State v. Wright, 00-493.

• Decision Date: 20 December 2001
• Docket Number: No. 00-493.,00-493.
• Citation: 42 P.3d 753,2001 MT 282,307 Mont. 349
• Parties: STATE of Montana, Plaintiff and Respondent, v. John Thomas WRIGHT, Defendant and Appellant.
• Court: Montana Supreme Court

42 P.3d 753

2001 MT 282

307 Mont. 349

STATE of Montana, Plaintiff and Respondent, v. John Thomas WRIGHT, Defendant and Appellant.

No. 00-493.

Supreme Court of Montana.

Submitted on Briefs May 4, 2001.

Decided December 20, 2001.

John Thomas Wright, Pro Se, Deer Lodge, MT, For Appellant.

Honorable Mike McGrath, Attorney General; C. Mark Fowler, Assistant Attorney General, Helena, MT. Coleen I. Magera, County Attorney, Miles City, MT, For Respondent.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 The Defendant, John Thomas Wright (Wright), pled guilty to eleven counts of sexual assault on January 30, 1998, in the Sixteenth Judicial District Court in Custer County. Wright was sentenced on May 28, 1998, and on July 15, 1999, he filed a petition for postconviction relief. The District Court denied his petition, and he appeals therefrom. We affirm.

¶ 2 The dispositive issues on appeal are:

¶ 3 1. Did the District Court err in determining that Wright did not receive ineffective assistance of counsel on the asserted grounds that Wright's counsel coerced him to plead guilty, failed to appeal his sentence, and withheld exculpatory evidence?

¶ 4 2. Did the District Court err in determining that Wright was not unlawfully sentenced on the asserted grounds that the oral pronouncement varied from the written sentence, the District Court's nunc pro tunc order was improper, and that the condition ordering Wright to stay out of Custer County was illegal?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 On September 18, 1997, Wright was charged by information with twelve (12) counts of sexual assault, a felony, in violation of § 45-5-502(1)(3), MCA. Alternatively, under two of the counts, he was charged with sexual intercourse without consent, a felony, in violation of § 45-5-503(1)(3)(a), MCA. Wright, represented by his court-appointed counsel, J. Dennis Corbin (Corbin), and the State entered into a written plea agreement, which was filed on December 18, 1997. The plea agreement specified that Wright would plead guilty to eleven counts of sexual assault, and in exchange, the State would dismiss the two alternative counts of sexual intercourse without consent and one count of sexual assault.

¶ 6 At the change of plea hearing on January 30, 1998, Wright entered a plea of guilty to eleven (11) counts of sexual assault. The District Court then ordered a pre-sentence investigation and psychosexual evaluation.

¶ 7 At the sentencing hearing on May 28, 1998, the District Court sentenced Wright to five (5) years in Montana State Prison on each of the eleven (11) counts, with each sentence to run consecutively. The District Court suspended sentence on six (6) counts. The District Court ordered Wright to register as a sex offender, undergo HIV testing, and comply with all of the conditions set forth in the pre-sentence investigation report, including the recommendation that Wright never be allowed to return to Custer County. Additionally, the District Court ordered Wright to undergo medically safe treatment to reduce sexual fantasies and sex drive. The duration of the treatment was to be determined by the Department of Corrections. Finally, the District Court ordered Wright to complete phases 1 and 2 of the Sex Offender Treatment Program at Montana State Prison before he would be eligible for parole or probation.

¶ 8 Wright did not file a direct appeal on any issue. On July 15, 1999, Wright filed a petition for postconviction relief. On May 9, 2000, the District Court issued an order denying Wright's petition for postconviction relief. Wright appeals the judgment of the District Court.

STANDARD OF REVIEW

¶ 9 The standard of review of a district court's denial of a petition for postconviction relief is whether the district court's findings of fact are clearly erroneous and whether its conclusions of law are correct. State v. Charlo, 2000 MT 192, ¶ 7, 300 Mont. 435, ¶ 7, 4 P.3d 1201, ¶ 7. This Court adheres to the doctrine of implied findings which states that where a court's findings are general in terms, any findings not specifically made, but necessary to the judgment, are deemed to have been implied, if supported by the evidence. Interstate Brands Corp. v. Cannon (1985), 218 Mont. 380, 384, 708 P.2d 573, 576. A petition for postconviction relief must be based on more than mere conclusory allegations. "The petition for postconviction relief must . . . identify all facts supporting the grounds for relief set forth in the petition and have attached affidavits, records, or other evidence establishing the existence of those facts." Section 46-21-104(1)(c), MCA.

