Submitted on Briefs: April 19, 2017
Appellant: Chad Wright, Chief Appellate Defender, Koan
Mercer, Assistant Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Tammy K
Plubell, Assistant Attorney General, Helena, Montana Leo
Gallagher, Lewis and Clark County Attorney, Melissa Broch,
Deputy County Attorney, Helena, 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
Gary Lee Enzler (Enzler) appeals from the denial of his
post-sentencing motion to withdraw his guilty plea. We
Enzler pled guilty to four counts of felony sexual assault of
a minor in 2011. The District Court conducted a colloquy
during which Enzler clearly and affirmatively answered
questions about the facts of the case and stated he
understood the consequences of his plea. The District Court
accepted Enzler's guilty plea and ordered a pre-sentence
investigation. Dr. Bowman Smelko, psychologist, and Tracy
Vaughn, LCPC, conducted separate psychological evaluations of
Enzler prior to sentencing. Both Smelko and Vaughn determined
Enzler was competent, rational, and understood what he was
doing. At the sentencing hearing, the District Court deviated
from the plea agreement. It gave Enzler the opportunity to
withdraw his guilty plea. After consultation with counsel,
Enzler stated he did not wish to withdraw his plea. The
District Court sentenced Enzler to forty-five years in the
Montana State Prison with twenty-nine years suspended.
In January 2014, Enzler filed a motion to withdraw his guilty
plea, and counsel was appointed. Enzler asserted he pled
guilty because his trial attorneys told him to do so and that
he was not in his "right mind." In August 2014,
Enzler's counsel filed a request for psychological
evaluation and moved to find Enzler unfit to proceed. The
State did not object. The District Court found he was unfit
to proceed and ordered him transported to the Montana State
Hospital for observation and evaluation.
On May 4, 2015, the District Court conducted a hearing on the
motion to withdraw his guilty plea. Enzler was present but
did not testify. The District Court denied Enzler's
motion, finding that while he was currently suffering
significant mental health issues, the focus of the proceeding
was Enzler's competency at the time of the change of plea
hearing in 2011. Enzler appeals.
This Court reviews a district court's denial of a motion
to withdraw a guilty plea de novo. State v.
Hendrickson, 2014 MT 132, ¶ 12, 375 Mont. 136, 325
P.3d 694. Whether the plea was voluntarily entered is a mixed
question of law and fact. Hendrickson, ¶ 12.
For the first time on appeal, Enzler argues that the District
Court violated his right to due process by holding an
evidentiary hearing on his motion to withdraw while he
claimed to be unfit to proceed. As a general rule, this Court
will not entertain new issues that were not raised in the
district court. State v. Peterson, 2013 MT 329,
¶ 26, 372 Mont. 382, 314 P.3d 227. We decline to do so
here. Plain error review is discretionary. State v.
Favel, 2015 MT 336, ¶ 13, 381 Mont. 472, 362 P.3d
A plea of guilty is constitutionally valid only to the extent
it is voluntary and intelligent. State v. Usrey,
2009 MT 227, ¶ 17, 351 Mont. 341, 212 P.3d 279. For a
defendant's guilty plea to be voluntary, the defendant
must be mentally competent and able to understand the plea.
Usrey, ¶ 17. We will uphold a district
court's findings of fact, including if a plea was
voluntary and intelligent, unless they are clearly erroneous.
Usrey, ¶ 13. Findings of fact are clearly
erroneous if they are unsupported by substantial evidence.
Usrey, ¶ 13.
The District Court found that Enzler's 2011 guilty plea
was made voluntarily and intelligently. He signed a written
plea agreement and advised the court he "read every
page" and absolutely understood it. Enzler actively
participated in the colloquy, assuring the District Court he
was fully aware of the direct consequences of his plea and
able to understand the proceedings. He was represented by
counsel and he answered yes to the court's question if he
was happy with the services of his attorney. He told the
court that no one had pressured him to enter a guilty plea.
His attorneys indicated they believed Enzler had been
properly advised of his rights. Further, the presentence
psychological evaluations of Enzler both showed he was
competent at the time of his guilty plea.
The findings that Enzler was competent to plead guilty in
2011 are determinative. They were supported by substantial
evidence and we see no basis in fact or law to disturb the