                                                                                          December 17 2007


                                           DA 06-0518

                     IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2007 MT 344N


STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

ABEL GONZALES,

              Defendant and Appellant.




APPEAL FROM:           District Court of the Eleventh Judicial District,
                       In and For the County of Flathead,
                       Cause Nos. DC-98-082(A) and DV-02-486(B),
                       Honorable Katherine R. Curtis, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Abel Gonzales, pro se, Deer Lodge, Montana

                For Appellee:

                       Honorable Mike McGrath, Attorney General; Micheal S. Wellenstein,
                       Assistant Attorney General, Helena, Montana

                       Ed Corrigan, County Attorney, Kalispell, Montana



                                                     Submitted on Briefs: June 20, 2007

                                                                 Decided: December 17, 2007


Filed:

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

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

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and shall be reported by case title, Supreme Court cause number and result to the

State Reporter Publishing Company and West Group in the quarterly table of noncitable

cases issued by this Court.

¶2     Appellant Abel Gonzales (Gonzales) appeals from the orders of the Eleventh

Judicial District Court, Flathead County, denying his motions to file a second petition for

postconviction relief and withdraw his pleas of guilty. We affirm.

¶3     Gonzales entered into a plea agreement with the State and pled guilty to three

counts of robbery and two counts of aggravated burglary. In exchange for his pleas, the

State agreed to recommend a sentence that would not exceed 120 years. The District

Court ultimately sentenced Gonzales to 120 years in the Montana State Prison with forty

years suspended. Gonzales filed a notice of appeal with this Court, which we

subsequently dismissed pursuant to an Anders’ motion as frivolous. Gonzales then filed

a petition for postconviction relief with the District Court, arguing ineffective assistance

of counsel. The District Court denied his petition, and Gonzales appealed the judgment.

We subsequently affirmed the District Court’s denial of his petition in Gonzales v. State,

2004 MT 223N, 323 Mont. 536, holding that there was “no merit to Gonazles’s

ineffective assistance of counsel claim . . . .” Gonzales, ¶ 19. Thereafter, Gonzales filed

two motions with the District Court. The first was a motion to file a second petition for

                                              2
postconviction relief. The second was a motion to withdraw his guilty pleas. The

District Court denied both motions, and Gonzales appeals.

¶4     We review a district court’s denial of a postconviction relief petition to determine

if the findings of fact are clearly erroneous and whether its conclusions of law are correct.

Davis v. State, 2004 MT 112, ¶ 13, 321 Mont. 118, ¶ 13, 88 P.3d 1285, ¶13. We review a

motion to withdraw a guilty plea to determine if the plea was voluntary. State v. Frazier,

2007 MT 40, ¶ 8, 336 Mont. 81, ¶ 8, 153 P.3d 18, ¶ 8. This is a mixed question of law

and fact, which we review de novo. Frazier, ¶ 8.

¶5     Gonzales’s second petition for postconviction relief asserted seven grounds for

relief: (1) ineffective assistance of counsel; (2) the State withheld exculpatory evidence;

(3) the imposed sentence was excessive; (4) violation of double jeopardy; (5) denial of

due process; (6) improper use of hearsay evidence at the sentencing hearing; and (7) State

violation of the plea agreement. A brief review of these claims reveals that they are all

procedurally barred. We previously determined that the ineffective assistance of counsel

claim was meritless, thereby barring it from further review. Gonzales, ¶ 19. Gonzales’s

fourth and sixth claims are barred by § 46-21-105(1)(b), MCA, because he could have

reasonably raised them in his first petition for postconviction relief. The remaining

claims are procedurally barred by § 46-21-105(2), MCA, because they are all issues he

could have raised as a part of his direct appeal. Accordingly, the District Court’s

conclusions of law are correct.

¶6     Gonzales’s final issue on appeal is that the District Court improperly denied his

motion to withdraw his guilty pleas. Section 46-16-105(2), MCA, permits withdrawing a

                                             3
guilty plea for “good cause shown[.]” Involuntariness of a plea is an example of “good

cause.” State v. Warclub, 2005 MT 149, ¶ 16, 327 Mont. 352, ¶ 16, 114 P.3d 254, ¶ 16.

Here, Gonzales does not challenge the voluntariness of his pleas. Rather he challenges

his guilty pleas on three grounds: (1) ineffective assistance of counsel; (2) imposition of

an excessive sentence; and (3) violation of double jeopardy. These arguments are also

without merit.

¶7     First, as previously stated, we have already resolved the ineffective assistance of

counsel claim and will not review it again here. See Gonzales, ¶ 19. Second, Gonzales’s

claim that his sentence is “excessive” does not undermine the nature of his pleas as

voluntary, knowing, and intelligent. Moreover, he does not assert that an excessive

sentence qualifies as “good cause” to allow a withdrawal of his pleas. Consequently,

Gonzales’s argument is little more than an equitable claim that does not change the

outcome of his pleas.

¶8     Lastly, Gonzales’s argument that pleading guilty to both aggravated burglary and

robbery violates double jeopardy is without merit. “[T]he Blockburger ‘elements’ test

. . . is appropriate [when] analyzing double jeopardy arguments relating to whether there

are two offenses or only one . . . .” State v. Tadewaldt, 277 Mont. 261, 268, 922 P.2d

463, 467 (1996). This means that when determining if “‘the same act or transaction

constitutes a violation of two distinct statutory provisions, the test to be applied to

determine whether there are two offenses or only one, is whether each provision requires

proof of a fact which the other does not.’” State v. McQuiston, 277 Mont. 397, 405, 922

P.2d 519, 524 (1996) (citing Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct.

                                               4
180, 182 (1932)). “[T]he term, ‘facts,’ refers to the statutory elements of the offenses,

not the individual facts of the case.” State v. Beavers, 1999 MT 260, ¶ 30, 296 Mont.

340, ¶ 30, 987 P.2d 371, ¶ 30. Therefore, because aggravated burglary requires distinct

elements from robbery, compare § 45-6-204(2)(a), MCA, with § 45-5-401(1)(b), MCA,

Gonzales’s guilty pleas do not violate double jeopardy.

¶9       It is appropriate to decide this case pursuant to our Order of February 11, 2003,

amending Section I.3 of our 1996 Internal Operating Rules and providing for

memorandum opinions. It is manifest on the face of the briefs and the record before us

that the appeal is without merit because the findings of fact are supported by substantial

evidence, the legal issues are clearly controlled by settled Montana law which the District

Court correctly interpreted, and there was clearly no abuse of discretion by the District

Court.

¶10      Affirmed.

                                                                 /S/ JIM RICE


We concur:

/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS




                                               5
