State v. Andress

March 26 2013
DA 11-0297
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 12A
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JOSHUA KAYE ANDRESS,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC 2010-487
Honorable Edward P. McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade Zolynski, Chief Appellate Defender, Jennifer A. Hurley, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant
Attorney General, Helena, Montana
Fred Van Valkenburg, Missoula County Attorney, Missoula, Montana
Submitted on Briefs: November 21, 2012
Decided: January 22, 2013
Amended: March 26, 2013
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 The defendant Joshua Kaye Andress appeals from his conviction of felony
violation of a permanent order of protection and tampering with a witness. We affirm in
part and reverse and remand in part.
¶2 Under the terms of a permanent order of protection (POP) dated March 2009,
Joshua Andress is prohibited from any contact with his ex-girlfriend, Sara Nichols. In
October 2010, Andress saw Nichols in a Missoula bar. It is undisputed that he was
within fifteen hundred feet of Nichols in violation of the POP. Andress was on felony
probation at this time for previous violations of this POP. Nichols called the police and
Andress was subsequently arrested and charged with violating the order of protection.
¶3 While incarcerated at the Missoula County Detention Center, Andress created
various notes he claimed were for his attorney. One note, however, was obtained by a
soon-to-be-released cellmate, Paul Randleas. Randleas claimed Andress gave him the
note to give to one of Andress’s acquaintances, Morgan Styles. The note asked Styles to
make an untruthful statement to the authorities to help Andress. Randleas turned the note
over to the police upon his release which resulted in Andress being charged with
tampering with a witness. Following a jury trial in the Fourth Judicial District Court,
Andress was convicted on both counts and sentenced from the bench to 15 years for each
charge with 10 years for each charge suspended, to be served concurrently. The
subsequent written sentence contained 26 terms and conditions that were not expressly
stated during oral pronouncement of sentence, and imposed fines and fees in the amount
of $260.
2
¶4 On appeal, Andress does not challenge any action taken by the District Court nor
does he challenge his sentence; rather, he claims his attorney was ineffective in offering
erroneous jury instructions and in failing to file a motion to conform the written sentence
to the orally-pronounced sentence.
ISSUE
¶5 The issue on appeal is whether counsel rendered ineffective assistance.
FACTUAL AND PROCEDURAL BACKGROUND
¶6 In March 2009, after a few years of dating, Sara Nichols sought and obtained a
permanent order of protection against Josh Andress, claiming physical and mental abuse.
Andress responded by leaving at least ten extremely profane and frightening messages on
Nichol’s answering machine. These calls and other actions quickly resulted in multiple
violations of the POP, the third and subsequent offenses being felonies.
¶7 On October 16, 2010, while on probation for these charges, Andress entered the
Rhino Bar in Missoula and immediately saw Nichols. He left the bar but returned shortly
thereafter at which time he saw Nichols was still there and he left again. Nichols claimed
he subsequently left and re-entered two more times. She also claimed that he approached
her after his third entrance, tapped her on the shoulder and spoke to her.1 He then left the
bar and returned for the last time. Nichols left and called 9-1-1. The police came and
interviewed Nichols, Nichols’ companion, and Andress, but did not arrest Andress that
night. The following day, Nichols called Andress’s probation officer, the county
1
Andress denied that he touched or spoke with Nichols, but while in the Missoula County
Detention Center he purportedly told Paul Randleas that he had done so.
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attorney’s office, and one of the responding police officers. Andress was subsequently
arrested and charged with violating the POP.
¶8 While jailed in Missoula County, Andress made numerous notes about his case.
He claims he made these notes to discuss with his attorney. One note, however, came
into the possession of a soon-to-be-released cellmate, Randleas. Randleas testified that
Andress gave him the note and asked that he deliver the message contained in it to
Morgan Styles, a former co-worker of Andress. The note asked Styles to testify that he
saw Andress at the Rhino Bar on the night of October 16 but that Andress spoke with no
one and left the bar without returning. Styles never received the note, however, because
Randleas, a police informant, turned it over to the police. The police contacted Styles
who reported that he was not at the Rhino Bar that night and was out of town for that
entire weekend. Andress was charged with tampering with a witness.
¶9 A jury trial was conducted on January 31, 2011, and Andress’s defense was that
his contact with Nichols at the bar was unintentional and he never intended to violate the
order of protection. He also admitted writing the Styles note but denied giving it to
Randleas for delivery. A unanimous jury convicted Andress on both charges.
