                                                                                            November 5 2013


                                          DA 12-0079

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 329



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

BRYCE EVERETT PETERSON,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Twenty-First Judicial District,
                        In and For the County of Ravalli, Cause No. DC-08-151
                        Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender; Sarah Chase Rosario, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

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

                        William Fulbright, Ravalli County Attorney, Hamilton, Montana



                                                    Submitted on Briefs: September 18, 2013
                                                               Decided: November 5, 2013


Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.


¶1    Bryce Everett Peterson appeals from the District Court’s Opinion & Order, filed

December 14, 2011, denying his Motion to Withdraw Alford Pleas. We affirm in part,

reverse in part, and remand for further proceedings.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶2    In November 2008, the State charged Peterson with the felony offenses of

aggravated kidnapping, aggravated assault, assault with a weapon, intimidation, and

aggravated burglary, and also the misdemeanor offense of partner or family member

assault, second offense. The affidavit filed in support of the charges alleges that on

October 17, 2008, Peterson arrived at the house of his sometime girlfriend H.P., and

kicked in the door. Once inside Peterson began assaulting H.P., hitting her and forcing

her to the floor where he continued the assault for an extended period of time. Peterson

forced H.P. into his truck and began driving, calling a hospital to report that H.P. had

overdosed on medication. When H.P. attempted to cry out for help Peterson punched her

in the head and continued to slap her. Peterson prevented H.P. from getting out of the

truck, slamming her head into the interior before pulling off onto a side road in a remote

area and telling H.P he was taking her where no one would ever find her.

¶3    Peterson then took H.P. to his home where he continued to assault her. A Deputy

arrived to check on H.P.’s safety but when he knocked on the door Peterson held a gun to

her face and demanded that she be quiet. The Deputy, hearing nothing from inside the




                                            2
house, left. Peterson then began making phone calls and H.P. eventually escaped the

house and was able to report what had happened to her.

¶4     Law enforcement officers surrounded Peterson’s house. He refused to leave and

made threats to kill specific officers who he could see outside. Peterson surrendered after

about 18 hours and was taken to the hospital for an evaluation and then to jail. He

retained an attorney to represent him.

¶5     In November 2008 the District Court ordered that Peterson be transferred to the

Montana State Hospital for a mental evaluation to determine his fitness to proceed.

Peterson was at MSH for two months after which treating professionals filed a report on

his condition. They concluded that he did not suffer from a mental disease or defect, that

he was fully capable of understanding the proceedings against him and of assisting in his

own defense, and that he was fit to proceed to trial. The MSH report also concluded that

Peterson had been fully capable of forming the “requisite state of mind” at the time of the

offenses and of appreciating the criminality of his behavior. On February 4, 2009, the

District Court found that Peterson was competent to stand trial.

¶6     Peterson’s attorney retained a psychiatrist to conduct an independent evaluation.

The defense psychiatrist evaluated Peterson and issued a report in July 2009 concluding

that Peterson suffered from bipolar disorder, but that he was competent to stand trial.

The defense psychiatrist concluded that Peterson had the ability to act with knowledge or

purpose at the time of the offenses, although his ability to appreciate the criminality of his

conduct was diminished by a mood disorder.



                                              3
¶7     At a hearing in August 2009 the District Court granted the State’s motion for leave

to introduce evidence of prior instances in which Peterson had assaulted other women

and H.P. At that same hearing the defense filed a brief questioning Peterson’s

competency to proceed.       The District Court heard argument and testimony on the

competency issue, including testimony from Peterson. The District Court noted that

Peterson presented articulate, logical and coherent testimony about his personality

disorders, the medications that addressed them, and the therapeutic significance of dosage

levels. The District Court concluded that nothing was presented to alter the conclusions

of the professionals that Peterson had been capable of forming the required criminal

intent at the time of the offenses, and that he was competent to stand trial.

¶8     On September 10, 2009, a day before trial was scheduled to begin, Peterson and

his attorney appeared before the District Court to enter Alford pleas to all the charged

offenses. An Alford plea arises from the decision in North Carolina v. Alford, 400 U.S.

25, 91 S. Ct. 160 (1970) and is recognized by statute in Montana. Section 46-12-212,

MCA.     An Alford plea allows a defendant to plead guilty to an offense without

acknowledging his guilt. State v. Locke, 2008 MT 423, ¶ 18, 347 Mont. 387, 198 P.3d

316.

