                                                                                          January 29 2008


                                         DA 06-0655

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2008 MT 18



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

CHARLES OSBORNE MCFARLANE,

              Defendant and Appellant.



APPEAL FROM:          District Court of the Sixteenth Judicial District,
                      In and For the County of Custer, Cause No. DC-03-25
                      Honorable Gary L. Day, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Jim Wheelis, Chief Appellate Defender; Nicholas Miller,
                      Legal Intern, Helena, Montana

               For Appellee:

                      Honorable Mike McGrath, Attorney General; C. Mark Fowler,
                      Assistant Attorney General, Helena, Montana

                      Garry Bunke, County Attorney, Miles City, Montana



                                                  Submitted on Briefs: September 6, 2007

                                                              Decided: January 29, 2008


Filed:

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

¶1     Appellant Charles Osborne McFarlane (McFarlane) appeals from the judgment of

the Sixteenth Judicial District Court, Custer County, denying his motion to withdraw his

guilty plea. We affirm.

¶2     We consider the following issues on appeal:

¶3     1. Did the District Court err by denying McFarlane’s motion to withdraw his

guilty plea?

¶4     2. Did McFarlane’s counsel for the motion to withdraw plea provide ineffective

assistance of counsel by:

          a. Citing to the improper legal standard for a plea withdrawal?

          b. Failing to challenge the adequacy of the plea colloquy?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶5     On August 4, 2003, the Custer County Attorney filed an information charging

McFarlane with burglary, a felony, and theft, a misdemeanor. Both charges arose from

McFarlane’s entry into Bill Hopkins’ residence on or about May 27, 2003. McFarlane

was arraigned on August 19, 2003, and was represented by Wyatt Glade (Glade).

Thereafter, a change of plea hearing was held on January 14, 2004, during which

McFarlane pled guilty to both the burglary and the theft, pursuant to a plea agreement. In

exchange for McFarlane’s guilty plea, the State agreed to move to dismiss the persistent

felony offender status against McFarlane.        Following the court’s colloquy with

McFarlane, the court accepted McFarlane’s guilty plea. A sentencing hearing was then

set for April 6, 2004.


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¶6     However, McFarlane failed to appear at the sentencing hearing, instead fleeing the

jurisdiction. McFarlane was a fugitive for two years until arrested on warrant issued by

the District Court and returned to Montana by authorities.            Glade withdrew as

McFarlane’s attorney of record on March 30, 2006, and the court appointed John Houtz

as McFarlane’s new counsel. Shortly thereafter, McFarlane filed a motion to withdraw

his guilty plea to the burglary charge. In support of his motion, Houtz asserted that under

the three-factor Huttinger test, the court should grant McFarlane’s motion to withdraw

his guilty plea.   The court held a hearing on the motion and McFarlane testified.

McFarlane told the court that Glade had instructed him “to answer [the court’s] questions

the way [he] did to get the Judge to accept the plea.” During his testimony, McFarlane

also asserted that Glade knew that McFarlane possessed a key to the Hopkins’ residence.

¶7     The District Court denied the motion to withdraw, determining that McFarlane’s

plea “was an intelligent and voluntary plea. He had an opportunity to review the plea

agreement with his attorney. He said that he was satisfied with his attorney . . . . this is

an opportunistic attempt at getting the best parts of [the] bargain . . . .” McFarlane

appeals.

                               STANDARD OF REVIEW

¶8     We review a district court’s denial of a motion to withdraw a guilty plea de novo,

State v. Warclub, 2005 MT 149, ¶ 17, 327 Mont. 352, ¶ 17, 114 P.3d 254, ¶17, as the

issue of whether a plea was entered voluntarily is a mixed question of law and fact.

Warclub, ¶ 17. We review the underlying factual findings to determine if they are clearly

erroneous. Warclub, ¶ 23. Findings of fact are clearly erroneous if they are unsupported


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by substantial evidence, the court misapprehended the effect of the evidence, or review of

the record convinces us that a mistake has been made. Warclub, ¶ 23. We then review

the district court’s interpretation of the law, and application of the law to the facts, for

correctness. Warclub, ¶ 23.

