                                                                                      November 25 2009




                                           DA 09-0258

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2009 MT 409N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JOSHUA J. TWICHEL,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DC 09-0032
                        Honorable G. Todd Baugh, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Brad L. Arndorfer, Arndorfer Law Firm, Billings, Montana

                For Appellee:

                        Hon. Steve Bullock, Montana Attorney General; John Paulson, Assistant
                        Attorney General, Helena, Montana

                        Teague J. Westrope, Deputy City Attorney, Billings, Montana



                                                    Submitted on Briefs: October 21, 2009

                                                               Decided: November 25, 2009


Filed:

                        __________________________________________
                                          Clerk
Justice Brian Morris 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 2006, 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

its case title, Supreme Court 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     Appellant Joshua John Twichel (Twichel) appeals from the District Court’s order

denying his motion to withdraw his guilty plea.

¶3     Billings police officers arrested Twichel at his home after he was involved in an

altercation with his pregnant wife. The City of Billings charged Twichel with partner family

member assault. The information alleged that Twichel pushed his wife to the ground,

twisted her arm, and threatened her with a gun during this encounter.

¶4     Twichel appeared in city court for his initial appearance along with about thirty other

defendants. Twichel had a brief conversation with a public defender who was in the

courtroom. The public defender advised Twichel to plead not guilty. Twichel contends that

he watched other defendants plead not guilty to partner family member assault and saw the

court impose no contact restrictions with respect to these defendants’ partners. Twichel

claimed that he was the sole bread winner for his four children and a fifth on the way. He

wanted to get home as quickly as he could. As a result, Twichel chose to disregard the

advice of the public defender and he entered a guilty plea.



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¶5     The city court advised Twichel of the direct consequences of his plea, but the court

did not discuss collateral consequences, such as the loss of Twichel’s gun rights. Twichel

informed the court that he understood the consequences of his plea and entered a guilty plea.

The court conducted a brief colloquy in which Twichel admitted to having pushed his wife to

the ground and twisted her arm. The court accepted Twichel’s guilty plea and imposed a

sentence.

¶6     Three weeks later, Twichel sought to withdraw his guilty plea on the basis that he had

not been advised adequately of the consequences of pleading guilty. In particular, Twichel

alleged that the city court had failed to advise him that his gun rights would be affected, that

his sentence would involve extensive supervision, and that the court would impose a no

contact order to protect Twichel’s wife. The city court denied Twichel’s motion.

¶7     Twichel appealed to the district court. The District Court affirmed on the grounds that

Twichel was under no obligation to enter a guilty plea at his initial appearance and that the

city court likely would have provided Twichel with counsel had he requested it. The court

further determined that the city court was under no obligation to inform Twichel of the

collateral consequences of his plea, including its affect on his gun rights. Twichel appeals.

¶8     The denial of a motion to withdraw a guilty plea on the alleged grounds that the plea

was involuntary presents mixed questions of law and fact. We review de novo these mixed

questions of law and fact. State v. Brinson, 2009 MT 200, ¶ 3, 351 Mont. 136, 210 P.3d 164.

We review for clear error any factual findings relied upon by the court in reaching its legal

conclusion. State v. McFarland, 2008 MT 18, ¶ 8, 341 Mont. 166, 176 P.3d 1057. We have
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determined to decide this case pursuant to Section I, Paragraph 3(d), of our 1996 Internal

Operating Rules, as amended in 2006, that provide for memorandum opinions. It is manifest

on the face of the briefs and the record before us that substantial evidence supports the

District Court’s findings of fact and that the District Court correctly applied the law.

¶9     Affirmed.

                                                  /S/ BRIAN MORRIS



We Concur:

/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ PATRICIA O. COTTER
/S/ JIM RICE




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