¶9     Peterson and his attorney signed and filed a multi-page pleading captioned “Alford

Plea and Waiver of Rights” in which Peterson affirmed his desire to voluntarily enter the

pleas and that there was no plea agreement. Peterson acknowledged that he was giving

up a variety of rights, including the chance of being convicted of lesser included offenses

and the chance of appeal on all issues except the voluntariness of the plea. He affirmed

                                              4
that he was satisfied with the services and competency of his attorney and that they had

discussed the merits of the case and possible defenses.        He affirmed that he was

competent to enter the plea and did not suffer any emotional or mental disability that

would make him unsure about what he was doing.           He specifically explained in a

handwritten passage that he wished to enter an Alford plea because he did not want to

plead guilty but had determined that it was in his “best interests to avoid trial.” He

affirmed that he believed that a jury would find him guilty beyond a reasonable doubt.

¶10   Thereafter the District Court read the allegations for the charges of aggravated

kidnapping and aggravated assault. Peterson entered Alford pleas to both charges. When

the District Court read the allegations related to the charge of assault with a weapon,

Peterson injected: “I can’t do this. I can’t do this. No, I’m not guilty of that. I’m not

guilty of this.” The District Court explained the nature of an Alford plea and Peterson

responded that he understood that it was in his best interest to enter a plea because the

“cards have been stacked against” him by the prosecution, apparently referring to prior

rulings on evidentiary issues. The District Court then recessed the proceeding.

¶11   When the proceeding resumed some 20 minutes later, Peterson announced that he

wanted two issues addressed: he requested an evaluation of his medication dosage and he

requested that there be specific language in the plea documents stating that he maintained

his innocence. Peterson agreed that the medication issue could be addressed after the

plea proceeding, and he entered Alford pleas to the remaining charges. The District Court

explained the possible penalties for the offenses as well as requirements for violent

offender registration and restitution obligations.   The District Court again informed

                                            5
Peterson of the rights to trial that he was giving up and Peterson said that he understood.

He affirmed that there were no assurances of leniency given in exchange for his pleas,

nor was any force, threat or improper tactic used to obtain his pleas. Peterson’s attorney

told the District Court that he believed that Peterson was competent to enter the pleas and

that his medication complaints did not affect his ability to understand the proceeding.

¶12    Peterson affirmed that his communication with his attorney was “as good as could

be” and that they had disagreed about some things. He stated that he still did not

understand how he could maintain his innocence and still enter an Alford plea. The

District Court explained that an Alford plea is like a guilty plea but without agreement

that he committed every element of each offense. Peterson stated again that he believed

that there was “no defense” for him because the prosecutor had lied to the court to obtain

favorable evidentiary rulings. Even so, Peterson stated that it was “absolutely” in his best

interests to plead to the charges rather than to go to trial.

¶13    Peterson’s attorney summarized the time he had spent on the case, noting a couple

dozen personal meetings and close to 100 telephone calls. The attorney affirmed that

they discussed the evidence, including discussions involving the defense investigator.

¶14    Peterson then affirmed that it was his choice to go ahead with the pleas instead of

going to trial and provided a detailed and rational explanation of his medication issues.

The District Court then found that there was a factual basis for the charges, based upon

the facts set out in the affidavit filed in support of the motion for leave to file the

information against Peterson. The District Court found that Peterson entered the pleas

knowingly, voluntarily and intelligently. The District Court accepted the Alford pleas.

                                                6
¶15   The District Court conducted sentencing hearings on October 23 and November

13, 2009, and received testimony about the crimes and about Peterson’s mental state.

Peterson admitted to a history of abusing women but claimed he was suffering from a

mental disease or defect at the time of the prior events. Mental health professionals from

the Montana State Hospital testified that while Peterson had a personality disorder and

abused cannabis, he did not suffer from a mental disease or defect.          The defense

psychiatrist testified that he believed that Peterson had bipolar disorder that should be

considered in sentencing. The District Court sentenced Peterson to a total of 70 years in

prison with 20 years suspended. Peterson’s attorney obtained leave of court to withdraw

as counsel.

¶16   In November 2010 Peterson appeared with new counsel and moved to withdraw

his Alford pleas. Peterson contended that he should be allowed to withdraw his prior

pleas because his mental state at the time of the pleas precluded him from knowingly and

voluntarily making a plea decision; because he maintained his innocence to the charges

against him; and because the District Court’s colloquy with him was insufficient to

determine whether the pleas were knowingly and voluntarily made.

