United States District Court, D. Montana, Missoula Division
ORDER DENYING PETITION AND DENYING CERTIFICATE OF APPEALABILITY
JEREMIAH C. LYNCH, Magistrate Judge.
This case comes before the Court on Petitioner Charles Todd Clugston's application for writ of habeas corpus under 28 U.S.C. § 2254. Clugston is a state prisoner represented by Chad M. Wright. On March 28, 2014, Respondents ("the State"), represented by Pamela Collins, filed an Answer. Clugston filed a reply on April 28, 2014.
On April 15, 2014, the parties consented in writing to a magistrate judge's exercise of jurisdiction for all purposes, including entry of judgment. Consents (Docs. 10, 10-1); D. Mont. L.R. 72.1, 72.2(a), 73.1.
I. Proceedings in State Court
Clugston's federal petition challenges convictions and sentences imposed in one consolidated judgment in Montana's Eleventh Judicial District Court, Flathead County. In one case, No. DC 07-495, Clugston was convicted of criminal endangerment and tampering with evidence. Although Clugston contests the matter here, the criminal endangerment charge in the first case was at least temporally connected with a sexual encounter between Clugston and his wife on October 20, 2007. In the second case, No. DC 09-511, Clugston was convicted of another offense of criminal endangerment and a misdemeanor charge of driving under the influence, based on his driving erratically and endangering other vehicles while he was intoxicated. Although context should make things reasonably clear, nearly all references to "criminal endangerment" in this Order refer to the charge of criminal endangerment in the first case, 07-495.
The first case was filed on October 24, 2007. Clugston was charged with sexual intercourse without consent, a felony violation of Mont. Code Ann. § 45-5-503(1), with a maximum sentence of life or two to 100 years in prison; tampering with evidence, a felony violation of Mont. Code Ann. § 45-7-207(1), with a maximum sentence of ten years in prison; and criminally destroying or tampering with communications, a misdemeanor violation of Mont. Code Ann. § 45-6-105(1)(a), with a maximum sentence of six months in prison. Amended Information (Doc. 7-2) at 1-2.
The charges stemmed from an incident between Clugston and his then-wife, Heather. According to the documents filed in support of the Information, they had been married for four months and were in the process of divorcing. Heather called 911. Dispatchers heard screaming, but the call was disconnected. Police arrived at the house, heard screaming, entered, and discovered Clugston in an upstairs bedroom in the act of intercourse with Heather, who was screaming. When the officers made their presence known, Heather moved away from Clugston, grabbed a comforter, and moved towards the officers, shouting, "He raped me." Aff. in Supp. of Information (Doc. 7-1) at 3-4 ¶¶ 1-5. Clugston was arrested. At the jail, when he was informed that police would take his underwear as evidence, he removed his underwear and threw them in the holding cell toilet. Id. at 4 ¶ 6.
Jury trial commenced on May 11, 2009. Minutes (Doc. 7-3) at 1. On May 14, 2009, evidently due to what the trial judge called "problems with the State's case, " see Sentencing Tr. (Doc. 7-13) at 14:13, the parties reached an oral plea agreement. Clugston agreed to plead guilty to criminal endangerment, a violation of Mont. Code Ann. § 45-5-207(1), and evidence tampering. At the outset of the hearing, the trial court stated, "I'm vaguely familiar with what this is - the plea agreement is. I would tell you that all - the Court is never bound by these agreements. If the Court does not follow the agreement the Court will allow you to withdraw a plea of guilty if it's entered, okay?" Clugston responded, "Yes, sir." Change of Plea Tr. (Doc. 7-4) at 3:9-15; see also Mont. Code Ann. § 46-12-210(1)(d). The trial judge specified that Clugston's destruction of his underwear was the basis of the evidence-tampering charge, Change of Plea Tr. at 5:7-13, but no one described the factual basis of the criminal endangerment charge. Clugston admitted the elements of the statute, viz., that he "knowingly engage[d] in a course of conduct that created a substantial risk of serious bodily injury" to Heather, although she was not seriously injured. Id. at 8:7-18. With one exception, no term of the agreement between Clugston and the State was described on the record. The exception was the prosecutor's statement that "part of the deal was that Mr. Clugston was going to get a sex offender evaluation." Defense counsel Ed Gutierrez-Falla agreed. Id. at 9:7-10.
