                                           No. 04-877

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2006 MT 17N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

KERRY REX MIESSNER,

              Defendant and Appellant.




APPEAL FROM:         The District Court of the Twenty-First Judicial District,
                     In and For the County of Ravalli, Cause No. DC 2002-172,
                     Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Kerry R. Miessner, Pro Se, Great Falls, Montana

              For Respondent:

                     No brief filed.


                                                    Submitted on Briefs: November 9, 2005

                                                               Decided: January 24, 2006

Filed:


                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed as a

public document with the Clerk of the Supreme Court and its case title, Supreme Court cause

number and disposition shall be included in this Court’s quarterly list of nonciteable cases

published in the Pacific Reporter and Montana Reports.

¶2     Kerry Miessner (Miessner) appeals from his convictions for kidnapping, two

misdemeanor counts of partner or family member assault and driving with an alcohol

concentration in excess of 0.10 (DUI per se), also a misdemeanor. Pursuant to a plea

agreement, Miessner pled guilty to all charges. He was sentenced to ten years imprisonment

for kidnapping, a total of 323 days imprisonment for the three misdemeanors and his

sentence was increased by five years, all of which were suspended, for being a persistent

felony offender. Miessner now contends that he was improperly coerced into pleading guilty

by threats issued by his attorney and the prosecution. Moreover, he contends that the District

Court should never have accepted his guilty plea to the charge of DUI per se because he was

never arraigned on that charge. He also asserts that the District Court erred when it denied

his motion to withdraw his guilty plea. Finally, Miessner challenges the District Court’s

statutory and constitutional authority to impose an increased sentence for his being a

persistent felony offender.

¶3     On November 16, 2002, police officer Lance Foster (Foster) went to Miessner’s home

because Miessner’s illegally parked vehicle was blocking access to the Stevensville Fire

                                             2
Department. After Miessner answered the door, his girlfriend Jolene Stieffel (Jolene) cried

out and made her way to the door. Foster observed that her hands were duct taped together

and she was in an “emotional state.” Jolene eventually accompanied Foster to the Police

Department where she indicated that Miessner had held her down and duct taped her hands,

feet and mouth. At that time, she refused to give a formal written statement. Officer Foster

concluded that he lacked sufficient probable cause to arrest Miessner at that time, due, in

part, to Jolene’s refusal to provide a formal statement.

¶4     On November 20, 2002, Miessner, accompanied by friends, arrived home to find the

doors to his residence locked. Angered by this, he kicked in the back door and threatened to

harm Jolene. According to Jolene, his friends had to forcefully restrain him from physically

assaulting her. Jolene subsequently gave a formal statement to the police regarding both of

the above incidents, stating that Miessner had struck her in the jaw, knocking her to the floor,

before he bound her with duct tape.

¶5     On November 21, 2002, police responded to a call regarding a strange vehicle in a

private driveway and found Miessner asleep in the cab of his truck. Miessner was arrested

for a probation violation and after being read his Miranda rights, he told the police that he

had bound Jolene’s hands and mouth with duct tape on November 16, 2002, and had kicked

open the door to his residence on November 20, 2002. Miessner was also administered a

breath test, which yielded a blood alcohol content of 0.153.

¶6     On November 26, 2002, the State, through the Ravalli County Attorney, requested

leave of the court to file an information charging Miessner with aggravated kidnapping and

                                              3
two counts of partner or family member assault. Judge Langton found that probable cause

existed to believe that Miessner committed the offenses and granted leave for the State to file

the information charging Miessner. Shortly thereafter, the State filed a notice to have

Miessner designated as a persistent felony offender. On April 18, 2003, the State filed an

amended information that added the charge of DUI per se to the charges already pending

against Miessner. Because he was being held at the Montana State Prison, Miessner was not

arraigned on the DUI per se charge.

