                                                                                        December 2 2014


                                           DA 13-0807
                                                                                        Case Number: DA 13-0807

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2014 MT 321N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

MICHAEL J. DIAMOND,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Seventh Judicial District,
                        In and For the County of Dawson, Cause No. DC 13-057
                        Honorable Richard A. Simonton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Paul Sullivan, Measure, Sampsel, Sullivan & O’Brien, P.C.,
                        Kalispell, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
                        Assistant Attorney General, Helena, Montana

                        Olivia Norlin-Rieger, Dawson County Attorney, Marvin L. Howe, Deputy
                        County Attorney, Glendive, Montana



                                                    Submitted on Briefs: October 22, 2014
                                                               Decided: December 2, 2014


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath 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     Michael Diamond (Diamond) appeals from the Judgment and Order of Sentence

entered by the Seventh Judicial District, Dawson County. Diamond argues that the

District Court erred by failing to address his wish to withdraw his guilty plea. Diamond

also claims his attorney was ineffective by failing to file a motion to withdraw his guilty

plea. We affirm the decision of the District Court. Regarding Diamond’s claim of

ineffective assistance of counsel, the matter should be raised in the District Court where a

record can be developed pursuant to a petition for postconviction relief.

¶3     On June 15, 2013, police observed Diamond driving a vehicle without headlights.

The officers stopped the vehicle and Diamond gave false identification. Eventually,

Diamond provided his real name and officers discovered that his license was suspended

and the vehicle was stolen. After obtaining a search warrant, officers found a white

substance that tested positive for cocaine. Diamond was charged by information with

felony criminal possession of dangerous drugs, felony theft (later amended to

misdemeanor), driving with a suspended license, displaying license plates assigned to

another vehicle, and obstructing a peace officer.


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¶4     At his initial appearance on July 9, 2013, Diamond indicated that he wished to

plead guilty to all charges. After being fully advised of his rights, Diamond stated, “I’m

ready to plead guilty” and “I did it. I’m guilty of the crimes.” Additionally, after Judge

Simonton asked Diamond if he understood the possible sentence of ten years in prison,

Diamond replied, “Yes, sir. I do understand. I got caught red-handed.”

¶5     Judge Simonton then questioned Diamond’s attorney, Mr. Heineman, about his

client’s decision to plead. Mr. Heineman stated that he had discussed the charges with

Diamond twice and there was “not much I can do about it.” Diamond further testified

that he was satisfied with Mr. Heineman’s services.

¶6     On October 2, 2013, Judge Simonton sentenced Diamond to the Montana State

Prison for five years on the possession offense. Diamond also received two six-month

suspended sentences on the theft and obstruction charges, 60 days all suspended on the

driving while suspended charge, and a $50 fine for displaying false license plates.

¶7     At sentencing, probation officer Tara Zody testified. She stated that Diamond told

her that the drugs belonged to his wife.         Additionally, Ms. Zody’s presentence

investigation report included a statement by Diamond that he was “thinking about

withdrawing my plea.” Diamond testified at sentencing, but never stated that he wished

to withdraw his guilty plea. The Court also asked Diamond if he wished to make a

statement and present information in mitigation of punishment or provide reasons why he

should not be sentenced. Diamond declined.

¶8     The Court may permit a guilty plea to be withdrawn “at any time before judgment

or, except when a claim of innocence is supported by evidence of a fundamental

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miscarriage of justice, within 1 year after judgment becomes final.”              Section

46-16-105(2), MCA. A judgment is final when the time for appealing to the Montana

Supreme Court or United States Supreme Court (if an appeal is first taken to the Montana

Supreme Court) expires.          Section 46-16-105(2), MCA.    Judge Simonton sentenced

Diamond on October 2, 2013. He filed a notice of appeal with this Court on December 2,

2013. At that time, Diamond was within the one-year period to move to withdraw his

guilty plea in District Court.

¶9     A District Court may permit a defendant to withdraw a guilty plea if good cause is

shown. Section 46-16-105(2), MCA. Diamond argues that Judge Simonton abused his

discretion when he failed to inquire into whether he wished to withdraw his guilty plea

after having been advised of Diamond’s statements to Ms. Zody. According to Diamond,

the statements indicated his intention to withdraw his plea.

¶10    Diamond admits he never filed a motion to withdraw. Instead, Diamond argues

his statement that he was “thinking about withdrawing his plea” qualifies as a motion

sufficient to require the District Court to inquire. Diamond argues his case is akin to

State v. Weaver, 276 Mont. 505, 917 P.2d 437 (1996); however, Diamond’s situation is

distinguishable from Weaver. In Weaver, the defendant verbally requested to withdraw

his plea, but the district court refused to rule on the request. Weaver, 276 Mont. at 508,

917 P.2d at 439. Unlike Weaver, Diamond never made a motion to withdraw his plea,

despite having the opportunity while testifying at sentencing. The District Court did not

err when it considered Diamond’s statements at sentencing, but did not construe them as



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an actual request to withdraw. The District Court is not a soothsayer and will not be

expected to read defendants’ minds. The Judgment of the District Court is affirmed.

¶11   Diamond also challenges his trial counsel’s assistance as ineffective. Both the

United States and Montana Constitutions guarantee the right to effective assistance of

counsel. State v. Aker, 2013 MT 253, ¶ 34, 371 Mont. 491, 310 P.3d 506. To prevail on

a claim of ineffective assistance of counsel, “the defendant must show that counsel’s

performance was deficient” and that “the deficient performance prejudiced the defense.”

Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861 (quoting Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)).

¶12   Before reaching the merits of an ineffective assistance claim, the Court “must first

determine whether the allegations are properly before the Court on appeal or whether the

claim should be raised in a petition for postconviction relief.” Aker, ¶ 34 (citations

omitted). In making this determination, we ask “why counsel did or did not perform as

alleged and then seek to answer the question by reference to the record.” Aker, ¶ 34

(citations omitted). If the claim is based on matters outside the record, we will not

address the issue on direct appeal.      Aker, ¶ 34.     “Only through a petition for

postconviction relief may the record be developed to explain ‘why’ counsel acted as

alleged, which then allows a reviewing court to determine ‘whether counsel’s

performance was ineffective or merely a tactical decision.’” Aker, ¶ 34 (citations

omitted).

¶13   In this case, the record is inadequate for review on direct appeal. Diamond argues

Mr. Heineman failed to follow his wishes to withdraw his plea. However, the record is

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void of any evidence indicating that Diamond decided to withdraw his plea, informed Mr.

Heineman, or that Mr. Heineman then refused to file the motion. Consequently, we

conclude that Diamond’s claims of ineffective assistance of counsel are not appropriate

for direct appeal and the matter should be raised in a petition for postconviction relief,

where the record may be developed to explain counsel’s conduct.

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

our Internal Operating Rules, which provides for memorandum opinions. The District

Court’s findings of fact are supported by substantial evidence and the legal issues are

controlled by settled Montana law, which the District Court correctly interpreted.

¶15   Affirmed.


                                                /S/ MIKE McGRATH


We Concur:

/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER




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