Submitted on Briefs: September 4, 2013
District Court of the Seventh Judicial District, In and For the County of Dawson, Cause No. DC 11-055 Honorable Katherine Bidegaray, Presiding Judge
For Appellant: Julie Brown, Montana Legal Justice, PLLC, Missoula, Montana
For Appellee: Timothy C. Fox, Montana Attorney General; Pamela P. Collins, Assistant Attorney General, Helena, Montana Olivia Norlin-Rieger, Dawson County Attorney; Marvin Howe, Deputy County Attorney, Glendive, Montana
Mike McGrath Chief Justice
¶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 Joseph Michael Morgeson appeals from an order of the Seventh Judicial District Court, Dawson County, denying his motion to withdraw guilty plea. We affirm.
¶3 The following issues are raised on appeal:
¶4 Whether the District Court erred by denying Morgeson's motion to withdraw his plea.
¶5 Whether the District Court erred in finding that Morgeson's plea was voluntary.
¶6 Whether Morgeson was entitled to assistance of counsel in filing his motion to withdraw guilty plea.
¶7 Morgeson was charged with burglary and felony theft on September 2, 2011. He reached an oral plea agreement with the State under which the burglary charge would be dismissed. At the change of plea hearing on December 22, 2011, defense counsel asked that the agreement be memorialized in the record. It then became apparent that the defense and the State did not have the same understanding of their agreement. The defense believed the agreement was for a joint recommendation of a two year suspended sentence, while the State did not recall agreeing to the two year term. The Court allowed counsel to discuss the agreement outside the courtroom, and then recessed for eight minutes to allow Morgeson to review the agreement with his attorney.
¶8 After the recess, the State indicated that it would not oppose the recommendation made by the defense and asked for a provision stating that the Court would not be bound by the agreement. The Court noted the defense's recommendation of a two year suspended sentence. The Court then asked Morgeson if he had the recommendations "clear in [his] mind, " to which he replied yes. The Court asked Morgeson if he understood that the Court would not be bound by the agreement. Morgeson replied yes. The Court asked if he understood that he could not withdraw his guilty plea if the Court did not follow the recommendation. M orgeson replied yes. T he Court then accepted Morgeson's plea, and the State dismissed the burglary charge as agreed. Morgeson was sentenced to a term of five years, with three years suspended.
¶9 On appeal of the denial of a motion to withdraw guilty plea, this Court reviews findings of underlying fact for clear error and conclusions of law for correctness. State v. Warclub, 2005 MT 149, ¶ 24, 327 Mont. 352, 114 P.3d 254. This Court reviews mixed questions of law ...