State v. B. Watts

12/20/2016
DA 15-0645
Case Number: DA 15-0645
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 331STATE OF MONTANA,
Plaintiff and Appellee,
v.
BILLY JOE WATTS,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. BDC 2014-280
Honorable Jeffrey M. Sherlock, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Chief Appellate Defender, Moses Okeyo, 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 Berger, Deputy
County Attorney, Helena, Montana
Submitted on Briefs: October 26, 2016
Decided: December 20, 2016
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Billy Joe Watts (Watts) appeals from the District Court’s denial of his motion to
dismiss his previous Partner Family Member Assault (PFMA) convictions based on the
unconstitutionality of the PFMA statute. We affirm.
¶2 We restate the issue on appeal as follows:
Did the District Court err when it denied Watts’ motion to dismiss his felony
conviction of Partner Family Member Assault and reduce his charge to a
misdemeanor at sentencing?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 The State charged Watts with his fifth PFMA, a felony, for conduct occurring on
June 23, 2014. Watts was on probation for a 2012 PFMA conviction. Watts has four
prior PFMA convictions (2002 misdemeanor; 2003 misdemeanor; 2003 felony; and 2012
felony). The State filed a notice to classify Watts as a persistent felony offender (PFO)
based on his 2003 and 2012 PFMA convictions.
¶4 Watts negotiated a plea agreement with the State where he agreed to plead guilty
to PFMA (a felony) and the State agreed to withdraw the PFO notice. The plea
agreement Watts signed included a proper acknowledgement and waiver of rights. The
form provided that Watts understood and had the opportunity to examine the charges
against him with his attorney; that his attorney fully advised and explained to him his
rights, and the possible punishment for his crime; that Watts waived all the rights
guaranteed by a trial, except the right to effective assistance of counsel; and that Watts
was not threatened, coerced, forced, intimidated, or influenced in any way.
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¶5 Watts voluntarily pled guilty on December 18, 2014. During the colloquy the
judge informed Watts of his right to remain silent, which Watts waived by answering
questions. Watts informed the court he was of sound mind, not under the influence of
any drugs or alcohol, was happy with his attorney’s work and understood the maximum
punishment for his crime as well as the fact he could receive consecutive sentences for
violating his parole. Watts did not reserve his right to appeal any issue.
¶6 At the February 24, 2015 sentencing hearing Watt’s counsel advised the court she
intended to file a brief challenging his prior convictions and the constitutionality of
Montana’s PFMA statute. In her brief, counsel argued the Montana PFMA statute
violated the Equal Protection Clause of the United States and Montana Constitutions.
Watt’s counsel also filed a motion requesting that the District Court dismiss the felony
PFMA charge, reducing it to a misdemeanor. The District Court denied the motion based
on an equal protection clause analysis and the severability of the alleged offending
language. Watts appeals.
STANDARD OF REVIEW
¶7 A ruling on a motion to dismiss in a criminal proceeding is a question of law,
which we review de novo. State v. Burns, 2011 MT 167, ¶ 17, 361 Mont. 191, 256 P.3d
944. Whether a prior conviction may be used for sentence enhancement is generally a
question of law, which the Court reviews de novo. State v. Maine, 2011 MT 90, ¶ 12,
360 Mont. 182, 255 P.3d 64. The constitutionality of a statute is a question of law, which
we review for correctness. State v. Knudson, 2007 MT 324, ¶ 12, 340 Mont. 167, 174
P.3d 469.
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DISCUSSION
¶8 Did the District Court err when it denied Watts’ motion to dismiss his felony
conviction of Partner Family Member Assault and reduce his charge to a
misdemeanor at sentencing?
