Submitted on Briefs: November 13, 2013
APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 11-306 Honorable Mary Jane Knisely, Presiding Judge
COUNSEL OF RECORD:
For Appellant: Elizabeth J. Honaker, Honaker Law Firm; Billings, Montana
For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General; Helena, Montana Scott Twito, Yellowstone County Attorney, Julie Mees, Deputy County Attorney; Billings, Montana
Laurie McKinnon Justice
¶1 Lionel Ellison pleaded no contest to arson, a felony. He subsequently obtained new counsel and moved to withdraw his no contest plea. The District Court denied his motion to withdraw, which this Court affirmed. State v. Ellison, 2009 MT 408N, 354 Mont. 393 (table), 222 P.3d 645 (table). Ellison then petitioned for postconviction relief, alleging ineffective assistance of counsel, and that the District Court misinterpreted the arson statute. The District Court denied Ellison's petition, and he now appeals. We affirm.
¶2 On October 23, 2007, Ellison was charged with arson in violation of § 45-6-103(1)(a), MCA (2005), after a vehicle belonging to Dee Ames sustained fire damage. On April 1, 2008, Ellison appeared with counsel Jeffrey Michael ("Michael") and entered a no contest plea to the arson charge. Ellison also filed an acknowledgement of waiver of rights, which indicated that the State would recommend a five-year suspended sentence pursuant to a plea agreement, but that Ellison could argue for a lesser or deferred sentence.
¶3 During the offer of proof at the change of plea hearing, the prosecutor stated that Ellison damaged a vehicle, and that the value of the vehicle exceeded $1, 000. Prior to the hearing, Ellison had obtained an appraisal of the vehicle, which identified its market value as $500. Michael, however, determined that the value of the vehicle was irrelevant to the arson charge based upon his interpretation of the statute, and therefore did not object to the prosecutor's offer of proof.
¶4 The prosecutor also proffered that had the State gone to trial it would have presented a surveillance video that showed an individual at the trunk of Ames' parked vehicle shortly before the fire started. The proffer continued that while it was difficult to make out the identity of the individual seen on the video, the video was completely inconsistent with Ellison's version of events. In an affidavit Michael later gave in response to Ellison's petition for postconviction relief, Michael swore that he had reviewed the surveillance video and made the video available to Ellison prior to the hearing. Michael advised Ellison that the surveillance video was inconsistent with Ellison's story and that the State had enough evidence to find Ellison guilty beyond a reasonable doubt at trial. Michael also explained to Ellison that the State had evidence that Ellison offered to pay a potential witness to tell the same story as Ellison about the fire, and that entering a plea to the arson charge would ensure that the State would not charge him with witness tampering. Michael thus determined that the negotiated plea agreement was in Ellison's best interest, and advised him to enter a no contest plea.
¶5 After the change of plea hearing, Ellison substituted Michael with attorney Herbert "Chuck" Watson ("Watson"). Watson then filed a motion to withdraw Ellison's no contest plea, arguing that Ellison did not enter it knowingly and voluntarily. The District Court denied Ellison's motion, finding that Ellison had been aware of the consequences of his decision to enter a no contest plea, and that it was not improperly induced. On May 26, 2009, Ellison was sentenced to five years with all time suspended. Ellison next appealed the denial of his motion to withdraw his no contest plea to this Court and raised the singular issue of whether Ellison's plea was knowingly and voluntarily entered. On November 25, 2009, we affirmed the District Court's ruling.
¶6 In February of 2011 Ellison filed a petition for postconviction relief, followed by an amended petition, arguing that the arson statute only applied to property valued at over $1, 000, and since the vehicle at issue was worth less than that, there was no factual basis for his no contest plea. His petition outlined three grounds for relief: 1) the District Court erred by accepting a plea on an insufficient factual basis; 2) Michael provided ineffective assistance of counsel by allowing Ellison to enter a plea for a charge that had an insufficient factual basis; and 3) Watson provided ineffective assistance of counsel for failing to raise the issue of the sufficiency of the factual basis of the arson charge on direct appeal. In an affidavit supporting his petition, Ellison swore that Michael never saw the surveillance video, and that Michael did not make the video available for Ellison to view.
¶7 In its response, the State contended that Ellison's claims were invalid and procedurally barred. It attached affidavits of attorneys Michael and Watson to refute the ineffective assistance of counsel allegations. On March 15, 2013, the District Court denied Ellison's petition on the merits, concluding that pursuant to the plain language of the statute, the value of a vehicle is ...