                                                                                               12/06/2017


                                          DA 16-0611
                                                                                           Case Number: DA 16-0611

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2017 MT 296



STATE OF MONTANA,

               Plaintiff and Appellant,

         v.

JASON TERRONEZ,

               Defendant and Appellee.


APPEAL FROM:           District Court of the Tenth Judicial District,
                       In and For the County of Fergus, Cause No. DC-2015-18
                       Honorable Randal I. Spaulding, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
                       Attorney General; Helena, Montana

                       Thomas P. Meissner, Fergus County Attorney, Jean A. Adams, Deputy
                       Fergus County Attorney; Lewistown, Montana

                For Appellee:

                       Michael J. Sherwood, Michael J. Sherwood, P.C.; Missoula, Montana



                                                  Submitted on Briefs: October 4, 2017

                                                              Decided: December 6, 2017


Filed:

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

¶1      The State of Montana appeals from the order entered by the Tenth Judicial District

Court, Fergus County, granting Defendant Jason Terronez’ (Terronez) motion to withdraw

his guilty plea. We affirm, addressing the following issues:

     1. Is the State authorized to appeal the District Court’s order granting Terronez’
        motion to withdraw his guilty plea?

     2. Did the District Court err by determining that good cause existed to permit Terronez
        to withdraw his guilty plea?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶2      David and Sunnshine Welton are both dentists and owned Montana Family

Dentistry in Lewistown, Montana. They have two children: a girl, L.W. and a boy, M.W.

Dana and Jason Terronez are nurses and worked at Central Montana Medical Center in

Lewistown. They have four children: three girls and one boy. Dana and Terronez were

patients at the Weltons’ dental clinic and the families became close friends—sharing meals,

weekend gatherings, and holidays.

¶3      Sunnshine was sexually abused as a child, which made her apprehensive about

letting her children participate in sleepovers with other families. She described herself as

a “paranoid” mom who is hypersensitive about sexual abuse issues. As a precaution,

Sunnshine educated her children about “good touch” and “bad touch” and initiated such

conversations with them every six months. However, she trusted Terronez and Dana, and

had permitted her daughter, five-year-old L.W., to sleep over at the Terronez household

prior to the incident in question. On March 7, 2015, she again allowed L.W. to sleep over

                                          2
at the Terronez residence. L.W. watched a movie with Terronez and his three girls,

including Terronez’ oldest daughter, nine-year-old A.T. Dana was in and out of the living

room while the others watched the movie, during which Terronez was seated next to L.W.

After the movie, Dana asked L.W. if she wanted to go home, and L.W. said she wanted to

stay at the Terronez household.

¶4     On March 8, L.W. was sitting on the toilet and told Sunnshine it hurt when she peed.

L.W. also reported that, while bathing, her vagina hurt. On March 10, L.W. again

complained that her vagina hurt, and Sunnshine washed it. On March 11, L.W. told

Sunnshine that, during the movie at Terronez’ house, Terronez had put his hand into her

pajamas and touched her vagina. Sunnshine informed David, and then immediately

reported this to the Lewistown Police Department. The same day, Sunnshine took L.W. to

her physician, Dr. Bolstad, for a sexual abuse examination. Because more than 72 hours

had lapsed since the reported contact, Dr. Bolstad did not collect biological evidence. The

examination revealed L.W.’s external genitalia was normal, but internally there were four

discrete areas of injury. Dr. Bolstad diagnosed the injuries as sexual abuse based on the

areas of injury and what L.W. reported.

¶5     Officer Jenness interviewed A.T., who had also been in the room watching the

movie at the Terronez residence. A.T. initially stated that, during the movie, she was sitting

next to Terronez, but later admitted she lied to prevent Terronez from getting into trouble.

However, none of Terronez’ daughters or Dana reported they had seen Terronez do what

L.W. had reported. At defense counsel’s request, Officer Jenness also interviewed

                                          3
Sunnshine’s brother-in-law, Jeremy Baxter, as a possible suspect. Baxter had watched

L.W. and M.W. a week prior to the sleepover. Sunnshine had commented that Baxter

looked like a pedophile, but later said her comment was meant as a joke. This inquiry by

police did not yield any evidence implicating Baxter. Other males in L.W.’s life at the time

were her brother, seven-year-old M.W., and her father, David.

