                                                                                      January 14 2014
                                         DA 12-0491

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2014 MT 8



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

WILLIAM RICHARD OLSON,

              Defendant and Appellant.



APPEAL FROM:          District Court of the Fifth Judicial District,
                      In and For the County of Madison, Cause No. DC 11-12
                      Honorable Loren Tucker, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Wade Zolynski, Chief Appellate Defender; Lisa S. Korchinski,
                      Assistant Appellate Defender; Helena, Montana

               For Appellee:

                      Timothy C. Fox, Montana Attorney General; Micheal S.
                      Wellenstein, Assistant Attorney General; Helena, Montana

                      Chris Christensen, Madison County Attorney; Chris McConnell,
                      Deputy County Attorney; Virginia City, Montana



                                                  Submitted on Briefs: December 18, 2013
                                                             Decided: January 14, 2014


Filed:

                      __________________________________________
                                        Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1      William Richard Olson (Olson) appeals from an order of the Fifth Judicial District

Court, Madison County, sentencing him to the Department of Corrections (DOC) for ten

years, with five years suspended. We affirm.

¶2      A restatement of the dispositive issues on appeal is:

¶3      1.     Did the District Court commit plain error when it did not provide Olson the

opportunity to withdraw his guilty plea pursuant to § 46-12-211, MCA, after it rejected

the plea agreement?

¶4      2.     Did Olson’s trial attorney provide ineffective assistance of counsel?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶5      On April 25, 2011, the State charged Olson with felony theft. On December 19,

2011, Olson entered a plea agreement with the State. The plea agreement provided in

part:

        1.      Defendant shall plead guilty in the above-entitled action to the
        charge of Theft, a felony, in violation of [§ 301-6-301(a)-(b), MCA].1
        2.      Defendant and Plaintiff agree that, in return for Defendant’s plea of
        guilty, the following is the appropriate disposition of the case:
                   A. That Defendant shall be sentenced to the Department of
                       Corrections for a term of five (5) years;
                   B. That all but one (1) year of the period of incarceration shall
                       be suspended and Defendant shall be placed on probation for
                       four (4) years, under the normal conditions of probation as
                       determined by the Court after considering the [presentence
                       investigation report (PSI)] recommendations and parties’
                       recommendations. Restitution is outstanding and will be
                       considered in the PSI. Defendant has credit for 113 days of
                       time served.

1
  We note that the agreement cites a nonexistent statute. The correct statute for felony theft is
§ 45-6-301(1), MCA.
                                               2
       3.    Defendant understands and acknowledges that this agreement is not
       binding on the [c]ourt.

¶6     At the change of plea hearing, the District Court stated: “this plea bargain

agreement . . . [is] between you and the State of Montana. The [c]ourt’s not a party to it,

and therefore, the [c]ourt’s not bound by it. And the result of which is that if you plead

guilty and you are sentenced and you don’t like the outcome, you don’t have any

opportunity to change your mind.”       Olson did not challenge this statement.       After

questioning Olson, the court concluded that he understood his rights, the charge against

him, and the punishment, and that he had freely and voluntarily waived his rights in open

court with his attorney present. The court accepted Olson’s guilty plea and convicted

him of felony theft.

¶7     The court ordered a PSI, which was filed on February 22, 2012. In the PSI,

Probation and Parole Officer Claris Yuhas recommended that the District Court sentence

Olson to the DOC for five years, with two years suspended.           She also reported a

discussion she had with Olson about the Plea Agreement:

       When interviewing the defendant for the [PSI], he said he did not
       understand why the [PSI] was now being done as he was under the
       impression that he had accepted the plea agreement and that would be the
       sentence he would receive. I explained to him that the Judge does not have
       to go along with the Plea Agreement; that he can sentence him as he sees
       fit. Letter c of the Plea Agreement, which the defendant signed, even states
       that the Plea Agreement is not binding on the [c]ourt. Once I told the
       defendant that the Judge did not have to go along with the Plea Agreement,
       he stated that he was then going to withdraw his guilty plea.

¶8     On March 19, 2012, the District Court held a sentencing hearing. Officer Yuhas

testified regarding her recommendation, and both parties recommended that the District


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Court follow the plea agreement. The District Court instead sentenced Olson to the DOC

for ten years, with five years suspended. Olson raised no objection, nor did he seek to

withdraw his plea. On March 23, 2012, the District Court issued its written sentence,

judgment, and order.

