State v. Williams

• Decision Date: 23 March 2010
• Docket Number: No. DA 09-0238.,DA 09-0238.
• Parties: STATE of Montana, Plaintiff and Appellee, v. Scott Anthony WILLIAMS, Defendant and Appellant.
• Court: Montana Supreme Court

228 P.3d 1127

2010 MT 58

355 Mont. 354

STATE of Montana, Plaintiff and Appellee, v. Scott Anthony WILLIAMS, Defendant and Appellant.

No. DA 09-0238.

Supreme Court of Montana.

Submitted on Briefs November 18, 2009.

Decided March 23, 2010.

For Appellant: Joslyn Hunt, Chief Appellate Defender; Koan Mercer, Assistant Appellate Defender; Helena, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General; Sheri K. Sprigg, Assistant Attorney General; Helena, Montana, Joan Borneman, Deer Lodge County Attorney, Anaconda, Montana.

Justice BRIAN MORRIS delivered the Opinion of the Court.

¶ 1 Scott Anthony Williams (Williams) appeals the Judgment of the Third Judicial District Court, Deer Lodge County. We reverse.

¶ 2 We review the following issues on appeal:

¶ 3 Do §§ 46-11-410(2) and 46-1-202(9), MCA, preclude conviction for both sexual intercourse without consent and sexual assault?

¶ 4 Did Williams's counsel provide ineffective assistance that would warrant withdrawal of Williams's Alford pleas?

¶ 5 Did the District Court properly impose restitution?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 The State of Montana (State) filed an information on December 27, 2007, that charged Williams with sexual intercourse without consent, sexual assault, assault on a minor, and intimidation. The State's affidavit in support of the information alleged that Williams had attacked his girlfriend's thirteen year old daughter on December 16, 2007.

¶ 7 Williams entered Jane Doe's room and tried to rape her. Jane Doe tried to escape. Williams choked her and threatened to kill her if she told her mother. Williams kissed her, touched her all over her body, and penetrated her vagina with his finger. Williams blocked the front door of the house after the first attack so that Jane Doe could not leave. Williams attempted to accost Jane Doe a second time, but she escaped from the house and fled to her mother's place of employment. Jane Doe immediately reported the incident to law enforcement.

¶ 8 An evaluation at the hospital revealed that Jane Doe had abrasions and scrapes around her neck and a bruised cheek. She had marks all over her body, redness around her rectum, and vaginal bleeding. The State subsequently presented DNA testing that verified that Williams had been the attacker. The State elected to charge Williams for all the offenses based upon a single attack—the one that occurred in Jane Doe's bedroom.

¶ 9 Williams maintains he has no memory of the attack and that he had doubts as to his guilt despite the DNA evidence. The State and Williams eventually reached a plea agreement. Williams entered a plea of guilty to the sexual intercourse without consent and sexual assault charges in exchange for the State agreeing to dismiss the assault on a minor and intimidation charges. The plea agreement called for thirty years in the Montana State Prison with five years suspended on each charge. The two sentences were to run concurrently. The agreement provided that Williams would enter pleas pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), due to Williams's alleged lack of memory of the incident.

¶ 10 Williams filed several acknowledgments and waivers of his rights according to his Alford pleas. The District Court reviewed these documents and conducted an extended plea colloquy to discuss Williams's rights at the change of plea hearing on June 11, 2008. One of the waiver documents signed by Williams noted that sexual assault constituted a lesser-included offense of sexual intercourse without consent. The court advised Williams at the hearing that "sexual assault is probably by definition a lesser-included offense of sexual intercourse without consent." Williams admitted that he was accepting the plea agreement to avoid "more serious sentences that might be imposed" if he had proceeded to trial. Williams did not dispute the validity of the State's DNA evidence that confirmed that Williams had attacked Jane Doe. Williams also conceded that the DNA evidence provided the State with sufficient evidence to proceed to trial and have a jury find him guilty.

¶ 11 Williams filed a motion to withdraw his guilty pleas eight days later. Williams and the State filed briefs and the District Court held a hearing on September 10, 2008. Williams's counsel argued that Williams's timely request and the fact that he did not understand the ramifications of Alford pleas on sex offender treatment and whether he could obtain parole supported withdrawal of his pleas. Williams's counsel raised no statutory double jeopardy argument regarding multiple punishments for the two charges. Williams's counsel also failed to raise the issue of whether sexual assault constituted a lesser-included offense of sexual intercourse without consent. The court denied Williams's motion to withdraw his guilty pleas at the hearing.

