State v. Moddison

No. 94-330
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
v. FILPO
RUSSELL R. MODDISON, OCT "'8 1996
Defendant and Appellant.
c'e' ::'~nifh
et:;!ltA`` 'f~3~fAWit1R1
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Margaret Johnson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Defender Office,
Helena, Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Jennifer
Anders, Assistant Attorney General i Brant Light,
Cascade County Attorney, Great Falls, Montana
Submitted on Briefs: August I, 1996
Decided: October 18, 1996
Filed:
Cl'erk
Justice William E. Hunt/ Sr. delivered the Opinion of the Court.
Russell R. Moddison (Moddison) was charged by information
filed in the Eighth Judicial District Court/ Cascade County/ with
sexual intercourse without consent/ a felony/ and obstructing a
peace officer/ a misdemeanor. Moddison pled guilty to the felony
charge as part of a plea ~greement/ then subsequently moved the
District Court to withdraw his guilty plea. The District Court
denied Moddison's motion. Moddison appeals.
We affirm.
The issue for our review is whether the District Court abused
its discretion when it denied Moddison's motion to withdraw his
guilty plea.
FACTS
The charges filed against Moddison resulted from an incident
which occurred in February 1992 in the vicinity of Great Falls/
Montana. Moddison/ Robert Gould/ Ian Johnson/ Jordan Mattfeld/
Tammy Archer/ and Janetta Jo Clark had been drinking for a few
hours at the Black Eagle Country Club when they all decided to go
to the residence of Johnson and Mattfeld. At the residence/ Clark
and Mattfeld had a drinking contest which led to Clark drinking
nearly half of a bottle of whiskey. Clark had already had nine
drinks at the Black Eagle Country Club.
Clark soon "passed out" in one of the bedrooms. Moddison/
Gould/ and Johnson then had sex with Clark individually. All three
men claimed that Clark consented.
2
About two hours later' Moddison returned to the bedroom to
check on Clark and discovered that she was cold to the touch and
had no discernable pulse. The coroner later determined that Clark
had died at 4:30 a.m., and at the time of death had a blood alcohol
level of 0,42 gm/dl. The cause of Clark's death was asphyxia,
prompted by the extraordinarily high level of alcohol in her body.
Moddison and Gould left the residence in Moddison's truck, but
soon abandoned the truck and ran when they saw a Cascade County
Sheriff's vehicle. Moddison was later found by authorities in the
basement of his mother's house. Moddison, Gould, and Johnson were
ultimately charged in a joint information with sexual intercourse
without consent, or, alternatively, attempted sexual intercourse
without consent. Moddison and Gould were also charged with the
misdemeanor offense of obstructing a peace officer. The
information was later amended to delete the alternative charge of
attempted sexual intercourse without consent,
Each defendant was appointed separate counsel and each
defendant pled "not guilty" to the charges. Counsel believed that
a joint defense would be in their clients' best interests because
each defendant admitted to having sex with Clark but claimed that
she had consented to the acts. Later, after a review of the
evidence and a discussion with the Cascade County Attorney's
Office, counsel concluded that it would be in their clients' best
interests to enter into a plea agreement deal. Counsel were
particularly concerned that evidence of Clark's extreme
3
"
intoxication would prevent a jury from finding that she consented
to intercourse with the three defendants.
The plea agreement offered by the State required Moddison and
Gould to plead guilty to the charge of sexual intercourse without
consent, and required Johnson to plead guilty to an amended charge
of obstructing a peace officer. In return, the State agreed to
drop the misdemeanor charges against Moddison and Gould, and
recommend to the court that Moddison and Gould each receive a ten
year sentence with five years suspended. However, the State
refused to stipulate during plea negotiations that Moddison and
Gould would not have to undergo sexual offender treatment, despite
the defendants' adamant belief that the treatment was not
appropriate for them. The parties eventually entered into a non-
binding plea agreement in which the issue of sexual offender
treatment was left to the court's discretion.