¶10 On March 23, 2011, the District Court judge orally pronounced sentence,
sentencing Andress, as a persistent felony offender, to Montana State Prison (MSP) for
15 years for each charge with 10 years for each charge suspended. The sentences were to
run concurrently with each other but consecutive to a two-year sentence that had been
4
imposed on Andress the day before in another Montana district court.2 On March 25,
2011, the District Court issued its written judgment which included the prison sentence as
well as 26 terms and conditions of probation and the requirement that Andress pay $260
in fines and fees.
¶11 Andress filed a timely appeal claiming his trial counsel was ineffective for
offering jury instructions that set forth an incorrect mental state for the charged offenses,
and for failing to move the District Court to conform Andress’s written sentence to his
oral sentence in accordance with § 46-18-116(2), MCA.
¶12 We affirm in part and reverse and remand in part.
STANDARD OF REVIEW
¶13 We review claims of ineffective assistance of counsel under the two-part test
articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). To prevail
under Strickland, a defendant must show (1) that counsel’s performance was deficient,
and (2) that counsel’s deficient performance prejudiced him or her. Both prongs of this
test must be satisfied; thus, an insufficient showing on one prong negates the need to
address the other. This Court must also “indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” State v.
Mitchell, 2012 MT 227, ¶ 21, 366 Mont. 379, 286 P.3d 1196. Claims of ineffective
assistance of counsel are mixed questions of law and fact which this Court reviews de
novo. St. Germain v. State, 2012 MT 86, ¶ 7, 364 Mont. 494, 276 P.3d 886.
2
On March 22, 2011, Andress appeared before Judge Robert Deschamps on a Petition to Revoke
his probation for felony and misdemeanor violations of this same order of protection. Judge
Deschamps revoked Andress’s probation and sentenced him to two years at MSP.
5
¶14 Jury instructions serve an important role in trial. They guarantee decisions
consistent with the evidence and the law, which can be accomplished when the
instructions are as plain, clear, concise, and brief as possible. District courts have broad
discretion when issuing jury instructions, but this discretion is restricted by the overriding
principle that jury instructions must fully and fairly instruct the jury regarding the
applicable law. The instructions must prejudicially affect the defendant’s substantial
rights to constitute reversible error. State v. Hovey, 2011 MT 3, ¶ 10, 359 Mont. 100, 248
P.3d 303 (citations omitted).
¶15 The Supreme Court reviews a district court’s imposition of sentence for legality
only. This is a question of law which we review to determine whether the court’s
interpretation of the law is correct. State v. Kroll, 2004 MT 203, ¶ 12, 322 Mont. 294, 95
P.3d 717.
DISCUSSION
¶16 Did Andress’s trial counsel provide ineffective assistance?
Jury Instructions
¶17 Andress was charged with violating § 45-5-626(1), MCA, which states in relevant
part:
A person commits the offense of violation of an order of protection if the
person, with knowledge of the order, purposely or knowingly violates a
provision of . . . an order of protection under Title 40, chapter 15.
Andress stipulated to having knowledge of the protective order and its contents, including
the prohibition of being within fifteen hundred feet of Nichols.
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¶18 Andress was also charged with witness tampering. Section 45-7-206(1)(a), MCA,
provides, in relevant part:
A person commits the offense of tampering with witnesses and informants
if, believing that an official proceeding or investigation is pending or about
to be instituted, the person purposely or knowingly attempts to induce or
otherwise cause a witness or informant to: testify or inform falsely . . . .
¶19 By their express language, these statutes provide that violation of the statute
requires a person to commit an act “purposely or knowingly.” During settlement of jury
instructions, Andress’s counsel proposed instructions that defined the terms “purposely”
and “knowingly” as used in the statutes. Counsel proposed the following jury
instructions derived from § 45-2-101, MCA, and the Montana Criminal Jury Instructions:
A person acts purposely when it is his/her conscious object to
engage in conduct of that nature; or to cause such a result.
A person acts knowingly: when the person is aware of his or her
conduct; or when the person is aware there exists the high probability that
the person’s conduct will cause a specific result. (Emphasis added.)
The District Court accepted these proposed instructions and gave them to the jury.
¶20 Andress argues that his counsel’s proposed instructions included definitions of
purposely and knowingly that did not apply to his charged offenses and, as a result,
allowed the jury to convict him based upon his conduct, even if the jury believed his
defense that he did not intend to violate the POP or tamper with a witness.
¶21 Section 45-2-101(65), MCA, defines “purposely” in relevant part:
[A] person acts purposely with respect to a result or to conduct described
by a statute defining an offense if it is the person’s conscious object to
engage in that conduct or to cause that result. When a particular purpose is
an element of an offense, the element is established although the purpose is
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conditional, unless the condition negatives the harm or evil sought to be
prevented by the law defining the offense.
