                                          No. 04-777

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 288


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

PATRICK FAVI,

              Defendant and Appellant.




APPEAL FROM:         The District Court of the Eighteenth Judicial District,
                     In and For the County of Gallatin, Cause No. DC-2004-76,
                     Honorable Mike Salvagni, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Patrick Favi, Pro Se, Tustin, California

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Jennifer Anders,
                     Assistant Attorney General, Helena, Montana

                     Marty Lambert, County Attorney; Jami L. Rebsom, Deputy
                     County Attorney, Bozeman, Montana


                                                                Submitted on Briefs: July 5,
                                                   2005

                                                                   Decided: November 15,
2005


Filed:

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

¶1        Defendant Patrick Favi appeals from the Order of the Eighteenth Judicial District

Court, Gallatin County, denying his motion to withdraw his guilty plea of July 12, 1999. We

affirm.

¶2        We consider the following issue on appeal:

¶3        Does Patrick Favi have “good cause” to withdraw his July 12, 1999, guilty plea under

§ 46-16-105(2), MCA (1997)?

                                       BACKGROUND

¶4        In the spring of 1999 the State of Montana charged Defendant Patrick Favi (Favi) with

unlawful possession of an intoxicating substance in violation of § 45-5-624, MCA (1997),

criminal possession of drug paraphernalia in violation of § 45-10-103, MCA (1997), and

criminal possession of dangerous drugs in violation of § 45-9-102, MCA (1997). Appearing

pro se, and after waiving his right to counsel for the purposes of entering a plea, Favi pled

“not guilty” to all three charges on May 7, 1999. Thereafter Favi requested appointed

counsel and the Justice Court, Gallatin County, appointed Leanne Schraudner to represent

Favi in the proceedings. The order appointing counsel specifically required Favi to establish

immediate contact with appointed counsel and to contact her at least every other week.

¶5        Upon her appointment, Schraudner immediately pursued discovery of the State’s case

on Favi’s behalf. Though given a copy of the court’s order which appointed Schraudner and

explained his obligations to contact her, Favi failed to do so. As a result, Schraudner filed

a motion to withdraw as counsel on June 29, 1999. That motion was denied on June 30,


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1999, whereupon Schraudner continued her representation of Favi, evidenced by her filing

of additional pleadings. However, for failing to contact his attorney, Favi was held in

contempt by the Justice Court, which issued a bench warrant for Favi’s arrest. The sheriff’s

department executed that warrant and arrested Favi on July 7, 1999.

¶6     Two days later, on July 9, 1999, Favi appeared before the Justice Court to answer to

the contempt charges. At the hearing, presided over by Justice of the Peace G. L. Smith, he

pled “true” to contempt for failing to contact his attorney, and received one day of jail time

as a result. Also at that hearing, Favi asked the court to change his plea on the drug charges

from “not guilty” to “guilty.” Judge Smith scheduled a hearing for that purpose the next

week, on July 12, 1999.

¶7     Favi appeared as scheduled, without counsel, at the hearing, presided over by Justice

of the Peace Scott Wyckman.         Judge Wyckman advised Favi of his rights and the

consequences of both the waiver of his rights and his plea of guilty. Favi acknowledged his

right to counsel in writing and the waiver of that right by entering a guilty plea. Satisfied as

to the voluntariness of Favi’s pleas to the charges, Judge Wyckman accepted them and

sentenced Favi to six months in jail, suspended on the conditions that Favi serve two days

in jail and complete the ACT Drug Program. Having previously served two days in jail, Favi

was granted credit for time served and released.

¶8     Favi did not enter the ACT Drug Program as required and was arrested twice between

July 1999 and December 1999 for contempt of court. A final arrest warrant issued in

January 2000 was recalled after Favi satisfied the conditions of his suspended sentence.


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¶9     This case lay dormant for about four years, until December 10, 2003, when Favi filed

a motion with the Justice Court to withdraw his guilty plea. The Justice Court denied Favi’s

motion to withdraw his plea on January 23, 2004, finding no “good cause” for allowing the

plea withdrawal. Favi appealed to the District Court, which also denied the motion. Favi

appeals.

                               STANDARD OF REVIEW

¶10    On a denial of a motion to withdraw plea, we review the district court’s findings of

fact to determine if they are clearly erroneous, and the court’s conclusions of law to

determine if they are correct. State v. Warclub, 2005 MT 149, ¶ 24, 327 Mont. 352, ¶ 24,

114 P.3d 254, ¶ 24. The question of whether a plea is voluntary is a mixed question of law

and fact, and we review such questions de novo, determining whether the district court’s

holding was correct. Warclub, ¶ 24. See also State v. Lone Elk, 2005 MT 56, ¶ 10, 326

Mont. 214, ¶ 10, 108 P.3d 500, ¶ 10.