¶7     On May 9, 2003, just a few days before his scheduled trial date, Miessner attended a

change of plea hearing where, pursuant to a plea agreement, he pled guilty to kidnapping,

two counts of partner or family member assault and DUI per se. Under the terms of that

agreement, the charge of aggravated kidnapping was reduced to kidnapping. In addition, the

State agreed to request that the sentences for the three misdemeanor charges run concurrently

with the kidnapping sentence and that Miessner receive only the statutory minimum of five

years as a persistent felony offender, to run consecutive with his kidnapping sentence.

Miessner signed an Acknowledgment of Waiver of Rights and indicated at the hearing that

he had fully understood that document. During the hearing, Miessner was informed of and

acknowledged that he understood the maximum penalties he faced for each of the charges as

well as the minimum and maximum sentence enhancement possible for a designated

persistent felony offender. Miessner also acknowledged that he was giving up a variety of

constitutional rights by entering a guilty plea. Miessner indicated that he had not been

forced, pressured or threatened into pleading guilty and he expressed satisfaction with the

                                             4
assistance provided by his counsel. Finally, Miessner briefly described his commission of

the offenses charged.

¶8     The next day Miessner sent a letter to Judge Langton, seeking appointment of

alternate counsel and requesting that his guilty plea be withdrawn. Miessner indicated that

he was under extreme duress when he changed his plea, that he had never been arraigned on

the DUI per se charge and that his attorney had contributed to his duress by not using Officer

Foster’s initial report to argue that the State lacked probable cause to arrest him and by

relaying threats made by the prosecutor that Miessner would get “hammered” as a persistent

felony offender. Judge Langton ultimately granted Miessner’s request for alternate appointed

counsel but did not rule on his request to withdraw his guilty plea. Nevertheless, Miessner,

with the assistance of his second appointed counsel, ultimately filed a proper motion to

withdraw his guilty plea. Miessner contended that he should be permitted to change his plea

pursuant to § 46-16-105(2), MCA, and that he did not knowingly plead guilty because he had

not been arraigned on, nor was he aware of, the charge of DUI per se. After a hearing, this

motion was denied by the District Court.

¶9     On March 15, 2004, the District Court sentenced Miessner to ten years for kidnapping

with an additional enhancement of five years, with all five years suspended, for being a

persistent felony offender. For the misdemeanor charges, Miessner was sentenced to a total

of 323 days and was given credit for 323 days served. This pro se appeal followed.

¶10    Miessner raises a litany of issues on appeal, which he categorizes as twenty-one

separate “grounds” of appeal (identified by letters “A” through “U”). Because Miessner pled

                                             5
guilty, however, many of the “grounds” of appeal that he identifies may not be raised on

appeal. “A voluntary and intelligent guilty plea constitutes a waiver of nonjurisdictional

defects and defenses” that occurred prior to the plea. State v. Gordon, 1999 MT 169, ¶ 23,

295 Mont. 183, ¶ 23, 983 P.2d 377, ¶ 23 (citation omitted); see also Hagan v. State (1994),

265 Mont. 31, 35, 873 P.2d 1385, 1387. Thus, Miessner may only challenge the knowing,

voluntary and intelligent character of his guilty plea, the District Court’s denial of his motion

to withdraw his guilty plea for good cause and jurisdictional defects. In this context,

jurisdictional claims are “‘those cases in which the district court could determine that the

government lacked the power to bring the indictment at the time of accepting the guilty plea

from the face of the indictment or from the record.’” Hagan, 265 Mont. at 36, 873 P.2d at

1388 (quoting United States v. Cortez (9th Cir. 1992), 973 F.2d 764, 767) (emphasis in

original). Miessner may also challenge the legality of his sentence.

