Submitted on Briefs: August 14, 2013
District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV 12-677(A) Honorable Ted O. Lympus, Presiding Judge
For Appellant: Briana E. Schwandt, Smith & Stephens, P.C.
For Appellee: Timothy C. Fox, Montana Attorney General; Mardell Ployhar, Assistant Attorney General
Ed Corrigan, Flathead County Attorney
Michael E Wheat, Justice
FACTUAL AND PROCEDURAL BACKGROUND
¶1 Cody Fletcher (Fletcher) pled guilty to sexual assault and sexual intercourse without consent in the Eleventh Judicial District, Flathead County, before Hon. Ted O. Lympus (Judge Lympus). Fletcher was represented by attorney Lane Bennett (Bennett) who helped him negotiate a plea agreement with the prosecutor. Pursuant to the agreement, the State would request only 40 years imprisonment with 20 suspended in exchange for Fletcher's plea of guilty. At his change of plea hearing, Fletcher acknowledged that Judge Lympus was not bound by the plea agreement and that he could face a harsher sentence than that outlined in the plea agreement.
¶2 At sentencing, Judge Lympus handed down an oral order imposing a 40-year sentence with 20 suspended. The sentence also required that Fletcher complete the Sexual Offender Program (SOP) I and II in the Montana State Prison, and imposed a 10-year restriction on eligibility for parole. However, Fletcher interpreted the sentence to require SOP I and II only if professionals determined that he needed such a program, and also believed that he would not need to complete the SOP conditions before becoming eligible for parole. When the written sentence was issued, Fletcher was concerned that the SOP and parole conditions were inconsistent with the oral pronouncement of his sentence in that he was required to complete SOP I and II outright, and he would not be eligible for parole until after completion of these conditions.
¶3 In his petition for Post-Conviction Relief (PCR), Fletcher argued that his sentence was unfair because the judge used personal feelings against him and did not give adequate reason for the 10-year parole restriction, and also asserted an ineffective assistance of counsel claim (IAC). Fletcher never raised the inconsistency of his oral and written sentence in his PCR petition. The District Court dismissed the petition without a hearing. It is from this dismissal that Fletcher now appeals.
STATEMENT OF ISSUES
¶4 Issue One: Are Fletcher's challenges to the legality of his sentence procedurally barred?
¶5 Issue Two: Was Fletcher denied effective ...