Submitted on Briefs: January 24, 2018.
FROM: District Court of the Third Judicial District, In and
For the County of Powell, Cause No. DC 06-03 Honorable Ray
Dayton, Presiding Judge
Appellant: Randy Bill Ring, Self-Represented, Deer Lodge,
Appellee: Timothy C. Fox, Montana Attorney General, C. Mark
Fowler, Assistant Attorney General, Helena, Montana, Lewis K.
Smith, Powell County Attorney, Deer Lodge, Montana
JEREMIAH SHEA JUDGE.
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
Randy Bill Ring ("Ring") appeals the Powell County
District Court's Order denying his Motion to Withdraw a
Plea of Guilty of two counts of forgery in violation of
§ 45-6-325(1)(b), MCA, and denying his Motion for
Discovery. In 2006, the State charged Ring with two counts of
forging signatures on a car and motorcycle lien. On October
16, 2007, Ring signed a written Plea Agreement and Waiver of
Rights pleading guilty to two counts of forgery, and the
District Court held a change of plea hearing the same day. At
the hearing, counsel presented the written Plea, and the
District Court proceeded through a colloquy, questioning Ring
about whether he understood the rights he was waiving and was
entering his pleas freely and voluntarily. Ring acknowledged
he understood the rights he was waiving, and stated that he
was entering his pleas freely and voluntarily, and the
District Court accepted Ring's pleas. On April 3, 2008,
the District Court entered a judgment and sentenced Ring to
ten years suspended on each forgery count, to run concurrent
with each other. In the judgment, the District Court
specifically found that Ring's guilty pleas were freely
and voluntarily entered.
In 2011, the State petitioned to revoke Ring's forgery
sentence; Ring admitted the revocation allegations and, on
February 28, 2012, the District Court entered a judgment on
the Petition to Revoke. On March 1, 2012, the District Court
entered an amended judgment revoking the suspended portion of
Ring's sentence. Ring applied for sentence review. In
2013, the Sentence Review Division affirmed the District
On April 20, 2016, Ring filed a Motion to Withdraw his Guilty
Plea and a Motion for Discovery. On November 10, 2016, the
District Court issued its order denying Ring's Motion to
Withdraw a Plea of Guilty and, because his Motion for
Discovery was contingent on his Motion to Withdraw a Plea of
Guilty, this Motion was also denied. The District Court held
that Ring's Motion to Withdraw a Plea of Guilty was time
barred because he failed to present a factual basis for newly
discovered evidence. Further, the District Court again held
that Ring had entered valid guilty pleas based on the words
of the signed plea agreement and the colloquy conducted prior
to entry of the plea, and that there was "no factual
basis presented to conclude [Ring] entered guilty pleas
because defense counsel or anyone else threatened him."
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 judgment of conviction becomes final. Section
46-16-105(2), MCA. This Court reviews a district court's
ruling on a motion to withdraw a plea to determine whether
the plea was voluntary. State v. Muhammad, 2005 MT
234, ¶ 12, 328 Mont. 397, 121 P.3d 521. Determining the
voluntariness of a plea is not a discretionary matter, but a
mixed question of law and fact to be reviewed de novo; thus,
we review underlying findings of fact for clear error,
questions of law for correctness, and the ultimate question
of voluntariness de novo. State v. Warner, 2015 MT
230, ¶ 9, 380 Mont. 273, 354 P.3d 620 (citing State
v. Warclub, 2005 MT 149, ¶¶ 17, 24, 327 Mont.
352, 114 P.3d 254); see also State v. Lone Elk, 2005
MT 56, ¶ 19, 326 Mont. 214, 108 P.3d 500, overruled
in part by State v. Brinson, 2009 MT 200, ¶ 9, 351
Mont. 136, 210 P.3d 164. Finally, a defendant's claims of
ineffective assistance of counsel ("IAC") are mixed
questions of law and fact we review de novo. Whitlow v.
State, 2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d
A guilty plea is valid if made knowingly, voluntarily, and
intelligently. State v. Keys, 1999 MT 10,
¶ 12, 293 Mont. 81, 973 P.2d 812. However, a guilty plea
may be withdrawn for good cause, including involuntariness.
Section 46-16-105(2), MCA; State v. McFarlane, 2008
MT 18, ¶ 11, 341 Mont. 166, 176 P.3d 1057;
Warclub, ¶ 16. In determining the voluntariness
of guilty pleas, we apply the United States Supreme
Court's standard from Brady v. United States,
397 U.S. 742, 90 S.Ct. 1463 (1970), and we will not overturn
a district court's denial of a motion to withdraw a
guilty plea "if the defendant was aware of the direct
consequences of such a plea, and if his plea was not induced
by threats, misrepresentation, or an improper promise such as
a bribe." Warclub, ¶ 32 (citing
Brady, 937 U.S. at 755, 90 S.Ct. at 1472).
A motion to withdraw a guilty plea must be filed within one
year after the judgment becomes final. Section 46-16-105(2),
MCA. A judgment becomes final "when the time of appeal
to the Montana Supreme Court expires . . . ." Section
46-16-105(2)(a), MCA. An appeal of a criminal judgment
"must be taken within 60 days after entry of the
judgment from which the appeal is taken." M. R. App. P.
4(5)(b)(i). A narrow exception applies when a convicted
person raises a claim of actual innocence supported by
evidence, which would result in a fundamental miscarriage of
justice were he not allowed to withdraw his guilty plea.
Section 46-16-105(2), MCA; see also State v.
Montgomery, 2010 MT 193, ¶¶ 17-18, 357 Mont.
348, 239 P.3d 929. The burden remains on the convicted person
to make a showing of innocence. Section 46-16-105(2), MCA;
Montgomery, ¶¶ 17-18.
A criminal defendant's right to counsel under the Sixth
Amendment of the United States Constitution and Article II,
Section 24, of the Montana Constitution includes the right to
effective assistance of counsel. Miller v. State,
2012 MT 131, ¶ 12, 365 Mont. 264, 280 P.3d 272. We apply
the two-pronged test set forth in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), to a
defendant's claim of IAC. Whitlow, ¶ 10.
The first prong of the Strickland test requires the
defendant to show that his counsel's performance was
deficient, which requires he prove that counsel's
performance fell below an objective standard of
reasonableness. Whitlow, ¶ 10 (citing
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064);
Bishop v. State, 254 Mont. 100, 103-04, 835 P.2d
732, 734 (1992). The second prong of the Strickland
test requires the defendant to prove that his counsel's
deficient performance prejudiced the defense, which requires
he demonstrate a reasonable probability that, but for
counsel's errors, he would not have pled guilty and would
have insisted on going to trial. State v. Thee, 2001
MT 294, ¶ 9, 307 Mont. 450, 37 P.3d 741, overruled
on other grounds by Whitlow, ¶ 13; State v.
Turner, 2000 MT 270, ¶ 65, 302 Mont. 69, 12 P.3d
Ring argues on appeal that his plea was not entered
voluntarily, intelligently, and knowingly, and that he
misunderstood the nature of the plea agreement and
consequences of the plea. Ring further asserts that the plea
colloquy transcript is incomplete because he had a private
conversation with his counsel during the change of plea
hearing where he stated that he believed he was innocent and
therefore did not wish to plead guilty. Ring also argues that
his attorney told Ring that if he went to trial he would be
convicted. Finally, Ring argues that his motion to withdraw
is not ...