¶22 Section 45-2-101(35), MCA, defines “knowingly” as:
[A] person acts knowingly with respect to conduct or to a circumstance
described by a statute defining an offense when the person is aware of the
person’s own conduct or that the circumstance exists. A person acts
knowingly with respect to the result of conduct described by a statute
defining an offense when the person is aware that it is highly probable that
the result will be caused by the person’s conduct. When knowledge of the
existence of a particular fact is an element of an offense, knowledge is
established if a person is aware of a high probability of its existence.
¶23 Relying on State v. Lambert, 280 Mont. 231, 929 P.2d 846 (1996), and State v.
Patton, 280 Mont. 278, 930 P.2d 635 (1996), Andress claims that the District Court was
“required to instruct the jury on the definition of purposely and the definition of
knowingly that applies in the context of the particular crime.” We agree that Lambert
and Patton require courts to instruct the jury on the proper mental state element based
upon the charged offense; however, beyond that these cases are distinguishable in that
they address Montana’s criminal endangerment statute and our deliberate homicide
statute. We have not previously determined whether §§ 45-5-626 and 45-7-206(1)(a),
MCA, emphasize conduct or result of conduct.
¶24 Andress asserts the statutes he is charged with violating, as in Lambert, do not
particularize conduct which, if engaged in, results in commission of the offense; rather,
one may engage in a wide variety of conduct and still commit the offense. He maintains
that § 45-5-626, MCA, “seeks to avoid the ‘singular result’ of the violation of a
protective order, not the many forms of conduct that result in the violation of a protective
order.” Similarly, he opines that § 45-7-206(1)(a), MCA, seeks to avoid the “singular”
8
result of causing a witness to testify falsely, without regard to the many forms of conduct
that could result in a witness testifying falsely.
¶25 In other words, it appears Andress is claiming that the correct jury instruction
would have instructed the jury that he could be guilty of violating the POP only if it was
his “conscious object,” or intention, to violate the order of protection or that he was
aware that it was highly probable that his conduct would violate the statute. Additionally,
vis-à-vis the witness tampering claim, because he admits he wrote the note but asserts he
did not give the note to Randleas to give to Styles and he did not write the note with the
purpose of committing witness tampering, the result-based purposely and knowingly jury
instruction should have been given. Therefore, Andress asserts the appropriate jury
instructions were:
A person act purposely when it is his/her conscious object to cause such a
result.
A person acts knowingly when the person is aware there exists the high
probability that the person’s conduct will cause a specific result.
The “result” contemplated in these definitions is violation of the particular statute.
¶26 Based upon his defense theories, he maintains his counsel’s failure to present the
appropriate jury instructions constitutes ineffective assistance.
¶27 For the following reasons, we conclude that the instructions given by the court
“fully and fairly” instructed the jury on the applicable law. Hovey, ¶ 10. Additionally,
we find no prejudice to Andress in the giving of these instructions.
¶28 The jury was presented with conflicting testimony throughout the trial. Andress
maintained he did not intentionally run into Nichols nor did he touch her or speak to her.
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Nichols’ testimony, however, strongly refuted Andress’s claims. Appropriately, the
District Court expressly instructed the jurors that they were “the sole judges of the
credibility . . . of all the witnesses testifying in this case, and of the weight . . . to be given
their testimony.”
¶29 The jury heard evidence that Andress was forbidden under the order of protection
to be within fifteen hundred feet of Nichols. He knew of this prohibition. He nonetheless
entered the bar repeatedly after he saw her there, repeatedly placing himself well within
fifteen hundred feet of her. Additionally, the jury also heard from Nichols that Andress
approached her, touched her and spoke to her. Under these circumstances, Andress
consciously engaged in and was aware of the prohibited conduct knowing it was in
violation of the POP. Both his conduct and the result of his conduct could have
reasonably led the jury to find him guilty under either the result-based jury instruction
argued by Andress on appeal or the jury instruction given. Therefore, the jury
instructions given fully and fairly instructed the jury on the mental state required to
violate an order of protection. Furthermore, Andress’s behavior defies his claim that he
did not intend to violate the POP. Had he left the bar after seeing Nichols for the first
time and not returned, his claim that he lacked intention to violate the POP may have had
greater credibility.
¶30 As to the witness tampering charge, Andress admitted that he wrote the note to
Styles but claims he did not give it to Randleas for delivery. Therefore, he had no intent
to tamper with a witness. Randleas testified otherwise. Based upon the jury’s unanimous
verdict of guilt on the witness tampering charge, it appears the jury found Randleas more
10
credible than Andress. If, as believed by the jury, Andress gave Randleas a note to give
to Styles instructing Styles to lie under oath, Andress’s conduct and the result of his
conduct justified his conviction, and instructing the jury solely on the result-based
definition would not have changed the outcome.
