State v. Garner
State v. Garner
Opinion of the Court
delivered the Opinion of the Court.
¶1 Daniel Eugene Gamer appeals from an order of the Twenty-First Judicial District Court, Ravalli County, denying his motion to withdraw guilty plea. We affirm.
¶2 The following issues are presented for review:
1. Whether Garner’s motion to withdraw plea was time-barred
2. Whether the District Court erred when it concluded Garner’s guilty plea was voluntary, knowing, and intelligent.
BACKGROUND
¶3 Gamer is a developmental^ disabled 40-year-old man. In the summer of 2009, Gamer lived in a trailer at the Bitterroot Family Campground near Hamilton. He sometimes babysat four-year-old A.D., whose grandmother also lived in the campground. In October 2009, A.D. disclosed to his mother that Gamer had put his mouth on A.D.’s penis. During a forensic interview the following month, A.D. used dolls to demonstrate that Gamer had touched A.D.’s penis with his hand, put his mouth on A.D.’s penis, placed his penis in A.D.’s mouth, and inserted his penis into A.D.’s rectum or buttocks.
¶4 On November 19, 2009, Detective Jesse Jessop of the Ravalli County Sheriffs Office interviewed Gamer. Gamer said he remembered spending time with A.D. the previous summer. Gamer initially denied the allegations of sexual conduct, saying he could not remember because of his “brain problems.” As the interview progressed, Detective Jessop asked Gamer if he had touched AD.’s penis with his hand. Gamer nodded his head, indicating an affirmative response. A few minutes later, Detective Jessop repeated the question. Gamer again nodded his head. Gamer continued to deny the allegations of oral and anal intercourse.
¶5 On December 4,2009, Gamer was charged with three counts of felony sexual intercourse without consent, in violation of § 45-5-503(1), (4), MCA (2007).
¶7 On June 15,2010, the State filed an amended information adding a charge of felony sexual assault, in violation of § 45-5-502(1), (3), MCA. On June 18,2010, Gamer was informed that if convicted of that charge, he could receive life imprisonment or a prison sentence of not less than four years or more than 100 years. Gamer said he understood the charge and the maximum possible punishment. He pled not guilty to the charge of sexual assault.
¶8 A jury trial began on September 7, 2010. Stenerson and Miller represented Gamer during the trial. On the third day of trial, Gamer agreed to plead guilty to sexual assault under § 45-5-502(1), (3), MCA, in exchange for which the State agreed to dismiss the three counts of sexual intercourse without consent. Gamer signed a plea agreement, guilty plea, and waiver of rights. The agreement was an “open plea,” meaning that the State did not agree to make any particular sentencing recommendation and remained free to argue for the maximum possible sentence.
¶9 The plea agreement, guilty plea, and waiver of rights were submitted to the District Court. The District Court questioned Gamer
¶10 The District Court then explained the charge of sexual assault and the possible penalty of not less than four years or more than 100 years. Gamer said he understood the maximum possible penalty. The District Court asked Gamer if he was entering Ms plea voluntarily, and Gamer said yes. The District Court asked Gamer if he believed the plea was in Ms best interests, and he said yes. Gamer said he had been given sufficient time to review Ms rights with Ms attorneys, and had no questions about them. He agreed he had full knowledge of the rights he was waiving. He said he was satisfied with the services of Ms attorneys.
¶11 Stenerson then questioned Gamer about the factual basis for the plea. Gamer said he touched A.D.’s penis with Ms hand during the summer of2009, when A.D. was four years old. The District Court then additionally advised Gamer that because the victim was under 16 years of age, Gamer would be required to serve at least 30 days in jail. The State then recited the terms of the plea, including Gamer’s understanding and agreement that he could not withdraw Ms plea once entered. The District Court accepted the plea, ordered a psychosexual evaluation, and dismissed the three counts of sexual intercourse without consent. The jury was excused.
¶12 Dr. Robert Page conducted the psychosexual evaluation. Dr. Page observed that Gamer presented with some cognitive delays wMch may affect Ms comprehension, and therefore recommended a full neuropsychological evaluation. Dr. Page concluded that Gamer was dependent on others and tended to seek reassurance. During the evaluation, Gamer was able to describe the allegations against him. He understood that as part of Ms plea agreement, if he admitted to sexual assault, the State would dismiss the other charges. Gamer could not tell Dr. Page the potential sentence for sexual assault, and said he wanted to go home to care for Ms cats. Gamer was aware Dr. Moomaw had evaluated him and found Mm fit for trial, and Gamer said he felt “somewhat capable.”