¶9     In October 2012, Olson filed his notice of appeal. On appeal, Olson alleges that

the plea agreement was an agreement under § 46-12-211(1)(b), MCA (hereinafter a (1)(b)

agreement). Olson argues that when the court rejected the plea agreement and failed to

afford Olson the opportunity to withdraw his guilty plea, it committed plain error and

violated Olson’s constitutional right to due process. Olson further argues that he received

ineffective assistance of counsel.

¶10    The State counters that plain error review is inappropriate because the plea

agreement was an agreement pursuant to § 46-12-211(1)(c), MCA (a (1)(c) agreement),

meaning the District Court was not required to afford Olson the opportunity to withdraw

his plea after rejecting the agreement. The State further maintains that Olson failed to

demonstrate that his counsel was ineffective.

                               STANDARDS OF REVIEW

¶11    We review a district court’s conclusions of law for correctness. Mont. Sup. Ct.

Commn. on the Unauth. Prac. of Law v. O’Neil, 2006 MT 284, ¶ 26, 334 Mont. 311, 147

P.3d 200 (citation omitted).

¶12    Claims of ineffective assistance of counsel are mixed questions of law and fact

which we review de novo. In re J.S.W., 2013 MT 34, ¶ 26, 369 Mont. 12, 303 P.3d 741.



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                                     DISCUSSION

¶13   1.     Did the District Court commit plain error when it did not provide Olson the

opportunity to withdraw his guilty plea pursuant to § 46-12-211, MCA, after it rejected

the plea agreement?

¶14   Olson argues that we should exercise our plain error jurisdiction and determine

that his constitutional right to due process was violated when the District Court did not

give him the opportunity to withdraw his guilty plea. “We generally will not review

issues not raised before the district court. We may undertake review of such an issue,

however, under the plain error doctrine.” State v. Thorp, 2010 MT 92, ¶ 23, 356 Mont.

150, 231 P.3d 1096 (citation omitted). This Court invokes plain error review sparingly.

We apply plain error review only in situations that implicate a defendant’s fundamental

constitutional rights when failing to review the alleged error may result in a manifest

miscarriage of justice, leave unsettled the question of the fundamental fairness of the

proceedings, or compromise the integrity of the judicial process. Thorp, ¶ 23 (citation

and quotation marks omitted).

      Pursuant to § 46-12-211, MCA, when the prosecutor and the defendant’s attorney,

or the defendant acting pro se, enter a plea agreement, the prosecutor may:

      (a) move for dismissal of other charges;

      (b) agree that a specific sentence is the appropriate disposition of the case;
      or

      (c) make a recommendation, or agree not to oppose the defendant’s request,
      for a particular sentence, with the understanding that the recommendation
      or request may not be binding upon the court.


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       (2) . . . [I]f a plea agreement has been reached by the parties, the court shall,
       on the record, require a disclosure of the agreement in open court or, on a
       showing of good cause in camera, at the time the plea is offered. If the
       agreement is of the type specified in subsection (1)(a) or (1)(b), the court
       may accept or reject the agreement or may defer its decision as to the
       acceptance or rejection until there has been an opportunity to consider the
       presentence report. If the agreement is of the type specified in subsection
       (1)(c), the court shall advise the defendant that, if the court does not accept
       the recommendation or request, the defendant nevertheless has no right to
       withdraw the plea.

       (3) If the court accepts a plea agreement, the court shall inform the
       defendant that it will embody in the judgment and sentence the disposition
       provided for in the plea agreement.

       (4) If the court rejects a plea agreement of the type specified in subsection
       (1)(a) or (1)(b), the court shall, on the record, inform the parties of this fact
       and advise the defendant that the court is not bound by the plea agreement,
       afford the defendant an opportunity to withdraw the plea, and advise the
       defendant that if the defendant persists in the guilty or nolo contendere
       plea, the disposition of the case may be less favorable to the defendant than
       that contemplated by the plea agreement.

Section 46-12-211, MCA.

