                                                                                                12/20/2016


                                           DA 15-0645
                                                                                            Case Number: DA 15-0645

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 331



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

BILLY JOE WATTS,

              Defendant and Appellant.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, Cause No. BDC 2014-280
                        Honorable Jeffrey M. Sherlock, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Chief Appellate Defender, Moses Okeyo, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
                        Attorney General, Helena, Montana

                        Leo Gallagher, Lewis and Clark County Attorney, Luke Berger, Deputy
                        County Attorney, Helena, Montana



                                                    Submitted on Briefs: October 26, 2016

                                                               Decided: December 20, 2016


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1    Billy Joe Watts (Watts) appeals from the District Court’s denial of his motion to

dismiss his previous Partner Family Member Assault (PFMA) convictions based on the

unconstitutionality of the PFMA statute. We affirm.

¶2    We restate the issue on appeal as follows:

      Did the District Court err when it denied Watts’ motion to dismiss his felony
      conviction of Partner Family Member Assault and reduce his charge to a
      misdemeanor at sentencing?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3    The State charged Watts with his fifth PFMA, a felony, for conduct occurring on

June 23, 2014. Watts was on probation for a 2012 PFMA conviction. Watts has four

prior PFMA convictions (2002 misdemeanor; 2003 misdemeanor; 2003 felony; and 2012

felony). The State filed a notice to classify Watts as a persistent felony offender (PFO)

based on his 2003 and 2012 PFMA convictions.

¶4    Watts negotiated a plea agreement with the State where he agreed to plead guilty

to PFMA (a felony) and the State agreed to withdraw the PFO notice.             The plea

agreement Watts signed included a proper acknowledgement and waiver of rights. The

form provided that Watts understood and had the opportunity to examine the charges

against him with his attorney; that his attorney fully advised and explained to him his

rights, and the possible punishment for his crime; that Watts waived all the rights

guaranteed by a trial, except the right to effective assistance of counsel; and that Watts

was not threatened, coerced, forced, intimidated, or influenced in any way.


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¶5     Watts voluntarily pled guilty on December 18, 2014. During the colloquy the

judge informed Watts of his right to remain silent, which Watts waived by answering

questions. Watts informed the court he was of sound mind, not under the influence of

any drugs or alcohol, was happy with his attorney’s work and understood the maximum

punishment for his crime as well as the fact he could receive consecutive sentences for

violating his parole. Watts did not reserve his right to appeal any issue.

¶6     At the February 24, 2015 sentencing hearing Watt’s counsel advised the court she

intended to file a brief challenging his prior convictions and the constitutionality of

Montana’s PFMA statute.       In her brief, counsel argued the Montana PFMA statute

violated the Equal Protection Clause of the United States and Montana Constitutions.

Watt’s counsel also filed a motion requesting that the District Court dismiss the felony

PFMA charge, reducing it to a misdemeanor. The District Court denied the motion based

on an equal protection clause analysis and the severability of the alleged offending

language. Watts appeals.

                               STANDARD OF REVIEW

¶7     A ruling on a motion to dismiss in a criminal proceeding is a question of law,

which we review de novo. State v. Burns, 2011 MT 167, ¶ 17, 361 Mont. 191, 256 P.3d

944. Whether a prior conviction may be used for sentence enhancement is generally a

question of law, which the Court reviews de novo. State v. Maine, 2011 MT 90, ¶ 12,

360 Mont. 182, 255 P.3d 64. The constitutionality of a statute is a question of law, which

we review for correctness. State v. Knudson, 2007 MT 324, ¶ 12, 340 Mont. 167, 174

P.3d 469.

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                                        DISCUSSION

¶8     Did the District Court err when it denied Watts’ motion to dismiss his felony
       conviction of Partner Family Member Assault and reduce his charge to a
       misdemeanor at sentencing?

