Submitted on Briefs: April 25, 2018
FROM: District Court of the Eleventh Judicial District, In
and For the County of Flathead, Cause Nos. DC-13-223(B);
DC-95-045(A); DC-96-204(B); DC-96-286(A); DC-09-089(B)
Honorable Robert B Allison, Presiding Judge.
Appellant: Chad Wright, Appellate Defender, Eileen A. Larkin,
Assistant Appellate Defender, Helena, Montana
Appellee:Timothy C. Fox, Montana Attorney General, Madison L.
Mattioli, Assistant Attorney General, Helena, Montana
J. Corrigan, Flathead County Attorney, Alison E. Howard,
Deputy County Attorney, Kalispell, Montana.
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
Willis Louis Thomason, Jr. (Thomason) appeals from the
September 15, 2014 order of the Eleventh Judicial District
Court, Flathead County, denying his motion to withdraw guilty
plea. We affirm.
In 2013, the State filed an Information charging Thomason
with two felony counts of robbery. Thomason was charged after
he came forward and confessed to two unsolved robberies. On
February 3, 2014, the morning of trial, Thomason decided to
accept a plea deal. Prior to orally pronouncing the plea
deal, Thomason expressed he would accept the plea deal but
wanted a mental health evaluation. The State stated it would
not oppose a mental health evaluation and the District Court
agreed that such evaluation may assist the District Court at
sentencing. The District Court stated Mr. Bennett,
Thomason's counsel, should file a motion to allow the
District Court to order a mental health evaluation. However,
no such motion was ever made by Mr. Bennett.
Mr. Bennett proceeded with oral pronouncement of the plea
deal. Mr. Bennett stated the agreement would provide: (1)
Thomason would plead guilty to both counts of robbery, (2)
the State would recommend a fifteen-year sentence on each
count to run consecutive with no suspended time, (3) the
State would recommend a net sentence of 25 years to run
consecutive to the robbery counts for Thomason's four
revoked sentences, (4) Thomason would be free to argue a
lesser amount of time, (5) the State would dismiss its
request for persistent felony offender designation, and (6)
the State would not oppose Thomason's request for a
mental health evaluation, leaving it up to the District Court
to determine whether or not to order a mental health
The District Court then proceeded with the colloquy ensuring
Thomason fully understood the plea agreement. Thomason
indicated he comprehended the plea agreement, was satisfied
with his attorney's services, and that he entered into
the agreement freely and voluntarily. Thomason pled guilty to
both counts of felony robbery. The District Court set a
sentencing hearing for April 24, 2014. Mr. Bennett requested
a continuance to complete the pre-sentence investigation
report and mental health evaluation. The sentencing hearing
was reset for June 19, 2014.
On June 19, 2014, Mr. Bennett informed the District Court
Thomason wanted to withdraw his guilty plea. Specifically,
Mr. Bennett stated Thomason was unhappy with Mr.
Bennett's handling of the plea agreement and as such Mr.
Bennett was uncomfortable with continuing to represent
Thomason at sentencing. After this discussion, the District
Court proceeded with sentencing. The State recommended a net
total of 55 years to Montana State Prison. Before the
District Court imposed sentencing, Thomason then requested
postponement for a week. Thomason stated he wanted to
withdraw his guilty plea because he had discovered evidence
proving he was innocent of one of the robberies. Thomason
further stated his ground for withdraw of plea was not Mr.
Bennett's performance as an attorney, it was about
evidence being presented. Thomason also complained he had not
yet received a mental health evaluation. The District Court
explained no motion requesting a mental health evaluation had
been filed and no mental health evaluation had been ordered.
Sentencing proceeded and the District Court ultimately
followed the State's recommendation sentencing Thomason
to 55 years to the Montana State Prison.
On August 21, 2014, Thomason, appearing pro se, filed a
motion to withdraw his guilty plea. Thomason's motion
outlined several pieces of evidence which he asserts show his
innocence in one of the robberies. This motion failed to
mention the lack of a mental health evaluation. The District
Court denied the motion, concluding Thomason failed to
establish his guilty plea was involuntary.
On appeal of the denial of a motion to withdraw guilty plea,
this Court reviews findings of underlying fact for clear
error and conclusions of law for correctness. State v.
Warclub, 2005 MT 149, ¶ 24, 327 Mont. 352, 114 P.3d
254. This Court reviews mixed questions of law and fact
regarding the voluntariness of a plea de novo.
Warclub, ¶ 24. This Court reviews ineffective
assistance of counsel claims de novo. Whitlow v.
State, 2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d
861. This Court reviews denials ...