                                      DISCUSSION

¶9     1. Did the District Court err by denying McFarlane’s motion to withdraw his
guilty plea?

¶10    McFarlane contends that his guilty plea was entered both involuntarily and

unintelligently.   He advances three arguments in support of his contention.          First,

McFarlane argues that his plea was involuntary because his attorney, Glade, rendered

ineffective assistance of counsel by inadequately preparing him for the change of plea

hearing.

¶11    Section 46-16-105(2), MCA, allows a court to withdraw a guilty plea and

substitute a not guilty plea where good cause is shown.           “Good cause” includes

involuntariness of the plea, but may also include other criteria. Warclub, ¶ 16. In fact,

we have recognized that “ineffective assistance of counsel constitutes ‘good cause’ for

withdrawal of a guilty plea[.]” Hans v. State, 283 Mont. 379, 410, 942 P.2d 674, 693

(1997) (internal citations omitted). “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.” Hans, 283 Mont. at 411, 942 P.2d at 693 (internal

quotations omitted). Following the Strickland test for ineffective assistance of counsel in



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regard to a guilty plea, 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. Hans, 283 Mont. at 410-

11, 942 P.2d at 693.

¶12    McFarlane asserts that Glade did not adequately prepare him for the change of

plea hearing, specifically arguing that Glade told him “he had to answer yes to all

questions asked by the court in the change of plea hearing.” McFarlane also asserts that

Glade failed to inform him of the available defense of “permission” despite Glade

knowing that McFarlane had a key to the Hopkins’ residence. However, McFarlane

makes this argument for the first time on appeal. In the District Court, McFarlane did not

raise an ineffective assistance of counsel claim as a basis for withdrawal of his guilty

plea. Neither the briefing in support of his motion to withdraw nor the hearing on the

motion directly raises an ineffective assistance argument.      While the District Court

commented upon McFarlane’s testimony that there “may be an ineffective assistance of

counsel claim or something like that involved,” the District Court was not squarely

presented with the issue. We have repeatedly held that this Court considers issues

presented for the first time to be untimely and will not consider them. State v. Adgerson,

2003 MT 284, ¶ 12, 318 Mont. 22, ¶ 12, 78 P.3d 850, ¶ 12. We refuse to consider new

arguments and changes in legal theory on appeal “because it is fundamentally unfair to

fault the trial court for failing to rule on an issue it was never given the opportunity to

consider.”    Adgerson, ¶ 12.     Accordingly, we decline to reach the merits of this

ineffective assistance of counsel claim.


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¶13    To be clear, we are not presented here with a separate, stand-alone ineffective

assistance of counsel claim, but rather an argument that counsel’s ineffectiveness

impacted the voluntariness of McFarlane’s plea. As McFarlane’s briefing states, “[a]

separate claim of ineffectiveness is not properly addressed in this appeal because . . . the

record does not fully explain why [Glade] took [the] particular action[.]” We have

explained that “[o]nly when the record will fully explain why counsel took, or failed to

take, action in providing a defense for the accused may this Court review the matter on

direct appeal.” State v. White, 2001 MT 149, ¶ 20, 306 Mont. 58, ¶ 20, 30 P.3d 340, ¶ 20

(emphasis added).

¶14    Second, McFarlane argues that his plea was unintelligent because “he was not

made aware of a legislatively created defense to the charge of burglary, vis-à-vis,

permission.” McFarlane complains that not only did his attorney fail to inform him of the

permission defense, but the court’s plea colloquy failed to address the “specifics” of

possible defenses.     Therefore, McFarlane asserts that the “complete absence of an

explanation to the defendant at or before the change of plea hearing of the defense of

permission . . . requires vacating the guilty plea . . . .”

