State v. Whitehorn

• Decision Date: 26 March 2002
• Docket Number: No. 00-171.,00-171.
• Citation: 2002 MT 54,309 Mont. 63,50 P.3d 121
• Parties: STATE of Montana, Plaintiff/Respondent, v. Daniel Joseph WHITEHORN, Defendant/Appellant.
• Court: Montana Supreme Court

50 P.3d 121

2002 MT 54

309 Mont. 63

STATE of Montana, Plaintiff/Respondent, v. Daniel Joseph WHITEHORN, Defendant/Appellant.

No. 00-171.

Supreme Court of Montana.

Submitted on Briefs November 29, 2001.

Decided March 26, 2002.

Peter Bovingdon, Public Defender's Office, Helena, Montana, For Appellant.

Joseph P. Mazurek, Montana Attorney General, Micheal S. Wellenstein, Assistant Montana Attorney General, Helena, Montana; Mike McGrath, Lewis and Clark County Attorney, Helena, Montana, For Respondent.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Daniel Joseph Whitehorn (Whitehorn) appeals from the order of the First Judicial District Court, Lewis and Clark County, denying his petition for postconviction relief. We reverse and remand.

¶ 2 The issue presented on appeal is whether the District Court erred in denying Whitehorn's petition for postconviction relief by not retroactively applying this Court's holding in State v. Guillaume, 1999 MT 29, 293 Mont. 224, 975 P.2d 312. Whitehorn ultimately asks this Court to overrule prior case law to allow for retroactive application of Guillaume. Implicit in his argument is the following determinative question: Should the general rule of retroactive application from Teague v. Lane (1989), 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334, apply to Guillaume? We conclude the rule of retroactive application from Teague does not apply to Guillaume and therefore overrule in part, State v. Nichols, 1999 MT 212, 295 Mont. 489, 986 P.2d 1093.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 On April 7, 1995, Whitehorn was charged by Information with the following offenses: Count I, attempted deliberate homicide; Count II, criminal possession of dangerous drugs; and Count III, criminal possession of drug paraphernalia. Following plea negotiations, the State amended Count I into two charges: (a) felony assault in violation of § 45-5-202(2) (1993), MCA, and (b) criminal endangerment in violation of § 45-5-207 (1993), MCA. The State also agreed to dismiss Count III, criminal possession of drug paraphernalia.

¶ 4 On May 4, 1995, Whitehorn pled guilty to Count Ia, felony assault; Count Ib, criminal endangerment; and Count II, criminal possession of dangerous drugs. In his written plea agreement, Whitehorn offered the following factual basis for his offenses:

I believe I am guilty of these offenses because I possessed methamphetamine when I was stopped for a traffic offense and when this drug was found I attempted to reach a handgun to take my own life. The arresting officer attempted to stop me from using the handgun and I caused reasonable apprehension of serious bodily injury to that officer by the use of the handgun. A second officer joined in the struggle and I caused substantial risk of death or serious bodily injury to that officer by removing his loaded handgun from his belt and struggling with that weapon until the weapon discharged during the struggle.

¶ 5 On June 12, 1995, the District Court sentenced Whitehorn to the Montana State Prison for a period of: ten years on Count Ia, felony assault; ten years on Count Ib, criminal endangerment; and five years, suspended, on Count II, possession of dangerous drugs. The court added a ten-year sentence, with five years suspended, for the use of a weapon in the commission of a criminal offense pursuant to § 46-18-221, MCA (1993). The sentences were ordered to run consecutively.

¶ 6 Whitehorn sought review of his sentence by the Sentence Review Division, which modified his sentence on March 7, 1996. The modification provided that Whitehorn would not be eligible for parole until he served twelve and a half years of his sentence, noting that those twelve and a half years could not be reduced by good time and adding that Whitehorn be declared a dangerous offender. Whitehorn appealed the modification to this Court. On July 30, 1996, we struck down the Sentence Review Division's limitation on Whitehorn's good time.

¶ 7 In February of 1999, we decided Guillaume, in which we held that enhancing a defendant's sentence for the use of a weapon pursuant to § 46-18-221, MCA, where the underlying offense requires proof of the use of a weapon-in that case, felony assault-violated the double jeopardy provision of the Montana Constitution. See Guillaume, ¶ 16.

¶ 8 On June 10, 1999, Whitehorn filed a motion for resentencing in light of Guillaume, arguing that his enhanced sentence was contrary to the law and should be stricken because his underlying offense of felony assault required proof that he used a weapon. Initially, the State agreed that Guillaume applied and that resentencing was appropriate.

