                                                                                               03/06/2018


                                          DA 16-0738
                                                                                           Case Number: DA 16-0738

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2018 MT 42N



BRANDON BAGNELL,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Twentieth Judicial District,
                       In and For the County of Lake, Cause No. DV 16-203
                       Honorable James A. Manley, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Brandon Bagnell, Self-Represented, Polson, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant
                       Attorney General, Helena, Montana

                       Steven Eschenbacher, Lake County Attorney, Polson, Montana



                                                   Submitted on Briefs: January 17, 2018

                                                               Decided: March 6, 2018


Filed:

                       __________________________________________
                                         Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), 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     Brandon Bagnell (“Bagnell”) appeals the Order of the Twentieth Judicial District,

Lake County, dismissing his petition for postconviction relief (PCR). We affirm.

¶3     On May 17, 2013, the State of Montana charged Bagnell with felony stalking in

violation of § 45-2-220, MCA. He was appointed Public Defender Benjamin Anciaux. On

August 14, 2013, the State filed a notice that it was seeking Persistent Felony Offender

(PFO) status for Bagnell. Anciaux filed a motion to dismiss and argued that Bagnell’s first

appearance was untimely. Bagnell was then appointed new counsel, Public Defender Jason

Bryan. With Bryan as counsel, Bagnell entered into a plea agreement, and the District

Court ordered a pre-sentence investigation (PSI) report.

¶4     On June 25, 2014, Bagnell appeared at his sentencing hearing with his third

attorney, Public Defender Tim Baldwin. Baldwin advised the District Court that Bagnell

wanted to withdraw his guilty plea and proceed to trial. However, on October 31, 2014,

Bagnell withdrew his not guilty plea and pled guilty to felony stalking. As part of the plea

agreement, the State withdrew its notice of PFO status, agreed to dismiss all remaining

charges filed in the case, and not to prosecute Bagnell further for violations that arose out


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of the initial conduct. The plea agreement did not specifically preserve any issues for

appeal, and no issues were preserved orally at the change of plea hearing.

¶5     The District Court conducted a detailed colloquy prior to accepting the guilty plea.

The District Court found that Bagnell was acting on the advice of competent counsel; that

he was not under the influence of drugs or alcohol at the time or suffering from any

impairment that would interfere with his ability to understand his decision to change his

plea; that no threats or promises had been made against or to him; and that he was entering

a plea of guilty knowingly, voluntarily, and intelligently. Bagnell was sentenced to five

years with the Montana Department of Corrections.

¶6     On January 7, 2015, Bagnell contacted Baldwin and indicated his desire to appeal

the guilty conviction. On January 14, 2015, Bagnell appealed. Baldwin attached an

affidavit to the appeal admitting that he made a mistake by failing to preserve Bagnell’s

right to appeal and stating that Bagnell did not knowingly waive his right to appeal in the

plea agreement.       Although Bagnell’s appeal was untimely, this Court granted an

out-of-time appeal.

¶7     The Office of the Appellate Defender (OAD) appointed counsel to represent Bagnell

on appeal. Appellate counsel reviewed the record and filed a motion for leave to withdraw

and a brief pursuant to Anders v. California, 368 U.S. 738 (1967), advising this Court that

she was unable to find any non-frivolous issues to raise on appeal. Appellate counsel noted

that Bagnell might have a legitimate postconviction issue with regard to Baldwin’s failure

to preserve Bagnell’s right to appeal in the Plea Agreement. Bagnell filed a response


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objecting to appellate counsel’s motion; however, on January 19, 2016, this Court

independently reviewed the record and dismissed Bagnell’s appeal.

¶8     Bagnell filed a PCR petition, alleging ineffective assistance of counsel, an

involuntary guilty plea, a due process violation, and a Brady violation. The District Court

reviewed the record under § 46-21-201, MCA, and did not order the State to respond and

did not hold an evidentiary hearing. On November 2, 2016, the District Court held that

Bagnell failed to make the requisite factual showing that he was entitled to the relief

requested. Bagnell now appeals.