¶6     On March 12, the State charged Terronez with one count of sexual intercourse

without consent via digital penetration. On March 16, Honorable Jon A. Oldenburg,

District Judge, recused himself from the case after David confronted him at a local

restaurant, and Honorable Randal I. Spaulding assumed jurisdiction of the case. Terronez

was initially represented by attorney Craig Buehler, but on April 6, a notice of substitution

of counsel was filed indicating that Jeffry Foster had assumed representation of Terronez.

Foster filed a motion for change of venue, arguing a reasonable apprehension existed that

Terronez could not receive a fair trial in Fergus County because of: (1) the small size of

the Fergus County jury pool; (2) the heinous nature of the crime; (3) both families’

relationships and standing in the community; (4) statements about the case made by the

Weltons to others in person and on social media; and (5) concerns expressed by court staff

and law enforcement about Terronez’ safety. The District Court denied the motion, but

stated the matter would be reconsidered if concerns arose during voir dire. Foster also filed

a motion for production of all of L.W.’s medical records by the State. After an in-camera

review, the court denied the motion, reasoning the records were “devoid of any evidence

that can fairly be characterized as exculpatory or useful as impeachment evidence.”

                                          4
¶7     On September 21, 2015, the trial began and the parties selected a jury over the next

two days. That morning, the court held a final pretrial conference in-chambers with

Terronez, Foster, Deputy County Attorney Jean Adams, Deputy County Attorney Monte

Boettger, and Officer Jenness. Foster reported he had received a “tongue lashing” from

Sunnshine and recommended that the Weltons be excluded from trial. The court indicated

it had “personally observed some facial expressions and hand gestures and things during

the course of testimony” from the Weltons that caused “considerable concern about

potential mistrial.” The court ordered the Weltons be excluded from trial until they testify,

upon which it would re-evaluate the situation. On September 22, the court had a conference

in-chambers with the same parties. Adams reported that Sunnshine may have had a

purposeful encounter with a prospective juror in the women’s restroom. Foster moved to

extend the Weltons’ exclusion from the courthouse for the entirety of the trial. After

interviewing a witness to the incident, the court granted the request, basing its decision

mainly on David’s earlier confrontation with Judge Oldenburg and Sunnshine’s encounter

with potential jurors.1 Foster renewed his motion for a change of venue, but the court

denied the motion, stating instead it would admonish the jurors not to talk about the case.

¶8     On September 23, the court held another conference with the same parties

in-chambers. Officer Jenness brought to the court’s attention a report that David, while

viewing the proceeding remotely, had stated that if the jury found Terronez not guilty, he



1
  The District Court permitted the State to make arrangements for the Weltons to view the trial
proceedings remotely.
                                            5
would “take care of it himself.” The parties discussed increased protection for Terronez.

On Friday, September 25, at another in-chambers conference with the same parties, Officer

Jenness reported to the court that, sometime during the previous evening, a large chunk of

concrete had been thrown through the windshield of Foster’s vehicle while it was parked

outside the Terronez household. Foster renewed his motion for change of venue and also

moved for a mistrial, stating the culmination of issues had “infect[ed] [the] proceeding.”

The court denied the motion, but again sternly admonished the jurors. Foster expressed his

concern, stating he had not “had a lot of time to process” what had occurred and he “just

[didn’t] know what to do or how to handle” the incident. Foster also expressed his concern

for the Terronez children, who were also witnesses, and the rest of Terronez’ family. He

advised the court he wasn’t prepared to proceed. The court expressed sympathy, noting

that it had “not had anything quite as extraordinary as this happen,” and adjourned the trial

until the following Monday.

¶9     Several witnesses testified at trial. L.W. stated that Terronez had used his hand to

touch her privates and that his hand was outside her vagina, but in response to a leading

question, affirmed his hand had been inside her vagina. Dr. Bolstad testified regarding

L.W.’s injuries, stating her diagnosis was partially based on what L.W. reported to have

occurred and that she could not state with medical certainty that L.W. sustained her injuries

on March 7, or rule out infection or self-touch as explanations. Dr. Bolstad explained that,

when L.W. was two or three years old, she had a skin condition called mollescum

contagiosum, an infection of small vesicles on her back thighs and buttocks. However, at

                                          6
a January 9, 2015, check-up, two months before the incident, L.W.’s skin was clear.