                                       DISCUSSION

¶11    Section 46-16-105(2), MCA (1997), permits a defendant to withdraw a guilty plea,

before or after judgment is entered, if “good cause” is shown. Section 46-16-105(2), MCA

(1997). In Lone Elk, this Court confirmed that, notwithstanding the “good cause” standard,

guilty pleas must be voluntary, knowing, and intelligent as required by the United States

Supreme Court in Bousley v. United States (1998), 523 U.S. 614, 618, 118 S.Ct. 1604, 1609,

140 L.Ed.2d 828, 837, and Brady v. United States (1970), 397 U.S. 742, 748, 90 S.Ct. 1463,

1469, 25 L.Ed.2d 747, 756. Lone Elk, ¶ 13, ¶ 21; see also State v. Bowley (1997), 282 Mont.


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298, 309, 938 P.2d 592, 598. “[A] guilty plea is a grave and solemn act to be accepted only

with care and discernment . . . .” Brady, 397 U.S. at 748, 90 S.Ct. at 1468, 25 L.Ed.2d at

756.

¶12    Thus, the first question presented is whether Favi’s January 12, 1999, plea of guilty

was voluntary, knowing, and intelligent as required by Brady, 397 U.S. at 748, 90 S.Ct. at

1469, 25 L.Ed.2d at 756. Warclub, ¶ 18. As noted by the High Court in Brady,

       [A] plea of guilty entered by one fully aware of the direct consequences,
       including the actual value of any commitments made to him by the court,
       prosecutor, or his own counsel, must stand unless induced by threats (or
       promises to discontinue improper harassment), misrepresentation (including
       unfulfilled or unfulfillable promises), or perhaps by promises that are by their
       nature improper as having no proper relationship to the prosecutor’s business
       (e.g. bribes).

Brady, 397 U.S. at 755, 90 S.Ct. at 1472, 25 L.Ed.2d at 760, citing Shelton v. United States

(5th Cir. 1957), 242 F.2d 102, 115.

¶13    Here, it is clear from the record that Favi was fully aware of the consequences of his

action. The District Court found that Judge Wyckman advised Favi of his rights and the

consequences of waiving those rights on July 12, 1999. The evidence included the

Acknowledgment of Waiver of Rights by Plea of Guilty signed by Favi, in which he

acknowledged his right to counsel, that he was waiving that right, and that he knew what he

was doing in waiving his rights. Favi’s own affidavit states:

       8. I waived counsel because I believed, under the circumstances, that my
       relationship with my lawyer had ended, if not formally, at least from a
       productive standpoint. I believed my lawyer would not act in my best interest.




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Although Favi’s affidavit also averred that he pled guilty because he was intimidated and

ignorant of the consequences of his plea, the findings of the District Court on this point are

to the contrary. The District Court found that Favi never explained his alleged “ignorance,”

and instead signed a document indicating that he fully understood the proceedings.

¶14    Favi further argues that his colloquy with Judge Wyckman was insufficient to allow

him to make an informed decision regarding his guilty plea. The District Court, however,

found to the contrary. In so finding, the District Court relied on the affidavit of Judge

Wyckman, which stated:

       9. I would not have accepted Mr. Favi’s guilty plea had he not stated
       sufficient facts to support the conviction for the charges against him, and
       exhibited a clear understanding of the charges against him, the potential
       penalties and his rights.

¶15    The colloquy between Judge Wyckman and Favi on July 12, 1999, also advised Favi

of his rights, including the right to counsel, and the consequences of his plea. It was this

information which Favi acknowledged advisement of by signing the Acknowledgment and

by agreeing to waive his rights and plead guilty. Instead of pointing to specific deficiencies

in the colloquy, however, Favi simply claims that he did not actually understand the

predicament that he faced on July 12, 1999. Still, he offered little evidence to the District

Court in support of his claimed confusion. In fact, he offered an affidavit which, if anything,

confirms that his decision to plead guilty was calculated, knowing, and in his best interest

as he perceived it at that time. Finally, there is no evidence contemporary to the July 1999

proceedings which suggests Favi did not understand or appreciate those proceedings in full.

