                                                                                           January 21 2014


                                           DA 13-0196

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2014 MT 18N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

SAMUEL PAPE BETTIE,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DC 11-716
                        Honorable Mary Jane Knisely, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Jennifer A. Giuttari, Montana Legal Justice, PLLC; Missoula, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
                        Attorney General; Helena, Montana

                        Scott Twito, Yellowstone County Attorney; Billings, Montana



                                                    Submitted on Briefs: December 10, 2013
                                                               Decided: January 21, 2014


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat 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     Samuel Pape Bettie (Bettie) appeals from the judgment of the Montana Thirteenth

Judicial District Court, Yellowstone County, accepting his no contest plea to felony charges

and sentencing him to prison for two terms of fifteen years with five suspended, to run

consecutively.

¶3     On November 1, 2011, at approximately 2:34 a.m., Billings Police Department (BPD)

officers and detectives were dispatched to the area of 10 Monroe in Billings to investigate a

stabbing. A woman, whose friend had been stabbed, identified Bettie, who was walking

down the street nearby, as the aggressor. A responding officer stopped Bettie and observed

that his shirt and hands appeared to be covered in blood. Bettie appeared intoxicated and

agitated. The officer followed a trail of blood coming from Bettie to find a bloody knife with

two four-inch blades. Several people came out of the house on 10 Monroe and pointed to

Bettie, saying he had stabbed several other people that night. Officers detained Bettie and

attempted to determine his identity. Bettie stated that he had identification in his pocket.

While searching for Bettie’s identification, the officers discovered some objects in his

pocket, including a plastic bag containing ten small bags of what appeared to be equal

quantities of methamphetamine. They also found a second plastic bag with two blue and

white capsules in it.

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¶4     On November 29, 2011, Bettie was charged with five counts of felony aggravated

assault with weapons enhancement, one count of felony assault with a weapon and one count

of felony criminal possession of dangerous drugs with intent to distribute. The court issued

an order scheduling an omnibus hearing for January 5, 2012, and a jury trial for March 12,

2012. These were rescheduled to February 16, 2012, and April 23, 2012, respectively, to

allow for appointment of a public defender to represent Bettie. Counsel was appointed on

January 23, 2012. On April 19, 2012, Bettie’s counsel requested a continuance of the trial

date to allow for important interviews to be conducted, since the investigator charged with

the case had recently been suspended from her job. His motion noted, however, that while

Bettie had approved the continuance, he was not sure he wanted to waive his right to a

speedy trial. The motion was granted and the court rescheduled the trial for May 29, 2012.

On May 22, 2012, Bettie’s counsel again moved for a continuance to allow necessary

witnesses to be located and interviewed. The District Court granted that motion and

rescheduled the trial for August 20, 2012. On June 12, 2012, the prosecution moved for a

continuance because the prosecutor was not available for trial on the set date. The District

Court granted the motion and rescheduled the trial for October 22, 2012. On July 13, 2012,

Bettie himself wrote a letter to the presiding judge alleging his right to a speedy trial had

been violated. He also wrote a letter to the Office of the Public Defender protesting that his

counsel’s representation did not comply with his wishes. The District Court scheduled a

status conference for August 10, 2012, to address Bettie’s concerns about his right to a

speedy trial. To address Bettie’s concerns, the court reset Bettie’s trial date for September

17, 2012. On September 14, 2012, pursuant to a plea agreement, Bettie pled no contest to

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one count of aggravated assault and the count of criminal possession of dangerous drugs with

intent to distribute. The plea agreement, which Bettie signed, provided that Bettie waived

his right to a trial by jury or by judge and explicitly stated:

       8. Services of Counsel:
       I am satisfied with my attorney’s services and advice, and I have had adequate
       time to prepare a defense. I have received a copy of all the discovery and
       investigative reports in this case, and have reviewed those with my attorney.

The court accepted his plea. On December 14, 2012, the court sentenced Bettie to two

consecutive fifteen-year sentences, with five years of each suspended.

¶5     Bettie appeals, alleging that his trial counsel rendered ineffective assistance of counsel

(IAC) by failing to file a motion to dismiss on speedy trial grounds. Alternatively, Bettie

argues, this Court should exercise plain error review to examine his claim that his

fundamental constitutional right to a speedy trial was violated. In response, the State argues

that “[s]ince Bettie entered knowing and voluntary nolo contendre [sic] pleas to aggravated

assault and criminal possession of dangerous drugs with intent to distribute, and accepted the

benefit of a plea agreement dismissing five other felony charges pending against him, Bettie

waived his right to argue on appeal that he was denied his right to a speedy trial[.]”