The record reveals that the plea agreement was attractive to
counsel because counsel believed that the State's leniency toward
Johnson would effectively prevent the court from punishing Moddison
and Gould too harshly. Counsel also believed that the non-binding
nature of the plea agreement would allow them to recommend a lesser
prison term than the State would recommend. Further, Moddison's
attorney hoped that if his recommendation of a suspended prison
term was accepted by the court, then the sexual offender treatment
program, if it were imposed, could be completed by Moddison in a
local community program.
4
"
The record also revea:ls that Moddison' s attorney informed
Moddison of the possibility that he might be sentenced to prison
and ordered to undergo a sexual offender program there. Moddison' s
attorney testified that he explained to Moddison that his admission
that he committed a sexual crime was required before he could
successfully complete the program. Moddison steadfastly refused to
make that admission, and according to Moddison's attorney said "if
he had to [admit to the crime] he would sit at the prison until he
was discharged." Moddison intended to enter an Alford plea of
guilty, in which he could concede· the strength of the State's case
against him without admitting that he committed a crime. See North
Carolina v. Alford (1970), ,400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d
162.
Moddison's attorney apparently realized the potential dilemma
Moddison would face if, after he entered his Alford plea, the court
sentenced him to a prison term and ordered him to undergo sexual
offender treatment there: by refusing to admit to his crime,
Moddison would be unable to complete the program and thus would
likely be ineligible for parole. Moddison's attorney therefore
advised Moddison that if such a sentence were imposed, he could
choose from among three remedies: appeal the sentence, seek
sentence review, or withdraw the plea.
At the October 18, 1993 change of plea hearing, Gould fired
his attorney, withdrew from the plea agreement, and announced his
intention to go to trial. Gould was later convicted of sexual
5
intercourse without consent, and this Court affirmed his
conviction. State v. Gould (1995), 273 Mont. 207, 902 P.2d 532.
Moddison and Johnson conformed to the plea agreement, and
Moddison entered an Alford plea of guilty to the charge of sexual
intercourse without consent. Moddison had previously signed the
plea agreement and an "Acknowledgment of Waiver of Rights by Plea
of Guilty," and at the hearihg Moddison's attorney went through the
waiver of rights and the plea agreement to confirm that Moddison
understood their terms. Moddison testified that: he understood
that the issue of a sexual offender program was left to the
discretion of the court; he understood that the court did not have
to abide by the plea agreement; he understood that the court could
impose the maximum penalty provided by law; he understood that if
the court did not abide by the plea agreement he could not then
withdraw his guilty plea; he understood that the court could
designate him a dangerous offender as well as limit his eligibility
for parole; he understood that he had the option of going to trial;
he voluntarily signed the plea agreement; he was satisfied with the
services of his attorney; and, he believed he would be convicted of
the charge if he went to trial.
Moddison's plea was accepted by the court and sentencing was
set for a later date. In the meantime, the court ordered Moddison
to undergo a sexual offender evaluation in Missoula, Montana.
Moddison missed three appointments with the Missoula evaluator,
claiming that he did not have the money to purchase bus fare from
Great Falls to Missoula. Because Moddison had not undergone the
6
evaluation, and because ad¢itional offenses were brought to the
court's attention which did not appear in the presentence
investigation, the sentencing hearing was continued to May 19,
1994. At the May hearing, the court sentenced Moddison to a ten
year prison term with five years suspended. The court also ordered
Moddison to complete sexual offender treatment and a chemical
dependency program at the prison before being considered for
release.
Moddison arrived at the Montana State Prison on May 25, 1994.
He soon learned that the sexual offender treatment program had an
extensive waiting list and that the program itself took at least
three years to complete. On June 9, 1994, Moddison filed two pro
se motions, entitled "Notice for Appointment of Counsel" and
"Notice of Appeal," with the District Court. After the District
Court failed to act on Moddison's motions, Moddison filed a motion
and brief with this Court. We ordered the District Court to
conduct a hearing regarding Moddison' s appointment of counsel
motion. The court appointed counsel from the Montana Appellate
Defender's Office to represent Moddison. This Court again remanded
Moddison's case to the District Court after we determined that
Moddison's pro se motions were an attempt to withdraw his guilty
plea. After an October 24, 1995 hearing on Moddison's request to
withdraw his guilty plea, the court denied Moddison' s request.
