                                                                                               04/03/2018


                                          DA 16-0272
                                                                                           Case Number: DA 16-0272

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2018 MT 71



ALBERTO GUILLEN,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DV 15-55
                       Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Paul Sullivan, Measure, Sampsel, Sullivan & O’Brien, P.C., Kalispell,
                       Montana

                For Appellee:

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

                       Kirsten H. Pabst, Missoula County Attorney, Jason Marks, Chief Deputy
                       County Attorney, Missoula, Montana



                                                    Submitted on Briefs: February 14, 2018

                                                                Decided: April 3, 2018


Filed:

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

¶1     Alberto Guillen appeals from an order of the Fourth Judicial District Court,

Missoula County, denying his petition for postconviction relief. We affirm.

¶2     The issues on appeal are:

       1. Whether the District Court correctly denied Guillen’s claim that he was actually
          innocent of the offense to which he pleaded guilty.

       2. Whether Guillen’s guilty plea was involuntary because he received ineffective
          assistance of counsel.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     On July 30, 2011, Guillen struck his brother, Roberto, with a van at an intersection

in Missoula. The brothers were loudly arguing when Roberto got on his bicycle and started

to ride away. Guillen got into the van and pursued Roberto. Guillen then hit Roberto with

the van, running Roberto and the bicycle over. Guillen then left the scene. Roberto

sustained severe injuries, including partial paralysis, and was in the hospital for a month

following the incident.

¶4     On August 15, 2011, the State filed an Information charging Guillen with attempted

deliberate homicide and leaving the scene of an accident resulting in serious bodily injury.

The Court appointed Assistant Public Defender Ed Sheehy to represent Guillen. Following

plea negotiations, the State filed an Amended Information on November 10, 2011,

amending the charge of attempted deliberate homicide to attempted mitigated homicide.

On that same date, Guillen filed a document titled “Plea of Guilty and Waiver of Rights,”

in which Guillen pleaded guilty, acknowledged that the maximum penalty for attempted

mitigated homicide was forty years, and acknowledged that the maximum penalty for


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leaving the scene of an accident was ten years. In that document Guillen also recognized

that there was not “a plea agreement in this case and I know that the judge may sentence

me to the maximum sentence allowed by law.” That day, Guillen appeared in court and

pleaded guilty. Guillen was again informed of the maximum penalties and told this was

an “open” plea; that is, there was no plea bargain. Guillen indicated he was satisfied with

his attorney, he understood the trial rights that he was waiving, he was not under the

influence of any drugs or medication, and he had discussed the case and its potential

outcomes with his attorney.      The court accepted Guillen’s guilty plea, ordered a

presentence investigation, and scheduled a sentencing hearing.

¶5     On December 29, 2011, following testimony from Roberto’s fiancé and other

witnesses, the court sentenced Guillen to forty years in prison for attempted mitigated

deliberate homicide and ten years, to run concurrently, for Guillen’s failure to remain at

the scene. On April 12, 2012, Guillen filed a pro se motion to withdraw his guilty plea

alleging, among other things, that his attorney told him that his sentence would be limited

to fifteen years. Following the State’s response, the District Court denied Guillen’s motion

to withdraw his guilty plea. Guillen appealed and this Court affirmed the court’s denial in

State v. Guillen, No. DA 12-0319, 2013 MT 184N, ¶¶ 2, 10, 2013 Mont. LEXIS 226.

¶6     Guillen filed a petition for postconviction relief in District Court on January 23,

2015, alleging that he had newly discovered evidence of his actual innocence and that his

attorney was ineffective during plea negotiations. The State responded and the court

subsequently scheduled an evidentiary hearing. Several witnesses testified during the

two-day hearing. Roberto, who remains confined to a wheelchair, testified that he initially


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told the police that he had no memory of being struck by the van. However, at the

evidentiary hearing, Roberto testified that he recalled the incident, that it was an accident,

and that he possibly swerved in front of his brother, making the collision equally his fault.

Eyewitness Shannon Shields testified that she observed Guillen and Roberto physically

fighting, immediately after which Guillen intentionally struck Roberto with the van.

Eyewitness Diane Jontow testified that she had a clear view of the incident from her

window and was certain Guillen intentionally struck Roberto with the van. Josh Jontow

also saw the incident from his window and heard Guillen scream, “I am going to f—k you

up,” before driving his van directly at Roberto and striking him. The court found Roberto’s

testimony not credible and the three eyewitnesses’ testimony credible.

¶7     Finally, Ed Sheehy testified that he told Guillen that pleading guilty to the charges

contained in the State’s Amended Information limited his maximum potential sentence

from 100 years for attempted deliberate homicide to forty years for attempted mitigated

homicide. Sheehy testified that he explained to Guillen that if the case went to trial, the

jury would first consider attempted deliberate homicide before considering the lesser

offense of attempted mitigated homicide, and that it would be very difficult to argue

extreme stress as a mitigating factor. Sheehy also explained that the three eyewitnesses’

testimony could have impacted the case. Sheehy said he did not interview Roberto because

Roberto told law enforcement he had no recollection of the incident. The court found

Sheehy to be credible and concluded, “Ed Sheehy did not speak with Roberto Guillen prior

to sentencing because he made a tactical decision that it would be better for his client not

to risk Roberto Guillen’s involvement in the sentencing process.”


