Submitted on Briefs: October 26, 2016
FROM: District Court of the First Judicial District, In and
For the County of Lewis and Clark, Cause No. BDC 2014-280
Honorable Jeffrey M. Sherlock, Presiding Judge
Appellant: Chad Wright, Chief Appellate Defender, Moses
Okeyo, Assistant Appellate Defender, Helena, Montana.
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana Leo
Gallagher, Lewis and Clark County Attorney, Luke Berger,
Deputy County Attorney, Helena, Montana.
McGrath Chief Justice.
Billy Joe Watts (Watts) appeals from the District Court's
denial of his motion to dismiss his previous Partner Family
Member Assault (PFMA) convictions based on the
unconstitutionality of the PFMA statute. We affirm.
We restate the issue on appeal as follows:
the District Court err when it denied Watts' motion to
dismiss his felony conviction of Partner Family Member
Assault and reduce his charge to a misdemeanor at
AND PROCEDURAL BACKGROUND
The State charged Watts with his fifth PFMA, a felony, for
conduct occurring on June 23, 2014. Watts was on probation
for a 2012 PFMA conviction. Watts has four prior PFMA
convictions (2002 misdemeanor; 2003 misdemeanor; 2003 felony;
and 2012 felony). The State filed a notice to classify Watts
as a persistent felony offender (PFO) based on his 2003 and
2012 PFMA convictions.
Watts negotiated a plea agreement with the State where he
agreed to plead guilty to PFMA (a felony) and the State
agreed to withdraw the PFO notice. The plea agreement Watts
signed included a proper acknowledgement and waiver of
rights. The form provided that Watts understood and had the
opportunity to examine the charges against him with his
attorney; that his attorney fully advised and explained to
him his rights, and the possible punishment for his crime;
that Watts waived all the rights guaranteed by a trial,
except the right to effective assistance of counsel; and that
Watts was not threatened, coerced, forced, intimidated, or
influenced in any way.
Watts voluntarily pled guilty on December 18, 2014. During
the colloquy the judge informed Watts of his right to remain
silent, which Watts waived by answering questions. Watts
informed the court he was of sound mind, not under the
influence of any drugs or alcohol, was happy with his
attorney's work and understood the maximum punishment for
his crime as well as the fact he could receive consecutive
sentences for violating his parole. Watts did not reserve his
right to appeal any issue.
At the February 24, 2015 sentencing hearing Watt's
counsel advised the court she intended to file a brief
challenging his prior convictions and the constitutionality
of Montana's PFMA statute. In her brief, counsel argued
the Montana PFMA statute violated the Equal Protection Clause
of the United States and Montana Constitutions. Watt's
counsel also filed a motion requesting that the District
Court dismiss the felony PFMA charge, reducing it to a
misdemeanor. The District Court denied the motion based on an
equal protection clause analysis and the severability of the
alleged offending language. Watts appeals.