¶13 A neuropsychological evaluation was performed by Dr. Paul Bach. Dr. Bach concluded that Gamer’s cognitive abilities were in the low-average range. He concluded Gamer was not mentally retarded,
¶14 A sentencing hearing was held on March 22, 2011. During the hearing, Stenerson objected to the State’s presentation of evidence, arguing that it amounted to “retrying this case; and if that is the case, I think I need to ask to withdraw the guilty plea and go to trial.” The District Court admitted the disputed exhibits, but declined to consider withdrawal of the plea absent a written motion. Stenerson requested a continuance to consider whether to file a motion to withdraw plea. Stenerson later advised the court administrator that he would not move to withdraw. The sentencing hearing resumed on April 6,2011. At that hearing, Stenerson informed the court that, despite his earlier representation to the court administrator, after further conversations with Gamer, he did not believe Gamer knew what he was doing when he entered the guilty plea. Stenerson said Gamer would “say almost anything you ask him to say if you ask him a question in the right way.” Stenerson asked the court for permission to withdraw the guilty plea. The District Court responded, again, that it would not rule on the request without a written motion and a hearing. Stenerson agreed to proceed with sentencing and file a written motion to withdraw Gamer’s plea at a later date. The State recommended a sentence of 40 years with 20 years suspended. Stenerson asked the District Court to impose a 10-year commitment to the Department of Corrections, with all time suspended. Stenerson acknowledged the four-year mandatory minimum, but asked the District Court for an exception based on Gamer’s cognitive disabilities.
¶15 The District Court sentenced Gamer to 40 years at the Montana State Prison, with 20 of those years suspended. Gamer was required to complete Phases 1 and 2 of the sexual offender treatment program before being considered eligible for parole. The written judgment, issued April 27, 2011, incorrectly stated that Gamer would be committed to the Department of Corrections, rather than the Montana State Prison, and did not include the parole restriction. On the State’s motion, an amended judgment reflecting these conditions was issued July 12,2011.
¶16 On July 9,2012, nearly one year after the issuance of the amended
¶18 Stenerson testified that after his initial meetings with Gamer, it was obvious that he “was fimctioning at a lower level.” Stenerson ordered the fitness to proceed evaluation and withdrew any question about fitness to proceed after learning the results. Despite this, Stenerson said he continued to have personal doubts. Notwithstanding those doubts, Stenerson said he informed the District Court at the change of plea that he did not have any reservations about Gamer’s ability to enter a knowing, intelligent, and voluntary plea. When asked if that was correct at the time, Stenerson replied, “Legally, yes. In my heart, no.” Stenerson acknowledged, “The doctor said he was fit to proceed, and that’s a legal issue, and there was no argument about that from me.” He described a “gut feeling” that Gamer did not fully understand the proceedings.
¶19 Gamer testified at the evidentiary hearing and said he remembered some of his conversations with Stenerson about what would happen if he lost at trial. He remembered the judge asking him questions at the change of plea, and said he thought he understood the questions, but was a little confused. He understood that by entering a plea agreement, he would not go to trial and would not be able to call
¶20 The District Court found Garner’s motion timely because it was brought within one year of the date of the amended judgment. The District Court refused to allow Gamer to withdraw his guilty plea, however, finding it had been entered knowingly, intelligently, and voluntarily. The District Court considered the adequacy of the plea colloquy, the benefit Gamer obtained as a result of the plea agreement, the fitness to proceed evaluation by Dr. Moomaw, the evaluations by Drs. Page and Bach, and Gamer’s own testimony and demeanor at the evidentiary hearing. The District Court also made note of an observation in the pre-sentence investigation report to the effect that Gamer “has learned to use his mental impairment to serve his interests,” and seemed capable of rememberingmore than he admitted. The District Court found “nothing to suggest any infirmity in Gamer’s plea process.” This appeal followed.
STANDARDS OF REVIEW
¶21 We review findings of fact for clear error and conclusions of law for correctness. State v. Warclub, 2005 MT 149, ¶ 24, 327 Mont. 352, 114 P.3d 254. The ultimate issue of the voluntariness of a guilty plea is a mixed question of law and fact, which we review de novo. Warclub, ¶ 24.
DISCUSSION
¶22 1. Whether Gamer’s motion to withdraw plea was time-barred. ¶23 As a threshold matter, we address the State’s argument that Gamer’s motion to withdraw plea was barred by § 46-16-105(2), MCA,
¶24 We agree with the District Court that the amended judgment, issued July 12, 2011, was the final judgment in this case. See State v. Ringewold, 2001 MT 185, ¶¶ 15-16, 306 Mont. 229, 32 P.3d 729 (considering timely appeal from amended judgment issued in 1999, although original judgment had been issued in 1995 and amended judgment was specifically made effective as of the 1995 date); McKinster v. Great N. Ry., 67 Mont. 134, 136, 218 P. 87, 87-88 (1923) (rejecting argument that appeal from amended judgment, taken only two days after entry, was untimely because the time for appeal from the original judgment had expired). Gamer’s motion to withdraw plea, filed July 9, 2012, was therefore within the period contemplated by § 46-16-105(2), MCA.
¶25 2. Whether the District Court erred when it concluded Garner’s guilty plea was voluntary, knowing, and intelligent.