¶15    However, as with his first argument, McFarlane challenges the inadequacy of the

plea colloquy for the first time on appeal. We note that, while waiting to review the plea

hearing transcript, McFarlane stated in his motion to withdraw that “Defendant

anticipates the court’s interrogation will be found to be adequate.”            Thereafter,

McFarlane’s counsel, then Houtz, did not attack the sufficiency of the plea colloquy at




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the plea withdrawal hearing.     Accordingly, we also decline to review this assertion

because it was not presented to the District Court. See Adgerson, ¶ 12.

¶16    Third, McFarlane attacks the voluntariness of his plea on the ground that he did

not “understand what acts amount to being guilty of [burglary],” and thus contends his

guilty plea was not entered intelligently. The State responds that McFarlane’s plea was

“voluntarily and intelligently made” because “McFarlane knew the direct consequences

of his plea” and points to several case specific considerations in support of the District

Court’s denial of McFarlane’s motion. We review this claim under the Brady standard to

determine if McFarlane entered his guilty plea voluntarily.

¶17    The Brady standard considers a guilty plea to be “voluntary only when the

defendant is ‘fully aware of the direct consequences, including the actual value of any

commitments made to him by the court, prosecutor, or his own counsel . . . .’” State v.

Lone Elk, 2005 MT 56, ¶ 21, 326 Mont. 214, ¶ 21, 108 P.3d 500, ¶ 21 (quoting Brady v.

United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472 (1970)); see also Warclub, ¶ 18

(reaffirming “our intention to use the Brady standard for the voluntariness of guilty pleas,

as articulated in Brady”). “[W]e will not overturn a district court’s denial of a motion to

withdraw a guilty plea if the defendant was aware of the direct consequences of such a

plea, and if his plea was not induced by threats, misrepresentation, or an improper

promise such as a bribe.” Warclub, ¶ 32. When determining if a defendant entered a plea

voluntarily and whether a district court erred in denying a motion to withdraw a plea, we

examine “case-specific considerations.” These considerations include the adequacy of

the district court’s interrogation, the benefits obtained from a plea bargain, the


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withdrawal’s timeliness, and other considerations that may affect the credibility of the

claims presented. State v. Muhammad, 2005 MT 234 ¶¶ 14, 24, 328 Mont. 397, ¶¶ 14,

24, 121 P.3d 521, ¶¶ 14, 24.

¶18    The District Court thoroughly questioned McFarlane before accepting his guilty

plea. The record reveals that McFarlane expressed understanding about the charges

against him, the maximum penalties for each offense, and his waiver of his right to a trial.

McFarlane stated that he was making the plea on his “own free will” and was not

threatened prior to making the plea. He testified that he discussed “all the consequences”

of his plea with counsel and he was “satisfied with the services of [his] attorney, Mr.

Glade[.]” The court also asked if McFarlane had discussed possible defenses and the

concept of lesser included offenses with his attorney. McFarlane indicated that he had

discussed defenses and lesser included offenses with Glade. When asked if he had

permission to enter the Hopkins’ residence he responded, “no.” On this basis, the court

accepted McFarlane’s plea.      Later, at the withdrawal hearing, McFarlane did not

challenge his plea on the basis that he was threatened or induced to make the plea. The

only argument he squarely presented was that he did not understand the consequences of

his guilty plea. However, our review of the record of the change of plea hearing, along

with consideration of case specific considerations discussed below, convince us

otherwise.