Sentencing was twice continued to allow completion of the sex offender evaluation. Mots. to Continue (Docs. 7-6, 7-7). It apparently was completed on or about November 3, 2009. Evid. Hr'g Tr. at 155:14-19. On November 12, 2009, the State petitioned the trial court to revoke Clugston's release on bond pending sentencing, based on his violation of the condition that he abide by all laws and refrain from consuming alcohol. Pet. to Revoke (Doc. 7-8) at 1-2. The petition was based on Clugston's arrest on November 10, 2009, for driving under the influence. According to the documents filed in support of the petition to revoke and subsequent criminal charges, before Clugston was stopped by an officer, he was driving so erratically that he forced other vehicles off the road. His blood-alcohol content was 0.201. Based on that incident, on November 12, 2009, Clugston was again charged, in No. DC 09-511, with criminal endangerment and with a misdemeanor count of driving under the influence ("DUI"), a violation of Mont. Code Ann. § 61-8-401(1)(a). Pet. to Revoke at 3; Aff. in Supp. of Information (Doc. 7-9) at 2-3 ¶¶ 1-4; Information (Doc. 7-10) at 1-2.
On November 18, 2009, Clugston signed a written plea agreement prepared by defense counsel. Plea Agreement (Doc. 7-12) at 1 (letterhead). The agreement addressed both the new charges in 09-511 and the charges to which Clugston had already pled guilty in 07-495. The plea agreement stated that Clugston had "considered the most severe sentence that could be imposed, " understood the sentence to be imposed was "within the sole discretion of the sentencing Judge and the State does not make any promise or representation as to what the sentence will be, " and understood "if the Court does not impose the sentence recommended by the prosecutor, the Court may... allow me to withdraw my plea of guilty." Plea Agreement at 3 ¶¶ 14-15, 17. It also stated that the agreement "encompasses all of the understanding of the parties" and "[n]o other promises have been made... other than those specified" in the agreement. Id. ¶ 19. The State agreed to recommend a total sentence, incorporating all counts of conviction, of 20 years with ten suspended, plus a consecutive misdemeanor sentence for DUI. Id. at 4 ¶ 2; see also Sentencing Tr. (Doc. 7-13) at 8:23-9:2 (defense counsel represents that a ten-year sentence, with all time suspended, was a term of the parties' agreement at the time trial was interrupted and Clugston entered his guilty plea in 07-495). The State agreed Clugston would be permitted to withdraw from the agreement "[a]t any time prior to entry of a guilty plea, " after entry of a guilty plea if the State failed to perform its obligations, or "[i]f the Court refuses to accept the Defendant's plea of guilty." Id. On November 19, 2009, Clugston pled guilty to both charges in DC 09-511. Minutes (Doc. 7-11) at 1.
On December 11, 2009, a consolidated sentencing hearing was held, addressing both cases together. The State recommended what it had agreed to recommend. Defense counsel requested ten years with five suspended for criminal endangerment in 09-511 and ten years, all suspended, in 07-495. Sentencing Tr. (Doc. 7-13) at 9:2-11. The trial judge sentenced Clugston to the sentence he requested, a total of 20 years with 15 suspended. Written judgment was entered on January 27, 2010. Judgment (Doc. 7-15) at 1.
As a condition of the suspended portions of Clugston's sentences, the trial judge stated:
[A]ny probation or release into the community would be on the conditions set out on pages 9, 10, 11 and 12 of your Presentence Investigation.
... You do have to complete phase one of a sex offender treatment program. If it can be done at the prison it should be done there, but it's not - but if you do not have time to complete that at prison it can be completed once you're released from prison on either parole or discharge.
Sentencing Tr. at 16:15-18, 16:23-17:3. One of the conditions on page 12 of the Presentence Investigation Report stated:
The Defendant will enter and successfully complete Phase I sexual offender treatment with a MSOTA clinical member or associate member with supervision, or equivalent, who is approved by the state and the Probation & Parole Officer and at the Defendant's expense. The Defendant shall abide by all treatment rules and recommendations of the treatment provider.
Presentence Investigation Report (Doc. 7-14) at 12 ¶ 34 (bold text in original); see also Judgment (Doc. 7-15) at 8 ¶ 18.
To be clear, the trial court's requirement that Clugston complete phase one of a sex offender treatment program was not a restriction on his eligibility for parole. It was a condition he was required to fulfill in order to discharge the suspended terms of his sentence. Compare Sentencing Tr. at 15:21-23, 16:13-14, with id. at 15:24-16:3, 16:23-17:3. The trial court's condition is separate and distinct from the Parole Board's condition, described below. Elsewhere in this Order, the trial court's requirement ...