State v. Witkowski, DA 18-0621

Docket NºDA 18-0621
Citation2021 MT 297 N
Case DateNovember 16, 2021
CourtUnited States State Supreme Court of Montana

2021 MT 297N

STATE OF MONTANA, Plaintiff and Appellee,

JAY DONALD WITKOWSKI, Defendant and Appellant.

No. DA 18-0621

Supreme Court of Montana

November 16, 2021

Submitted on Briefs: June 9, 2021

APPEAL FROM: District Court of the Seventeenth Judicial District, In and For the County of Valley, Cause No. DC-2017-05 Honorable Yvonne Laird, Presiding Judge

For Appellant: Chad Wright, Appellate Defender, Deborah S. Smith, Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana Dylan J. Jensen, Valley County Attorney, Brant Light, Special Deputy County Attorney, Glasgow, Montana



Dirk Sandefur, Justice

¶1 Pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, we decide this case by memorandum opinion. It shall not be cited and does not serve as precedent. The case title, cause number, and disposition will be included in our quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Jay Donald Witkowski appeals his October 2017 judgment of conviction in the Montana Seventeenth Judicial District Court, Valley County, on the offense of deliberate homicide, a felony in violation of § 45-5-102(1)(a), MCA. We affirm except for remand for entry of an amended judgment of conviction striking/omitting various specified conditions of sentence.

¶3 In February 2017, the State charged Witkowski with the deliberate homicide of Evelynn Garcia. It alleged that, in the early evening of December 31, 2016, Witkowski stabbed Ms. Garcia multiple times while she was sitting in the passenger seat of his car, clubbed her in the head with a tire iron, ran her over with his car, and then left her for dead in the middle of a remote section of highway in Valley County. Following appointment of two public defenders as co-counsel, Witkowski pled not guilty and the case proceeded in advance of jury trial scheduled for August 21, 2017. On August 15, 2017, the day before a scheduled motions hearing a week before trial, Witkowski signed a written plea agreement, and accompanying written acknowledgment and waiver of rights, calling for him to plead guilty as charged in return for a joint sentencing recommendation for a 70-year


prison term, a consecutive 10-year term for use of a dangerous weapon, [1] and no restriction on parole eligibility. In his written acknowledgement and waiver, Witkowski specifically acknowledged, inter alia, that he fully understood his various constitutional and other trial rights, that his counsel fully explained those rights and advised him in regard thereto, and that he fully understood the terms and effect of the plea agreement and the waiver effect of a guilty plea. The acknowledgment further asserted that his ability to understand his rights and thus make a "knowing, intelligent, and voluntary decision or plea" was not diminished or impaired, that he had "not been threatened, coerced, forced, intimidated, or [unduly] influenced" to waive his rights and change his plea "in any way," that he "freely and voluntarily" entered into the plea agreement, that he "had ample time and opportunity to discuss [his] case with [his] attorneys," and that he had "received the full benefit of their advice" and was thus "satisfied with [their] services."

¶4 At the time set for the motions hearing the next day, counsel advised the court of the plea agreement and, upon being sworn, Witkowski engaged in a supplemental record colloquy wherein he reiterated the acknowledgements and representations set forth in his prior written acknowledgment and waiver including, inter alia, that he was satisfied with the advice and representation provided by his counsel. He specifically denied having "any complaints at all regarding [his] attorneys" and then pled guilty to deliberate homicide


pursuant to the plea agreement. The District Court accepted the change of plea and set sentencing for October 2, 2017.

¶5 However, unmentioned at the change of plea hearing, and thus unbeknownst to the court when it accepted his change of plea, Witkowski had sometime the day before mailed to the court a handwritten ex parte letter in which he requested new counsel. Contrary to his representations in his written acknowledgment and waiver or rights that day, and his sworn statements at change of plea hearing the next day, the ex parte letter asserted that he had not received adequate representation of counsel.[2] The District Court received the ex parte letter the day after the change of plea hearing and set a hearing for September 20, 2017. The order directed that Witkowski "shall be prepared to offer specifics to substantiate his complaints and Counsel . . . shall be prepared to respond."

¶6 At the September 2017 hearing, the District Court again advised Witkowski of his rights to remain silent and to consult with his current counsel before explaining the factual bases for his ex parte allegations. Without objection or request to first consult either with existing counsel or new counsel, Witkowski explained the various concerns that led him to write to the judge, then summarized by the court as assertions that his counsel "were not interested in [his] case," "failed to file appropriate motions," failed to remain "in contact," and "pressured [him] to take" the State's plea agreement offer. Without exception or


further elaboration, Witkowski acknowledged the court's characterization of his ex parte complaints.

¶7 As to the alleged disinterest of counsel, Witkowski generally explained without "specifics" that, at the time he wrote the letter, he "didn't feel that [he] and [his] attorney were seeing eye-to-eye." As to the motion practice complaint, he said that he was not satisfied at the time with the explanation as to why his contemplated motion for a change of venue would not be viable. He equivocated, however, that he was later "able to discuss [his] concerns with counsel" and realized that, "[a]t the time, [he] didn't quite understand all the elements that go into it." As to the sufficiency of contact with counsel, he stated that, "upon requesting to visit with . . . counsel," it "just felt that . . . it took longer than it should have"-sometimes "up to three weeks or so." When asked if he could "expand on" his ex parte assertion that he "felt pressured to take" the State's plea agreement offer, he said "no" and then again said "no" when asked if he still held that "contention."

¶8 In response to Witkowski's statements, appointed counsel countered that they were both very much interested in defending him based on "what was at stake" and that they "took it seriously." Counsel further acknowledged that Witkowski wanted them to seek a change of venue, and that they may not have adequately explained the reasons for not doing so. Counsel explained, however, that "it just didn't seem like we had the facts and the case law to file [the] [m]otion" and that "it would have [therefore] been . . . frivolous." Counsel further acknowledged...

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