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Date: 12-05-2018

Case Style:


Case Number: 2018MT 287N



Plaintiff's Attorney: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana Cory J. Swanson, Broadwater County Attorney

Defendant's Attorney: Joseph P. Howard


On October 24, 2008, the State charged McDowell with attempted deliberate
homicide and aggravated burglary. McDowell was indigent, and Kristina Neal of the
Helena Office of Public Defender (OPD) was appointed to represent him. Initially, their
relationship was amicable. However, Neal and McDowell both testified the relationship
deteriorated when Neal would not file certain motions for McDowell, and McDowell felt
Neal was not doing enough on his behalf. Due to the strained relationship with Neal, and
against her advice, McDowell began filing his own pleadings with the District Court.
Without resolutionof McDowell’s pro se filings, and on Neal’s motion, the District Court
vacated the scheduled trial date and set a change of plea hearing and status hearing for
January 9, 2009. The parties had reached a plea agreement whereby the State would reduce
the attempted homicide charge to assault with a weapon and make certain sentencing
recommendations to the District Court. At the January 9, 2009 hearing, McDowell
declined to change his plea as contemplated and stated that he no longer wanted OPD
representation and intended to either hire private counsel or proceed pro se.1 The District
Court set another status hearing for January 30, 2009. The District Court requested that
Neal appearat that hearing.
¶4 On January 30, 2009, McDowell appeared in chambers with Neal, Prosecutor John
Flynn, and Judge Dorothy McCarter for a status hearing. It is unclear whether Nealacted
in her capacity as counsel or to provide standby representation to McDowell. There is no
mechanical recording of the meeting, and no court reporter was present. Both McDowell
and Neal recall Judge McCarter advising McDowell he should accept the plea agreement
because it was “a good deal,” a “great offer,”“the best deal”hecouldget,and that it would
be “unwise” to reject the agreement. Neal did not object to Judge McCarter’s comments,
either at the time of the hearing or afterwards.
¶5 On April 24, 2009, the State filed an Amended Information and Waiver of Rights
by Plea of Guilty. Pursuant to the Amended Information, McDowell was charged with
assault with a weapon, in violation of § 45-5-213, MCA,and felony burglary, in violation
of § 45-6-204, MCA. The same day, McDowell signed an acknowledgment and waiver,
and pled nolo contendere to the State’s charges. State v. McDowell, 2011 MT 75, ¶ 4,
360 Mont. 83, 253 P.3d 812. On May 28, 2009, McDowell obtained new OPD
representation, Bryan Norcross. On June 12, 2009, the District Court held a sentencing
1 Besides the numerous pro se filings and McDowell’s vacillation between whether he wanted representation or not, McDowell also sent a letter, dated January 21, 2009, to Prosecutor John Flynn declaring he did not have an attorney and requesting all future “paperwork” be directed to McDowell.
hearing. Through Judge Jeffery Sherlock,the District Courtimposed a twenty-year prison
sentence, with five years suspended, on the count of assault with a weapon and a
twenty-year sentence,with ten years suspended,on the count of burglary, to run concurrent
to the assault conviction.
¶6 On June 10, 2010, McDowell moved to withdraw his plea, and the District Court
denied his Motion. McDowell appealed, arguing (1) Prosecutor Flynn breached the plea
agreement, and (2) the District Court erred for not crediting McDowell for time served.
McDowell, ¶ 2. In 2011, this Court affirmed McDowell’s convictions and remanded for
the sole purpose of crediting McDowell’s pre-conviction time served. McDowell, ¶¶ 25,
28. McDowell did not further appeal his judgment.
¶7 On May 1, 2012, McDowell filed a pro se PCR Petition. The State filed an
objection. In McDowell’s May 29, 2012reply to the State’s objection and in his October
27, 2014 amended PCR Petition, McDowell argued, in relevant part, that Judge McCarter
impermissibility participated in the plea negotiations and this participation had a coercive
effect on his decision toaccept the State’s plea offer. He also argued Nealwas ineffective
when she failed to object to Judge McCarter’s improper participation during the plea
¶8 On September 9, 2016, the District Court conducted an evidentiary hearinginto the
merits of McDowell’s PCR Petition. The parties offered evidence and testimony and
subsequently submitted proposed findings of fact and conclusions of law. McDowell
testified that although he wanted to “go to trial,” he nevertheless “felt forced to plead guilty
and accept the bargain or [] proceed to trial and face certain conviction.” McDowell
testified that he “felt there was no other option” but to plead nolo contendere. McDowell
stated, “I felt what Judge McCarter said to me and what [] Neal said was the right way to
go.” When asked by the District Court what would have happened had Neal objected to
Judge McCarter’s comments or advised himto ignore them, McDowell testified, “I more
likely would have thought about what was going on. But at the time I felt like she wasn’t
doing her job or she wouldn’t even object to anything.”
¶9 Neal testified that throughout her representation of McDowell, McDowell was
frustrated by the slow pace of his case and with the State’s evidence against him, and that
he went back and forth on whether he wanted to accept a plea offer from the State. Neal
testified that Judge McCarter’s comments during the status hearing struck her as odd and
potentially coercive at the time, but that she did object or raise concerns. Neal testified
that, in hindsight, she worried that raising a contemporaneous objection to the comments
would have angered Judge McCarter. Neal testified that she never discussed Judge
McCarter’s comments with McDowell. Neal stated McDowell never explicitly