¶19    First, McFarlane waited approximately two years before seeking withdrawal of his

plea. McFarlane fled the jurisdiction after entering his guilty plea and prior to his

sentencing, avoiding authorities for two years. His actions indicate an awareness of the


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consequences of entering a guilty plea and an intention to avoid sentencing penalties by

absconding.    Moreover, as the State notes, McFarlane’s criminal history includes

convictions based on thirteen counts of burglary in six separate criminal proceedings

spanning nearly forty years. At the plea withdrawal hearing, McFarlane testified that he

had previously pled guilty to approximately seventeen felonies. McFarlane’s experience

with the criminal justice system, and burglary charges in particular, cast further doubt on

his claims that he was unaware of the permission defense and was confused by the

meaning of a guilty plea. Accordingly, McFarlane’s argument that he “misunderstood”

the guilty plea or was “confused” about its meaning is unpersuasive. We conclude that

McFarlane understood the consequences of his plea and failed to establish good cause to

support a plea withdrawal. McFarlane’s guilty plea was voluntarily entered and we

affirm the District Court’s denial of McFarlane’s motion to withdraw his plea.

¶20 2. Did McFarlane’s counsel for the motion to withdraw plea provide
ineffective assistance of counsel by:

          a. Citing to the improper legal standard for a plea withdrawal?

¶21    McFarlane’s second issue is that counsel on his withdrawal motion, Houtz,

rendered ineffective assistance of counsel by relying on an improper legal standard for

withdrawal of a plea. The State contends that we should refuse to review this claim

because the record is “silent” as to why Houtz did not present the proper legal standard.

¶22    When asserting ineffective assistance of counsel in this context, a defendant must

meet the two-pronged Strickland test by showing: (1) that his counsel’s performance fell

outside the range of competence required of attorneys in criminal cases and (2) the



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deficient performance prejudiced his case. State v. Hendricks, 2003 MT 223, ¶ 6, 317

Mont. 177, ¶ 6, 75 P.3d 1268, ¶ 6. With respect to the first prong, there is a “strong

presumption” that counsel’s actions fall within the broad scope of reasonable professional

conduct. Hendricks, ¶ 7. The threshold inquiry to an ineffective assistance of counsel

claim is whether the allegations of deficient representation can be documented and

resolved from the record.

¶23    McFarlane’s allegation of ineffective assistance of counsel stems from Houtz’s use

of the Huttinger test when arguing that the court should allow withdrawal of his guilty

plea. We relegated formal application of the Huttinger test to history in our decision in

Lone Elk, ¶ 23, and subsequently adopted the United States Supreme Court’s Brady

standard in its place. Warclub, ¶ 18. Accordingly, McFarlane contends that Houtz was

ineffective by citing the Huttinger test instead of the Brady standard.

¶24    We have recognized the principle that “counsel’s erroneous advice on a critical

point ‘cannot be excused as a strategic or tactical judgment, but could have sprung only

from a misunderstanding of the law.’” State v. Becker, 2005 MT 75, ¶ 19, 326 Mont.

364, ¶ 19, 110 P.3d 1, ¶ 19 (citing United States v. Streater, 70 F.3d 1314, 1321 (D.C.

Cir. 1995)). As the Brady standard is arguably more lenient to a defendant seeking plea

withdrawal than the old Huttinger test, we cannot discern any reason why Houtz would

cite the incorrect and potentially less beneficial standard, other than he failed to recognize

the change in the law. Therefore, Houtz’s reliance on the antiquated Huttinger test

cannot be presumed a tactical judgment call, and we conclude that Houtz’s performance

fell outside the range of competence demanded.


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¶25    McFarlane must also satisfy the burden of showing that Houtz’s deficient

performance prejudiced his case. McFarlane contends that Houtz’s argument “within the

confines of the Huttinger test” caused the District Court to consider the promptness of

McFarlane’s motion to withdraw, which is “irrelevant to voluntariness[.]” Because of the

District Court’s consideration of promptness of his motion, McFarlane argues that “there

is much more than a reasonable probability that the outcome of the hearing would have

been different if Houtz had made the appropriate argument regarding voluntariness.”

¶26    The Huttinger test listed three factors for determining if the court should allow the

withdrawal of a guilty plea:

       (1) the adequacy of the interrogation by the district court of the defendant’s
       understanding of the consequence of his plea; (2) the promptness with
       which the defendant attempts to withdraw the previous plea; and (3) the
       fact that the plea was the result of a plea bargain in which the guilty plea
       was given in exchange for dismissal of another charge.

