                                          No. 03-836

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2004 MT 288


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

TODD JOHN MARTIN,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Thirteenth Judicial District,
                     In and for the County of Yellowstone, Cause No. DC-03-0112,
                     The Honorable Diane G. Barz, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Gary E. Wilcox, Michael Law Firm, Billings, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Pamela P. Collins,
                     Assistant Attorney General, Helena, Montana

                     Dennis Paxinos, Yellowstone County Attorney; Christopher Morris, Deputy
                     County Attorney, Billings, Montana


                                              Submitted on Briefs: July 14, 2004

                                                         Decided: October 19, 2004

Filed:


                     __________________________________________
                                       Clerk
Justice Jim Regnier delivered the Opinion of the Court.

¶1     Todd John Martin (Martin) appeals from an order of the Thirteenth Judicial District

Court, Yellowstone County, entered October 14, 2003, denying Martin’s motion to withdraw

his guilty plea. We affirm.

¶2     We address the following issues on appeal:

¶3     1. Did the District Court err in denying Martin’s motion to withdraw his guilty plea?

¶4     2. Did Martin receive effective assistance of counsel?

                                     BACKGROUND

¶5     On February 9, 2003, Martin’s neighbor, Errol Fisher (Fisher), phoned 911 and

reported Martin had stabbed a female the previous night and that Martin would not let her

leave the apartment to seek medical treatment. When Billings police officers arrived at the

apartment building, they located the victim, Carolyn Smith (Smith), in her bedroom. When

asked if she had been stabbed, she lifted up her shirt to reveal blood and what appeared to

be a wound on her left upper back. Officers found Martin in the hallway of the apartment

building. A black folding knife, which appeared to have blood on the blade, was located in

Martin’s front right pocket. A small plastic bag of what appeared to be marijuana was also

removed from Martin’s pocket.

¶6     Officers transported Martin to the Yellowstone County Detention Center, where

officers collected Martin’s pants and slippers because they appeared to have blood on them.

Once read his Miranda rights, Martin stated Smith had been stabbed outside of the residence,

he was not present during the incident, and Smith had given him the knife when she returned

to the apartment.


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¶7     Fisher provided a statement to police on February 9, 2003, stating that Martin told

him he had stabbed Smith with a pocketknife, that Martin showed him how deep the knife

went into Smith’s body, and that Martin asked him not to call for assistance because Martin

would go back to prison. Fisher gave a follow up statement to police on May 27, 2003.

¶8     On February 12, 2003, Martin was charged with assault with a weapon, a felony, in

violation of § 45-5-213(1)(a), and criminal possession of dangerous drugs, a misdemeanor,

in violation of § 45-9-102(2). On February 13, 2003, the State filed a notice of intent to have

Martin designated a persistent felony offender, based on a 1996 conviction of partner family

member assault.

¶9     On June 6, 2003, Martin moved to withdraw his plea of not guilty to the felony

assault charge and enter a guilty plea. Following appropriate inquiry, the court accepted his

plea. Martin accepted a plea agreement which provided he would be sentenced for five years

to the Department of Corrections, with two years suspended, and the State would dismiss the

persistent felony offender designation. Two days before the original sentencing date, a

woman claiming to be Smith went to the Public Defender’s Office and gave a statement that

Martin was not the person who committed the assault.

¶10    On September 15, 2003, Martin filed a motion to withdraw his guilty plea. On

October 8, 2003, a hearing on the motion was held. On October 14, 2003, the court issued

its order denying Martin’s motion to withdraw his guilty plea. On October 22, 2003, Martin

was sentenced pursuant to the plea agreement. Martin now appeals from the court’s denial

of his motion to withdraw his guilty plea.

                                STANDARD OF REVIEW


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¶11     We review a district court’s denial of a defendant’s motion to withdraw a guilty plea

to determine whether the court abused its discretion. State v. Schaff, 1998 MT 104, ¶ 16,

288 Mont. 421, ¶ 16, 958 P.2d 682, ¶ 16; State v. Enoch (1994), 269 Mont. 8, 11, 887 P.2d

175, 177. No categorical standard exists as to how a district court must address a request to

withdraw a guilty plea; rather, each case must be considered in light of its unique record.

Mallak v. State, 2002 MT 35, ¶ 16, 308 Mont. 314, ¶ 16, 42 P.3d 794, ¶ 16.

                                       DISCUSSION

¶12     1. Did the District Court err in denying Martin’s motion to withdraw his guilty

plea?

¶13     Section 46-16-105, MCA, provides that at any time before or after a judgment, the

court may, for good cause shown, permit the plea of guilty to be withdrawn and a plea of not

guilty substituted.   This Court has established three factors to be considered when

determining whether “good cause” under § 46-16-105, MCA, exists to permit the withdrawal

of a guilty plea: 1) the adequacy of the district court’s interrogation as to the defendant’s

understanding of his plea; 2) the promptness of the motion to withdraw the prior plea; and

3) the fact that the defendant’s plea was apparently the result of a plea bargain in which the

guilty plea was given in exchange for dismissal of another charge. State v. Graham, 2002

MT 237, ¶ 16, 311 Mont. 500, ¶ 16, 57 P.3d 54, ¶ 16 (citing Mallak, ¶ 17; State v. Knox,

2001 MT 232, ¶ 11, 307 Mont. 1, ¶ 11, 36 P.3d 383, ¶ 11; State v. Bowley (1997), 282 Mont.

298, 304, 938 P.2d 592, 595). Consideration of the third factor is intended to prevent the

parties to a plea agreement, either a defendant or the State, from escaping the obligations of

the plea agreement after accepting its benefits. Schaff, ¶ 28.


