State v. B. Nauman ( 2016 )

10/25/2016
DA 14-0812
Case Number: DA 14-0812
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 275N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
BRIAN VIRGIL NAUMAN,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DC-11-403B
Honorable Robert B Allison, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Nick K. Brooke, Smith & Stephens, P.C., Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
Attorney General, Helena, Montana
Ed Corrigan, Flathead County Attorney, Kalispell, Montana
Submitted on Briefs: September 7, 2016
Decided: October 25, 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 Brian Virgil Nauman (Nauman) appeals from the District Court’s denial of his
motion to withdraw his November 21, 2012 guilty plea for failing to register as a sex
offender. We affirm.
¶3 In January 2001, Nauman was convicted of felony sexual assault on a minor. He
served ten years in Montana State Prison (MSP) and was released in late 2010. Pursuant
to § 46-23-504, MCA, he registered as a sexual offender with the Kalispell Police
Department. In August 2011, Nauman’s probation officer learned he had moved or was
maintaining a second residence and failed to notify law enforcement. On December 7,
2011, the State charged Nauman with failure to register as a sex offender.
¶4 On November 21, 2012, Nauman agreed to enter an Alford plea for failing to
register as a sexual offender, pursuant to § 46-12-211(1)(b), MCA. North Carolina v.
Alford, 400 U.S. 25, 91 S. Ct. 160 (1970). The plea included an Acknowledgement of
Waiver of Rights that Nauman and both of his attorneys signed.
¶5 The plea agreement recommended a three-year suspended sentence to the
Department of Corrections (DOC), to run consecutively with the remainder of his felony
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sexual assault charge. The District Court sentenced him to MSP rather than DOC.
Nauman appealed. In State v. Nauman, 2014 MT 248, ¶ 13, 376 Mont. 326, 334 P.3d
368, this Court reversed the sentence and remanded “with instruction that the District
Court either enter a sentence consistent with the plea agreement or allow Nauman to
withdraw his guilty plea.”
¶6 After his appeal, Nauman filed a pro se motion to withdraw his guilty plea, which
the District Court denied as untimely. Nauman filed a motion to reconsider. On October
23, 2014, the District Court filed a Second Amended Judgment and Sentence in which it
sentenced Nauman in accordance with the plea agreement. On November 28, 2014, the
District Court filed an Order and Rationale rejecting Nauman’s motion to reconsider on
the grounds that his Alford plea was knowing and voluntary. Nauman appeals the
District Court’s denial of this motion to withdraw his guilty plea.
¶7 “This Court reviews a denial of a motion to withdraw a guilty plea de novo
because whether a plea was entered voluntarily is a mixed question of law and fact.”
State v. Valdez-Mendoza, 2011 MT 214, ¶ 12, 361 Mont. 503, 260 P.3d 151.
¶8 In his motion to withdraw Nauman argued he received ineffective assistance of
counsel because he did not understand the statutes applicable to his case and therefore his
plea was not knowing or voluntary. Nauman requests this Court not address his
ineffective assistance of counsel claim at this time, therefore we will not.
¶9 For the first time on appeal, Nauman argues the District Court’s colloquy was not
sufficient to establish his Alford plea was entered into knowingly and voluntarily, and
that the District Court materially breached the agreement when it committed Nauman to
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MSP rather than DOC. This Court will not entertain new issues that were not raised in
the district court when a defendant appeals the denial of a motion to withdraw a prior
plea. State v. Peterson, 2013 MT 329, ¶ 26, 372 Mont. 382, 314 P.3d 227.
¶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, the 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/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ JIM RICE
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