¶15    Olson argues that the parties entered into a (1)(b) agreement which obligated the

District Court to afford him an opportunity to withdraw his plea upon rejection of the

plea agreement. See § 46-12-211(4), MCA. The State argues it was a (1)(c) agreement,

under which the defendant has no right to withdraw his plea. See § 26-12-211(2), MCA.

The plea agreement includes language indicative of both (1)(b) and (1)(c) agreements but

contains no reference to a particular subsection of the statute. The agreement states that

“the following is the appropriate disposition of the case” (incorporating (1)(b) language),

and that “this agreement is not binding on the [c]ourt” (incorporating (1)(c) language).

Though the document is ambiguous on its face, the court clearly treated it as a (1)(c)


                                              6
agreement, both at the change of plea hearing and at the time of sentencing. At the

change of plea hearing, the court told Olson that he would not be able to change his mind

if he did not like the court’s sentence. He nevertheless proceeded to change his plea. In

her discussion with Olson, Officer Yuhas emphasized that the agreement was not binding

on the court. Though Olson told her he would withdraw his guilty plea, Olson never

attempted to do so. Given the unclear language of the document and the lack of protest to

the court’s statements, the court did not err in proceeding as if the agreement were a

(1)(c) agreement.

¶16    Because we conclude that the District Court did not err when it rejected the plea

agreement’s sentencing recommendation without giving Olson the opportunity to

withdraw his plea, Olson fails to demonstrate that failure to review the alleged error

would result in a manifest miscarriage of justice, leave unsettled the fundamental fairness

of the trial or proceeding, or compromise the integrity of the judicial process. Thus, plain

error review is inappropriate.

¶17    2.     Did Olson’s trial attorney provide ineffective assistance of counsel?

¶18    Olson claims he received ineffective assistance of counsel when his attorney

remained silent at the change of plea hearing and at the sentencing and did not correct the

District Court about the nature of the agreement. Olson argues that his attorney’s “failure

to act on behalf of his client, with a plea agreement negotiated and drafted by him, is

deficient performance which falls below the objective standard of reasonableness.”

Olson contends that he was prejudiced by his attorney’s actions.



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¶19    The State counters that Olson’s counsel was silent because he “knew that Olson

and the State had entered into a (1)(c) type of plea agreement and understood that Olson

could not withdraw from the agreement after the [court] did not sentence as

recommended in the plea agreement.” The State argues that Olson should raise this issue

in a petition for postconviction relief, not in a direct appeal. The State further argues that

Olson failed to demonstrate that his counsel’s performance was deficient and that he

suffered prejudice.

¶20    This Court applies the two-prong test from Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052 (1984), in assessing claims of inadequate assistance of counsel.

Dawson v. State, 2000 MT 219, ¶ 20, 301 Mont. 135, 10 P.3d 49. “[T]he defendant must

show that his counsel’s performance was deficient and that the deficient performance

prejudiced the defense and deprived the defendant of a fair trial.” Dawson, ¶ 20 (citation

omitted). “However, before addressing the merits of an ineffective assistance of counsel

claim, we must first determine whether the record is sufficient for review.” State v.

Briscoe, 2012 MT 152, ¶ 10, 365 Mont. 383, 282 P.3d 657 (citation omitted). If the

record is silent as to why counsel took a particular course of action, we will not address

the claim on direct appeal. Briscoe, ¶ 10 (citation omitted). Such a claim is better raised

in a petition for postconviction relief where a sufficient record can be developed.

Briscoe, ¶ 10 (citation omitted). “[W]here no plausible reason exists to justify counsel’s

action or inaction, the claim is record-based and appropriate for direct appeal.” Briscoe,

¶ 10 (citation omitted).



                                              8
¶21    The record in this case is silent as to why Olson’s counsel took the allegedly

deficient course of action or inaction. Though the record contains transcripts of the

change of plea hearing and the sentencing, there is no evident indication as to why

Olson’s attorney remained silent at the hearings.       Because facts that might support

Olson’s ineffective assistance claims do not appear in the record and a plausible reason

exists to justify the attorney’s silence, the issue is properly the subject of a petition for

postconviction relief and cannot be resolved on direct appeal.

                                     CONCLUSION

¶22    For the foregoing reasons, we affirm.


                                                   /S/ PATRICIA COTTER


We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ LAURIE McKINNON




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