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Guillen v. State

Supreme Court of Montana

April 3, 2018

ALBERTO GUILLEN, Petitioner and Appellant,
v.
STATE OF MONTANA, Respondent and Appellee.

          Submitted on Briefs: February 14, 2018

          APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 15-55 Honorable John W. Larson, Presiding Judge.

          For Appellant: Paul Sullivan, Measure, Sampsel, Sullivan & O'Brien, P.C., Kalispell, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana, Kirsten H. Pabst, Missoula County Attorney, Jason Marks, Chief Deputy County Attorney, Missoula, Montana.

          OPINION

          Laurie McKinnon Justice.

         ¶1 Alberto Guillen appeals from an order of the Fourth Judicial District Court, Missoula County, denying his petition for postconviction relief. We affirm.

         ¶2 The issues on appeal are:

1. Whether the District Court correctly denied Guillen's claim that he was actually innocent of the offense to which he pleaded guilty.
2. Whether Guillen's guilty plea was involuntary because he received ineffective assistance of counsel.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 On July 30, 2011, Guillen struck his brother, Roberto, with a van at an intersection in Missoula. The brothers were loudly arguing when Roberto got on his bicycle and started to ride away. Guillen got into the van and pursued Roberto. Guillen then hit Roberto with the van, running Roberto and the bicycle over. Guillen then left the scene. Roberto sustained severe injuries, including partial paralysis, and was in the hospital for a month following the incident.

         ¶4 On August 15, 2011, the State filed an Information charging Guillen with attempted deliberate homicide and leaving the scene of an accident resulting in serious bodily injury. The Court appointed Assistant Public Defender Ed Sheehy to represent Guillen. Following plea negotiations, the State filed an Amended Information on November 10, 2011, amending the charge of attempted deliberate homicide to attempted mitigated homicide. On that same date, Guillen filed a document titled "Plea of Guilty and Waiver of Rights, " in which Guillen pleaded guilty, acknowledged that the maximum penalty for attempted mitigated homicide was forty years, and acknowledged that the maximum penalty for leaving the scene of an accident was ten years. In that document Guillen also recognized that there was not "a plea agreement in this case and I know that the judge may sentence me to the maximum sentence allowed by law." That day, Guillen appeared in court and pleaded guilty. Guillen was again informed of the maximum penalties and told this was an "open" plea; that is, there was no plea bargain. Guillen indicated he was satisfied with his attorney, he understood the trial rights that he was waiving, he was not under the influence of any drugs or medication, and he had discussed the case and its potential outcomes with his attorney. The court accepted Guillen's guilty plea, ordered a presentence investigation, and scheduled a sentencing hearing.

         ¶5 On December 29, 2011, following testimony from Roberto's fiancé and other witnesses, the court sentenced Guillen to forty years in prison for attempted mitigated deliberate homicide and ten years, to run concurrently, for Guillen's failure to remain at the scene. On April 12, 2012, Guillen filed a pro se motion to withdraw his guilty plea alleging, among other things, that his attorney told him that his sentence would be limited to fifteen years. Following the State's response, the District Court denied Guillen's motion to withdraw his guilty plea. Guillen appealed and this Court affirmed the court's denial in State v. Guillen, No. DA 12-0319, 2013 MT 184N, ¶¶ 2, 10, 2013 Mont. LEXIS 226.

         ¶6 Guillen filed a petition for postconviction relief in District Court on January 23, 2015, alleging that he had newly discovered evidence of his actual innocence and that his attorney was ineffective during plea negotiations. The State responded and the court subsequently scheduled an evidentiary hearing. Several witnesses testified during the two-day hearing. Roberto, who remains confined to a wheelchair, testified that he initially told the police that he had no memory of being struck by the van. However, at the evidentiary hearing, Roberto testified that he recalled the incident, that it was an accident, and that he possibly swerved in front of his brother, making the collision equally his fault. Eyewitness Shannon Shields testified that she observed Guillen and Roberto physically fighting, immediately after which Guillen intentionally struck Roberto with the van. Eyewitness Diane Jontow testified that she had a clear view of the incident from her window and was certain Guillen intentionally struck Roberto with the van. Josh ...


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