                                                                                           07/05/2016


                                         DA 15-0395
                                                                                       Case Number: DA 15-0395

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2016 MT162N


STATE OF MONTANA,

              Petitioner and Appellee,

         v.

TRACY ANN HARLESS,

              Defendant and Appellant.


APPEAL FROM:           District Court of the Eighth Judicial District,
                       In and For the County of Cascade, Cause No. CDC 13-377(A)
                       Honorable Greg Pinski, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Jason T. Holden, Katie R. Ranta, Faure Holden Attorneys at Law, P.C.,
                       Great Falls, Montana

                       Daniel Donovan, Attorney at Law, Great Falls, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
                       Attorney General, Helena, Montana

                       John W. Parker, Susan Weber, Cascade County Attorney, Great Falls,
                       Montana


                                                   Submitted on Briefs: May 25, 2016

                                                              Decided: July 5, 2016


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

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

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Tracy Ann Harless challenges the validity of her nolo contendere plea to the

charge of negligent homicide arising out of the death of her one-year-old grandson while

in her care. Harless makes two basic substantive arguments on appeal; first, that her plea

was not voluntary because the court did not explain the elements of the crime of

negligent homicide, and second, that the District Court’s colloquy was insufficient to

accept a plea of nolo contendere because sufficient evidence was not presented in the

record to establish her guilt.

¶3     For relief, Harless states that her “Nolo Contendere plea must be set aside and the

case remanded to a different district court judge for further proceedings.” However, in

response to the State’s argument that she failed to raise her issues before the District

Court, Harless asserts that “[t]he State misses [her] arguments. It is not about her seeking

to withdraw her Nolo Contendere plea. Her argument is not revolutionary—she is simply

pointing out that her Nolo Contendere plea is constitutionally infirm.” Harless did not

move to withdraw her plea in the District Court. Thus, we take from Harless’ positions

that she believes her plea was invalidly entered, and that she seeks not to withdraw her




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plea, but to simply be afforded a repeat process of entering her plea before a new district

court judge.

¶4    We review whether a plea was entered voluntarily de novo. State v. Locke, 2008

MT 423, ¶ 12, 347 Mont. 387, 198 P.3d 316. We review a district court’s factual

findings for clear error. Locke, ¶ 12. A court may not accept a plea of nolo contendere

without first determining, among other things, that the plea is voluntary.         Section

46-12-204(2), MCA. A defendant’s plea is voluntary only when the defendant is fully

aware of the direct consequences of the plea. State v. Lone Elk, 2005 MT 56, ¶ 21, 326

Mont. 214, 108 P.3d 500. To determine whether a defendant entered a plea voluntarily

we examine “case-specific considerations.” State v. Frazier, 2007 MT 40, ¶ 10, 336

Mont. 81, 153 P.3d 18.

¶5    Harless contends her plea was not entered voluntarily because the District Court

did not inform her of the elements of negligent homicide. However, a review of the

record indicates Harless was fully aware of the charges against her.          Harless was

represented by counsel. The information alleged that Harless had committed the offense

of negligent homicide for “negligently causing the death of another human being.” The

attached affidavit stated, in some detail, the State’s theory of the case and supporting

facts. At the change of plea hearing, the District Court confirmed that Harless had

listened to, and understood, the testimony of the investigating detective. The District

Court also confirmed Harless understood the rights she was giving up in exchange for

pleading nolo contendere, including the right to instruct the jury on lesser-included

offenses, that she had made the decision under advice from counsel, that she had not been


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coerced or threatened by anyone into accepting a plea, that she understood what pleading

nolo contendere meant, that she understood the State’s sentence recommendation was not

binding on the court, and that she acknowledged if the case went to trial the State could

likely prove and the jury would likely convict Harless of negligent homicide.

¶6      It is simply a misstatement of the record for Harless to contend she did not know

she was pleading nolo contendere to negligent homicide, or that she did not understand

the consequences of pleading nolo contendere to negligent homicide.             The District

Court’s failure to provide a rote statement of the elements of negligent homicide at one

particular point in the proceeding did not render Harless’ plea involuntary.

¶7     A defendant may enter a plea of nolo contendere if the defendant considers the

plea to be in the defendant’s best interest and the court determines that there is a factual

basis for the plea. Section 46-12-212(2), MCA. There is a “factual basis for the plea”

when there is “strong evidence of guilt.” Frazier, ¶ 21.

¶8     The record contains “strong evidence” of guilt. The information and attached

affidavit stated the following facts: the child died from a fatal drug overdose of

oxycodone; Harless had a prescription for oxycodone; Harless was babysitting the child

on the night in question; and Harless told the investigating detective that she had been

responsible for the child getting “the pill.”       At the change of plea hearing, the

investigating detective testified that:    Harless sold drugs out of the home; Harless

admitted to hiding pills in various places in the residence; the child was in the sole care of

Harless at the time; Harless admitted the child could have only gotten oxycodone from

her; Harless had told the child’s mother that the mother could hate Harless forever; and


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Harless had told a neighbor administering CPR to the child that she had “just killed [her]

grandson.”

¶9     The record establishes “strong evidence” of guilt and the District Court’s finding

was therefore not clear error.

¶10    We have determined to decide this case pursuant to Section 1, Paragraph 3(c) of

our Internal Operating Rules, which provides for unpublished opinions. This appeal

presents no constitutional issues, no issues of first impression, and does not establish new

precedent or modify existing precedent. The District Court’s findings of fact were not

clearly erroneous and its interpretation and application of the law were correct.

¶11    Affirmed.


                                                 /S/ JIM RICE


We Concur:

/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ LAURIE McKINNON




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