclub became confused and Selvey requested a recess to discuss the case further with Warclub. The hearing recessed for a few hours while the court attended to another matter.

¶ 9 When court reconvened, Warclub asserted that he desired to enter a guilty plea, and that he had not acted in self-defense. The State made an offer of proof of the evidence it had intended to submit at trial. Ultimately, the court accepted Warclub's plea.

¶ 10 Three days later, on July 27, 2002, Warclub sent a "kite," or Inmate Special Request Form, to Selvey, indicating in one sentence that he wanted to withdraw his guilty plea. On September 10, 2002, the District Court convened a hearing at which Selvey explained that he had received a letter from Warclub in which Warclub complained that he was dissatisfied with his legal representation, and that he wished to withdraw his guilty plea because he did not believe he had been adequately advised. The court deemed the proceeding a Stage I Finley hearing, pursuant to the process set forth in State v. Finley (1996), 276 Mont. 126, 915 P.2d 208 (overruled on other grounds by State v. Gallagher, 2001 MT 39, ¶ 21, 304 Mont. 215, ¶ 21, 19 P.3d 817, ¶ 21).

¶ 11 In response to the District Court's queries, Warclub explained that he did not believe his attorneys came to see him often enough while he was in jail, and he felt that his counsel was "against" him. Upon further inquiry, Warclub denied any recollection of the July 24 change-of-plea hearing, even after attempts were made to refresh his memory. Because Warclub was unable to recall a lengthy hearing which had occurred less than two months previously, the court stated that it could not determine whether Warclub's complaints about his counsel were seemingly substantial, and the court ordered that a psychiatric exam occur prior to Warclub's sentencing hearing, for a determination of his competency. The court stated that after Warclub's competency was determined, it would then decide what action to take on his ineffective assistance claims.

¶ 12 On October 1, 2002, after a psychiatric evaluation of Warclub, the court held another Stage I Finley hearing, at which the State, without objection, moved for investigation of Warclub's claims. The court appointed Melissa Edwards as Warclub's counsel to investigate his ineffective assistance claims. Warclub subsequently claimed that Edwards was also ineffective; however, after a hearing inquiring into Warclub's claims against Edwards on October 24, 2002, the District Court ordered that she remain on the case.

¶ 13 On December 23, 2002, Warclub, through his counsel Edwards, moved to withdraw his guilty plea pursuant to § 46-16-105(2), MCA, alleging that the District Court erred when it failed to ask Warclub if he was satisfied with his counsel when it accepted his change of plea. Following briefing by the parties, the District Court conducted a Stage II Finley hearing and a hearing on Warclub's motion to withdraw his plea on January 7, 8, and 9, 2003. After the parties' closing arguments, the court orally pronounced that Warclub's counsel had not been ineffective, and further denied Warclub's motion to withdraw his plea. On January 13, 2003, Edwards withdrew from the case and the Public Defender's Office resumed its representation of Warclub.

¶ 14 On March 14, 2003, Warclub filed a pro se motion to dismiss District Court Judge G. Todd Baugh and Deputy Public Defender Carl Debelly, who had represented Warclub in the later stages of his case. The court denied the motion and ordered Warclub's sentencing to go forward as scheduled. Warclub then filed a series of pro se motions, and the District Court held another hearing on April 1, 2003, to deal with these motions and determine the status of Warclub's counsel. After hearing testimony from Warclub, his Public Defender, and the County Attorney's Office, the court determined that the issues that Warclub had most recently raised pro se regarding alleged ineffective assistance of counsel had already been considered and resolved by the court, and that the Public Defender's Office would remain Warclub's counsel for his upcoming sentencing hearing. The court then heard arguments on each of Warclub's remaining pro se motions and denied them in turn.

¶ 15 On April 15, 2003, the District Court sentenced Warclub to the Montana State Prison for fifty-five years on the count of deliberate homicide, with an additional ten years for the use of a weapon, to be served consecutively. From the court's denial of his motion to withdraw his guilty plea, Warclub appeals.


¶ 16 Pursuant to § 46-16-105(2), MCA, a court may for good cause permit a plea of guilty to be withdrawn and a plea of not guilty substituted. "Good cause" includes the involuntariness of the plea, but it may include other criteria. State v. Lone Elk, 2005 MT 56, ¶ 19, 326 Mont. 214, ¶ 19, 108 P.3d 500, ¶ 19.

¶ 17 In Lone Elk, we adopted a new test to be applied in those cases in which a defendant has sought to set aside a guilty plea. We said we would determine whether the plea was entered voluntarily, and that, because determining whether the facts met the standard for voluntariness was a mixed question of law and fact, we would review the matter de novo. Lone Elk, ¶ 10. Before applying this test to the case before us, we wish to clarify our holding in Lone Elk.

¶ 18 In Lone Elk, we relied upon Brady v. United States (1970), 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, in which the United States Supreme Court examined a defendant's guilty plea to determine whether he had pled voluntarily. The Supreme Court in Brady stated:

A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel,

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