State v. Sutton ( 2006 )

No. 05-341
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 73N
_______________________________________
STATE OF MONTANA,
Plaintiff and Respondent,
v.
KELVIN WARREN SUTTON a/k/a KELLY W.
SUTTON,
Defendant and Appellant.
______________________________________
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula, Cause No. DC 2003-483
The Honorable Edward P. McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Brian C. Smith, Office of the Public Defender, Missoula, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Jim Wheelis, Assistant Attorney
General, Helena, Montana
Fred Van Valkenburg, County Attorney; Kirsten LaCroix, Deputy County
Attorney, Missoula, Montana
____________________________________
Submitted on Briefs: March 29, 2006
Decided: April 18, 2006
Filed:
______________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court cause number and disposition shall be included in
this Court=s quarterly list of nonciteable cases published in the Pacific Reporter and
Montana Reports.
¶2 Kelvin Warren Sutton (Sutton) appeals from the denial of two motions to dismiss
the charges against him. Sutton raises multiple issues on appeal, but we only consider the
dispositive issue of whether Sutton waived his right to appeal the denial of his motions to
dismiss when he pled guilty without reserving the right to appeal. We affirm.
¶3 The State charged Sutton by Information with one count of felony driving under
the influence of an intoxicating substance and three misdemeanors. Sutton filed a motion
to dismiss the felony count, alleging his prior convictions were constitutionally infirm,
and a motion to dismiss all counts based on lack of a speedy trial. The District Court
denied both motions. Sutton entered a plea agreement on November 29, 2004, in which
he agreed to plead guilty to the four counts in the Information. In return, the State agreed
to make certain sentencing recommendations and to withdraw its notice to seek
punishment as a persistent felony offender.
¶4 Although Sutton failed to provide the Court with a transcript of the change of plea
hearing, the minute entry clearly shows he orally moved to amend the plea agreement to
provide that he reserved his right to appeal the denial of his motions to dismiss. The
State refused to agree to Sutton’s motion and stated that Sutton could either plead guilty
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or go to trial. The District Court denied the motion. Sutton then stated that he wished to
proceed and pled guilty. At sentencing, the District Court advised that it would not
follow the sentence recommendation in the plea agreement. Sutton declined an
opportunity to withdraw his guilty plea and was sentenced. This appeal followed.
¶5 We have determined to decide this case according to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2003, which provides for
memorandum opinions.
¶6 A defendant who enters a guilty plea may reserve the right to appeal an adverse
determination of any specified pretrial motion only with the consent of the prosecutor and
the approval of the court. Section 46-12-204(3), MCA. The prosecution refused to
consent to Sutton’s motion to reserve his right to appeal the denial of his motions to
dismiss. Likewise, the District Court declined to approve Sutton’s request. When Sutton
pled guilty, he waived his right to appeal the denial of his motions to dismiss.
¶7 Affirmed.
/S/ JOHN WARNER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ JIM RICE
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