State v. Moog , 2016 MT 82N ( 2016 )

April 5 2016
DA 14-0557
Case Number: DA 14-0557
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 82N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
REBECCA MOOG,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. DDC 2012-174
Honorable James P. Reynolds, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Chief Appellate Defender, James Reavis, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana
Leo Gallagher, Lewis and Clark County Attorney, Luke M. Berger,
Deputy County Attorney, Helena, Montana
Submitted on Briefs: March 16, 2016
Decided: April 5, 2016
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 This case pertains to the sentencing of Rebecca Ann Moog (“Moog”). Moog was
stopped while driving under the influence in Helena in early June 2012. The State
charged Moog with a felony DUI on June 19, 2012. Moog pleaded guilty to the charge
on April 5, 2013, but after receiving new counsel, she filed a motion to withdraw the
guilty plea. The District Court denied her motion on December 4, 2013. At her
sentencing hearing on June 12, 2014, Moog was sentenced to the Montana Department of
Corrections for 13 months with a recommendation that she be enrolled in the WATCh
program. Upon successful completion of the program the remainder of her sentence
would be suspended. Moog appeals her sentence based on ineffective assistance of
counsel (“IAC”). We affirm.
¶3 We review IAC claims to assess whether counsel’s performance was deficient and
whether the defendant was prejudiced by counsel’s deficient performance. Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). In cases in which
ineffective assistance claims are based on the record, they must be raised on direct
appeal. State v. Earl, 2003 MT 158, ¶ 39, 316 Mont. 263, 71 P.3d 1201, 1208 (citing
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State v. White, 2001 MT 149, ¶ 12, 306 Mont. 58, 30 P.3d 340). We review district court
rulings on IAC claims for correctness, as they present mixed questions of law and fact.
State v. Zink, 2014 MT 48, ¶ 9, 374 Mont. 102, 319 P.3d 596.
¶4 After pleading guilty to felony DUI, Moog was subject to the mandatory minimum
sentence in § 61-8-731, MCA, which mandates a sentencing to the “department of
corrections . . . [for] not less than 13 months.” On appeal, Moog suggests that her alcohol
dependency issues arose out of social pressure from her network in Helena and mental
illness. Moog had been convicted of three DUIs in Montana. In an effort to change,
Moog moved to Vancouver, Washington. She returned to Helena in 2012 to attend her
step-father’s funeral, which unsettled her. Moog consumed alcohol and drove her vehicle
until she was stopped. Ultimately, Moog pleaded guilty to felony DUI.
¶5 Given the emotional duress Moog was under, she contends that she lost the
opportunity to receive a more lenient sentence because her counsel did not argue the
applicability of § 46-18-222, MCA, at sentencing. Section 46-18-222, MCA, states in
relevant part that mandatory minimums otherwise prescribed in statutes do not apply in
cases in which, at the time of the commission of the offense, the “offender’s mental
capacity[] was significantly impaired” or “the offender . . . was acting under unusual and
substantial duress.”
¶6 While counsel did not argue that § 46-18-222, MCA, should apply to felony DUI,
she did argue for an alternative placement in Moog’s current hometown and based that
argument upon statutory and constitutional grounds. She presented evidence that Moog
was undergoing outpatient psychiatric care for bipolar disorder, that her alcohol
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dependence is in remission, and disruption of the current treatment would cause her
functioning to deteriorate. She also presented evidence that Moog was a single mother,
gainfully employed, and could afford to pay for future treatment.
¶7 Moog must show that her attorney’s representation fell below an objective
standard of reasonableness and that her counsel’s deficient performance prejudiced her.
Strickland, 466 U.S. at 688-89, 104 S. Ct. 2064; Zink, ¶ 18. There is a strong
presumption that counsel “rendered adequate assistance and made all significant
decisions in the exercise of professional judgment.” Strickland, 466 U.S. at 690, 104
S. Ct. 2064; see also Whitlow v. State, 2008 MT 140, ¶ 31, 343 Mont. 90, 105, 183 P.3d
861, 871.
¶8 Moog argues on appeal that § 46-18-222, MCA, is applicable to felony DUI
sentences and her counsel was therefore deficient in not advancing that argument at the
sentencing hearing. However, § 46-18-222, MCA, was not clearly available in this case.
This Court has not held that § 46-18-222, MCA, applies to felony DUIs. Further the
felony DUI statute (§ 61-8-731(7), MCA) explicitly states which Title 46, MCA,
sentencing provisions apply, and § 46-18-222, MCA, is not listed. Thus since neither
current case law nor the Montana Code explicitly apply § 46-18-222, MCA, to felony
DUIs we cannot concur that Moog’s counsel was unreasonable in believing that it was
inapplicable in this case.
¶9 “[T]he Sixth Amendment guarantees reasonable competence, not perfect advocacy
judged with the benefit of hindsight.” Yarborough v. Gentry, 540 U.S. 1, 8, 124 S. Ct. 1,
6 (2003); Whitlow, ¶ 14. Counsel’s decision to not focus her argument on the applicability
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of § 46-18-222, MCA, is not sufficient to adjudicate her performance as deficient. Moog
has not met the heavy burden required to establish that counsel was deficient in
representing her at sentencing. As Moog does not satisfy the first element of our analysis
for determining whether she received ineffective counsel, we do not reach the second part
of the analysis. Zink, ¶ 18.
¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, this case presents a question controlled by settled law or by the clear
application of applicable standards of review.
¶11 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
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