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¶8     The District Court denied Guillen’s petition for postconviction relief. Although it

classified Roberto’s testimony that he may have swerved in front of the van as newly

discovered evidence, the court concluded that Guillen was using the evidence to argue the

incident was an accident, not to prove that he did not run over Roberto. The District Court

also concluded that Guillen was not denied the effective assistance of counsel.

                                STANDARD OF REVIEW

¶9     This Court reviews a district court’s denial of a petition for postconviction relief to

determine whether the findings of fact are clearly erroneous and weather the conclusions

of law are correct. Marble v. State, 2015 MT 452, ¶ 13, 380 Mont. 366, 355 P.3d 742.

Ineffective assistance of counsel claims present mixed questions of law and fact that this

Court reviews de novo. State v. Cobell, 2004 MT 46, ¶ 8, 320 Mont. 122, 86 P.3d 20. A

petitioner seeking to reverse a district court’s denial of a petition for postconviction relief

“bears a heavy burden.” Garrett v. State, 2005 MT 197, ¶ 10, 328 Mont. 165, 119 P.3d 55

(quoting Cobell, ¶ 14). We will affirm a district court’s decision to deny relief based on

ineffective assistance of counsel if the petitioner fails to prove either prong of Strickland

v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Cobell, ¶¶ 14-15.

                                       DISCUSSION

¶10    1. Whether the District Court correctly denied Guillen’s claim that he was actually
       innocent of the offense to which he pleaded guilty.

¶11    Guillen argues that the District Court erred in failing to find that Roberto’s

testimony proves Guillen did not engage in attempted deliberate mitigated homicide.

Guillen reasons that Roberto’s testimony that he swerved in the path of his van shows that



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this was not attempted homicide, but instead a tragic accident. The State maintains that

Guillen’s argument is not that he is innocent of wrongdoing, but that he is less culpable;

that now, because of Roberto’s testimony, he could present a stronger defense. The State

also contends that Guillen overestimates the strength and reliability of his new evidence.

¶12    A person adjudged guilty of an offense who has no adequate remedy of appeal may

petition the court for postconviction relief pursuant to § 46-21-101, MCA, alleging his

sentence violates “the constitution or the laws of this state or the constitution of the United

States.” A person petitioning for relief pursuant to § 46-21-101, MCA, must file his claim

“at any time within 1 year of the date that the conviction becomes final.” Section

46-21-102(1), MCA. However, § 46-21-102, MCA, provides an exception to the one-year

filing deadline:

       A claim that alleges the existence of newly discovered evidence that, if
       proved and viewed in light of the evidence as a whole would establish that
       the petitioner did not engage in the criminal conduct for which the petitioner
       was convicted, may be raised in a petition filed within 1 year of the date on
       which the conviction becomes final or the date on which the petitioner
       discovers, or reasonably should have discovered, the existence of the
       evidence, whichever is later.

Section 46-21-102(2), MCA.          Accordingly, a petitioner must file a petition for

postconviction relief within one year of the conviction becoming final unless he alleges

newly discovered evidence. When a petitioner claims newly discovered evidence, the

filing period is extended if the claim is filed within one year of discovery of the evidence

and the evidence, “if proved and viewed in light of the evidence as a whole would establish

that the petitioner did not engage in the criminal conduct for which the petitioner was

convicted . . . .” Section 46-21-102(2), MCA.


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¶13    Thus, subsection (2) extends the filing deadline for a petition for postconviction

relief where the petitioner alleges newly discovered evidence establishing that the

petitioner did not engage in the criminal conduct. If the newly discovered evidence meets

the statutory standard, the petitioner may file a claim more than one year after the date his

conviction became final. Section 46-21-102(2), MCA, sets forth the relevant time frames

for filing a petition pursuant to § 46-21-101, MCA, and, except for describing what quality

of newly discovered evidence justifies an exception to the generally applicable one-year

time frame, does not otherwise change a petitioner’s underlying challenge to his sentence;

that is, that the sentence was imposed in violation of the United States Constitution or the

Montana Constitution.1

¶14    To begin, Guillen received a full hearing on his allegation that his sentence was

invalid. Guillen was not foreclosed from having his claim heard on the basis of timeliness

and the filing deadlines imposed by § 46-21-102, MCA. The District Court required the

State to respond and held a two-day hearing to consider Guillen’s claim of newly

discovered evidence, ensuring Guillen received adequate due process. Thus, § 46-21-102,

MCA, is not at issue here. Rather, the dispositive issue is the merits of Guillen’s underlying

petition and claim, made pursuant to § 46-21-101, MCA. Guillen claims he is “actually

innocent.” Although not precisely stated by Guillen, his actual innocence claim is a

substantive due process argument that his sentence violates his constitutional rights

because the newly discovered evidence actually proves his innocence.