¶31 As for his claim that his counsel was ineffective for proposing the jury
instructions, having determined that Andress suffered no prejudice from the instructions,
the second prong of Strickland has not been satisfied.
Nonconforming Judgment
¶32 Andress next claims that his trial counsel was ineffective for failing to move to
conform Andress’s written judgment to his orally-pronounced sentence in accordance
with § 46-18-116(2), MCA. The lengthy procedural record of this case suggests Andress
framed this issue on appeal as an IAC claim because his attorneys did not seek to modify
the judgment pursuant to § 46-18-116(2), MCA. However, under the authority set forth
in Kroll, and other cases addressed below, we will directly review the allegedly
nonconforming judgment and, consequently, need not find Andress’s counsel ineffective
to resolve Andress’s claim.
¶33 It is well-established that the oral sentence pronounced from the bench in
defendant’s presence is the “legally effective sentence and valid, final judgment.” State
v. Lane, 1998 MT 76, ¶ 40, 288 Mont. 286, 957 P.2d 9. As we explained in Lane, ¶ 30,
after reviewing numerous Montana cases, “holding the oral pronouncement of sentence to
be the legally effective sentence is more consistent with our constitutional and statutory
provisions.” We observed that “[a] defendant is present only when being sentenced from
11
the bench. Thus, a defendant is sentenced in absentia when the [written] judgment and
commitment order is allowed to control when there is a conflict.” Lane, ¶ 38.
¶34 Subsequently, in State v. Johnson, 2000 MT 290, 302 Mont. 265, 14 P.3d 480,
Johnson faced a nonconforming written judgment with new conditions. He argued that
“our holding in Lane logically implies that, in a strict sense, any portion of a subsequent
written judgment that fails to conform, or in some manner conflicts, with an oral sentence
is unlawful.” Johnson, ¶ 17. After substantial analysis, we determined that our Lane rule
was somewhat “vague” and served to cloud the true issue, which was: “whether a written
judgment has, without notice, substantively increased a defendant’s criminal sentence
that was previously imposed in open court in the defendant’s presence.” Johnson, ¶ 24
(emphasis in original). We further stated:
In determining whether any portion of a judge’s subsequent written
judgment is unlawful . . . we need only determine first, whether the
defendant was afforded the opportunity to respond to its inclusion upon
sufficient notice at sentencing, and second, whether that portion of the
written judgment substantively increases one of two things: (1) the
defendant’s loss of liberty; and (2) the defendant’s sacrifice of property.
Johnson, ¶ 24.
¶35 Later, in Kroll, Kroll challenged several sentencing conditions in his written
judgment that were not presented during his oral sentence. Kroll, ¶ 14. The State
responded that Kroll had waived his right to complain about the imposition of such
conditions because he had failed to seek modification of the written judgment in
accordance with § 46-18-116, MCA. Prior to reviewing Kroll’s sentence claims, we
addressed the proper interpretation of § 46-18-116(2), MCA. We observed that both
12
parties were assuming that “after the expiration of the 120-day period, the written
judgment is presumed correct.” Kroll, ¶ 16. We concluded this was an erroneous
presumption and that “[s]ection 46-18-116, MCA, simply provides the parties an avenue
for conforming the written judgment to the oral pronouncement of sentence,” but it does
not supersede or modify our holding in Lane, i.e., the orally-pronounced sentence is the
legally effective and valid final sentence. Kroll, ¶ 18.
¶36 We further explained that “even when a criminal defendant fails to
contemporaneously object at sentencing, this Court will accept jurisdiction of a timely
filed appeal which alleges that a sentence is illegal or exceeds statutory authority.” Kroll,
¶ 19. Applying our rule and rationale from Johnson, we determined the district court did
not err in imposing certain “stock requirements for probationers and individuals subject
to a suspended sentence” into Kroll’s written judgment. We stated that the inclusion of
these stock conditions did not “substantively increase[] the defendant’s loss of liberty or
sacrifice of property.” Kroll, ¶ 22.
¶37 We also evaluated non-stock conditions in Kroll to determine if they had “a
correlation to the crime for which he was convicted,” i.e., issuing bad checks as part of a
common scheme. Kroll, ¶¶ 5, 26. We noted that §§ 46-18-201 and -202, MCA, allowed
the court to impose sentencing restrictions or conditions that are “reasonable” and that the
court considers necessary “to obtain the objectives of rehabilitation and the protection of
the victim and society.” Kroll, ¶ 28. Under this analysis, we affirmed several “civil
restriction” conditions in Kroll’s sentence. Kroll, ¶ 33.