¶9     Montana’s long standing jurisprudence holds that “where a defendant voluntarily

and knowingly pleads guilty to an offense, the plea constitutes a waiver of all

non-jurisdictional defects and defenses, including claims of constitutional rights

violations which occurred prior to the plea.” State v. Lindsey, 2011 MT 46, ¶ 19, 359

Mont. 362, 249 P.3d 491; State v. Pavey, 2010 MT 104, ¶ 11, 356 Mont. 248, 231 P.3d

1104; State v. Kelsch, 2008 MT 339, ¶ 8, 346 Mont. 260, 194 P.3d 670; State v. Rytky,

2006 MT 134, ¶ 7, 332 Mont. 364, 137 P.3d 530; State v. Gordon, 1999 MT 169, ¶ 23,

295 Mont. 183, 983 P.2d 377; State v. Turcotte, 164 Mont. 426, 524 P.2d 787 (1974). A

defendant may only attack the voluntary and intelligent character of the guilty plea and

may not raise independent claims relating to prior deprivations of constitutional rights.

Gordon, ¶ 23; State v. Wheeler, 285 Mont. 400, 948 P.2d 698 (1997); State v. Hilton, 183

Mont. 13, 597 P.2d 1171 (1979), overruled on other grounds in State v. Deserly, 2008

MT 242, 344 Mont. 468, 188 P.3d 1057 (After pleading guilty, a defendant is limited to

attacking the voluntariness of the guilty plea and he may not raise independent claims

relating to prior deprivations of constitutional rights.).

¶10    Watts argues that the PFMA statute at the time he was previously convicted was

unconstitutional because it treated heterosexual and homosexual couples differently.

Section 45-5-206, MCA (2003) (amended 2013). Watts claims he preserved his right to

appeal the denial of his motion to dismiss. After a thorough review of the record, plea

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agreement, and transcript, we cannot agree. The plea agreement, which was signed by

Watts and his counsel and was presented to the District Court at the plea hearing,

contains no language reserving the right to appeal after his guilty plea.        The plea

agreement specifically acknowledges that Watts waives his right to all appeals, except an

appeal based on ineffective assistance of counsel. Watts has not preserved the right to

challenge his conviction based on the constitutionality of the underlying statute. See

State v. Krebs, 2016 MT 288, ¶ 6, 385 Mont 328, ___ P.3d ___. Moreover, Watts has not

alleged any circumstances that would provide good cause for a withdraw of his guilty

plea. See § 46-16-105(2), MCA.

¶11    Watts contends that this Court should review his claim under the Lenihan rule.

State v. Lenihan, 184 Mont. 338, 602 P.2d 997 (1979). The Lenihan rule allows “an

appellate court to review any sentence imposed in a criminal case, if it is alleged that

such sentence is illegal or exceeds statutory mandates, even if no objection is made at the

time of sentencing.” Lenihan, 184 Mont. at 343, 602 P.2d at 1000.

¶12    Watts cites State v. Ellis, 2007 MT 210, 339 Mont. 14, 167 P.3d 896 and State v.

Strong, 2009 MT 65, 349 Mont. 417, 203 P.3d 848, in support of his argument. In Ellis,

the defendant challenged a condition of his sentence (repayment for court appointed

counsel), arguing the sentencing statute itself, § 46-8-113, MCA, was unconstitutional.

Ellis, ¶ 10.    In Strong, the defendant challenged the sentencing statute as well,

§ 46-18-201, MCA, arguing the law provided different sentencing standards for adults

and youths tried as adults. Strong, ¶ 8.



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¶13   These cases are distinguishable. Ellis and Strong challenged the legality of their

sentences and the sentencing statutes, while Watts attacks his conviction of a felony.

Watts asks this Court to declare a former statute unconstitutional, apply that

determination retroactively to his case, and then reduce his conviction to a misdemeanor.

We decline to apply the Lenihan rule here. Watts specifically pled guilty to the felony

and now seeks to challenge that conviction. Ellis and Strong are distinguishable because

they did not challenge the underlying conviction but rather the sentence they received.

                                    CONCLUSION

¶14   Watts pled guilty and is not appealing his conviction based on a jurisdictional

claim or other issue he properly preserved.       Therefore, he can only challenge the

voluntariness and intelligent character of his guilty plea. Kelsch, ¶ 8. He has not

challenged his plea. Watts waived his right to appeal the constitutionality of the prior

PFMA statute.

¶15   Affirmed.


                                                /S/ MIKE McGRATH


We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JIM RICE




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