Instead, his argument attains merit only if the evidence offered to the District Court by the

                                              6
State is ignored. Consequently, we hold that the July 12, 1999 colloquy between Favi and

Judge Wyckman sufficiently apprised Favi of his rights and the consequences of his plea, and

further, that Favi’s guilty plea was voluntary, knowing, and intelligent under Brady.

¶16     The remaining question is whether there is any other factor, aside from the

voluntariness of his plea, which constitutes “good cause” to allow Favi to withdraw his plea

under § 46-16-105(2), MCA (1997). Favi argues that, by breaching ethical obligations, his

counsel ineffectively represented him in the 1999 proceeding leading to his guilty plea. After

review, we conclude this argument is contradicted by the findings of the District Court and

is without merit.

¶17    Favi points to his counsel’s motion to withdraw from representation as a violation of

ethical rules and professional standards for attorneys, and asserts that the motion eroded the

attorney-client relationship to such an extent that his guilty plea should be considered

sufficiently spoiled to constitute “good cause.” When examined in the context of the

proceeding, this assertion does not satisfy the good cause requirements of § 46-16-105(2),

MCA (1997).

¶18    The record shows that Favi both failed to immediately contact his attorney, and to

maintain regular contact with his attorney, as specifically required by the court’s order. It

was Favi’s disobedience of the court’s order which led to counsel’s motion to withdraw and

ultimately to Favi’s contempt citation.




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¶19    Favi retrospectively interprets his attorney’s actions as a breach of trust and

confidentiality.1 However, it was Favi’s repeated failure to obey the specific provisions of

the court’s order which resulted in his contempt citation. Furthermore, after the contempt

proceeding, Favi’s criminal proceeding resumed and Favi later returned to court for the

hearing on his request to change his plea. At that time, Favi acknowledged that he was

“satisfied with the services” of his attorney and wanted to proceed without her.

¶20    This case is unlike State v. Jones (1996), 278 Mont. 121, 923 P.2d 560, offered by

Favi, where counsel sought to withdraw because of his expressed belief in his client’s guilt,

and found it necessary to communicate this belief in detail to the judge. Jones, 278 Mont.

at 131-32, 923 P.2d at 566-67. We held that the attorney had abandoned his role as

advocate, and appeared to be working for the prosecution. Jones, 278 Mont. at 133, 923

P.2d at 567. In contrast, defense counsel’s representation of Favi in this matter was diligent,

and she moved for withdrawal only when Favi would not contact her. Thus, unlike Jones,

defense counsel did not betray Favi’s position with regard to the pending charges.

¶21    Favi’s motion to withdraw his plea comes nearly four and a half years after his

original guilty plea. Within that time period, multiple warrants were issued for Favi’s arrest

because of his violation of sentence conditions. Favi failed to raise the validity of his plea,


       1
        While we find this argument relevant to Favi’s attempt to establish good cause,
see Schuff v. A.T. Klemens and Son, 2000 MT 357, ¶ 35, 303 Mont. 274, ¶ 35, 16 P.3d
1002, ¶ 35 (“a trial court may consider attorney violations of the Rules of Professional
Conduct if that misconduct results in prejudice or adversely impacts the rights of the
parties in the case pending before it”), we also note that the District Court would have
been without jurisdiction to, and this Court does not now, in the context of this appeal,
resolve the claimed violation of ethical rules. See Schuff, ¶ 34.

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despite these post-judgment contacts with the court system. Ultimately, Favi even completed

his sentence without raising an issue of its validity. Though we no longer look to timeliness

in isolation as a dispositive factor, the timeliness of one’s motion to withdraw a plea is

nonetheless a “case-specific consideration” which reflects on the credibility of the motion.

See State v. Muhammad, 2005 MT 234, ¶ 24, 328 Mont. 397, ¶ 24, ___ P. 3d ___, ¶ 24; Lone

Elk, ¶ 23; Warclub, ¶ 19. Without evidence of the reason for the delay, we cannot ignore the

more than four years which passed after Favi’s plea before he moved to withdraw it.

                                      CONCLUSION

¶22    The District Court found Favi’s July 12, 1999, guilty plea to be voluntary, knowing,

and intelligent, and was satisfied that the colloquy between Judge Wyckman and Favi on that

date was sufficient in every respect to apprise the Defendant of his rights and the

consequences of his impending guilty plea. Further, it found no other “good cause” to allow

withdrawal of the plea. We conclude the District Court did not err in so holding.

¶23    Affirmed.

                                                  /S/ JIM RICE

We concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ JAMES C. NELSON




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