1
  Section 46-21-101, MCA, sets forth other grounds, not relevant here, that may serve as the basis
for a challenge to the validity of a person’s sentence.


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¶15    Guillen argues that Roberto’s new testimony, that Guillen running over him was

possibly an accident, equates to evidence that he did not intentionally commit the offense.

It is true that the necessary mens rea is an element of the crime of attempted mitigated

homicide. However, proof of mens rea is based on circumstantial evidence, as we cannot

obtain direct proof of what is in a person’s mind or what he is actually thinking. Here, the

District Court found that Roberto’s testimony was not credible. Roberto testified only that

it was possible he could have swerved in front of Guillen’s van and that the accident may

have been the fault of both brothers. Guillen never argued that he did not run over his

brother with his van. His argument is that Roberto’s recent revelation makes his defense

stronger and that, therefore, he should be allowed to withdraw his prior admission made

pursuant to his guilty plea.

¶16    The District Court considered Roberto’s testimony along with the testimony of three

eyewitnesses who testified that Guillen’s actions were intentional.       Roberto’s recent

revelation does not establish that Guillen’s sentence is constitutionally invalid because he

is actually innocent of the crime. The testimony, to which the District Court attributed

little value based on Roberto’s lack of credibility, simply provides somewhat

circumstantial evidence tending to negate the element of mens rea. We conclude that the

District Court properly denied Guillen relief based on his claim of actual innocence.

¶17    2. Whether Guillen’s guilty plea was involuntary because he received ineffective
       assistance of counsel.

¶18    Guillen also challenges his sentence on the basis that he was denied his

constitutional right to the effective assistance of counsel guaranteed by the Sixth



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Amendment to the United States Constitution and Article II, Section 24 of the Montana

Constitution. We employ Strickland’s two-part test to determine whether a defendant was

denied effective assistance of counsel. McGarvey v. State, 2014 MT 189, ¶ 24, 375 Mont.

495, 329 P.3d 576. Under the Strickland test, Guillen must prove that (1) counsel’s

performance was deficient; and (2) counsel’s deficient performance prejudiced the

defendant. McGarvey, ¶ 24. If a defendant makes an insufficient showing under one part

of the test, it is not necessary to address the other part. McGarvey, ¶ 24.

¶19    Guillen argues counsel’s performance was deficient because counsel failed to

interview Roberto and, instead, relied on the State’s reports and a newspaper article stating

that Roberto had no recollection of the incident. Guillen maintains that his decision to

plead guilty was based on an incomplete set of facts and therefore involuntary. The District

Court determined that Sheehy’s decision to not interview Roberto was tactical because he

determined it was better to not risk Roberto’s involvement at sentencing.

¶20    At the sentencing hearing, Roberto’s fiancé testified, “[Roberto] wanted me to come

here and just tell the court” that “[y]ou destroyed us. You killed your brother. You might

as well have killed him, because you pretty much did.” She further testified, “[Roberto]

just wanted me to look at you straight in the face and tell you exactly what . . . you did to

him.” In light of this testimony and other evidence tending to establish that Roberto did

not want to discuss the incident, we cannot conclude that Sheehy’s representation was

deficient. Sheehy made a deliberate choice to not interview Roberto, as doing so could

have jeopardized a more favorable sentence. Sheehy knew there were three eyewitnesses

and that Roberto, who was partially paralyzed, would present as a sympathetic witness.


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Thus, the District Court did not err in concluding that Sheehy’s performance was not

deficient, as his decision to refrain from interviewing Roberto was a tactical one.

¶21    Even if the District Court concluded that counsel’s performance was deficient,

Guillen was not prejudiced by counsel’s errors. A claim that the ineffective assistance of

counsel rendered a guilty plea involuntary requires proof that, but for counsel’s errors, a

reasonable probability exists that the result of the proceeding would have been different.

State v. Miner, 2012 MT 20, ¶ 12, 364 Mont. 1, 271 P.3d 56. A reasonable probability is

a probability sufficient to undermine confidence in the outcome of the proceeding. Miner,

¶ 12. Here, Guillen testified that he pleaded guilty, even though he believed it was an

accident, because, “I was facing 100 years, and the prosecutor told me that that’s what he’s

going to be going for and I—I didn’t see any—any evidence that was going to help me

fight this case, you know.” Guillen took advantage of the State’s offer to resolve the case

by limiting his prison exposure from 100 years to forty years. Accordingly, Guillen has

not demonstrated that, but for counsel’s errors, a reasonable probability exists that he would

not have pleaded guilty.

¶22    The District Court correctly determined that Guillen did not establish his counsel

was ineffective.

                                      CONCLUSION

¶23    We affirm the order denying Guillen’s petition for postconviction relief.



                                                  /S/ LAURIE McKINNON




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We Concur:

/S/ DIRK M. SANDEFUR
/S/ INGRID GUSTAFSON
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER




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