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State v. Rose

Supreme Court of Montana

November 28, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
ROBERT LYSLE ROSE, Defendant and Appellant.

          Submitted on Briefs: September 6, 2017

         APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DC 02-02 Honorable Jeffrey H. Langton, Presiding Judge.

          For Appellant: Anthony R. Gallagher, Federal Defender, David F. Ness, Assistant Federal Defender, Great Falls, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana William E. Fulbright, Ravalli County Attorney, Hamilton, Montana

          OPINION

          Laurie McKinnon, Justice.

         ¶1 Robert Lysle Rose (Rose) appeals from an order entered by the Twenty-First Judicial District Court, Ravalli County. The District Court's order was issued on remand from the United States District Court for the District of Montana (Federal District Court) after Rose applied for a writ of habeas corpus. The Federal District Court concluded Rose's trial counsel was ineffective and the proper remedy was to require the State to reoffer Rose an originally un-communicated and favorable plea proposal. The District Court rejected the reoffered plea and left the conviction undisturbed. We affirm.

         ¶2 We find the following issues dispositive:

1. Did the District Court abuse its discretion in rejecting the reoffered plea agreement?
2. Did the District Court err in failing to allow Rose to withdraw his guilty plea?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 On June 6, 2003, following the conclusion of a four-day trial, a jury convicted Rose of aggravated kidnapping, assault with a weapon, and assault on a peace officer. Rose's convictions stem from a January 2002 incident wherein Rose, high on methamphetamine, kidnapped his co-worker in Kalispell and forced him, at knifepoint, to drive Rose south for several hours towards Stevensville. The co-worker attempted to flee by jumping out of the vehicle, but Rose attacked him, stabbing him in the chest, neck, and throat. Both Rose and the victim were injured in the ensuing struggle and were taken to the hospital. The victim suffered near fatal injuries. At the Ravalli County Detention Center following his arrest, Rose sprayed detention staff with pepper spray that was inadvertently left in the vehicle transporting him and which Rose had concealed in his underpants.

         ¶4 On August 10, 2003, the District Court sentenced Rose to four consecutive periods of commitment in the Montana State Prison: a 50-year term with 20-years suspended for the aggravated kidnapping charge; a 20-year term for the assault with a weapon charge; a 10-year term for the assault on a peace officer charge; and an additional 20-year persistent felony offender (PFO) term.[1] The total term was 100-years, with 20-years suspended.

         ¶5 Since 2003, Rose has engaged in more than a decade of litigation involving his convictions in both state and federal courts. This is Rose's fourth appeal before this Court. In State v. Rose, 2009 MT 4, 348 Mont. 291, 202 P.3d 749 (Rose I), we affirmed Rose's convictions. In Rose v. State, No. DA 11-0419, 2012 MT 55N, 2012 Mont. LEXIS 59, we affirmed the court's grant of summary judgment to the State following Rose's petition for a declaration that the actions of the Montana Department of Corrections violated state open meeting and public participation laws.

         ¶6 In Rose v. State, 2013 MT 161, 370 Mont. 398, 304 P.3d 387 (Rose II), we considered Rose's contention that he received ineffective assistance of counsel (IAC) when his attorney, Kelli Sather (Sather) failed to communicate a plea offer which Sather believed was illegal. Ravalli County Attorney George Corn (Corn) sent Sather a letter on May 21, 2003, setting forth a proposed plea which contemplated dismissing the aggravated kidnapping charge and the assault on a peace officer charge if Rose entered into a non-binding plea agreement, under § 46-12-211(1)(c), MCA, to felony assault with a weapon and misdemeanor assault (Plea Offer). Corn would recommend consecutive sentences for the two offenses and would agree to a "consecutive" sentence for the PFO designation of 10-years with 5 suspended. Sather correctly recognized that the Plea Offer's separate sentence for Rose's designation as a PFO was proscribed by statute. Sather made a counteroffer in light of what she believed was an illegal plea offer without conveying the Plea Offer to Rose. Rose argued that Sather's failure to convey the Plea Offer to him was deficient pursuant to Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376 (2012), and Missouri v. Frye, 566 U.S. 134, 132 S.Ct. 1399 (2012). We affirmed the denial of Rose's petition for postconviction relief without addressing whether Sather's conduct was deficient because we concluded that the Plea Offer was unlawful and could not have been imposed by the District Court. We explained that Rose could not demonstrate prejudice because the remedy for IAC arising out of a rejected plea is "to order the State to reoffer the plea agreement."

         ¶7 On July 24, 2013, Rose applied for a writ of habeas corpus in Federal District Court pursuant to 28 U.S.C. § 2254(d)(1), arguing that our decision in Rose II was contrary to clearly established precedent of the United States Supreme Court and that Rose II was an unreasonable application of federal law. In Findings and Recommendation of U.S. Magistrate Judge Jeremiah C. Lynch (Judge Lynch), dated January 6, 2016, the Federal District Court considered only two of Rose's claims to have merit. Relevant here, one of those claims was Rose's IAC claim pertaining to Sather's failure to communicate the Plea Offer. Additional discovery was authorized by the Federal District Court.

         ¶8 The depositions of Rose, Sather, and Corn were taken in June 2015 and provide some insight into the plea negotiations that occurred prior to Rose's trial 12 years earlier. Corn testified in his deposition that he made Rose two plea offers-an initial offer and the May 21, 2003 Plea Offer. In making the initial offer, Corn recollected meeting with Rose and his then-counsel Larry Mansch in-person at the jail. Corn could not recall the specific terms of his initial offer but, after their in-person conversation, Corn testified he "had the impression that [Rose] had accepted whatever it was that I had offered him." Rose, in his deposition, remembered that Corn's initial offer included the State reducing the aggravated kidnapping charge to kidnapping and recommending a 40-year maximum sentence and Rose pleading guilty to kidnapping, assault with a weapon, and assault on a peace officer. Corn testified Rose gave him the impression he would accept the initial plea after taking some time to consider it and consulting with his family. However, at a hearing held one week later, Rose told the District Court there had been insufficient time to consider the offer or discuss it with the various people he wanted to. Rose neither accepted nor rejected the initial offer stating, "I'm not totally turning down anything that Mr. Corn has offered." In his deposition, Rose testified that because he had not turned the offer down, he "always kept that in mind that that plea bargain would be there, that I could accept." After Rose failed to accept Corn's initial offer, Corn testified he "felt [he] had gotten worked" by Rose.

         ¶9 Sather testified in her deposition that when she began representing Rose, she recalled believing that accepting a plea offer was in Rose's best interest, "[b]ut he was very against it. I mean, he was very focused on witnesses, discovery, what happened, and going to trial." Sather admitted Rose was "difficult" to work with and she "couldn't keep him focused on the things that [she] was trying to find out and trying to talk to him about the case." Sather testified that she received the Plea Offer on May 21, 2003. Sather remembered researching the PFO statute because of a term included in it and, as a result of her research, "thought that [the Plea Offer] was illegal." Sather met with Corn the following day, May 22, and made a counteroffer, but could not recall the terms of her counteroffer. Sather testified: "I just remember [Corn] being angry and pulling the plea offer, saying we [the State] won't ...


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