Moddison appealed.
7
STANDARD OF REVIEW
We explained the applicable standard of review in State v.
Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175, 177:
No set rule or standard exists under which a trial court
addresses a request to withdraw a guilty plea; each case
must be considered in light of its unique record. Our
standard in reviewing a district court's denial of a
motion to withdraw a guilty plea is whether the court
abused its discretion. (Citations omitted.)
DISCUSSION
Did the District Court abuse its discretion when it denied
Moddison's motion to withdraw his guilty plea?
Moddison has four bases for his argument that the court abused
its discretion: first, the court failed to inform him that his
parole eligibility would be restricted by the requirement that he
complete the sexual offender program; second, his request to
withdraw was timely and was based on advice of counsel; third, his
plea was an Alford plea that was part of a package plea deal; and
fourth, his plea was based on the mistaken advice of his attorneys.
Moddison's first three bases track the language of three factors
which this Court will balance in determining whether a defendant
has established the "good cause" required by § 46-16-105(2), MCA,
which would allow him to withdraw a guilty plea:
(1) the adequacy of the court's interrogation at the time
the plea was entered regarding the defendant's
understanding of the consequences of the plea;
(2) the promptness with which the defendant attempts to
withdraw the plea; and
(3) the fact that the plea was the result of a plea
bargain in which the guilty plea was given in exchange
for dismissal of another charge.
8
Enoch, 887 P.2d at 177.
With respect to factor (1), Moddison argues that the court's
interrogation was inadequate because it failed to inform him that
his parole eligibility could be restricted by his failure to
complete the sexual offender program at the prison. Moddison
contends that the interrogation should have specifically informed
him of the conflict posed by his refusal to admit guilt and the
likely sentencing condition that he admit guilt--the first step
toward completing the sexual offender program--in order to gain
parole eligibility. To support his argument, Moddison cites § 46-
12-210, MCA, which provides, in relevant part:
(1) Before accepting a plea of guilty, the court shall
determine that the defendant understands the following:
(iii) the maximum penalty provided by law, including the
effect of any penalty enhancement provision or special
parole restrictionj
Moddison also argues that the interrogation was inadequate because
the court had little active involvementj Moddison's own attorney
conducted the interrogation.
That Moddison's attorney, rather than the court, conducted the
interrogation in the presence of the court is not reversible error,
in light of our determination that the interrogation achieved its
fundamental purpose: the determination of Moddison's understanding
of the consequences of entering his plea. The record reveals, as
Moddison correctly points out, that the District Court was not
actively involved in Moddison's interrogation at the change of plea
9
..
hearing. However, the record also reveals that Moddison's
attorney, who conducted the interrogation, asked Moddison the same
questions which we have held constitute an adequate interrogation.
In State v. Allen (1994), 265 Mont. 293, 876 P.2d 639, where the
court denied defendant's request to withdraw his Alford plea, we
stated:
The transcript of the.hearing following Allen's guilty
plea shows that the court carefully questioned him
concerning the sufficiency of his legal counsel, his
feelings concerning his decision, his lack of alcohol or
drug influence, his understanding of the nature of the
mitigated deliberate homicide charge, the consequences to
pleading guilty to this charge, the fact that the judge
would not be bound by any recommendation from the
parties, his understanding of the loss of his rights in
a trial situation. The court also had Allen confirm the
reason why he felt he was guilty of one count of
mitigated deliberate homicide. Within the court's
detailed questioning of Allen, the court explicitly
informed Allen that the sentence carried a maximum
sentence of 40 years. The judge then informed Allen that
as the sentencing judge he could put any restrictions on
a possible parole that he wished and that he would not be
bound by any suggestions from anyone. Further, the court
explained in great detail what a guilty plea meant to
Allen in terms of foregoing rights such as confrontation
of witnesses against him.