Dr. Bolstad further established that L.W. never had vaginal complaints or urinary tract

symptoms. Although Foster had originally planned to call A.T. as a witness and stated his

intent to do so in his opening statement, he ultimately decided against doing so and

negotiated a stipulation with the State to avoid calling A.T.

¶10    On Monday, September 28, the court held a conference in-chambers with Terronez,

Foster, Adams, County Attorney Thomas Meissner (substituting for Boettger),

Undersheriff Vaughn, Officer Jenness, and Sheriff Troy Eades. The purpose of the

conference was for law enforcement to provide an update on security measures and

concerns. Eades commented on the concrete block thrown through Foster’s windshield,

indicating in his years securing “several trials in this county,” he had not seen anything like

this and noted that tensions were “relatively high.” He suggested Terronez and Foster wear

bulletproof vests, and advised the parties they would be required to submit to a

metal-detector wand inspection prior to entering the courtroom. Sheriff Eades also updated

the court on security measures at the Terronez household. The court cautioned everyone

to be “vigilant,” and to pay attention to “the people that are coming and going.” That

evening, although Foster had checked into the Yogo Hotel and rented a new vehicle to

avoid detection from the Weltons, the Weltons encountered Foster in the hotel’s restaurant.

¶11    On September 29, the court held a conference in-chambers with Terronez, Foster,

Meissner, Adams, and Officer Jenness. The court inquired if any plea offers had been

relayed to the defense and Adams stated that the State offered a general plea offer, which

                                           7
specified that Terronez would plead guilty to the lesser included offense of felony sexual

assault instead of sexual intercourse without consent. Foster stated he had not

communicated the offer to Terronez because he wanted the agreement in writing first. The

court urged the parties to discuss the matter. During a court recess, Terronez met with

Foster and family members to discuss the possible plea agreement. Terronez was worried

that he could not win the case, but his family members told him if he had not committed

the offense, he should not plead guilty. Terronez ultimately decided to accept the plea

agreement.

¶12    During another court recess that afternoon, the parties requested an impromptu

meeting with the court, and the court met in-chambers with the same individuals. Foster

stated the parties had reached a plea agreement, which stipulated that Terronez would plead

guilty to felony sexual assault, and the parties would jointly recommend a sentence of 25

years in prison with a parole restriction for the first 13 years. Adams indicated she wanted

to wrap up the agreement quickly because the next day was “18 hours from now” and that

she wanted to schedule the change-of-plea hearing for later in the evening because “of the

nature of how this case has gone” and because there were “high tensions on all sides.”

Adams pointed to the benefit of a late-night change-of-plea hearing, indicating that

Terronez would have some time to see his children after school was out and their family

would be able to have dinner together, and it would give Adams and Meissner time to draft

the plea agreement. The court agreed to the evening change-of-plea hearing, and the parties

agreed that Terronez would go home then return to the courthouse at 7:15 p.m. to meet

                                         8
with Foster and review the acknowledgement of waiver of rights and plea agreement, with

a change-of-plea hearing to follow at 8:00 p.m. The parties and law enforcement then

discussed plans to secure the building that evening. The court re-convened the trial to

dismiss the jury for the rest of the day, with the intention of bringing the jury back at nine

o’clock the next morning to inform them an agreement had been reached.

¶13     Prior to the change of plea hearing, Deputies and Lewistown Police officers cleared

the courthouse and were posted in plainclothes and in uniform throughout the building.

During the hearing, the court informed Terronez of the rights he was giving up and

Terronez confirmed verbally and in writing that he was giving a knowing, voluntary, and

intelligent plea. Terronez apologized to L.W. in accordance with the plea agreement and

the proceeding concluded. Foster drove back to the Yogo Hotel with a police escort.

Tragically, in the early hours of the next morning, Foster committed suicide in his hotel

room.

¶14     On October 16, Attorney Michael Sherwood filed a notice of appearance stating he

was now representing Terronez. On February 10, 2016, Terronez, through Sherwood,

moved to withdraw his guilty plea and rescind the plea agreement. The parties briefed the

issue and attached witness affidavits. On May 20, Sherwood requested an evidentiary

hearing be set “if the prosecution contests any facts set forth in the various affidavits

submitted by Terronez[,]” but deferred to the court as to whether such a hearing was

necessary.