commented on or indicated Judge McCarter’s comments had anyeffect onhis decision to
accept the guilty plea. However, Neal admitted their relationship was strained and that
McDowell might not havesharedhisconcerns with her.
¶10 Norcross also testified. He could not recall any conversation with McDowell
regarding Judge McCarter’s comments. He testified that had McDowell raised such
concerns, Norcross would certainly have included them in the Motion to Withdraw
McDowell’s Guilty Plea.
¶11 The District Courtdenied McDowell’sPCR Petition. McDowell appeals.
¶12 We review a district court’s denial of a PCR petition to determine whether the
district court’s findings of fact are clearly erroneous and whether its conclusions of law are
correct. Wilkes v. State, 2015 MT 243, ¶ 9, 380 Mont. 388, 355 P.3d 755; McGarvey v.
State, 2014 MT 189, ¶14, 375 Mont. 495, 329 P.3d 576. Ineffective assistance of counsel
claims are mixed questions of law and fact that we review de novo. Whitlow v. State,
2008MT 140, ¶9, 343Mont. 90, 183 P.3d 861.
¶13 APCRpetition must identify all facts that support the claims for reliefand must be
based on more than a petitioner’s own conclusory statements. Section 46-21-104(1),
MCA; Kelly v. State, 2013 MT 21, ¶ 9, 368 Mont. 309, 300 P.3d 120. 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;Ellenburg v. Chase, 2004 MT66,
¶ 12,320 Mont. 315, 87 P.3d 473 (citing § 46-21-104, MCA).
¶14 Montana law does not prohibit judicial participation in plea negotiations. Section
46-12-211, MCA, comm’n cmts. (1991) (“circumstances sometimes warrant judicial
participation in such discussions. . . .”); State v. Milinovich, 269 Mont. 68, 72,
887P.2d214, 216 (1994). Whether judicial participation in the plea negotiation processis
improper or coercive must be evaluated based on the individual case record. Milinovich,
269 Mont. at 72, 887 P.2d at 216; United States v. Davila, 569 U.S. 597, 609–11,
133 S. Ct.2139, 2148–50 (2013) (determining the appellate court’s automatic vacating of
the defendant’s guilty plea was improper and emphasizing that after the in camera meeting
between the judge, defense counsel, and the defendant, three months passed before the
defendant pled guilty, the defendantdid not reference the in camera conversation when he
elected to plead guilty, and the defendant entered his plea in front of another judge).
Judicial participation may be improper or coercive whena judge takes an active role in the
discussion and outlines the terms of the plea agreement, or when a judge makes threats or
promises that induce a defendant to accept a plea agreement he would not otherwise have
taken. See Milinovich, 269 Mont. at 72, 887 P.2d at 216; Davila, 569 U.S. at 603–04,
609-11, 133 S. Ct. at 2145, 2148–50. The remedy for improper judicial participation in
plea negotiations is to allow the defendant to withdraw his guilty plea. See Milinovich,
269Mont. at 72–73, 887 P.2d at 216–17.
¶15 A defendant is guaranteed access to counsel by the Sixth Amendment to the United
States Constitutionand Article II, Section 24 of the Montana Constitution. State v. Davis,
2016 MT 102, ¶ 37, 383 Mont. 281, 371 P.3d 979. In assessing claims of ineffective
assistance of counsel (IAC), we apply the two-pronged test set forth in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Whitlow, ¶ 10; State v. Colburn,
2018 MT 141, ¶21, 391 Mont. 449, 419 P.3d 1196. The first prong of theStrickland 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, 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 IAC must demonstrate a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different. Stock v. State,
2014 MT 46, ¶24, 374 Mont. 80, 318 P.3d 1053(internal citations omitted). A defendant
raising an IAC claim must satisfy both prongs of the Strickland test to prevail; failure on
one prong is dispositive. Whitlow, ¶11. A defendant does not waive the right to challenge
the entry of his plea based on claims of ineffective assistance of counsel. See State v. Watts,
2016 MT 331, ¶¶ 9–10, 386 Mont. 8, 385 P.3d. 960; State v. Duff, 262 Mont. 288, 292,
865P.2d 238, 240 (1993).
¶16 In this case, the District Court made a factual determination that Judge McCarter’s
statements did not have a coercive effect on McDowell and that McDowell was not
prejudiced by those comments. The District Court concluded that Judge McCarter’s
commentswere notcoercive as evidenced by: (1) the unclear status of whether McDowell
was representing himself or not at the status hearing; (2) McDowell never identifying the
comments as coercive through multiple fillings with multiple parties over several years
until his May 2012 response to the State’s objection to his PCR Petition; (3) McDowell’s
testimonyat the evidentiary hearing that he did not give much weight to Judge McCarter’s
comments about rejecting the plea offer; (4) McDowell’s persistence and desire to go to
trial even after Judge McCarter’s comments; (5) the passage of three months between the
comments and McDowell’s plea entry; and (6) McDowell’s sentencing by a different
judge. The District Court determined that McDowell failed to meet his burden to show it
was reasonably probable that but for Neal’s failure to object to Judge McCarter’s comments
or to advise McDowell to ignore them, he would not have changed his plea and instead
would have insisted on going to trial.
¶17 The District Court’s determination that Judge McCarter’s comments did not coerce
McDowell into entering his plea was not clearly erroneous. SeeWilkes, ¶ 9. Because Judge
McCarter’s comments lacked coercive effect, McDowell has failed to demonstrate actual
prejudice under the second prong of Strickland. See Stock, ¶24. It is therefore unnecessary
to analyze the merits of the first prong. See Whitlow, ¶ 11. The District Court properly
deniedMcDowell’sPCR Petition. SeeWilkes, ¶ 9; Ellenburg, ¶12

Outcome: 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. We affirm.

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