Submitted on Briefs: March 8, 2017
FROM: District Court of the Eighteenth Judicial District, In
and For the County of Gallatin, Cause No. DC-13-181A
Honorable Holly Brown, Presiding Judge.
Appellant: Mark S. Hilario, Hilario Law Firm, Billings,
Appellee: Timothy C. Fox, Montana Attorney General, Madison
L. Mattioli, Assistant Attorney General, Helena, Montana
Marty Lambert, Gallatin County Attorney, Eric N. Kitzmiller,
Deputy County Attorney, Bozeman, 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
Georgia Kaye Cold (Cold) appeals from an August 5, 2015
District Court order denying her motion to withdraw her no
contest plea. We affirm.
On August 8, 2013, the State charged Cold with one felony
count of theft, as part of a common scheme or plan, in
violation of § 45-6-301, MCA, based on
misrepresentations she made in diamond sales. On September
10, 2013, Cold and her counsel appeared in Court, she pled
not guilty, and trial was set. Before trial Cold filed a
motion to vacate the jury trial and schedule a change of plea
hearing. At the May 27, 2014 hearing, Cold's counsel
submitted a written acknowledgment and waiver of rights
signed by Cold and counsel. Cold acknowledged she was not
physically ill, under the influence of any drugs or alcohol,
was not experiencing any emotional disability preventing her
from knowing what she was doing, that she understood the
maximum penalty, and discussed the consequences of the no
contest plea with counsel. The State submitted a written plea
agreement with recommendations including a three-year
deferred sentence and a suggestion that the District Court
determine the amount of restitution.
The District Court conducted a colloquy with Cold. She
indicated she understood that by entering a no contest plea,
she was waiving her rights to a trial, and that the
recommendations were non-binding on the District Court. Cold
acknowledged she would be unable to withdraw her plea. Cold
told the District Court that she wished to proceed, did not
need additional time to speak with her attorney, and did not
have any questions. Cold entered a no contest plea to one
felony count of theft, as part of a common scheme or plan, in
violation of § 45-6-301, MCA. The State made an offer of
proof to establish the basis for the plea. The District Court
asked counsel if she believed the plea was in Cold's best
interest. Cold's attorney indicated that she encouraged
Cold to go to trial but Cold had reasons for why she wanted
to plead no contest and based on those reasons, the plea was
in her best interest. The District Court accepted the plea
and scheduled the sentencing and restitution hearing.
On July 24, 2014, Cold and counsel appeared at the sentencing
hearing. Cold offered detailed testimony. The District Court
described her testimony as clear and articulate. Cold did not
exhibit any inability to understand the proceedings or the
questions being asked. Cold testified she physically,
emotionally, and mentally could not handle going to trial.
Cold did not indicate a desire to withdraw her no contest
plea. The District Court ordered a five-year suspended
sentence, with ninety days at the Gallatin County Detention
Center on work release. The District Court ordered Cold to
pay full restitution of $111, 790 and $11, 179 in fees.
On August 18, 2014, Cold met with Dr. Kenneth Olson,
psychiatrist, regarding her headaches and inability to focus.
The same day Cold met with Amy Keefer, a therapist and
licensed clinical social worker, regarding her "feeling
overwhelmed" and "struggling in life." Both
began treating her.
On December 23, 2014, five months after sentencing, Cold
filed a motion to withdraw her no contest plea. Cold asserted
that new evidence of an undiagnosed traumatic brain injury
demonstrates that she did not enter her plea knowingly,
intelligently or voluntarily, that she was innocent, and her
counsel had made promises and misrepresentations that caused
her to waive her rights by entering a no contest plea.
At a hearing held on June 9, 2015, Cold testified she had an
auto accident in 2012 resulting in a traumatic brain injury.
Dr. Olson testified Cold's Magnetic Resonance Imaging
(MRI) results were consistent with a traumatic brain injury.
He testified Cold had memory and executive functioning
problems, is easily frustrated when answering questions, and
intermittently becomes confused. Dr. Olsen indicated Cold was
functioning at a "very low level." Amy Keefer
testified Cold was suffering from depression. Neither could
testify to Cold's level of functioning when she entered
her no contest plea. Cold testified she did not remember
meeting with counsel, being advised of the evidence against
her, or the change of plea hearing. Cold's counsel did
not have any concern that Cold was unable to enter a
voluntary, knowing, and intelligent plea. Counsel testified
that Cold wanted to avoid negative publicity. The District
Court denied Cold's motion to withdraw on August 5, 2015,
finding the record did not support Cold's claim that her
no contest plea was not entered voluntarily, knowingly, or
intelligently. Cold appeals.
This Court reviews underlying findings of fact for clear
error and conclusions of law for correctness. State v.
Garner, 2014 MT 312, ¶ 21, 377 Mont. 173, 339 P.3d
1 (citing State v. Warclub, 2005 MT 149, ¶ 24,
327 Mont. 352, 114 P.3d 254). When the voluntariness of the
plea is at issue, we will review that ultimate mixed question
of law and fact de novo, to determine if the trial court was
correct in holding that the plea was voluntary.
Warclub, ¶ 24. This Court reviews ...