                                          9
¶15    On September 28, without a hearing, the District Court granted Terronez’ motion to

withdraw his guilty plea, concluding that Terronez had established “good cause” under

§ 46-16-105(2), MCA, to withdraw his plea. The court based its decision primarily on its

conclusion that Foster had rendered ineffective assistance of counsel, reasoning that his

trial performance was “deficient or fell below an objective standard of reasonableness”

under the first prong of the Strickland test, citing the deficiencies as: (1) telling the jury

during the opening statement they would hear testimony from A.T., a critical defense

witness, but later stipulating to her not testifying; (2) not interviewing several critical

prosecution witnesses; (3) failing to subpoena the victim’s medical records and instead

relying on the prosecution’s representation that all the victim’s records had been provided

to the court; (4) filing a motion to exclude the results of the DNA testing on L.W.’s pajama

bottoms in spite of a report indicating the presence of alleles of at least two unknown male

subjects, thus casting doubt on Terronez’ guilt; and (5) not requesting DNA testing of other

males with the means and opportunity to assault L.W. The court concluded that prejudice

to Terronez was “properly presumed,” or, alternatively, Foster was clearly deficient under

the first prong of Strickland, and there was a “reasonable probability that, but for counsel’s

errors, the Defendant would not have pleaded guilty and would have insisted on continuing

with trial” under the second prong of Strickland.

¶16    Although the District Court primarily based its decision on ineffective assistance of

counsel, it also based its decision on a “pervasive air of fear” surrounding the trial that had

impacted the proceedings and Foster’s performance, highlighting the incident of the

                                          10
concrete block thrown though Foster’s windshield, as well as several alleged incidents of

the Weltons’ threats, stalking, and confrontations. The court observed that these events

“objectively appeared to have a serious deleterious effect on [Foster],” who appeared

“disheveled” and “overly anxious” (sweating profusely, running his fingers through his

hair stammering, pacing, repeating himself, etc.). This behavior was, from the court’s

perspective, “very uncharacteristic of counsel,” and led the court to have “serious doubts

about his effectiveness at trial and up to and including the Defendant’s guilty plea.”

Similarly, the court noted Foster was uncharacteristically deficient in cross-examination,

and did not mitigate the harmful effects of witness testimony. The court also noted that

Foster appeared indecisive on strategy decisions, and described his demeanor after the

concrete block incident and before the plea agreement was reached:

      [C]ounsel appeared visibly distraught and fearful for himself as well as the
      Defendant and the Defendant’s family. His behavior became somewhat
      erratic. For example, the defense had made it known early on that they would
      be presenting a full defense including evidence of the Defendant’s good
      character and would be calling numerous character witnesses in that regard.
      The defense also notified the Court and counsel that it would be calling the
      Defendant’s wife and children to testify regarding the alleged assault. Then,
      suddenly and rather unexpectedly and in the midst of trial, former counsel
      flatly told the Court and counsel that the defense was abandoning its good
      character defense and would not be calling the Terronez children to testify.
      A short while later, counsel returned from lunch and promptly announced
      once again that the defense would be presenting a full defense including
      evidence of the Defendant’s good character. Mere moments later, the parties
      notified the Court that they had reached a plea agreement.

¶17   Based on ineffective assistance and the threatening atmosphere surrounding the

proceedings, the court concluded that “good cause” was established for allowing Terronez

to withdraw his plea. The State appeals.
                                        11
                               STANDARD OF REVIEW

¶18    The ultimate question of whether a plea is voluntarily made is a mixed question of

law and fact. State v. Prindle, 2013 MT 173, ¶ 16, 370 Mont. 478, 304 P.3d 712 (citing

State v. Brinson, 2009 MT 200, ¶ 3, 351 Mont. 136, 210 P.3d 164). Consequently, we

review a district court’s ruling on a motion to withdraw a guilty plea de novo. Prindle,

¶ 16. We review a district court’s underlying factual findings for clear error. State v.

Warclub, 2005 MT 149, ¶¶ 22-24, 327 Mont. 352, 114 P.3d 254. We review for correctness

the district court’s interpretation of the law and its application of the law to the facts.

Warclub, ¶ 23.