¶ 12 The District Court sentenced Williams, consistent with the plea agreement, to two concurrent terms of thirty years in the Montana State Prison with five years suspended. The court further ordered that Williams pay for Jane Doe's reasonable medical and counseling costs. The court failed to set a specific amount of restitution. Williams appeals.

STANDARD OF REVIEW

¶ 13 Determinations regarding Montana's statutory double jeopardy protections under § 46-11-410, MCA, present questions of law that this Court reviews for correctness. State v. Becker, 2005 MT 75, ¶ 14, 326 Mont. 364, 110 P.3d 1. We review de novo ineffective assistance of counsel claims because they involve mixed questions of law and fact. Becker, ¶ 18.

DISCUSSION

¶ 14 Do §§ 46-11-410(2) and 46-1-202(9), MCA, preclude conviction for both sexual intercourse without consent and sexual assault?

¶ 15 Montana law precludes convicting a defendant of more than one offense if "one offense is included in the other." Section 46-11-410(2)(a), MCA. Williams contends that sexual assault constitutes an included offense of sexual intercourse without consent under § 46-11-410(2)(a), MCA. The State argues that Williams's failure to raise this statutory double jeopardy claim before the District Court bars him from raising it for the first time on appeal.

¶ 16 This Court generally will not address issues raised for the first time on appeal. State v. Longfellow, 2008 MT 343, ¶ 19, 346 Mont. 286, 194 P.3d 694. Williams raises his statutory double jeopardy claims as part of his challenge to the District Court's jurisdiction to accept his Alford pleas and to the effectiveness of his counsel's assistance. This Court addressed a similar statutory-based double jeopardy claim for the first time on appeal in the context of an ineffective assistance of counsel claim in Becker. Becker, ¶ 17. The same analysis applies here.

¶ 17 In Becker, the State charged Becker with criminal production or manufacture of dangerous drugs by accountability, felony criminal possession of dangerous drugs, and criminal possession of precursors to dangerous drugs. Becker, ¶¶ 7, 9. Becker's trial counsel filed a motion to dismiss the criminal possession of precursors to dangerous drugs charge as a violation of the statutory prohibition against double jeopardy. Becker, ¶ 9. Becker's counsel argued that the precursor charge arose out of the same conduct as the criminal possession charge, but failed to include the statutory double jeopardy claims in the motion to dismiss the possession of dangerous drugs charge. Becker, ¶ 20. Becker's counsel relied upon only the constitutional double jeopardy analysis from Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Becker, ¶ 20. The district court denied Becker's motion to dismiss and he proceeded to trial where the jury convicted him on all counts.

¶ 18 Becker argued on appeal that his convictions for criminal possession of dangerous drugs and criminal possession of precursors to dangerous drugs, in addition to his conviction for production of methamphetamine, violated his statutory protection against double jeopardy. Becker, ¶ 13. This Court determined that criminal possession of dangerous drugs constituted a lesser-included offense of criminal production or manufacture of dangerous drugs under § 46-11-410, MCA. Becker, ¶ 24. The Court vacated Becker's conviction for that charge. Becker, ¶ 25.

¶ 19 This Court has assumed in multiple cases, without actually deciding, that sexual assault constitutes a lesser-included offense to sexual intercourse without consent. See State v. Stevens, 2002 MT 181, ¶ 54, 311 Mont. 52, 53 P.3d 356. Montana law defines "included offense" as an offense that a) is established by proof of the same or less than all the facts required to establish the commission of the offense charged; b) consists of an attempt to commit the offense charged or to commit an offense otherwise included in the offense charged; or c) differs from the offense charged only in the respect that a less serious injury or risk to the same person, or a lesser kind of culpability suffices to establish its commission. Section 46-1-202(9), MCA.

¶ 20 Williams failed to raise subsection (b) of § 46-1-202(9), MCA, so we decline to address it now. We find it worth noting, however, that the State chose to charge Williams only for the first attack on Jane Doe. The information filed against Williams also mentioned a second attempted attack on Jane Doe as she tried to leave the house. This second attempted attack could have formed the basis for additional charges that might have altered our discussion of the matter regarding two separate transactions. We must take the case as it comes to us. We turn then to Williams's arguments regarding subsection (a).

¶ 21 The "facts" required under § 46-1-202(9), MCA, subsection (a), to establish the commission of the charged offense refers to statutory elements of offenses rather than to the facts of an individual case. State v. Beavers, 1999 MT 260, ¶ 30, 296 Mont. 340, 987 P.2d 371. Thus, under §...