¶17   The District Court conducted a hearing on the motion and received briefs. On

December 14, 2011, the District Court issued a 30-page Opinion & Order denying

Peterson’s motion to withdraw the pleas. The District Court examined the medical

evidence as to Peterson’s mental capacity and found that the more persuasive and

credible evidence demonstrated that Peterson was competent to enter the pleas. The

District Court examined the change-of-plea hearing and found that Peterson did not

                                            7
demonstrate mental instability, but understood what was happening and had a detailed

understanding of his medication. The District Court found that Peterson had appeared to

be alert and that his “responses and statements were articulate, logical and oriented.” The

District Court found that Peterson was thoroughly questioned before the pleas were

accepted, and that his desire to maintain innocence was no ground to reject an Alford

plea.

¶18     The District Court concluded that Peterson’s Alford pleas were knowingly and

voluntarily entered and that his motion to withdraw the pleas was without merit and

should be denied. Peterson appeals.

¶19     On appeal Peterson raises the following issues:

¶20     Issue One: Did the District Court properly deny Peterson’s motion to withdraw

his Alford pleas?

¶21     Issue Two: Should this matter be remanded to the District Court to determine the

amount of restitution due to the victim from Peterson for future counseling expenses?

                               STANDARD OF REVIEW

¶22     A district court may allow a defendant to withdraw a guilty plea where good cause

is shown. Section 46-16-105(2), MCA. If a guilty plea is involuntary, that constitutes

good cause to allow it to be withdrawn. State v. Usrey, 2009 MT 227, ¶ 17, 351 Mont.

341, 212 P.3d 279.      The standard of voluntariness of a guilty plea is whether the

defendant was fully aware of the direct consequences of the plea, including the actual

value of any commitments made to him by the court, prosecutor or his attorney. If so, the

plea will stand unless it was induced by threats or improper promises. State v. Warclub,

                                             8
2005 MT 149, ¶ 18, 327 Mont. 352, 114 P.3d 254, citing Brady v. U.S., 397 U.S. 742, 90

S. Ct. 1463 (1970). A properly supported claim of ineffective assistance of counsel

during the change of plea process can constitute good cause for withdrawal of a plea.

Burns v. State, 2012 MT 100, ¶ 7, 365 Mont. 51, 277 P.3d 1238.

¶23    When a district court denies a motion to withdraw a guilty plea, this Court will

review findings of fact to determine whether they are clearly erroneous, and conclusions

of law to determine if they are correct. The ultimate question of voluntariness is a mixed

question of fact and law that this Court reviews de novo to determine whether the district

court was correct. Warclub, ¶ 24.

                                     DISCUSSION

¶24    Issue One: Did the District Court properly deny Peterson’s motion to withdraw

his Alford pleas?

¶25    Peterson raises a number of issues on appeal, all to support the underlying

contention that his Alford pleas were not voluntary and that he should be allowed to

withdraw them. First, Peterson argues that he should be allowed to withdraw his pleas

because both of his prior attorneys—the attorney who represented him at the trial/plea

proceedings and the attorney who represented him on the motion to withdraw the pleas—

provided him with ineffective assistance of counsel.

¶26    Peterson’s motion in District Court to withdraw the pleas was based upon the

arguments that he lacked the mental capacity to enter the pleas; that he maintained that he

was innocent of the charges; and that the District Court’s colloquy with him at the time of

the pleas was inadequate.     Peterson did not raise any issue concerning the alleged

                                            9
ineffectiveness of his trial/plea attorney when he moved to withdraw his pleas, and the

District Court did not consider or rule upon that issue. When a defendant appeals denial

of a motion to withdraw a prior plea, this Court will not entertain new issues that were

not raised in the District Court. State v. Ostrerloth, 2000 MT 129, ¶ 20, 299 Mont. 517,

1 P.3d 946 (no new issues may be raised on appeal of a motion to withdraw a plea); State

v. McFarlane, 2008 MT 18, ¶ 12, 341 Mont. 166, 176 P.3d 1057 (this Court will not

consider a claim of ineffective assistance of counsel at a change of plea proceeding when

the claim was not raised in district court). Because Peterson did not raise the issue that

his trial/plea attorney provided ineffective assistance, we decline to address this argument

on appeal.1

¶27    Peterson next argues that he is entitled to withdraw the pleas because they were

not knowingly and intelligently made. He argues that the District Court failed to inform

him that that he could go to trial on the charge of aggravated kidnapping and pursue

conviction of a lesser included offense of kidnapping.