¶11    Before addressing the merits of Miessner’s claims, we first must make clear that we

are not addressing several of his “grounds” of appeal. Although Miessner couches each of

his “grounds” of appeal in terms of the District Court’s lack of subject matter jurisdiction,

they do not properly touch on the jurisdiction of the court or the power of the State to file the

information. Accordingly, we will not address “grounds”: B (challenging Miessner’s

warrantless arrest for aggravated kidnapping and partner or family member assault); C

(alleging that the District Court improperly permitted Miessner’s prosecution to proceed

without obtaining leave of the Justice Court to do so); E (alleging that the State lacked



                                              6
probable cause 1 to file its information and failed to obtain leave of the court to do so); F

(alleging that the District Court was stripped of subject matter jurisdiction when a court-

ordered conference to explore plea alternatives was not held); G (alleging that the District

Court improperly denied Miessner’s initial request for substitute appointed counsel); H

(alleging that the District Court improperly arraigned Miessner on charges that were not

supported by probable cause); and I (alleging that the State improperly sought persistent

felony offender status). In addition, several of Miessner’s claims stem from his probation

revocation—a different matter altogether from the conviction he is presently appealing—and

are not properly before this Court. Accordingly, we will not address “grounds”: A (alleging

that he was charged solely to facilitate his arrest for a probation violation); B (alleging that he

was deprived of his statutory right to an intervention hearing within seventy-two hours of his

arrest, pursuant to § 46-23-1012(3)(b), MCA); K (alleging that the State improperly filed a

petition to revoke his suspended sentence); L (alleging improprieties during his probation

violation hearing); and M (alleging that the District Court improperly ordered Miessner to

serve the remainder of his suspended sentence at the Montana State Prison). Finally, many of

Miessner’s “grounds” of appeal are flatly contradicted by facts of record. Because they lack

any factual basis in the record, we will not address the following “grounds” of appeal: D

(alleging that the District Court erred in proceeding without subject matter jurisdiction,

       1
        Miessner’s brief is riddled with assertions that the State and District Court lacked
probable cause to proceed against him. This belief is based on assessments contained in a
report prepared by Officer Foster at a time when Jolene had refused to make a formal
statement against Miessner. Jolene’s subsequent formal statement implicating Miessner and

                                               7
statutory authority or a finding of probable cause; however, the District Court, when it

granted the State’s motion for leave to file an information, specifically found that there was

probable cause to believe that Miessner committed the offenses charged and district courts

clearly have subject matter jurisdiction over felony charges and concurrent jurisdiction over

all misdemeanor charges faced by Miessner, which each carry fines up to $1,000, see § 3-10-

303(1)(c), MCA; State v. Brockway, 2005 MT 179, ¶ 11, 328 Mont. 5, ¶ 11, 116 P.3d 788, ¶

11); E (see above; the State did obtain leave of the court to file the information and its motion

was supported by an affidavit that established probable cause); H (see above; information

was properly filed and the District Court acted within its jurisdiction and pursuant to

statutory authority when it arraigned Miessner); and J (alleging that the District Court failed

to make its finding of probable cause part of the record; however, the court specifically did so

when it granted the State’s motion for leave to file an information). The remainder of

Miessner’s “grounds” of appeal are properly before this Court and we will address their

merits.

¶12       We reframe the issues properly before this Court as follows: (1) whether the District

Court erred in accepting Miessner’s guilty plea to DUI per se because he was never arraigned

on that charge; (2) whether Miessner was improperly coerced into pleading guilty because of

the conduct of either his attorney or the State; (3) whether the District Court erred in denying

Miessner’s motion to withdraw his guilty plea; (4) whether Miessner’s rights were violated

when he was sentenced as a persistent felony offender; and (5) whether the District Court


providing greater detail of the incident of November 16, 2002, makes the continuing
                                               8
erred when it neglected to consider whether the statutory exceptions to mandatory minimum

sentences applied to Miessner. These issues are identified in Miessner’s brief as “grounds”

of appeal “N” through “U.” We address each in turn.

¶13    Miessner asserts that the District Court erred in accepting his guilty plea to the charge

of DUI per se because he was never arraigned on that charge and the District Court

improperly allowed the State to file an amended information charging him with DUI per se;

thus, he asserts, he was denied due process and the District Court lacked subject matter

jurisdiction to proceed against him, let alone accept his guilty plea to that charge.2 Miessner

cites four cases in support of his argument—State v. McCaffery (1895), 16 Mont. 33, 40 P.

