Submitted on Briefs: October 4, 2017
Court of the Tenth Judicial District, In and For the County
of Fergus, Cause No. DC-2015-18 Honorable Randal I.
Spaulding, Presiding Judge
Appellant: Timothy C. Fox, Montana Attorney General, Tammy K
Plubell, Assistant Attorney General; Helena, Montana, Thomas
P. Meissner, Fergus County Attorney, Jean A. Adams, Deputy
Fergus County Attorney; Lewistown, Montana.
Appellee: Michael J. Sherwood, Michael J. Sherwood, P.C.;
The State of Montana appeals from the order entered by the
Tenth Judicial District Court, Fergus County, granting
Defendant Jason Terronez' (Terronez) motion to withdraw
his guilty plea. We affirm, addressing the following issues:
1. Is the State authorized to appeal the District
Court's order granting Terronez' motion to withdraw
his guilty plea?
2. Did the District Court err by determining that good
cause existed to permit Terronez to withdraw his guilty
AND PROCEDURAL BACKGROUND
David and Sunnshine Welton are both dentists and owned
Montana Family Dentistry in Lewistown, Montana. They have two
children: a girl, L.W. and a boy, M.W. Dana and Jason
Terronez are nurses and worked at Central Montana Medical
Center in Lewistown. They have four children: three girls and
one boy. Dana and Terronez were patients at the Weltons'
dental clinic and the families became close friends-sharing
meals, weekend gatherings, and holidays.
Sunnshine was sexually abused as a child, which made her
apprehensive about letting her children participate in
sleepovers with other families. She described herself as a
"paranoid" mom who is hypersensitive about sexual
abuse issues. As a precaution, Sunnshine educated her
children about "good touch" and "bad
touch" and initiated such conversations with them every
six months. However, she trusted Terronez and Dana, and had
permitted her daughter, five-year-old L.W., to sleep over at
the Terronez household prior to the incident in question. On
March 7, 2015, she again allowed L.W. to sleep over at the
Terronez residence. L.W. watched a movie with Terronez and
his three girls, including Terronez' oldest daughter,
nine-year-old A.T. Dana was in and out of the living room
while the others watched the movie, during which Terronez was
seated next to L.W. After the movie, Dana asked L.W. if she
wanted to go home, and L.W. said she wanted to stay at the
On March 8, L.W. was sitting on the toilet and told Sunnshine
it hurt when she peed. L.W. also reported that, while
bathing, her vagina hurt. On March 10, L.W. again complained
that her vagina hurt, and Sunnshine washed it. On March 11,
L.W. told Sunnshine that, during the movie at Terronez'
house, Terronez had put his hand into her pajamas and touched
her vagina. Sunnshine informed David, and then immediately
reported this to the Lewistown Police Department. The same
day, Sunnshine took L.W. to her physician, Dr. Bolstad, for a
sexual abuse examination. Because more than 72 hours had
lapsed since the reported contact, Dr. Bolstad did not
collect biological evidence. The examination revealed
L.W.'s external genitalia was normal, but internally
there were four discrete areas of injury. Dr. Bolstad
diagnosed the injuries as sexual abuse based on the areas of
injury and what L.W. reported.
Officer Jenness interviewed A.T., who had also been in the
room watching the movie at the Terronez residence. A.T.
initially stated that, during the movie, she was sitting next
to Terronez, but later admitted she lied to prevent Terronez
from getting into trouble. However, none of Terronez'
daughters or Dana reported they had seen Terronez do what
L.W. had reported. At defense counsel's request, Officer
Jenness also interviewed Sunnshine's brother-in-law,
Jeremy Baxter, as a possible suspect. Baxter had watched L.W.
and M.W. a week prior to the sleepover. Sunnshine had
commented that Baxter looked like a pedophile, but later said
her comment was meant as a joke. This inquiry by police did
not yield any evidence implicating Baxter. Other males in
L.W.'s life at the time were her brother, seven-year-old
M.W., and her father, David.
On March 12, the State charged Terronez with one count of
sexual intercourse without consent via digital penetration.
On March 16, Honorable Jon A. Oldenburg, District Judge,
recused himself from the case after David confronted him at a
local restaurant, and Honorable Randal I. Spaulding assumed
jurisdiction of the case. Terronez was initially represented
by attorney Craig Buehler, but on April 6, a notice of
substitution of counsel was filed indicating that Jeffry
Foster had assumed representation of Terronez. Foster filed a
motion for change of venue, arguing a reasonable apprehension
existed that Terronez could not receive a fair trial in
Fergus County because of: (1) the small size of the Fergus
County jury pool; (2) the heinous nature of the crime; (3)
both families' relationships and standing in the
community; (4) statements about the case made by the Weltons
to others in person and on social media; and (5) concerns
expressed by court staff and law enforcement about
Terronez' safety. The District Court denied the motion,
but stated the matter would be reconsidered if concerns arose
during voir dire. Foster also filed a motion for
production of all of L.W.'s medical records by the State.
After an in-camera review, the court denied the motion,
reasoning the records were "devoid of any evidence that
can fairly be characterized as exculpatory or useful as
On September 21, 2015, the trial began and the parties
selected a jury over the next two days. That morning, the
court held a final pretrial conference in-chambers with
Terronez, Foster, Deputy County Attorney Jean Adams, Deputy
County Attorney Monte Boettger, and Officer Jenness. Foster
reported he had received a "tongue lashing" from
Sunnshine and recommended that the Weltons be excluded from
trial. The court indicated it had "personally observed
some facial expressions and hand gestures and things during
the course of testimony" from the Weltons that caused
"considerable concern about potential mistrial."
The court ordered the Weltons be excluded from trial until
they testify, upon which it would re-evaluate the situation.
On September 22, the court had a conference in-chambers with
the same parties. Adams reported that Sunnshine may have had
a purposeful encounter with a prospective juror in the
women's restroom. Foster moved to extend the Weltons'
exclusion from the courthouse for the entirety of the trial.
After interviewing a witness to the incident, the court
granted the request, basing its decision mainly on
David's earlier confrontation with Judge Oldenburg and
Sunnshine's encounter with potential
jurors. Foster renewed his motion for a change of
venue, but the court denied the motion, stating instead it
would admonish the jurors not to talk about the case.
On September 23, the court held another conference with the
same parties in-chambers. Officer Jenness brought to the
court's attention a report that David, while viewing the
proceeding remotely, had stated that if the jury found
Terronez not guilty, he would "take care of it
himself." The parties discussed increased protection for
Terronez. On Friday, September 25, at another in-chambers
conference with the same parties, Officer Jenness reported to
the court that, sometime during the previous evening, a large
chunk of concrete had been thrown through the windshield of
Foster's vehicle while it was parked outside the Terronez
household. Foster renewed his motion for change of venue and
also moved for a mistrial, stating the culmination of issues
had "infect[ed] [the] proceeding." The court denied
the motion, but again sternly admonished the jurors. Foster
expressed his concern, stating he had not "had a lot of
time to process" what had occurred and he "just
[didn't] know what to do or how to handle" the
incident. Foster also expressed his concern for the Terronez
children, who were also witnesses, and the ...