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Whalen v. State

Supreme Court of Montana

September 26, 2017

TIMOTHY J. WHALEN, Petitioner and Appellant,
v.
STATE OF MONTANA, Respondent and Appellee.

          Submitted on Briefs: June 28, 2017

         APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 14-1430 Honorable Ingrid G. Gustafson, Presiding Judge

          For Appellant Timothy Joseph Whalen, self-represented, Columbus, Montana

          For Appellee Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana, Scott D. Twito, Yellowstone County Attorney, Billings, Montana

          Dirk M. Sandefur Justice

         ¶1 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 Montana Reports.

         ¶2 Timothy J. Whalen (Whalen) appeals the denial of his petition for postconviction relief and concurrent motion to withdraw his guilty pleas by the Montana Thirteenth Judicial District Court, Yellowstone County. We affirm.

         ¶3 On the morning of September 25, 2009, Whalen, a licensed commercial school bus driver transporting a bus full of students, struck a 15-year-old girl in a designated crosswalk in Billings, Montana. He immediately stopped the bus, ran to and checked on the girl, then got back in the bus, and drove off without identifying himself or reporting the incident to authorities. After delivering his passengers, Whalen returned to the accident scene where police ultimately arrested him upon determining that he was under the influence of alcohol at the time of the accident and had caused serious bodily injury to the girl struck in the crosswalk.

         ¶4 On August 13, 2010, Whalen pled guilty in district court to one count of negligent vehicular assault (§ 45-5-205, MCA) and one count of criminal endangerment (§ 45-5-207, MCA). Pursuant to the plea agreement, the State dismissed an alternative count of felony criminal endangerment and a count of felony failure to stop or remain at the scene of a personal injury accident. Upon hearing, the District Court ultimately sentenced Whalen to concurrent six-year terms of commitment to the Montana Department of Corrections (DOC) with 18 months suspended and credit for time served. Whalen discharged onto probation on December 17, 2012.

         ¶5 On February 5, 2013, we affirmed Whalen's conviction and sentence in State v. Whalen, 2013 MT 26, 368 Mont. 354, 295 P.3d 1055 (alleged insufficiency of plea waiver waived, legal sentence imposed, lawful probation conditions imposed, and 8th Amendment challenge to sentence and conditions of incarceration waived). On October 6, 2014, Whalen timely-filed a district court petition for postconviction relief (PCR) and concurrent motion to withdraw his guilty pleas.[1] On July 20, 2016, following a three-day evidentiary hearing, the District Court issued a comprehensive, 29-page order denying Whalen's concurrently filed PCR petition and motion to withdraw pleas. Whalen fully discharged his sentence on July 19, 2016.

         ¶6 Based on various asserted claims of error, Whalen's overlapping PCR petition and motion to withdraw pleas essentially assert that: (1) his pleas and plea waiver were not valid because they were not knowing, voluntary, and intelligent due to ineffective assistance of counsel; (2) the District Court unlawfully incarcerated him, thereby denying him the opportunity to present an effective defense; and (3) this Court prejudiced his exercise of available post-plea rights and remedies by refusing to stay his initial appeal and allow the District Court to re-assume jurisdiction to entertain his earlier motion to withdraw his guilty pleas. Whalen ultimately seeks restoration of his right to trial upon withdrawal or setting aside of his guilty pleas.

         ¶7 Our standard of review of a district court denial of a PCR petition is whether the court's findings of fact are clearly erroneous and whether its conclusions of law are correct. McGarvey v. State, 2014 MT 189, ¶ 14, 375 Mont. 495, 329 P.3d 576. The question of whether a defendant voluntarily pled guilty and thereby knowingly, voluntarily, and intelligently waived associated rights is a mixed question of fact and law reviewed de novo. State v. Warclub, 2005 MT 149, ¶ 17, 327 Mont. 352, 114 P.3d 254. The question of whether the performance of counsel was constitutionally deficient is similarly a mixed question of fact and law. McGarvey, ¶ 14.

         ¶8 Upon a showing of good cause, a district court may allow a defendant to withdraw a guilty plea before judgment or within one year after a judgment of conviction becomes final. Section 46-16-105(2), MCA. An involuntary guilty plea is good cause for withdrawal of the plea under § 46-16-105(2), MCA. State v. Brinson, 2009 MT 200, ¶ 8, 351 Mont. 136, 210 P.3d 164. A plea is not voluntary if the defendant did not understand the consequences of the plea or the plea was induced by threats, misrepresentation, improper promises, or bribes. Brinson, ¶ 8; Warclub, ¶ 32; State v. Lone Elk, 2005 MT 56, ¶¶ 13-16 and 21-23, 326 Mont. 214, 108 P.3d 500 (requirement for knowing, voluntary, and intelligent plea waiver), overruled on other ground by Brinson, ¶ 9 (rejecting "however slightly" standard of inducement). A defendant must prove that a prior plea was not voluntary by a preponderance of the evidence. State v. Cobell, 2004 MT 46, ¶ 12, 320 Mont. 122, 86 P.3d 20.

         ¶9 A criminal defendant's right to counsel under the United States Constitution, Amendments VI and XIV, and Montana Constitution, Article II, section 24, includes the right to effective assistance of counsel. Miller v. State, 2012 MT 131, ¶ 12, 365 Mont. 264, 280 P.3d 272. To prevail on a claim of ineffective assistance of counsel (IAC), a defendant must affirmatively prove: (1) that counsel's performance was in fact deficient and, if so, (2) the deficient performance resulted in actual prejudice to the defendant's right to a fair trial. Miller, ¶ 13; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). The claimant must support an IAC claim with record facts; conclusory allegations or assertions are insufficient. St. Germain v. State, 2012 MT 86, ¶ 8, 364 Mont. 494, 276 P.3d 886. Failure of proof of one Strickland prong defeats the claim and obviates the need for consideration of the ...


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