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¶14    On appeal, Martin does not dispute the first factor–the adequacy of the District

Court’s interrogation of him when he changed his plea. The second factor is not in dispute

because the timeliness of Martin’s motion is not challenged. Further, promptness of a

motion, alone, does not outweigh the other two factors. State v. White, 2004 MT 103, ¶ 18,

321 Mont. 45, ¶ 18, 88 P.3d 1258, ¶ 18 (quoting State v. Keys, 1999 MT 10, ¶ 21, 293

Mont. 81, ¶ 21, 973 P.2d 812, ¶ 21). Therefore, the only factor argued on appeal is the third.

In the District Court proceedings, Martin’s counsel conceded this factor to the State,

however, on appeal Martin contends this was not a concession, but merely an

acknowledgment the State had a valid-sounding argument.

¶15    It has long been the rule in this Court that we will not fault a district court for a ruling

in which the appellant acquiesced or participated in. State v. Gardner, 2003 MT 338, ¶ 44,

318 Mont. 436, ¶ 44, 80 P.3d 1262, ¶ 44 (citing In re Marriage of Smith (1990), 242 Mont.

495, 501, 791 P.2d 1373, 1377). Acquiescence in error takes away the right of objecting to

it. Gardner, ¶ 44 (citing State v. LaDue, 2001 MT 47, ¶ 23, 304 Mont. 288, ¶ 23, 20 P.3d

775, ¶ 23; § 1-3-207, MCA).

¶16    A review of the record reveals Martin’s counsel did, in fact, concede this element to

the State in the District Court proceedings. Martin’s acquiescence constitutes a waiver of

his right to assert error regarding this factor on appeal. Thus, we decline to consider it.

¶17    Last, Martin states the fundamental purpose in allowing a withdrawal of a plea is to

prevent the possibility of convicting an innocent person. Knox, ¶ 10 (citations omitted);

State v. Arledge (1987), 228 Mont. 225, 232, 741 P.2d 781, 785. He claims Smith’s

statement to the public defender exonerating Martin was reason enough for the District Court


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to grant his motion. However, considering Smith did not testify at the hearing, the identity

of the woman who made the statement to the public defender was not confirmed as Smith,

the birth date she provided was not correct, and Fisher’s statement to police incriminating

Martin, we cannot say the District Court abused its discretion when it denied Martin’s

motion to withdraw his guilty plea.

¶18    2. Did Martin receive effective assistance of counsel?

¶19    Since this Court finds Martin is precluded from arguing on appeal the validity of the

third “good cause” factor, Martin alternatively contends that his counsel was ineffective

when he conceded the third “good cause” factor in the District Court proceedings and failed

to preserve the issue for appeal.

¶20    The State argues Martin’s counsel’s performance cannot be deficient because the

issue Martin claims he failed to raise lacks merit. The State contends the plea agreement in

this case benefitted Martin and therefore satisfied the third “good cause” factor. Relying on

our recent decision in White, where we stated that a plea agreement between a defendant and

the State “is a contract which is subject to contract law standards,” the State argues it was

bound by the agreement from the moment it was entered into. White, ¶ 25 (citation omitted).



¶21    Martin does not dispute he received a benefit under the plea agreement, but contends

at the time of the District Court’s denial of his motion to withdraw his guilty plea, he had not

yet received the benefit of the plea agreement because the misdemeanor charge had not been

dropped, the persistent felony offender notice had not been withdrawn, and he had not been

sentenced.


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¶22    Montana has adopted the two-pronged test set forth in Strickland v. Washington

(1984), 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, in determining whether a defendant

received effective assistance of counsel. A defendant must show his counsel’s performance

was deficient and that this deficient performance prejudiced him. State v. Osterloth, 2000

MT 129, ¶ 30, 299 Mont. 517, ¶ 30, 1 P.3d 946, ¶ 30.

¶23    Martin’s argument he had not received the benefit of the plea bargain at the time of

the District Court’s denial of his motion to withdraw his guilty plea is not persuasive. We

have rejected similar arguments before, holding plea agreements are enforceable from the

moment they are entered into with both sides receiving the benefit of their bargain from the

moment of signing. White, ¶ 26; Schaff, ¶ 31. Martin accepted the benefits of the plea

bargain immediately upon signing it June 6, 2003. Thus, the State established the third

“good cause” factor.

¶24    Since the third “good cause” factor weighed in favor of the State, Martin’s counsel

did not err when he conceded it to the State in the District Court proceedings. A counsel’s

performance cannot be deficient when the issue counsel failed to raise lacks merit.

Osterloth, ¶ 32; State v. Hildreth (1994), 267 Mont. 423, 433, 884 P.2d 771, 777. Martin’s

counsel’s performance was not deficient; therefore, we hold Martin received effective

assistance of counsel.

¶25    Affirmed.


                                                 /S/ JIM REGNIER


We Concur:


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/S/ PATRICIA O. COTTER
/S/ JOHN WARNER
/S/ JAMES C. NELSON
/S/ JIM RICE




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