In the present case, the court specifically told
Allen that he could be denied parole totally and as a
consequence would have· to serve all 40 years, or that he
could be labeled a dangerous offender and that if so
designated he would have to serve 20 of the 40 years for
the offense. The court clearly informed Allen that it
was under no responsibility to accept the conditions of
the plea agreement reached by the parties. We conclude
that the District Court sufficiently interrogated and
informed Allen of the ramifications of his guilty plea.
Allen, 876 P.2d at 641. The extent of information covered in the
Allen interrogation is almost exactly the same as that which was
covered in Moddison's interrogation. Furthermore, § 46-12-210(2),
MCA, provides that the interrogation requirements of subsection (1)
10
"may be accomplished by the defendant filing a written
acknowledgment of the information contained in subsection (1)."
Moddison signed an "Acknowledgment of Waiver of Rights by Plea of
Guilty" which addressed all of the requirements of § 46-12-210(1),
MeA, except one--that Moddison understood the court was not bound
by any plea agreement. Moddison was well aware of the court's
discretion, as evidenced by his answers at the interrogation and by
the plea agreement, which he signed.
Moddison argues, however, that because he was not questioned
about the precise ramifications of his Alford plea in regard to the
length of his sentence and limitation on parole, the interrogation
was inadequate. We disagree.
The record demonstrates that Moddison was aware that his
admission that he committed a crime was a necessary element of
successful completion of the sexual offender treatment program.
Moddison's attorney testified that
[Moddison] understood that to progress through a sexual
offender program he would have to admit to the offense.
He felt and I believe he took it as a matter of
personal honor -- that he would not admit to the offense,
and if he had to, he would sit at the prison until he was
discharged.
The record also demonstrates that Moddison was informed by his
attorneys that the sentencing judge did not have to abide by the
plea agreement, that Moddison could receive the maximum sentence of
40 years imprisonment, and that Moddison could be ordered to
undergo the sexual offender program. In addition, during the
interrogation at the change of plea hearing Moddison stated that he
11
•
understood that the judge did not have to abide by the plea
agreement and that his eligibility for parole could be limited by
the sentencing judge. As it turned out, Moddison's eligibility for
parole was limited by the sentencing judge when he ordered that
Moddison undergo the sexual offender program, a program which
Moddison knew from the earliest plea discussions with his attorneys
would be impossible to complete without his admission that he
committed a crime. We conclude that, despite Moddison's statements
to the contrary, he did know of the consequences of his Alford
plea, specifically that his parole eligibility could be limited by
the requirement that he complete the sexual offender program, and
further limited by his decision not to admit that he committed a
crime. Factor (1) weighs in favor of the court's denial of
Moddison's request to withdraw his plea.
As to the promptness factor, Moddison argues that the length
of time between the entry of his Alford plea and his motion to
withdraw his plea is within this Court's allowable time frame.
Moddison moved to withdraw his plea on June 9, 1994, approximately
eight months after he entered his Alford plea on October 18, 1993.
We have held that a ten month period between entry of the plea and
the request to withdraw the plea is relatively prompt. State v.
Laverdure (1984), 212 Mont. 31, 34-35, 685 P.2d 375, 377.
Alternatively, Maddison argues that his attempt to withdraw
his plea was exceedingly prompt when measured from the time that he
was sentenced. Moddison argues that the court's imposition of his
sentence should be the measuring point for purposes of the
12
"
promptness factor because his counsel advised him that sentencing
would trigger a plea withdrawal. The State has not addressed the
promptness factor in its brief, and because Moddison's request to
withdraw his plea was made within this Court's allowable time
frame, we need not discuss the merits of his alternative argument.
The promptness factor weighs in Moddison's favor.
As to factor (3), Moddison argues that because his plea was a
part of a "package" plea agreement, the court was under a duty to
carefully examine the voluntariness of Moddison's plea.
Essentially, Moddison argues that his decision to enter a plea was
influenced by and conditioned on the deals struck with the other
two defendants, Johnson in particular. Moddison cites United
States v. Caro (9th Cir. 1993), 997 F.2d 657, 659, to support his
contention that the voluntariness of a defendant's plea is at best
questionable when his plea is a part of a "package deal" and
conditioned on the pleas entered by the other participants in the
deal.