¶19    We review a district court’s denial of an evidentiary hearing for a clear abuse of

discretion. State v. Schulke, 2005 MT 77, ¶ 10, 326 Mont. 390, 109 P.3d 744. A court

abuses its discretion if it acts arbitrarily without the employment of conscientious judgment

or exceeds the bounds of reason, resulting in substantial injustice. State v. Passmore, 2010

MT 34, ¶ 51, 355 Mont. 187, 225 P.3d 1229 (citing State v. Derbyshire, 2009 MT 27, ¶ 19,

349 Mont. 114, 201 P.3d 811).

                                      DISCUSSION

¶20 1. Is the State authorized to appeal the District Court’s order granting Terronez’
motion to withdraw his guilty plea?

¶21    As a threshold matter, we address Terronez’ contention that the State’s appeal is

barred. Terronez argues the State does not have statutory authority to appeal the District

Court’s order allowing him to withdraw his guilty plea because none of the enumerated

orders listed in § 46-20-103, MCA, from which the State is authorized to appeal, apply
                                         12
here.   The State responds § 46-20-103(2)(c), MCA, permits its appeal because the

substantive effect of the District Court’s order allowing Terronez to withdraw his plea is

the granting of a new trial. Section 46-20-103(2), MCA, provides, in pertinent part:

        The state may appeal from any court order or judgment the substantive effect
        of which results in:

               (c) granting a new trial[.]

¶22     Not all plea withdrawals have the substantive effect of granting a new trial, but the

circumstances here bring the matter within the language of the statute. At the time Terronez

entered his guilty plea, the trial was in its second week. A jury had been selected, and the

State had called most of its witnesses and was nearing the end of its case-in-chief. Terronez

had the opportunity to preview virtually the entirety of the State’s case. Therefore, the

substantive effect of the District Court’s order allowing Terronez to withdraw his guilty

plea entered at this point was to grant Terronez a new trial. The State is thus authorized to

appeal under § 46-20-103(2)(c), MCA.

¶23 2. Did the District Court err by determining that good cause existed to permit
Terronez to withdraw his guilty plea?

¶24     The State argues that a hearing should have been conducted and the District Court’s

“good cause” determination was in error because it was premised upon hearsay and the

failure to “test the [witness] affidavits through the adversarial process.” Terronez answers

that the District Court relied on undisputed facts, and only needed to determine the

underlying law. Terronez also argues the State should have requested an evidentiary

hearing if it thought one was needed.

                                             13
¶25    While an evidentiary hearing would ordinarily be necessary and may well have been

the prudent course in this case, given that the State was arguably contesting some of

Terronez’ factual contentions, we conclude the District Court did not clearly abuse its

discretion in failing to conduct a hearing under these circumstances. Schulke, ¶ 10. We

first note that the State did not request a hearing, even after Sherwood asked that a hearing

be held “if the prosecution contests any facts set forth in the various affidavits submitted

by Terronez.” More importantly, the District Court did not rely solely on the witness

affidavits, but also relied on its own observations and its assessment of a “pervasive air of

fear” surrounding the proceedings and impacting Foster. Further complicating the matter

was the impossibility of obtaining from Foster his account of what occurred and the

reasoning for his actions during trial, given his untimely death. Both parties had the

opportunity to present witness affidavits and did so, providing sworn assertions about the

proceedings. A hearing on a request to withdraw a plea is not expressly mandated as a

matter of law. Section 46-16-105(2), MCA. We thus conclude the District Court did not

act arbitrarily or erroneously by not holding a hearing on the motion.

¶26    The State next disputes the District Court’s determination that good cause existed

for Terronez’ plea withdrawal because of Foster’s ineffective assistance of counsel,

offering refutations for the District Court’s five apparent examples of ineffectiveness.

Terronez responds that his plea was involuntarily entered and the court correctly concluded

that both prongs of Strickland were satisfied, based on evidence of Foster’s deficiencies

and the resulting prejudice to Terronez.

                                           14
¶27    A defendant may withdraw his guilty plea within one year of final judgment for

“good cause.” Section 46-16-105(2), MCA; State v. Wise, 2009 MT 32, ¶ 9, 349 Mont.

187, 203 P.3d 741. Good cause “includes the involuntariness of the plea, but it may include

other criteria.” Warclub, ¶ 16 (citation omitted). A plea must be voluntary because the

defendant is waiving his constitutional rights to not incriminate himself and to a trial by

jury. Prindle, ¶ 17 (citing Brady v. U.S., 397 U.S. 742, 748, 90 S. Ct. 1463, 1468-69

(1970)). We have adopted the Brady standard to determine if a plea was voluntarily made:

       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 to the prosecutor’s business (e.g. bribes).