Warclub, ¶ 19 n. 3. In contrast, the Brady standard focuses on the “voluntariness” of a

defendant’s plea. Lone Elk, ¶ 21. We explained in Lone Elk, ¶ 23, and again in Warclub,

¶ 19, that while the Huttinger test is no longer the standard, the Huttinger factors may

nonetheless be considered when determining if the plea was voluntarily entered. In fact,

“two of the criteria from the Huttinger test (the adequacy of colloquy and the existence of

plea bargain) bear on the question of voluntariness,” Lone Elk, ¶ 23, in addition to other

case-specific considerations.    Accordingly, consideration of these former Huttinger

factors remains appropriate when determining voluntariness under the Brady standard.

Therefore, the court did not err when considering them.




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¶27      Further, it was not error for the court to consider the promptness of the motion.

We have clearly stated that case specific considerations, such as timeliness and reaping

the benefit of the bargain, remain relevant. See Muhammad ¶ 24; Warclub ¶ 19. The

court here considered the totality of the circumstances, including the plea colloquy, the

plea agreement, timeliness, and McFarlane’s absconding from justice, and concluded that

McFarlane’s motion was little more than “an opportunistic attempt” to obtain the benefit

of the plea agreement without any of the consequences of pleading guilty.

¶28      Moreover, we have already determined, under Issue I herein, that McFarlane’s

plea was entered voluntarily based upon an analysis of voluntariness and case-specific

considerations under the Brady standard. Therefore, it is clear that despite Houtz’s

improper reliance on Huttinger, the outcome would have been the same under the

appropriately cited authority. As such, McFarlane’s ineffective assistance of counsel

claim does not meet the second prong of the Strickland test and fails.

            b. Failing to challenge the adequacy of the plea colloquy?

¶29      McFarlane also argues that Houtz was ineffective because, as we noted above, he

did not challenge the plea colloquy within the motion for plea withdrawal. McFarlane

asserts that the District Court’s colloquy was flawed by a failure to enumerate the lesser

included offenses of which McFarlane could have been convicted had he proceeded to

trial.

¶30      During the plea colloquy, the court explained the possibility of lesser included

offenses as follows:




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              THE COURT: Now there is this concept of lesser included offenses
       that may come into play here. I don’t know that there are any under these
       circumstances, but if you went to trial there is a possibility that a jury might
       not be able to reach a verdict or might find you not guilty of the charged
       offense, but instead find you guilty of a lesser included offense. An offense
       with a lesser penalty. That’s usually a benefit to a Defendant—that
       possibility at trial, but because there won’t be a trial[,] that lesser included
       offense possibility won’t be considered. Do you understand that?

              MR. MCFARLANE: Yes, sir.

Although not enumerating lesser included offenses, the court nonetheless clearly

informed McFarlane that he would lose the usually advantageous opportunity to be

convicted of any lesser included offenses by entering a guilty plea, and McFarlane

acknowledged the loss of that opportunity. Further, while McFarlane complains that this

colloquy is insufficient, he fails to demonstrate any lesser included offenses to burglary

which would have been applicable under the circumstances of his charge. A court has no

duty to inform McFarlane about the possibility of lesser included offenses if such a

possibility does not legally exist, see State v. Thee, 2001 MT 294, ¶ 24, 307 Mont. 450,

¶ 24, 37 P.3d 741, ¶ 24 (holding that the ineffective assistance of counsel claim fails

because there is no duty to inform a client about conviction at trial of a lesser included

offense when such a possibility is nonexistent), and thus, McFarlane fails to demonstrate

any prejudice which could have arisen from this colloquy. Accordingly, McFarlane’s

argument that Houtz provided ineffective assistance of counsel by not challenging the

sufficiency of the plea colloquy is without merit.

¶31    Affirmed.

                                                         /S/ JIM RICE



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We concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JOHN WARNER




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