¶6     This Court will only consider IAC claims raised on direct appeal where the record

reveals the reasoning underlying a counsel’s actions. See State v. Aker, 2013 MT 253, ¶ 22,

371 Mont. 491, 310 P.3d 506 (only record-based IAC claims are reviewable on direct

appeal).   Non record-based claims are more properly considered in postconviction

proceedings, where a record establishing the reason for counsel’s actions or inactions may be

developed. See State v. Kougl, 2004 MT 243, ¶ 14, 323 Mont. 6, 97 P.3d 1095. In cases


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where counsel is faced with an obligatory, non-tactical action, however, further inquiry into

the reason for counsel’s nonperformance is unnecessary and an IAC claim based on the

inaction may be considered on direct appeal. Kougl, ¶ 15.

¶7     Bettie argues that his IAC claim is reviewable on direct appeal because moving to

dismiss for lack of a speedy trial was an obligatory non-tactical action and there is no

plausible justification for his counsel’s failure to do so. He bases this argument on our

decision in State v. Brown, 2011 MT 94, ¶ 16, 360 Mont. 278, 253 P.3d 859, where we

determined that a defendant’s counsel’s failure to move for dismissal after a certain period

constituted IAC.    In Brown, however, § 46-13-401(2), MCA, required dismissal of

misdemeanor charges against a defendant after six months if the defendant did not request a

postponement and the State did not show good cause for delay. Brown, ¶ 17. In this case,

where Bettie was charged with seven felonies, the six-month time limitations do not apply.

Further, although the common law analogue to Brown, State v. Ariegwe, 2007 MT 204, 338

Mont. 442, 167 P.3d 815, provides that 200 days’ interval between the initial accusation and

trial is enough to trigger speedy trial concerns, Ariegwe does not require dismissal after that

period has elapsed. See Ariegwe, ¶¶ 39-43. Accordingly, moving to dismiss for lack of a

speedy trial was not an obligatory action and Brown does not provide a basis for Bettie’s

argument that his IAC claim must be reviewed on direct appeal.

¶8     Assuming that Bettie’s IAC claim is reviewable on direct appeal, however, it is

improperly raised here. Bettie pled no contest to the charges against him, thereby waiving

his right to appeal on any nonjurisdictional grounds. This Court has held that “‘a defendant

waives the right to appeal all nonjurisdictional defects upon voluntarily and knowingly

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entering a guilty plea, including claims of constitutional violations which may have occurred

prior to the plea.’” State v. Pavey, 2010 MT 104, ¶ 11, 356 Mont. 248, 231 P.3d 1104

(quoting State v. Violette, 2009 MT 19, ¶ 16, 349 Mont. 81, 201 P.3d 804). Consequently,

after the plea, the defendant may attack only the voluntary and intelligent character of the

plea, any jurisdictional defects, and any specified adverse pretrial rulings he has reserved the

right to appeal pursuant to § 46-12-204(3), MCA. Pavey, ¶ 11. Here, the acknowledgment

of waiver of rights and plea agreement Bettie signed expressly provided that he was satisfied

with his attorney’s services. Additionally, Bettie has no pretrial ruling to appeal from, since

his counsel never moved to dismiss on speedy trial grounds. By entering into the plea

agreement, Bettie waived his right to appeal based either on his attorney’s services or any

pretrial motions.

¶9     This Court may discretionarily review claimed errors that implicate a criminal

defendant’s constitutional rights where failing to review the error might result in a manifest

miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial, or

compromise the integrity of the judicial process. State v. Daniels, 2003 MT 247, ¶ 20, 317

Mont. 331, 77 P.3d 224. A criminal defendant’s right to a speedy trial is a fundamental

constitutional right guaranteed by the Sixth and Fourteenth Amendments to the United States

Constitution and Article II, § 24, of the Montana Constitution. State v. Stops, 2013 MT 131,

¶ 18, 370 Mont. 226, 301 P.3d 811. Plain error review, however, should be used “sparingly”

and pursuant to narrow circumstances. Daniels, ¶ 20. Bettie’s trial proceeded reasonably

expeditiously under the circumstances and the District Court made efforts to respond to his



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concerns about his right to a speedy trial. We decline to exercise plain error review to reach

Bettie’s speedy trial claim.

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

Internal Operating Rules, which provides for noncitable memorandum opinions. The issues

in this case are controlled by the statutes and precedent.

¶11    Affirmed.

                                                  /S/ MICHAEL E WHEAT

We Concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ LAURIE McKINNON




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