¶ 9 Prior to resentencing, however, the State changed its position in light of State v. Aguilar, 1999 MT 159, 295 Mont. 133, 983 P.2d 345 and later, Nichols, supra.

The State argued that Whitehorn's petition should be denied based upon these cases, which held Guillaume applied only to proceedings which were not yet final at the time Guillaume was decided. It argued that because Whitehorn's case had been final several years prior to that time, Nichols clearly barred reconsideration of Whitehorn's sentence.

¶ 10 On December 3, 1999, while his motion for resentencing was still pending, Whitehorn filed a petition for postconviction relief and memorandum in support of the petition. Whitehorn argued that his case was not final since he had not exhausted his remedy of postconviction relief, noting he was within the five-year time period for filing petitions for postconviction relief pursuant to § 46-21-102, MCA.

¶ 11 The District Court found Whitehorn's petition for postconviction relief was timely filed under § 46-21-102, MCA. However, relying on Nichols, the court found that Whitehorn's case was final and not pending on direct review, and thus concluded Guillaume could not be retroactively applied to his case. Whitehorn appeals the District Court's denial of his petition for postconviction relief.

STANDARD OF REVIEW

¶ 12 We review a district court's denial of a petition for postconviction relief to determine whether its findings of fact are clearly erroneous and its conclusions of law correct. State v. Wells, 2001 MT 55, ¶ 4, 304 Mont. 329, ¶ 4, 21 P.3d 610, ¶ 4 (citation omitted).

DISCUSSION

¶ 13 Whitehorn argues on appeal that the District Court erred in not retroactively applying our Guillaume decision to his case. In response, the State maintains that Whitehorn waived appellate review of his arguments concerning the retroactivity analysis used by this Court in Nichols because Whitehorn did not raise them in the District Court. The State points out that Whitehorn's appeal to the District Court focused on the argument that Whitehorn's case was not final in an effort to distinguish his case from Aguilar and Nichols, and thus urges us not to consider newly raised issues on appeal.

¶ 14 The dissent also contends that Whitehorn should be procedurally barred from raising the retroactivity issue on appeal because he failed to raise the issue in District Court. However, the dissent fails to recognize the unique nature of Whitehorn's appeal; he is asserting this Court erred in Nichols in its application of retroactivity principles from Teague. Under the principles of binding authority, the District Court could not overrule our holding in Nichols, only this Court could do so. See Black's Law Dictionary 1195 (7th ed., 1999) ("a lower court is bound by an applicable holding of a higher court in the same jurisdiction"). For this reason, and those below, we conclude under the common law doctrine of plain error, that Whitehorn is not procedurally barred from raising his retroactivity arguments on appeal.

¶ 15 Although the general rule is that new legal theories and issues not raised before the trial court are not considered by this Court on appeal, as it is unfair to fault the trial court on an issue it was never given an opportunity to consider, there are exceptions to the rule. Renner v. Nemitz, 2001 MT 202, ¶ 15, 306 Mont. 292, ¶ 15, 33 P.3d 255, ¶ 15. These exceptions "typically apply to criminal cases and, further, are only allowed when constitutional or substantial rights" are at issue. Renner, ¶ 15 (citing State v. Finley (1996), 276 Mont. 126, 915 P.2d 208, overruled on other grounds by State v. Gallagher, 2001 MT 39, 304 Mont. 215, 19 P.3d 817).

¶ 16 The dissent maintains that Whitehorn's appeal does not fall under the common law plain error doctrine this Court has applied in a long line of cases, including State v. Finley, noting that Finley was a direct appeal case, and therefore does not apply in support of Whitehorn's postconviction appeal. Even though Finley filed a petition for postconviction relief with this Court, the dissent is correct that Finley was technically a direct appeal case (characterized by the Finley Court as an "out-of-time appeal"). See Finley, 276 Mont. at 132, 915 P.2d at 212. However, nowhere in Finley, or in any other cases where this Court applied the common law plain error doctrine, has this Court categorically held that the common law plain error doctrine cannot be invoked in postconviction relief proceedings.

¶ 17 In Finley, we recognized "our inherent power and paramount obligation to interpret Montana's Constitution and to protect the various rights set forth in that document." Finley, 276 Mont. at 137, 915 P.2d at 215. We held that

this Court may discretionarily review claimed errors that implicate a criminal defendant's fundamental constitutional rights, even if no contemporaneous objection is made and notwithstanding the inapplicability of the § 46-20-701(2), MCA, criteria, where failing to review the claimed error at issue may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial proceedings, or may compromise the integrity of the judicial process.

Finley, 276 Mont. at 137, 915 P.2d at 215. Moreover, we have applied the common...