State v. Williamson

• Decision Date: 09 October 1985
• Docket Number: No. 85-195,85-195
• Citation: 707 P.2d 530,218 Mont. 242
• Parties: STATE of Montana, Plaintiff and Respondent, v. Richard Melvin WILLIAMSON, Defendant and Appellant.
• Court: Montana Supreme Court

Page 530

707 P.2d 530

218 Mont. 242

STATE of Montana, Plaintiff and Respondent, v. Richard Melvin WILLIAMSON, Defendant and Appellant.

No. 85-195.

Supreme Court of Montana.

Submitted on Briefs July 25, 1985.

Decided Oct. 9, 1985.

Cannon & Sheehy, Edmund F. Sheehy, Jr., Helena, for defendant and appellant.

Mike Greely, Atty. Gen., Mike McGrath, Co. Atty., Carolyn Clemens, Deputy Co. Atty., Helena, for plaintiff and respondent.

HARRISON, Justice.

This is an appeal from the District Court of the First Judicial District, State of Montana, in and for the County of Lewis and Clark, the Honorable Gordon R. Bennett presiding. The appeal is from an order denying withdrawal of a guilty plea on charges of theft and arson. We affirm.

The appellant, Williamson, was charged in 1983 with the offense of arson alleged to have been committed on January 11, 1983; and with the charge of theft, alleged to have occurred between January 10 and February 12, 1983. The theft charge was filed prior to the filing of the arson information. After numerous pre-trial proceedings, the arson charge was set for trial May 31, 1983, and the theft charge was set for June 30, 1983.

Williamson was represented on both of these cases by Richard J. Pyfer, Esq. Mr. Pyfer filed a motion to dismiss and a motion to suppress some evidence developed in the arson case. These motions were heard May 11, 1983. The trial court denied the motions but gave Williamson's counsel an opportunity to submit additional memorandum on the arguments being raised in both motions. Thereafter the District Court noted no such additional memorandum were ever filed with the court. On or about May 23, 1983, the court entered its order denying the motion to dismiss and the motion to suppress in the arson case. Prior to that time, there had been no discussion between the county attorney's office and defense counsel with regard to a plea bargain.

On or about May 23, 1983, defense counsel was approached by the county attorney with regard to the trial, which was set within the week. After some discussion, the county attorney advised counsel that if the appellant would enter a guilty plea to both felony charges, the State would forego seeking increased punishment against him as a persistent felony offender. In exchange for the guilty plea, the State also said it would ask for a ten year sentence on each charge to run concurrently. Williamson's counsel approached him with the State's offer. Williamson was advised of the plea bargain on or about May 25, 1983, and requested that the county attorney come to him personally with his counsel to discuss the plea bargain. He alleged at that time the county attorney, in his discussion of the plea bargain, said if he did not change his plea by 10:00 a.m. the next morning, which was the time set to select a jury for the arson case, the plea bargain would not be offered at a later date. Williamson, after full discussion with his counsel, Pyfer, and the County Attorney, McGrath, did agree on May 26, 1983, to the plea bargain and Williamson changed his plea to guilty.

The District Court, on July 27, 1983, sentenced the appellant on both charges on the basis of his guilty plea. Williamson received ten years on the theft charge; and on the arson charge he received twenty years with ten years suspended, on the condition that he would pay $36,000 in restitution for the arson.

Williamson then sought sentence review from the Montana Sentence Review Board. His application was denied and he filed with this Court a pro se petition for post-conviction relief. At the same time, in July 1984, Williamson filed a pro se motion in the District Court to withdraw his plea. This Court on August 31, 1984, entered an order holding the petition for post-conviction relief in abeyance until the District Court ruled on Williamson's motion to withdraw his guilty plea.

New counsel was appointed by the District Court for Williamson to represent him on this motion to withdraw his guilty plea. On November 30, 1984, the District Court held a full hearing on the motion to withdraw the guilty plea, and on February 12, 1985, the court entered its order and opinion denying the motion to withdraw the guilty plea. It is from this order of the District Court that Williamson is appealing.

The sole issue presented in this case is whether the District Court erred in denying the motion to withdraw Williamson's guilty plea. The appellant, in his pro se motion to withdraw the guilty plea argues he was coerced into entering it and was not given effective assistance of counsel at the time this matter was argued.

The coercion argument stemmed from Williamson's testimony that he entered into the guilty plea to avoid the increased punishment for being a persistent felony offender. Five years prior to the charges that he faced in this cause, he had been sentenced to a ten year prison term. Appellant alleges his counsel, Mr. Pyfer, advised him the State could notice him as a persistent felony offender, which advice was erroneous. The testimony at the hearing on the withdrawal of the plea indicated Mr. Pyfer told Williamson at the time the plea bargain was made he was not certain and would consult more experienced counsel. However, after researching the statute, counsel agreed at a later hearing held with the county attorney and the district judge, the appellant could not have been charged as a persistent felon due to the statute's five-year limitation.

Williamson contends the plain language of the statute, Sec. 46-18-501, MCA, was misconstrued by his original counsel, Mr. Pyfer, the county attorney's office, and the District Court. Section 46-18-501, MCA, reads as follows:

A "persistent felony offender" is an offender who has previously been convicted of a felony and who is presently being sentenced for a second felony committed on a different occasion than the first. An offender is considered to have been previously convicted of a felony if:

(1) The previous felony conviction was for an offense committed in this state or any other jurisdiction for which a sentence to a term of imprisonment in excess of 1 year could have been imposed;

(2) Less than 5 years have elapsed between the commission of the present offense and either:

(a) the previous felony conviction; or

(b) the offender's release on parole or otherwise from prison or other commitment imposed as a result of the previous felony conviction; and

(3) the offender has not been pardoned on the ground of innocence and the conviction has not been set aside in a postconviction proceeding.

It is Williamson's position that having entered a guilty plea to the theft charges, and then pleading guilty to the arson charges, he could not be found a persistent felony offender because the two felonies were committed at approximately the same time and his pleas were entered at the same time.

The State's position is the statute's definition of a "persistent felony offender" is not wholly consistent with the statute's definition of "previously convicted" and...