¶28    Section 46-12-210, MCA, covers in detail the “advice” that a district court must

give a defendant proposing to enter a guilty plea. A district court’s advice to a pleading

1
  While we do not consider the ineffective assistance claim, we do note an argument made by
Peterson’s attorney on appeal. One of the contentions made by Peterson’s attorney on appeal is
that Peterson’s trial/plea attorney was “out of money,” causing his inability to adequately
represent Peterson and causing him to act against Peterson’s best interests by coercing him to
plead guilty. Despite the strident accusations made in the briefing on Peterson’s behalf on this
point, there is no demonstrated factual support for it, much less any justification for
characterizing it as an “insidious” factor in the case. The only cited support for this argument is
that Peterson’s trial/plea attorney requested in a pre-trial motion that the District Court order the
State to pay for the cost of serving trial subpoenas because Peterson, not the attorney, was
indigent. These rather serious accusations against Peterson’s trial/plea attorney are completely
unjustified and unfounded in the record.

                                                 10
defendant is constitutionally adequate if it covers the items in § 46-12-210, MCA. State

v. Otto, 2012 MT 199, ¶ 18, 366 Mont. 209, 285 P.3d 583 (a district court is required to

give the advice covered by § 46-12-210, MCA, and that advice is constitutionally

sufficient for a voluntary plea). A district court is not required to advise the defendant

about issues not covered by the statute such as the right to appeal, the right to speedy trial

or the right to object to evidence. Otto, ¶ 19. There is no requirement that the district

court provide advice about possible lesser included offenses.         Usrey, ¶ 24; State v.

Swensen, 2009 MT 42, ¶ 14, 349 Mont. 268, 203 P.3d 786. The District Court did not err

to the extent that it failed to advise Peterson about the possibility of a lesser included

offense to the charge of aggravated kidnapping.

¶29    Peterson next argues that his pleas were not knowingly and intelligently made, and

therefore not voluntary, because the District Court did not advise him that he could go to

trial and then appeal pre-trial orders, such as rulings on the admissibility of evidence and

other issues. A District Court is not required to advise a pleading defendant about any

rights to contest prior orders in a future appeal. Otto, ¶ 19. The District Court did not err

to the extent that it failed to advise Peterson about the possibility of a future appeal of

pre-trial orders.

¶30    Peterson next argues that he was entitled to withdraw his guilty pleas because the

attorney who represented him on the motion to withdraw the pleas provided ineffective

assistance of counsel. This Court evaluates claims of ineffective assistance of counsel

under the test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052

(1984). Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861; Bomar v.

                                             11
State, 2012 MT 163, ¶¶ 7-8, 365 Mont. 474, 285 P.3d 396. First the defendant must

show that his attorney’s performance was deficient by demonstrating that it fell below an

objective standard of reasonableness. Whitlow, ¶ 14. There is a strong presumption that

the attorney’s performance fell within the wide range of reasonable professional

assistance, Whitlow, ¶ 15, because there are “countless ways to provide reasonable

assistance in any given case.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

¶31    Second, the defendant must show that his attorney’s deficient performance

prejudiced the defense.    Whitlow, ¶ 10.    This requires a showing of a “reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

¶32    This Court will consider the merits of a claim of ineffective assistance of counsel

on appeal only if the record is sufficient to determine whether the attorney was

ineffective. State v. Briscoe, 2012 MT 152, ¶ 10, 365 Mont. 383, 282 P.3d 657. Claims

that are not based upon facts of record must be raised, if at all, in a proceeding for

postconviction relief. State v. Main, 2011 MT 123, ¶ 48, 360 Mont. 470, 255 P.3d 1240.

¶33    Peterson claims that his plea withdrawal attorney was ineffective because he failed

to argue that the District Court should not have accepted the plea to the charge of

intimidation under § 45-5-203, MCA. Specifically, Peterson argues that there was no

showing that he acted with the purposely or knowingly mental state required for that

offense. The intimidation charge was based upon Peterson’s actions during the extended

stand-off with law enforcement officers at his residence. During the stand-off Peterson

threatened that he was going to shoot one or more specifically identified officers who

                                            12
were at the scene. He identified an officer by name, described where he was at the scene,

and threatened to shoot him in the head.