Warclub, ¶ 18 (citing Brady, 397 U.S. at 755, 90 S. Ct. at 1472). The burden is on

the defendant to show the plea was involuntary. See State v. Robinson, 2009 MT 170,

¶¶ 17-18, 350 Mont. 493, 208 P.3d 851. “If any doubt exists on the basis of the evidence

presented regarding whether a guilty plea was voluntarily and intelligently made, the doubt

must be resolved in favor of the defendant.” State v. Hendrickson, 2014 MT 132, ¶ 14,

375 Mont. 136, 325 P.3d 694 (citation omitted).

¶28    Ineffective assistance of counsel can constitute good cause to withdraw a guilty plea.

State v. Valdez-Mendoza, 2011 MT 214, ¶ 14, 361 Mont. 503, 260 P.3d 151. “Where a

defendant is represented by counsel during the plea process and enters his plea upon the

advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was

within the range of competence demanded of attorneys in criminal cases.” Prindle, ¶ 17
                                          15
(citing State v. McFarlane, 2008 MT 18, ¶ 11, 341 Mont. 166, 176 P.3d 1057). We apply

the Strickland test for ineffective assistance of counsel to evaluate whether counsel’s

ineffectiveness impacted the voluntariness of the defendant’s plea. See Hendrickson, ¶ 16;

McFarlane, ¶ 11; Strickland v. Washington, 446 U.S. 668, 698, 104 S. Ct. 2052, 2070

(1984). Under Strickland, “the defendant must show (1) that his counsel’s advice fell

outside the range of competence demanded of a criminal attorney and (2) but for counsel’s

deficient performance, he would not have entered a guilty plea.” McFarlane, ¶ 11. We

consider “whether counsel’s conduct fell below an objective standard of reasonableness

considering prevailing professional norms, and in the context of all circumstances.”

McGarvey v. State, 2014 MT 189, ¶ 25, 375 Mont. 495, 329 P.3d 576. We do not rely on

“rigid categorization of counsel’s performance as strategic/tactical or ignorant/neglectful”

because it is “not an adequate measure of that performance.” Whitlow v. State, 2008 MT

140, ¶ 19, 343 Mont. 90, 183 P.3d 861. The question is not merely whether counsel’s

conduct flowed from strategic decisions and trial tactics, but rather, whether it was based

on “reasonable” or “sound” professional judgment. Whitlow, ¶ 19; See e.g. Massaro v.

United States, 538 U.S. 500, 505, 123 S. Ct. 1690, 1694 (2003); Strickland, 466 U.S. at

689, 104 S. Ct. at 2065. Counsel’s conduct is strongly presumed to be within professional

norms, and a defendant must “identify the acts or omissions of counsel that are alleged not

to have been the result of reasonable professional judgment.” Whitlow, ¶ 16 (quoting

Strickland, 466 U.S. at 690, 104 S. Ct. at 2066).




                                         16
¶29    The District Court determined Foster’s performance was deficient because he failed

to: (1) call A.T. as a witness after declaring he would do so in his opening statement;

(2) interview State witnesses; (3) obtain L.W.’s medical records; (4) argue for admittance

of potentially exculpatory DNA evidence; and (5) seek DNA samples with other males

with whom L.W. may have had contact. The State counters by offering potentially valid

reasons for Foster’s actions, including that: (1) Terronez and Dana wanted to prevent A.T.

from testifying, even during trial; (2) Foster had his defense investigator interview the

State’s witnesses to be able to call his investigator to impeach the witnesses if necessary;

(3) Foster actually did move for the State to produce all of L.W.’s medical records and the

court denied production of such records as not relevant after an in-camera review; (4) the

inconclusive lab result identifying two unknown males’ alleles on an article of L.W.’s

clothing was offered by the State as evidence that DNA evidence is reliable; however,

Foster objected to it having no probative value—as it would not be surprising if L.W.’s

father or brother’s touch DNA was on L.W.’s articles of clothing; and (5) even if Foster

were to pursue DNA testing of L.W.’s brother and father, any DNA evidence would not be

relevant because the charges against Terronez were based on digital penetration.