¶9     We review a district court’s denial of a petition for postconviction relief to

determine whether the district court’s findings of fact are clearly erroneous and whether its

conclusions of law are correct. State v. Jenkins, 2001 MT 79, ¶ 9, 305 Mont. 95, 23 P.3d

201. We review discretionary rulings in PCR proceedings, including rulings relating to

whether to hold an evidentiary hearing, for an abuse of discretion. State v. Sullivan, 285

Mont. 235, 239, 948 P.2d 215, 218 (1997). We review claims of ineffective assistance of

counsel de novo. State v. Cobell, 2004 MT 46, ¶ 8, 320 Mont. 122, 86 P.3d 20.

¶10    A PCR petition may not be based upon grounds for relief that were or could

reasonably have been raised on direct appeal. Section 46-21-105(2), MCA; Rukes v. State,

2013 MT 56, ¶ 8, 369 Mont. 215, 297 P.3d 1195. The petition must identify all facts that

support the claims for relief, Kelly v. State, 2013 MT 21, ¶ 9, 368 Mont. 309, 300 P.3d 120,

and the petitioner has the burden to show by a preponderance of the evidence that the facts

justify relief, Griffin v. State, 2003 MT 267, ¶ 10, 317 Mont. 457, 77 P.3d 545; State v.


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Peck, 263 Mont. 1, 3–4, 865 P.2d 304, 305 (1993). A petitioner seeking to reverse a district

court’s denial of a PCR petition, “bears a heavy burden.” Cobell, ¶ 14. A district court

considering a petition for PCR may hold an evidentiary hearing, § 46-21-201, MCA, and

must enter findings of fact and conclusions of law, § 46-21-202, MCA. If a district court

determines that “the petition and the files and records of the case conclusively show that

the petitioner is not entitled to relief,” the district court may dismiss the proceedings

without requiring a response by the State. Sartain v. State, 2012 MT 164, ¶¶ 42–44, 365

Mont. 483, 285 P.3d 407.

¶11    In assessing claims of ineffective assistance of counsel, we apply the two-pronged

test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Whitlow

v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861.               The first prong of

the Strickland test requires the defendant to show that his counsel’s performance was

deficient. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To demonstrate that counsel’s

performance was deficient, the defendant must prove that counsel’s performance fell below

an objective standard of reasonableness. Whitlow, ¶ 10; Bishop v. State, 254 Mont. 100,

103–04, 835 P.2d 732, 734 (1992). The second prong of the Strickland test requires the

defendant to prove that his counsel’s deficient performance prejudiced the

defense. Whitlow, ¶ 10; Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To show prejudice,

the defendant alleging ineffective assistance of counsel must demonstrate a reasonable

probability that, but for counsel’s errors, he would not have pled guilty and would have




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insisted on going to trial. State v. Thee, 2001 MT 294, ¶ 9, 307 Mont. 450, 37 P.3d 741,

overruled on other grounds by Whitlow, ¶ 13.

¶12    If a defendant is represented by counsel and enters a plea based on the advice of

counsel, the voluntariness of the plea depends on whether counsel’s advice was within the

range of competence demanded of attorneys in criminal cases. State v. LeMay, 2011 MT

323, ¶ 52, 363 Mont. 172, 266 P.3d 1278 (internal citations omitted). This Court will not

reverse a district court’s denial of a motion to withdraw a guilty plea if “the defendant was

aware of the direct consequences of such a plea” and if the plea was not induced by threats,

improper promises, or misrepresentations. LeMay, ¶ 53. Where a defendant knowingly

and voluntarily “pleads guilty to an offense, the plea constitutes a waiver of all

non-jurisdictional defects and defenses”, which occurred prior to the entry of the plea.

State v. Watts, 2016 MT 331, ¶ 9, 386 Mont. 8, 385 P.3d 960; State v. Lindsey, 2011 MT

46, ¶ 19, 359 Mont. 362, 249 P.3d 491. However, where a claim is specifically reserved,

it will be deemed appealable. Section 46-12-204(3), MCA; State v. Pavey, 2010 MT 104,

¶ 12, 356 Mont. 248, 231 P.3d 1104.