63; State v. Dist. Court of Third Judicial Dist. for Deer Lodge County (1907), 35 Mont. 321,

89 P. 63; Vande Veegaete v. Vande Veegaete (1927), 79 Mont. 68, 255 P. 348; and Illinois v.

Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527—none of which establishes that

a district court lacks subject matter jurisdiction over a charge on which a defendant has not

been arraigned. If anything, McCaffery stands for the proposition that any procedural

inadequacies in the filing of an information are waived by a defendant who pleads guilty

without first objecting to those procedural shortcomings. McCaffery, 16 Mont. at 37, 40 P. at

65. While it is settled that a defendant must be arraigned anew on new charges contained in

an amended information, this requirement is grounded in our concern with protecting the due

process rights of defendants, rather than delineating courts’ jurisdiction. State v. Cardwell


accuracy of Officer Foster’s initial assessment of probable cause doubtful, at best.
       2
         The State did not file a brief in this appeal and has taken no position on any of the
issues presented.
                                              9
(1980), 187 Mont. 370, 375-76, 609 P.2d 1230, 1233 (indicating that the requirement of

arraignment ensures that the defendant receives a neutral determination of probable cause for

detention and notice of the offense charged so that he or she can prepare a defense); see also

§ 46-12-102, MCA (declaring that the defendant must be arraigned in the court that has trial

jurisdiction over the charge and hence implying that the court’s jurisdiction over the case

precedes arraignment and is unaffected thereby). Miessner has waived his right to contest

any violation of his due process rights that occurred prior to his guilty plea. Gordon, ¶ 23.

Because Miessner has failed to cite authority sufficient to support his claim that the District

Court lacked subject matter jurisdiction to proceed against him, we find no error in the

District Court’s acceptance of his guilty plea to the charge of DUI per se.

¶14    Next Miessner asserts that he was improperly coerced into pleading guilty because of

the conduct of his attorney and the conduct of the Ravalli County Attorney. Relying on State

ex rel. Gladue v. Eighth Judicial Dist. (1978), 175 Mont. 509, 575 P.2d 65, implicitly

overruled by State v. Allen (1994), 265 Mont. 293, 294, 296, 876 P.2d 639, 639, 641, as

recognized by State v. Lone Elk, 2005 MT 56, ¶ 25, 326 Mont. 214, ¶ 25, 108 P.3d 500, ¶ 25,

Miessner argues that his attorney improperly induced him to plead guilty. Miessner contends

that a letter written by his attorney “strongly urg[ing]” him to accept the State’s plea offer “or

some better offer,” constitutes coercion that renders his guilty plea involuntary. In this letter,

his attorney notes that the State has offered to reduce the felony charge from aggravated

kidnapping (which carries a maximum sentence of life imprisonment) to kidnapping (which

carries a maximum sentence of ten years) and agreed to recommend only five years for being

                                              10
a persistent felony offender (which permits a sentence to be extended to one hundred years).

In addition, his attorney offered his candid, albeit bleak, assessment of Miessner’s prospects

of succeeding at trial: “[t]he simple facts of this case . . . and the testimony of the officers

involved . . . all point overwhelmingly that you will be convicted of aggravated kidnapping in

my opinion.” Miessner’s attorney made no suggestion that he would not vigorously defend

Miessner at trial; rather, he offered his candid assessment of the likely result of a trial. Such

an honest appraisal of the probable outcome if his case proceeded to trial, presentation of the

possible sentences he could face under different scenarios, and a professionally informed

recommendation that he reconsider his earlier rejection of the State’s plea bargain is precisely

the sort of advice that a defendant should hope to receive from his attorney in order to make

an informed and voluntary decision concerning a plea bargain. Miessner essentially argues

that he was induced to plead guilty due to his fear of being found guilty of the charges he

faced. We have held, however, that “[f]ear of the legal consequences of one’s actions . . . is

not improperly-induced fear.” Elk, ¶ 25. Moreover, Miessner’s contention that he was

coerced by his attorney into involuntarily pleading guilty is contradicted by Miessner’s

conduct at the change of plea hearing. When asked by Judge Langton whether anyone had

forced, pressured, or threatened him “in any fashion to enter into this agreement or to plead

guilty,” Miessner replied in the negative. Miessner specifically indicated that he was

satisfied with “the advice and services” provided by his attorney, belying his present claim

that his attorney’s advice improperly induced his plea. Finally, Miessner signed an