13
¶38 In State v. Lucero, 2004 MT 248, ¶¶ 23-24, 323 Mont. 42, 97 P.3d 1106, we
again rejected the argument that the failure to seek modification of a nonconforming
written judgment in accordance with § 46-18-116(2), MCA, rendered the written
judgment the “valid final judgment.” We held in Lucero, as we did in Kroll, that the
stock conditions subsequently added to his written judgment were not unlawful as they
did not impose significant restrictions that resulted in loss of liberty. Lucero, ¶ 28.
However, we determined that specific conditions pertaining to being in bars and casinos
or submitting to chemical substance tests did result in a loss of his liberty, did not bear a
sufficient correlation to the underlying offense, and were not reasonably related to the
objectives of rehabilitation and protection of the victim and society. We therefore
ordered those conditions stricken. Lucero, ¶¶ 30-31.
¶39 Having established that: (1) failure to seek modification is accordance with
§ 46-18-116(2), MCA, does not bar this Court from reviewing Andress’s written
judgment on appeal; and (2) inclusion of stock sentencing conditions does not deprive a
criminal defendant of liberty or property and need not be stricken, we turn to the
challenged provisions in Andress’s written judgment.
¶40 It is undisputed that the first prong of the Johnson test has been met. As noted
above, because the District Court during sentencing did not orally impose the 26 terms
and conditions later contained in his written sentence, Andress did not have the
opportunity to respond to the correctness or appropriateness of these sentence provisions.
We next determine whether the objected-to provisions must be stricken based upon the
criteria set forth above.
14
¶41 As conceded by Andress, conditions 1-9, 17, 20-22, and 24-25 are affirmed under
our precedent in Johnson, Lucero, and Kroll. These are stock conditions imposed upon
probationers and defendants subject to suspended sentences.
¶42 Conditions 12-16 and 26 prohibit Andress from possessing or consuming
intoxicants/alcohol, and entering bars or other establishments where intoxicants are the
chief item of sale. Some also require him to submit to routine or random drug and
alcohol testing, obtain a mental health evaluation, participate in counseling, and obtain a
chemical dependency evaluation. Andress objects to these conditions but at his
sentencing hearing he testified:
I need some counseling, and maybe some additional counseling on the
alcohol.
. . .
And, I would just hope that the Court would look at the facts of me needing
some help in my alcoholism and relationship issues.
Additionally, Andress’s counsel further stated:
[T]he Court would note that in the Defendant’s criminal history,
there is indication that he may have a substance abuse problem with regard
to alcohol, and, certainly, that’s not helping the situation with regard to him
being able to make good decisions, and that’s contributed to some of his
decision-making in the past.
He does – as his mother indicated – have a condition which, also,
impairs, to a certain extent, his decision-making process, and, probably,
alcohol is something that should not be involved, whatsoever.
Mr. Andress has not received any substantial inpatient treatment for
alcohol, to my knowledge, and we feel that a five-year Department of
Corrections sentence is appropriate in this matter, so that Mr. Andress
could be afforded the opportunity to correct his problems with counseling,
and with some inpatient treatment for the alcohol issue.
15
This testimony supports the District Court’s inclusion of the challenged conditions.
Andress specifically requested alcohol treatment, counseling and mental
health/relationship counseling. As we stated in State v. Holt, 2011 MT 42, ¶ 17, 359
Mont. 308, 249 P.3d 470, we will not put a district court in error for an action in which
the appealing party acquiesced.
¶43 The remaining conditions 10, 11, 18, 19 and 23 are also non-stock conditions.
They require Andress to pay certain fines and fees, refrain from gambling and entering
casinos, and abide by a curfew. These conditions are not sufficiently related to Andress’s
charges nor are they reasonably related to the objectives of rehabilitation and protection
of the victim and society; therefore, we remand with instructions that these conditions be
stricken from the written judgment.
CONCLUSION
¶44 For the foregoing reasons, we conclude Andress’s trial counsel did not provide
ineffective assistance to Andress with respect to proposed jury instructions. We reverse
the District Court’s inclusion of conditions 10, 11, 18, 19 and 23 in Andress’s written
judgment and order that these conditions be stricken upon remand.
/S/ PATRICIA COTTER
We concur:
/S/ MIKE McGRATH
/S/ BRIAN MORRIS
/S/ MICHAEL E WHEAT
/S/ JIM RICE
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