¶13    In its November 2, 2016 Order, the District Court detailed its inquiry into the merits

of Bagnell’s ineffective assistance of counsel claim and determined it was without merit.

The District Court held:

       MCA 46-21-201 requires the district court to review the district court files
       and record, and determine whether that review conclusively shows [Bagnell]
       is not entitled to relief, before forwarding the petition to the county attorney
       or attorney general.



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       This Court has made that review, and determines the files and record
       conclusively show [Bagnell] is not entitled to the relief requested. Mr.
       Bagnell has not made the requisite factual showing. His conclusory
       statements and accusation are contrary to his testimony under oath at the time
       he entered his guilty plea.

We agree.

¶14    Bagnell argues that the District Court erred by dismissing his PCR petition without

conducting a hearing, or any kind of inquiry, into his claims of ineffective assistance of

counsel.       Bagnell argues his guilty plea was involuntary because appointed counsel

Baldwin failed to include his right to appeal in the plea agreement, as evidenced by the

affidavit Baldwin submitted to this Court to allow him to file an out-of-time appeal.

Further, Bagnell argues he felt pressured by counsel and the District Court to enter the plea

agreement. Consequently, Bagnell argues he should have been allowed to withdraw his

guilty plea.

¶15    The State counters that the District Court correctly dismissed Bagnell’s PCR

petition because (1) Bagnell’s PCR claims are contrary to the facts established in the

record, and (2) the affidavit from Bagnell’s attorney “was prepared in the course of drafting

the motion for Bagnell’s out of time appeal and not in response to his claims” in this PCR

proceeding.

¶16    Bagnell has not demonstrated that “resolution of any of his claims necessitated an

evidentiary hearing.” See Sartain, ¶¶ 42–44. Bagnell’s argument that his Plea was

involuntary because Baldwin failed to include the right to appeal is without merit. Prior to

Bagnell’s entry of a guilty plea, the District Court conducted a detailed colloquy during


                                             7
which Bagnell affirmed that he was not under the influence of drugs or alcohol and was

not suffering from any mental, physical, or emotional impairment, no threats had been

made against him or promises made to him—other than those contained within the plea

agreement—he acknowledged that he had adequate time to work with counsel, Baldwin,

to prepare and indicated further that he was satisfied with Baldwin’s services.

¶17    None of Bagnell’s claims against Baldwin satisfy the standards for establishing

ineffective assistance of counsel. Bagnell did not “overcome the presumption that his

counsel acted in a reasonable, professional manner.” See Sellner v. State, 2004 MT 205,

¶ 48, 322 Mont. 310, 95 P.3d 708. The written and oral record does not show that Baldwin

or Bagnell intended to reserve the right to appeal and, even though Baldwin failed to

preserve Bagnell’s ability to appeal his guilty plea, Bagnell was not prejudiced by

Baldwin’s failure in this regard because this Court allowed Bagnell an out-of-time appeal,

independently and fully reviewed the record, and concluded that an appeal of the case

would be wholly frivolous.

¶18    The District Court acted within its authority by reviewing the files and determining

that Bagnell has not demonstrated he is entitled to the relief he requests. See § 46-21-201,

MCA; Sartain, ¶¶ 42–44. Although Korchenski initially noted that Bagnell might have an

ineffective assistance of counsel claim with regard to Baldwin’s failure to preserve

Bagnell’s right to appeal in the Plea Agreement, after reviewing the record, the District

Court properly concluded that Bagnell failed to meet his burden to show his PCR petition




                                             8
is entitled to further review or that his Plea Agreement should be withdrawn. See Griffin,

¶ 10; Cobell, ¶ 14. The District Court did not err in dismissing Bagnell’s PCR petition.

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

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review. The District Court’s interpretation of the law was correct.

This appeal presents no constitutional issues, no issues of first impression, and does not

establish new precedent or modify existing precedent. We affirm.



                                                 /S/ JAMES JEREMIAH SHEA


We Concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR




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