DISCUSSION

¶ 10 1. Did the District Court err in determining Wright did not receive ineffective assistance of counsel?

¶ 11 In considering ineffective assistance of counsel claims in postconviction proceedings, this Court has adopted the two-pronged test set forth by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. The two-prong test requires, first, that counsel's performance was deficient. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; State v. Hagen (1995), 273 Mont. 432, 440, 903 P.2d 1381, 1386 (Hagen I). This requires showing counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Hagen I, 273 Mont. at 440, 903 P.2d at 1386. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Hagen I, 273 Mont. at 440, 903 P.2d at 1386. In the context of a guilty plea, prejudice is established if the petitioner demonstrates that, but for his counsel's deficient performance, he would not have pled guilty and would have insisted on going to trial. State v. Cady, 2000 MT 353, ¶ 10, 303 Mont. 258, ¶ 10, 15 P.3d 479, ¶ 10. This Court has also held that the Strickland standard applies to petitions for postconviction relief. Hans v. State (1997), 283 Mont. 379, 393, 942 P.2d 674, 683; Lester Kills On Top v. State (1995), 273 Mont. 32, 49, 901 P.2d 1368, 1379.

¶ 12 Before reaching the merits of an ineffective assistance of counsel claim in a postconviction relief proceeding it is necessary to determine whether such a claim is properly before the Court or whether the claim is procedurally barred. Hagen v. State, 1999 MT 8, ¶ 11, 293 Mont. 60, ¶ 11, 973 P.2d 233, ¶ 11 (Hagen II). Such a claim could be barred by § 46-21-105(2), MCA (1999), which provides that grounds for relief which reasonably could have been raised on direct appeal may not be raised thereafter in a petition for postconviction relief. This Court has stated,

In that regard, where ineffective assistance of counsel claims are based on facts of record in the underlying case, they must be raised in the direct appeal; conversely, where the allegations of ineffective assistance of counsel cannot be documented from the record in the underlying case, those claims must be raised by petition for postconviction relief.

Hagen II, ¶ 12.

¶ 13 This Court consistently applies the statutory bar "in order to prevent the abuse of postconviction relief by criminal defendants who would substitute those proceedings for direct appeal and in order to preserve the integrity of the trial and direct appeal." State v. Hanson, 1999 MT 226, ¶ 14, 296 Mont. 82, ¶ 14, 988 P.2d 299, ¶ 14 (quoting In re Petition of Manula (1993), 263 Mont. 166, 169, 866 P.2d 1127, 1129).

¶ 14 First, Wright claims he received ineffective assistance of counsel when he entered his plea of guilty to the eleven counts of sexual assault, because he was coerced into pleading guilty by his attorney. Whether Wright voluntarily entered the guilty plea, or whether he was coerced into pleading guilty by his trial counsel, is a question of fact. We must look to the record in the underlying case to determine whether this issue of fact was documented therein.

¶ 15 The record contains evidence regarding Wright's guilty plea and Corbin's representation of Wright. First, Wright signed a plea agreement which addressed these issues. The record also contains the transcript of a conversation between Wright and Corbin discussing the terms and consequences of the plea agreement, which was recorded by the court reporter on January 30, 1998, before the change of plea hearing. Finally, the record contains a minute entry regarding the change of plea hearing.

¶ 16 A review of the record here indicates that the voluntary nature of Wright's plea was squarely addressed in the underlying proceeding and was well documented. The plea agreement, signed by Wright on December 17, 1997, contained the following provisions:

I acknowledge that my attorney has explained to me and advised me of the following and I fully understand that:

1. I have the right to plead not guilty, or to persist in that plea if it has already been made, and thereby place the burden of proof in proving my guilt upon the prosecution beyond a reasonable doubt.

. . . .

6. I have had ample time and opportunity to discuss this case with my attorney, received the full benefit of my attorney's advice, and am satisfied with the services of my attorney.

. . . .

8. I have not been threatened, coerced, forced or intimated in any way.

9. I have entered into this agreement freely and voluntarily and with full knowledge of its terms and conditions.

¶ 17 The transcribed conversation between Corbin and Wright on January 30, 1998, indicates that Corbin discussed the process of entering a plea which Wright would subsequently undertake. Corbin asked Wright if he understood all the rights he was giving up by pleading guilty, and Wright responded that he did. Corbin also asked Wright if he...