                                                                                         July 23 2010


                                         DA 09-0431

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2010 MT 161N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JERRY PAUL GONZALES,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Thirteenth Judicial District,
                      In and For the County of Yellowstone, Cause No. DC 07-1022
                      Honorable Gregory R. Todd, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Penelope S. Strong, Attorney at Law; Billings, Montana

               For Appellee:

                      Steve Bullock, Montana Attorney General; Micheal S. Wellenstein,
                      Assistant Attorney General; Helena, Montana

                      Dennis Paxinos, Yellowstone County Attorney; Scott Twito, Deputy
                      County Attorney; Billings, Montana



                                                  Submitted on Briefs: June 15, 2010

                                                              Decided: July 23, 2010


Filed:

                      __________________________________________
                                        Clerk
Justice W. William Leaphart 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 Jerry Paul Gonzales (Gonzales) appeals from the order of the Thirteenth

Judicial District Court, Yellowstone County, denying his motion to withdraw his guilty

plea.

¶3      The issue on appeal is as follows:

¶4    Did the District Court err in denying Gonzales’s motion to withdraw his guilty
plea?

¶5      On December 6, 2007, Gonzales was charged by information and affidavit with

the offense of attempted deliberate homicide after an investigation by the State indicated

that Gonzales had tried to kill his wife by igniting the pickup truck she was in.

Gonzales’s wife later informed law enforcement that she was not in the vehicle and after

negotiating with Gonzales, the State amended the charge and Gonzales plead guilty to

felony arson.

¶6      On May 19, 2008, a sentencing hearing was held in which the District Court

engaged Gonzales and his counsel, Jeffrey Michael (Michael). At that time, Michael

informed the District Court that Gonzales was considering withdrawing his guilty plea.



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He informed the District Court that Gonzales had expressed concern over his guilty plea

and the length of his potential sentence. Knowing that Gonzales suffered from learning

disabilities, the District Court specifically asked Gonzales if he understood what Michael

had said about withdrawing his guilty plea. Gonzales answered the District Court that he

understood. The District Court then asked Gonzales how he wanted to proceed to which

Gonzales replied that he would “rather just go on with the sentencing.” Throughout the

course of the conversation Gonzales continued to reiterate that he understood the plea

agreement and that he wanted to proceed with sentencing. Accordingly, the District

Court sentenced Gonzales to ten years commitment to the Department of Corrections

with five years suspended.

¶7     On February 26, 2009, Gonzales filed a motion to withdraw his guilty plea. On

May 27, 2009, after holding a hearing on the motion, the District Court denied

Gonzales’s motion to withdraw his guilty plea. Gonzales appeals.

¶8     On appeal, Gonzales argues that his guilty plea was involuntary and that “for a

number of interlocking reasons . . . there was good cause to withdraw the plea.”

Specifically, Gonzales maintains that the District Court erred by ignoring relevant facts

demonstrating that Michael rendered ineffective assistance and committed ethical

violations including his refusal to refund money, failure to investigate, failure to advise,

and failure to communicate with Gonzales. Gonzales argues that his learning disabilities,

coupled with Michael’s ineffective assistance, created a coercive situation and made his

plea involuntary. Gonzales also asserts that there is no factual basis to support his plea.

He contends that the amended information charged him with violating § 46-5-103(1)(a),


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MCA, but that he pled guilty to § 46-5-103(1)(c), MCA. Gonzales argues that the

discrepancy between what he was charged with and what he pled guilty to was the result

of ineffective assistance of counsel and error by the District Court.

¶9     The State counters that Gonzales’s learning disabilities did not render his plea

involuntary. Pointing to the plea colloquy, the State asserts that Gonzales understood his

rights and knew about the possible penalties and binding nature of the plea agreement.

The State also argues that Gonzales waived appellate review of his claim that his alleged

unethical fee arrangement with Michael coerced him into pleading guilty because he

failed to raise that claim in the District Court. Likewise, the State argues that Gonzales

also waived appellate review of his claims concerning the factual basis for his guilty plea.

Finally, the State concludes by arguing that Gonzales has failed to demonstrate

ineffective assistance of counsel pursuant to the Strickland test.

¶10    We review a district court’s denial of a defendant’s motion to withdraw his guilty

plea de novo. State v. Warclub, 2005 MT 149, ¶ 17, 327 Mont. 352, 114 P.3d 254. In

such a case, the issue of whether a plea was entered voluntarily is a mixed question of

law and fact and the underlying factual findings are reviewed to determine whether they

are clearly erroneous. Warclub, ¶ 23. It is the role of the trier of fact to decide the

credibility of witnesses. State v. Santos, 273 Mont. 125, 131, 902 P.2d 510 (1995).

¶11    Here, not only did the District Court recognize Gonzales’s learning disabilities but

the transcripts reveal that the District Court repeatedly asked Gonzales if he understood

both the plea agreement and his rights. Each time the District Court questioned Gonzales

with respect to his understanding and whether he wanted to proceed, Gonzales responded


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affirmatively. Furthermore, testimony in the record also supports the District Court’s

factual conclusions that Michael spoke with Gonzales about pleading guilty to felony

arson and advised Gonzales of his rights. Although Gonzales disputed this testimony, it

was the District Court’s role as trier of fact to decide issues of credibility. Santos, 273

Mont. at 131. Accordingly, we find no merit in Gonzales’s argument that Michael

provided ineffective assistance of counsel by failing to communicate, investigate or

advise him with respect to the charged offense or the plea agreement.

¶12   In addition, we agree with the State that Gonzales waived his claim that the fee

arrangement coerced him into the plea agreement as well as his claim that there was no

factual basis to support his guilty plea. While it may be that Gonzales plead guilty to

knowingly placing “another person in danger of death or bodily injury,” § 46-5-103(1)(c),

MCA, when, in fact, he had only been charged with causing damages by fire to a vehicle

pursuant to § 46-5-103(1)(a), MCA, he failed to present this issue to the District Court

and we will not consider it on appeal. State v. McFarlane, 2008 MT 18, ¶ 12, 341 Mont.

166, 176 P.3d 1057.

¶13   Having reviewed the record, the District Court’s decision and the parties’

arguments on appeal, we have determined to decide this case pursuant to Section I,

Paragraph 3(d) of our 1996 Internal Operating Rules, as amended in 2006, which

provides 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




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Montana law which the District Court correctly interpreted, and the record supports the

District Court’s denial of Gonzales’s motion to withdraw his guilty plea.

¶14   Affirmed.

                                                /S/ W. WILLIAM LEAPHART


We concur:

/S/ MIKE McGRATH
/S/ BRIAN MORRIS
/S/ PATRICIA COTTER
/S/ JIM RICE




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