¶26 A guilty plea is a waiver of constitutional rights, and must be a voluntary, knowing, and intelligent act. Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1469 (1970). “The voluntariness of a plea ’can be determined only by considering all of the relevant circumstances surrounding it.’ ” State v. Humphrey, 2008 MT 328, ¶ 15, 346 Mont. 150, 194 P.3d 643 (quoting Brady, 397 U.S. at 749, 90 S. Ct. at 1469). A court may allow a guilty plea to be withdrawn “for good cause shown.” Section 46-16-105(2), MCA. Good cause includes the involuntariness of the plea. Warclub, ¶ 16. In determining whether a plea was entered voluntarily, we examine “case-specific considerations” including the adequacy of the plea colloquy, the benefit the defendant obtained from the plea agreement, and the timing of the motion to withdraw. State v. McFarlane, 2008 MT 18, ¶ 17, 341 Mont. 166, 176 P.3d 1057; State v. Muhammad, 2005 MT 234, ¶ 14, 328 Mont. 397, 121 P.3d 521. If the defendant was aware of the consequences of the plea, and if the plea was not induced by threats, misrepresentation, or improper promises, we will not overturn a district court’s denial of a motion to withdraw plea. Warclub, ¶ 32 (citingBrady, 397 U.S. at 755, 90 S. Ct. at 1472).
¶27 A defendant must be mentally competent to enter a guilty plea,
¶28 Gamer does not challenge the finding that he was competent under this standard to enter a guilty plea; rather, he claims the District Court failed to adequately consider the additional question of whether, though competent, he acted voluntarily, knowingly, and intelligently when he pled guilty. Additionally, Gamer has not challenged the adequacy of the plea colloquy. See McFarlane, ¶ 17. Garner received a significant benefit from the plea agreement, which resulted in dismissal of three felony counts of sexual intercourse without consent. See Muhammad, ¶ 14. Gamer’s motion to withdraw plea, although within the statutory period as previously noted, was filed nearly two years after his plea was entered. We have previously found that such a delay may weigh against the defendant. McFarlane, ¶ 19. In the present circumstances, however, the District Court “accordted] some weight” to the fact that Gamer had raised the possibility of withdrawing his plea at the time of sentencing, and appeared to have “continuously contemplated” such action. Testimony at the evidentiary hearing indicated that a portion of the delay was attributable to Miller’s efforts to secure outside counsel for Gamer in order to avoid conflicts of interest. We agree with the District Court that “[considering the totality of the circumstances, this timeliness factor marginally weighs in Gamer’s favor.”
¶29 Gamer argues that due to his low verbal intelligence, as observed by the three doctors who evaluated him during the proceedings, his plea was not voluntary, knowing, and intelligent. We have stated that the defendant must be “fully aware” of the direct consequences of pleading guilty and must “understand” the rights and protections being waived. Humphrey, ¶ 22. But the record here does not support Gamer’s claim that he did not understand the consequences of entering a guilty plea.
¶30 Gamer adequately demonstrated and affirmed his understanding of the proceedings at various points, for example, by informing the
¶32 Although Gamer failed to object to the District Court’s misstatement during the change of plea, did not raise the statements as an issue during the District Court’s consideration of his motion to withdraw plea, and has repeatedly acknowledged that the District Court’s colloquy was adequate, he now claims the mistaken advisement supports his contention that he was confused about the consequences of his plea. Gamer claims this confusion led him to erroneously believe there was a possibility that he could receive a fully suspended sentence. This belief was not, however, erroneous. As Gamer correctly recalled at the evidentiary hearing, his attorney recommended a fully suspended 10-year sentence. Although the first two years of Gamer’s sentence could not ordinarily be suspended under § 46-18-205(2), MCA, the requirements of that section are subject to statutory exceptions listed at § 46-18-222, MCA. Thus, Gamer could have received a fully
¶33 Dr. Bach found that Garner, although “unbright,” was not mentally retarded. At the evidentiary hearing, Gamer was able to recollect his evaluation with Dr. Bach in detail, and to describe lucidly and accurately the medications he was taking. Neither Miller nor Stenerson was able to articulate any objective basis for concluding that Gamer was incapable of understanding the change of plea, relying instead on “gut feeling.” The District Court, having observed Gamer’s demeanor and testimony at the evidentiary hearing as well as throughout earlier proceedings, found credible the observation in the pre-sentence investigation report that Gamer was capable of remembering and understanding more than he acknowledged, and sometimes claimed not to remember things that were not to his benefit. ¶34 [2] Gamer affirmed to the District Court during the change of plea that he understood the proceedings; that he was satisfied with the services of his attorneys, who explained to him anything he did not understand; that he understood his rights; that he believed entering a plea of guilty was in his best interests; and that he entered such a plea voluntarily. The record demonstrates that Gamer understood the consequences of his decision to plead guilty, and his plea was not induced by any threats, misrepresentation, or improper promises. See Warclub, ¶ 32. Thus, we affirm the District Court’s denial of Gamer’s motion to withdraw plea.
¶35 Affirmed.
We apply the 2007 version of the Montana Code Annotated, which was in effect at the time of Gamer’s offense. Subsequent references are to that version unless otherwise noted.
Reference
- Full Case Name
- STATE OF MONTANA, and v. DANIEL EUGENE GARNER, and
- Cited By
- 6 cases
- Status
- Published