¶34    We find that there is sufficient record-based information to allow review of this

claim. There is no factual dispute about the intimidation incident, and at sentencing

Peterson admitted to making the threat and to understanding how it could be understood

as a “threat and intimidation to law enforcement.” A defendant’s mental state may be

inferred from his acts and from the circumstances of the offense. State v. Claussell, 2001

MT 62, ¶ 31, 305 Mont. 1, 22 P.3d 1111 (purpose or knowing mental state).               A

reasonable inference from the facts was that Peterson intended to hinder performance by

law enforcement and to prevent them from arresting him. This is sufficient to support the

charge of intimidation. State v. McCarthy, 2004 MT 312, ¶ 47, 324 Mont. 1, 101 P.3d

288.   As a matter of law, Peterson has failed to demonstrate that his withdrawal

attorney’s performance in this regard was deficient and that it fell below an objective

standard of reasonableness. Peterson has not established that he received ineffective

assistance of counsel regarding the plea to the charge of intimidation.

¶35    Peterson next claims that his withdrawal attorney was ineffective because he failed

to present additional evidence at the hearing on the motion to withdraw about Peterson’s

mental state at the time of the pleas. At the hearing on the motion to withdraw, defense

counsel presented both Peterson’s testimony and the testimony of the defense psychiatrist

who had previously examined Peterson and who had previously testified as to Peterson’s

mental condition. Defense counsel also submitted into evidence a letter from the defense



                                            13
psychiatrist setting out the opinions of five other mental health professionals that

Peterson was bipolar.

¶36   Peterson’s contention on appeal is that his withdrawal attorney rendered

ineffective assistance by only presenting one expert. The argument is that if withdrawal

counsel had presented the live testimony of the other medical professionals described in

the letter admitted into evidence, the District Court would have found Peterson to be

bipolar. This entire argument turns on the assumption that if only the District Court had

found that Peterson was bipolar then the original pleas would not have been accepted or,

if accepted, Peterson would have been allowed to withdraw them. This is based upon

nothing more than speculation presented as fact. The assumption underlying Peterson’s

argument is that a person diagnosed as bipolar is not competent to enter a plea in a

criminal case, and, if he does, is entitled to withdraw it later. The issue below was not

whether Peterson was bipolar. The issue was whether he was competent to enter the

pleas to the charges. The experts for the State and for the defense agreed that Peterson

was competent to participate in the plea proceedings.

¶37   The record is clear in this case that the District Court was very familiar with

Peterson’s mental state. Testimony and evidence on that issue were presented to the

District Court prior to Peterson’s entering the pleas, and again at the withdrawal hearing.

Peterson does not contend on appeal that there was any new or different evidence, only

that the evidence should be presented in a different way. In addition, even the defense

psychiatrist who opined that Peterson was bipolar also rendered the expert opinion that



                                            14
Peterson was competent to stand trial and that he was capable of forming the mental state

required to be convicted of the charged offenses.

¶38    On the face of the record it is clear that Peterson’s withdrawal attorney acted

reasonably and consistently with an objective standard of reasonableness in presenting

the motion to withdraw to the District Court. Peterson has wholly failed to demonstrate

that his withdrawal attorney failed to provide effective assistance by presenting only one

expert at the withdrawal hearing.

¶39    The record demonstrates that Peterson was fully aware of the direct consequences

of the pleas and that they were knowingly and voluntarily given. He has failed to

establish that there was good cause to allow him to withdraw his prior Alford pleas to the

charges against him, and the District Court is affirmed.

¶40    Issue Two: Should this matter be remanded to the District Court to determine the

amount of restitution due to the victim from Peterson for future counseling expenses?

¶41    The District Court ordered that Peterson be responsible for payment of the future

counseling costs of the victim in an “unlimited amount.” Peterson does not argue that he

may not be held responsible for the counseling costs, but only that the District Court was

required to specify the total amount of restitution. Section 46-18-244, MCA. The State

agrees with Peterson’s argument and agrees that this matter should be remanded to the

District Court for a determination of the total amount of restitution for the victim’s future

counseling costs.

¶42    The District Court’s order denying Peterson’s motion to withdraw his Alford pleas

to the charges against him is affirmed. This matter is remanded to the District Court for

                                             15
the sole purpose of determining the amount of restitution for the victim’s future

counseling costs that Peterson is required to pay.



                                                  /S/ LAURIE McKINNON


We Concur:


/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT




                                             16
