                                                                           March 20 2013


                                           DA 12-0365


                   IN THE SUPREME COURT OF THE STATE OF MONTANA


                                          2013 MT 75N




STATE OF MONTANA,


         Plaintiff and Appellee,


    v.


JOSEPH WAYNE TICE,


         Defendant and Appellant.




APPEAL FROM:         District Court of the Third Judicial District,
                     In and For the County of Powell, Cause No. DC 09-64
                     Honorable Ray Dayton, Presiding Judge




COUNSEL OF RECORD:


            For Appellant:
                Jennifer A. Giuttari, Montana Legal Justice, PLLC, Missoula, Montana




         For Appellee:


                Timothy C. Fox, Montana Attorney General; Jonathan M. Krauss,
                Assistant Attorney General; Helena, Montana


                Lewis K. Smith, Powell County Attorney; L. Jeanine Badanes, Deputy
                County Attorney; Deer Lodge, Montana




                                              Submitted on Briefs: March 6, 2013
                                                        Decided: March 19, 2013




Filed:


                __________________________________________
                                      Clerk




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Justice Jim Rice delivered the Opinion of the Court.




¶1      Pursuant to Section I, Paragraph 3(d), 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      Joseph Wayne Tice appeals following the entry of judgment by the Third Judicial District Court,

Powell County, adjudging him guilty of the offense of assault on a peace officer, a felony, and sentencing

him to a five-year term in the Montana State Prison (MSP). Tice challenges the District Court’s denial of

his motion to withdraw his guilty plea to the charge.


¶3      Tice was serving a prior sentence at MSP for an unrelated offense of assaulting a peace officer

when, on October 8, 2008, he became involved in an altercation with two MSP correctional officers.

Tice was charged with two counts of felony assault on a peace officer, and the State also filed a notice of

intent to seek persistent felony offender status. In April 2010, Tice entered a plea bargain agreement

that provided, in exchange for his plea of guilty to one count, the State would move to dismiss the

second count and also withdraw its persistent felony offender notification. A change of plea hearing

was held on April 27, 2010.


¶4      Tice’s arguments on appeal focus on the portion of the plea colloquy in which he responded to

the District Court’s inquiry about pleading guilty by stating “If I don’t plead guilty I’ll get more time.”

However, the colloquy didn’t stop there. The District Court responded by stating, “Alright well that

could be, but I can’t accept a guilty plea unless a person acknowledges they are guilty or I would be


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happy to afford you a jury trial and you can raise your defenses to that jury.” Tice then admitted his

guilt of purposely punching the correctional officer.


¶5      The morning of his sentencing hearing, Tice filed a motion to withdraw his plea. Relying

primarily upon the argument that he had a history of mental illness, Tice asserted that his understanding

during the change of plea hearing had been impaired. Tice’s mental health condition had been raised as

a potential issue throughout the proceeding. The Omnibus Hearing Memorandum noted that Tice’s

fitness to proceed, and the defense of mental disease or defect, were potential issues, and that defense

counsel was in the process of compiling Tice’s mental health records. However, a motion regarding

these issues was not filed by the stated deadline. Later, Tice filed a motion to continue the pre-trial

conference and the trial to have additional time to obtain a mental evaluation, which the District Court

granted. Tice filed no motion following this extension of time, and instead entered the plea agreement

and changed his plea. Tice then filed the motion to withdraw his plea prior to sentencing. The State

responded that there was little evidence indicating Tice actually suffered from mental health problems.

The District Court took Tice’s motion to withdraw his plea under advisement and granted Tice additional

time to obtain a mental evaluation. Through counsel, Tice advised the court that arrangements had

been made for the evaluation to be performed at Montana State Hospital by Dr. Timothy Casey and that

the court would be advised when the evaluation report had been received. Five months later, having

heard nothing, the District Court requested a status report, at which time Tice’s counsel reported that

she “[did] not believe that Dr. Casey’s opinion would provide the Court with any additional psychological

information and requests that the Court rule on Defendant’s motion to Withdraw his plea. Counsel

stands by the motion and supporting briefs.”




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¶6      The District Court denied the motion, and Tice filed a motion for reconsideration, arguing that

“[w]hile the Court did conduct a thorough inquiry,” it was nonetheless his position that “the Defendant’s

mental health issues significantly clouded his perceptions at the change of plea hearing and his fitness to

proceed despite the court’s considerable precautions.” The District Court also denied the motion for

reconsideration.


¶7      Tice argues that there was sufficient evidence “to establish that because Tice was suffering from

a serious mental condition at the time of the assaults and during [the] change of plea hearing,” he did

not voluntarily enter a guilty plea. We review the denial of a motion to withdraw a guilty plea de novo,

as a mixed question of law and fact. State v. LeMay, 2011 MT 323, ¶ 51, 363 Mont. 172, 266 P.3d 1278.


¶8      We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal

Operating Rules, which provides for noncitable memorandum opinions. The issues in this case are legal

and are controlled by settled Montana law, which the District Court correctly interpreted in denying

Tice’s motion to withdraw his plea.


¶9      Affirmed.




                                                         /S/ JIM RICE




We concur:



/S/ MIKE McGRATH

/S/ PATRICIA COTTER
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/S/ BETH BAKER

/S/ BRIAN MORRIS




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