¶30    Although we recognize the difficult position of the District Court in evaluating

ineffective assistance of counsel without having Foster’s explanation of his actions, the

State has offered persuasive and plausible explanations for Foster’s conduct, particularly

in view of the fact that “[c]ounsel’s conduct is strongly presumed to be within professional

norms.” Whitlow, ¶ 16. We cannot conclude on this record that Foster failed to exercise

                                         17
reasoned professional judgment that prejudiced Terronez. However, we affirm the District

Court’s finding that good cause existed for withdrawal of Terronez’ plea on alternative

grounds discussed in the District Court’s order, based on the extreme events that occurred

during the proceeding.

¶31       The District Court, referencing Sherwood’s affidavit, summarized the facts

supporting its determination that there existed a “pervasive air of fear” in the proceeding,

including, but not limited to: (1) David’s confrontation with Judge Oldenburg; (2) David’s

threat of suicide, and discharge of a weapon; (3) David tailgating Terronez; (4) Dana asking

for a protective order against the Weltons; (5) Foster stating he feared for his safety to a

mental health counselor; (6) Foster’s attempt to avoid the Weltons by checking into a hotel

and switching vehicles, only to encounter the Weltons at that hotel; (7) the Weltons’

attempt to video record Terronez’ arrest; and (8) Officers being posted inside and outside

the courtroom and conducting meetings on safety measures. These occurrences were in

addition to the events reported during the trial, including the concrete block thrown through

Foster’s windshield. The District Court observed the stressful impact of these events upon

Foster.

¶32       “An involuntary plea can justify withdrawal, but it is not the only basis for

establishing good cause.” State v. Ferris, 2010 MT 252, ¶ 8, 358 Mont. 244, 244 P.3d 732;

Accord State v. Andrews, 2010 MT 154, ¶ 11, 357 Mont. 52, 236 P.3d 574; Wise, ¶ 9;

McFarlane, ¶ 11; Warclub, ¶ 16; State v. Lone Elk, 2005 MT 56, ¶ 19, 326 Mont. 214, 108

P.3d 500, overruled on other grounds by Brinson, ¶ 9. We analyze “numerous case-

                                         18
specific considerations” to ascertain whether good cause is shown to withdraw a guilty

plea. Robinson, ¶ 11; Accord Lone Elk, ¶ 23; Wise, ¶ 16; See State v. Nance, 120 Mont.

152, 164, 184 P.2d 554, 560 (1947) (quoting State v. McAllister, 96 Mont. 348, 353, 30

P.2d 821, 823 (1934)) (noting that “each case of necessity must depend upon its own facts

and circumstances, and no hard and fast rule can be laid down that will fit every case”);

see also Commission Comments to § 46-16-105, MCA (quoting Nance, 120 Mont. at 164,

184 P.2d at 560). This Court considers such factors as: an inadequate colloquy, newly

discovered evidence, intervening circumstances, or any other reason for withdrawing a

guilty plea that did not exist when the defendant pleaded guilty. Robinson, ¶ 11. We also

evaluate “. . . the benefits obtained from the plea bargain, the withdrawal’s timeliness, and

other considerations that may affect the credibility of the claims presented.” McFarlane,

¶ 17; (citing State v. Muhammad, 2005 MT 234, ¶¶ 14, 24, 328 Mont. 397, 121 P.3d 521).

¶33    We conclude that the District Court did not err in allowing Terronez to withdraw

his guilty plea. Sufficient evidence exists within the record to support the mixed fact and

law determination of “good cause” for withdrawal based on case-specific circumstances

present here, including extensive intimidating, threatening, and inappropriate behaviors,

acts of violence, the District Court’s own observations of the impact of these events upon

the participants, and its description of a pervasive air of fear during the trial.       See

McFarlane, ¶ 17; Robinson, ¶ 11 (we consider “numerous case-specific considerations” in

determining whether good cause exists for withdrawal.).




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¶34   The District Court made the factual determination that Foster was personally

impacted and his performance was affected by the threatening behaviors from the outset of

this case. These findings were not clearly erroneous. Through Foster, Terronez was

impacted and his plea was at least partially induced by these events. “If any doubt exists

on the basis of the evidence presented regarding whether a guilty plea was voluntarily and

intelligently made, the doubt must be resolved in favor of the defendant.” Hendrickson,

¶ 14. The record here establishes doubt concerning the voluntariness of Terronez’ plea.

¶35   Affirmed.



                                                /S/ JIM RICE


We concur:

/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR




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