¶9 Montana’s long standing jurisprudence holds that “where a defendant voluntarily
and knowingly pleads guilty to an offense, the plea constitutes a waiver of all
non-jurisdictional defects and defenses, including claims of constitutional rights
violations which occurred prior to the plea.” State v. Lindsey, 2011 MT 46, ¶ 19, 359
Mont. 362, 249 P.3d 491; State v. Pavey, 2010 MT 104, ¶ 11, 356 Mont. 248, 231 P.3d
1104; State v. Kelsch, 2008 MT 339, ¶ 8, 346 Mont. 260, 194 P.3d 670; State v. Rytky,
2006 MT 134, ¶ 7, 332 Mont. 364, 137 P.3d 530; State v. Gordon, 1999 MT 169, ¶ 23,
295 Mont. 183, 983 P.2d 377; State v. Turcotte, 164 Mont. 426, 524 P.2d 787 (1974). A
defendant may only attack the voluntary and intelligent character of the guilty plea and
may not raise independent claims relating to prior deprivations of constitutional rights.
Gordon, ¶ 23; State v. Wheeler, 285 Mont. 400, 948 P.2d 698 (1997); State v. Hilton, 183
Mont. 13, 597 P.2d 1171 (1979), overruled on other grounds in State v. Deserly, 2008
MT 242, 344 Mont. 468, 188 P.3d 1057 (After pleading guilty, a defendant is limited to
attacking the voluntariness of the guilty plea and he may not raise independent claims
relating to prior deprivations of constitutional rights.).
¶10 Watts argues that the PFMA statute at the time he was previously convicted was
unconstitutional because it treated heterosexual and homosexual couples differently.
Section 45-5-206, MCA (2003) (amended 2013). Watts claims he preserved his right to
appeal the denial of his motion to dismiss. After a thorough review of the record, plea
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agreement, and transcript, we cannot agree. The plea agreement, which was signed by
Watts and his counsel and was presented to the District Court at the plea hearing,
contains no language reserving the right to appeal after his guilty plea. The plea
agreement specifically acknowledges that Watts waives his right to all appeals, except an
appeal based on ineffective assistance of counsel. Watts has not preserved the right to
challenge his conviction based on the constitutionality of the underlying statute. See
State v. Krebs, 2016 MT 288, ¶ 6, 385 Mont 328, ___ P.3d ___. Moreover, Watts has not
alleged any circumstances that would provide good cause for a withdraw of his guilty
plea. See § 46-16-105(2), MCA.
¶11 Watts contends that this Court should review his claim under the Lenihan rule.
State v. Lenihan, 184 Mont. 338, 602 P.2d 997 (1979). The Lenihan rule allows “an
appellate court to review any sentence imposed in a criminal case, if it is alleged that
such sentence is illegal or exceeds statutory mandates, even if no objection is made at the
time of sentencing.” Lenihan, 184 Mont. at 343, 602 P.2d at 1000.
¶12 Watts cites State v. Ellis, 2007 MT 210, 339 Mont. 14, 167 P.3d 896 and State v.
Strong, 2009 MT 65, 349 Mont. 417, 203 P.3d 848, in support of his argument. In Ellis,
the defendant challenged a condition of his sentence (repayment for court appointed
counsel), arguing the sentencing statute itself, § 46-8-113, MCA, was unconstitutional.
Ellis, ¶ 10. In Strong, the defendant challenged the sentencing statute as well,
§ 46-18-201, MCA, arguing the law provided different sentencing standards for adults
and youths tried as adults. Strong, ¶ 8.
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¶13 These cases are distinguishable. Ellis and Strong challenged the legality of their
sentences and the sentencing statutes, while Watts attacks his conviction of a felony.
Watts asks this Court to declare a former statute unconstitutional, apply that
determination retroactively to his case, and then reduce his conviction to a misdemeanor.
We decline to apply the Lenihan rule here. Watts specifically pled guilty to the felony
and now seeks to challenge that conviction. Ellis and Strong are distinguishable because
they did not challenge the underlying conviction but rather the sentence they received.
CONCLUSION
¶14 Watts pled guilty and is not appealing his conviction based on a jurisdictional
claim or other issue he properly preserved. Therefore, he can only challenge the
voluntariness and intelligent character of his guilty plea. Kelsch, ¶ 8. He has not
challenged his plea. Watts waived his right to appeal the constitutionality of the prior
PFMA statute.
¶15 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JIM RICE
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