Acknowledgment of Waiver of Rights indicating that his plea was “voluntary and not the

                                              11
result of any pressure or threats.” Accordingly, we find that Miessner was not improperly

induced by his attorney into entering a guilty plea.

¶15    Miessner also contends that the Ravalli County Attorney induced his plea by

“threatening” Miessner with the prospect of life imprisonment in the amended information

that charged him with aggravated kidnapping. The crime of aggravated kidnapping is

punishable by life imprisonment or between two and one hundred years imprisonment unless

the culprit voluntarily released the victim.3 Section 45-5-303(2), MCA. The Supreme Court

declared in Brady v. United States (1970), 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, that:

       [A] plea of guilty entered by one fully aware of the direct consequences,
       including the actual value of any commitments made to him by the court,
       prosecutor, or his own counsel, must stand unless induced by threats (or
       promises to discontinue improper harassment), misrepresentation (including
       unfulfilled or unfulfillable promises), or perhaps by promises that are by their
       nature improper as having no proper relationship to the prosecutor’s business
       (e.g. bribes).

Brady, 397 U.S. at 755, 90 S.Ct. at 1472, 25 L.Ed.2d at 760 (citation omitted). Under Brady,

a defendant’s guilty plea is not invalidated simply because he faces the prospect of a more

severe sentence if he does not plead guilty. State v. Johnson (1995), 274 Mont. 124, 129,

907 P.2d 150, 153; State v. Milinovich (1994), 269 Mont. 68, 71, 887 P.2d 214, 216. A life

sentence is statutorily authorized for aggravated kidnapping. The inclusion of a statutorily

authorized sentence in the charging information is not an improper threat or inducement that




       3
         Although Miessner apparently did release Jolene by cutting the duct tape that bound
her feet, he did so only after a police officer had arrived at his door. A reasonable jury could
conclude that Miessner did not voluntarily release Jolene.
                                             12
invalidates a guilty plea. Accordingly, Miessner was not improperly coerced by the Ravalli

County Attorney into entering his guilty plea.

¶16    Miessner contends that the District Court erred when it denied his motion to withdraw

his guilty plea. In reviewing denial of a motion to withdraw a guilty plea, we review a

district court’s underlying factual findings to determine if they are clearly erroneous. State v.

Warclub, 2005 MT 149, ¶ 23, 327 Mont. 352, ¶ 23, 114 P.3d 254, ¶ 23. We then review the

ultimate question of voluntariness of the plea de novo. Warclub, ¶ 23. Miessner argues that

the court improperly neglected to address his first handwritten “motion” 4 to withdraw his

guilty plea, which purportedly informed the court that the State lacked probable cause to

arrest Miessner in the first place. Miessner also argues that the District Court, having been

informed by his first “motion” of the lack of probable cause to initiate his prosecution, erred

when it denied his second motion to withdraw his guilty plea. “Under Brady, we will not

overturn a district court’s denial of a motion to withdraw a guilty plea if the defendant was

aware of the direct consequences of such a plea, and if his plea was not induced by threats,

misrepresentation, or an improper promise such as a bribe.” Warclub, ¶ 32. Bases other than

involuntariness may provide “good cause” for withdrawing a guilty plea under § 46-16-

105(2), MCA. Lone Elk, ¶ 19. An arrest without probable cause is not among the alternate




       4
        This “motion” was actually a letter to Judge Langton in which Miessner requested
appointment of new counsel, dismissal of all charges if the DUI per se charge was unlawfully
entered into the plea agreement and withdrawal of his guilty plea.
                                              13
bases that may constitute good cause, however. See State v. Sor-Lokken (1991), 247 Mont.

