Submitted on Briefs: November 30, 2016.
FROM: District Court of the Eighth Judicial District, In and
For the County of Cascade, Cause No. DDC-14-184 Honorable
Dirk M. Sandefur, Presiding Judge.
Appellant: Carl B. Jensen, Attorney at Law, Great Falls,
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana John W.
Parker, Cascade County Attorney, Great Falls, Montana.
McGrath Chief Justice.
Pursuant to Section I, Paragraph 3(c), 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
In December 2014 a jury convicted Garrett Whitegrass of
felony sexual intercourse without consent. Whitegrass appeals
and we affirm. The issue on appeal is whether
Whitegrass's attorney provided effective assistance of
The victim reported to the emergency room for treatment in
April 2014. The evidence showed that she had been violently
assaulted, suffering a concussion, severe trauma to her face
including broken bones, black eyes and severe bruising, bite
marks on her body and severe vaginal injuries. Whitegrass
admitted to having intercourse with the victim, but claimed
that he either blacked out and did not remember inflicting
any injuries, or that someone else was responsible. The
District Court continued the trial date twice at the request
of the defense to allow for evidence analysis and witness
A week prior to trial the State obtained a recording of a May
2014 phone conversation between Whitegrass and his parents.
The State provided the defense a copy of the recording on
Wednesday of the week before trial. While Whitegrass
remembered talking to his parents, he believed that he had
not said anything incriminating and so was not concerned that
the State had the recording. On the recording Whitegrass
stated, among other things, that the victim was
"slutty" and that she "probably wanted
it." At trial the defense objected to the recording on
the basis that its probative value was outweighed by its
prejudicial effect, but the District Court admitted the
evidence. Whitegrass testified that the point of the
conversation with his mother was that he only wanted the
victim to "tell the truth."
Defense counsel met with Whitegrass at or near the time the
State produced the recording to discuss the State's plea
offer of ten years with five suspended. Whitegrass rejected
the offer and countered with eight years with five suspended,
which the State rejected.
As the case proceeded to trial the District Court considered
the admissibility of a spent condom found in the yard of
Whitegrass's residence. DNA analysis indicated that the
semen came from Whitegrass's brother. The District Court
concluded that evidence of the condom was not admissible
under the Rape Shield statute. On the second day of trial the
defense announced that it had discovered Whitegrass's
cell phone the previous night and made it available to the
State. The District Court later admitted some of the text
messages that were generated between Whitegrass and the
victim both prior to and after the rape. Those messages
implied that the victim agreed to meet Whitegrass; that she
was bringing drugs for him (Klonopin); and that the two
planned to have sex. The content of these messages caused the
State to recall the victim, who recanted parts of her
testimony from the day before in which she denied that she
had given drugs to Whitegrass.
After the jury convicted Whitegrass the District Court
granted a defense motion to appoint new counsel for
post-trial proceedings. Whitegrass's new attorney filed a
"Motion to Enforce Plea Offer" requesting that the
State be required to re-offer its rejected plea deal of ten
years with five suspended. The District Court conducted an
evidentiary hearing. The parties apparently agreed that the
hearing would not focus on whether Whitegrass's trial
counsel provided effective assistance.
Trial counsel testified that on December 3 he received the
recording of the phone conversation between Whitegrass and
his parents, and that it contained incriminating statements.
Counsel testified that he believed the biggest hurdle for the
defense was the severity of the victim's injuries, but
that there was a chance of "prevailing" by
impeaching her account of the events. He said that he
probably recommended that Whitegrass take the State's
plea offer but was not sure. Whitegrass testified that he
knew about the recorded conversation before he rejected the
State's plea offer, but that his construction of the
situation was that the conversation was "all the State
had on me"; that they "didn't have DNA on
me"; and that the State's case was "weak."
At the conclusion of the testimony the District Court
determined that Whitegrass had not demonstrated that he was
denied the opportunity to make a knowing and voluntary plea
decision. Rather, Whitegrass made a deliberate choice to not
learn more about the evidence (principally the recording)
because of his own belief that he would not have said
anything that damaged his defense. The District Court noted
that Whitegrass never claimed that his attorney failed to
discuss the recording with him and never denied that he ...