Moddison's argument, however, misses some important points.
First, Gould withdrew from the plea agreement on the day of the
change of plea hearing, yet Moddison and "Johnson were allowed to go
ahead with their pleas. Moddison's attorneys testified that they
understood that when Gould withdrew, there was no longer a "package
deal" and Moddison was free to do as he wished. The attorneys
discussed this with Moddison, and he entered his Alford plea.
Moddison's plea ultimately 'was not a part of a package deal with
the other defendantsi his plea was not conditioned on their pleas.
13
"
.'
Second, our review of the record shows that Moddison's
decision to enter an Alford plea was due in large part to the
overwhelming evidence against him. Moddison's attorneys informed
him of their conclusion that proving consent would be next to
impossible due to Clark's extreme intoxication at the time of
sexual intercourse. In the "Acknowledgment of Waiver of Rights by
Plea of Guilty", Moddison explained why he was entering an Alford
plea:
I admit to have sex with Janetta Jo Clark [sic]. I
believed that she had consented. However, after reading
police report [sic] and considering the evidense [sic]
against me I believe that the State of Montana can prove
my guilt.
Therefore I am pleading guilty.
Moddison was looking after his own interests when he decided to
enter his plea, a plea that was not a part of a "package deal."
Finally, we have stated that" [t]he third factor is intended
to prohibit a criminal from 'escaping the obligations of his [or
her] plea agreement after accepting the benefits thereof. '" State
v. Milinovich (1994), 269 Mont. 68, 74, 887 P.2d 214, 217
(citations omitted). The plea agreement here certainly conferred
some benefits upon Moddison: the State dropped the charge of
obstructing a peace officer; the State recommended a much lesser
sentence than the maximum sentence provided by law; and, the State
did not recommend sexual offender treatment, but left that issue to
the court's discretion. We conclude that factor (3) weighs in
favor of the court's denial of Moddison's request to withdraw his
plea.
14
Moddison has raised another "good cause" indicator, one not
specifically provided for by statute or within the three factors.
Moddison contends that his ·guilty plea was based on the mistaken
advice of his attorneys. Specifically, Moddison explains that his
attorneys represented to him that if he were sentenced to prison
and ordered to undergo the sexual offender program there, he would
be able to get into the program quickly, due to his probable short
term of imprisonment. This information turned out to be
inaccurate, as Moddison discovered upon his arrival at the prison
that he would be placed on a long waiting list for the program.
Moddison also notes that his attorneys advised him that if he were
sentenced and ordered to undergo the sexual offender program that
he would have three remedies: he could appeal on constitutional
grounds; he could pursue sefltence review; or he could withdraw his
plea. Moddison argues that this advice was mistaken.
While we can concede that some of this advice was inaccurate,
we cannot conclude that this "good cause" factor tips the balance
in Moddison's favor. The plea agreement, the "Acknowledgment of
Waiver of Rights," and Moddison's responses to the interrogation
clearly show that Moddison had a solid understanding that his
sentence was ultimately subject to the court's unfettered
discretion, Moddison understood that the court could impose any
sentence within the range of the statutory minimum and maximum,
that the court could restrict his eligibility for parole, and that
the court could order him to. undergo sexual offender treatment. We
cannot see how Moddison can reasonably argue that any inaccuracies
15
... ..
in the advice described above mean that his decision to enter into
a plea agreement was based on a misunderstanding so fundamental as
to render that decision an uninformed one. The record shows that
the evidence against Moddison was overwhelming and that this was
the reason that his attorneys advised him to enter a plea. The
record also shows that Moddison was always aware that his sentence
was subject to the court's discretion. By advising Moddison as
they did, the attorneys were merely explaining what they thought
potential remedies were for one sentence out of many that Moddison
could potentially have received.
After weighing these factors, we conclude that Moddison did
not establish the "good cause" necessary for withdrawal of a guilty
plea as required by § 46-16-105(2), MCA, and as elaborated in Enoch
and its predecessor cases. The District Court did not abuse its
discretion when it denied Moddison's motion to withdraw his guilty
plea.
Affirmed.
/
16