343, 348, 805 P.2d 1367, 1370-71 (“an illegal arrest of a defendant neither precludes the

State from proceeding on a criminal charge against him nor presents the defendant with a

defense to a valid conviction”). Miessner, having signed an Acknowledgment of Waiver of

Rights and a plea agreement, and having engaged in a colloquy with Judge Langton, was

triply aware of the direct consequences of his plea. His plea was not improperly induced by

threats, but was entered voluntarily. Accordingly, we conclude that the District Court did not

err in denying Miessner’s motion to withdraw his guilty plea.

¶17    Miessner alleges that the District Court erred when it sentenced him to five years for

being a persistent felony offender because he was never separately charged with the offense

of being a persistent felony offender. Additionally, he claims that his Sixth Amendment right

to a trial by jury was violated because he was not afforded a trial on the charge of being a

persistent felony offender. We review a sentence only for legality. State v. Montoya, 1999

MT 180, ¶ 15, 295 Mont. 288, ¶ 15, 983 P.2d 937, ¶ 15. Miessner fundamentally

miscomprehends the nature of a persistent felony offender designation. As we recently

observed, “[i]t is not a crime to be a persistent felony offender”; rather, “the penalties for all

felonies, across the board, increase for a persistent felony offender.” State v. Wardell, 2005

MT 252, ¶ 25, 329 Mont. 9, ¶ 25, 122 P.3d 443, ¶ 25. Accordingly, it is of no consequence

that Miessner was not separately charged with the offense of being a persistent felony

offender. The State properly provided notice of its intent to seek persistent felony offender

status, and upon pleading guilty to the felony of kidnapping, Miessner waived his claim to a

                                              14
jury determination of his status. Miessner’s sentence is within the one hundred year

maximum authorized by § 46-18-502, MCA, and was legally imposed.

¶18    Finally, Miessner argues that the District Court erred when it failed to hold a hearing

to determine whether the statutory exceptions to mandatory minimum sentences, § 46-18-

222, MCA, apply to Miessner. Miessner also suggests that the District Court lacked

authority to impose thirty-one conditions in connection with his suspended sentence. We

have held that “when a sentence greater than the mandatory minimum is imposed, the

statutory exceptions have no bearing.” State v. Zabawa (1996), 279 Mont. 307, 317, 928

P.2d 151, 157. Miessner received a ten-year sentence, the statutory maximum sentence

allowed for kidnapping. Therefore, the statutory exceptions to the mandatory minimums

have no bearing on his sentence and the District Court did not err when it neglected to

consider them. As to the conditions attached to Miessner’s suspended sentence, the plea

agreement specifically states that “the Defendant understands that he may be subject to the

conditions of probation imposed by . . . this Court.” The imposition of reasonable restrictions

on an offender who receives a suspended sentence is authorized by statute. Section 46-18-

201(4), MCA. Accordingly the District Court properly exercised its discretion in imposing

the thirty-one conditions on the suspended portion of Miessner’s sentence.

¶19    In conclusion, Miessner has received the benefit of his bargain with the State: by

pleading guilty to kidnapping he avoided trial on the charge of aggravated kidnapping and

received the minimum sentence for a persistent felony offender, all of which was suspended.

Nobody coerced Miessner into pleading guilty. Rather, Miessner voluntarily entered a

                                             15
guilty plea fully cognizant of both the consequences that would ensue and of the potential

consequences avoided thereby. The District Court’s failure to arraign Miessner on the DUI

per se charge has not been shown to constitute a jurisdictional defect and Miessner has

waived his right to assert a due process violation. The District Court properly denied

Miessner’s motion to withdraw his guilty plea. Finally, Miessner’s sentence is statutorily

authorized and was properly imposed.

¶20   Affirmed.



                                                /S/ W. WILLIAM LEAPHART




We concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA O. COTTER
/S/ JIM RICE




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