Submitted on Briefs: October 4, 2018
District Court of the First Judicial District, In and For the
County of Broadwater, Cause No. DC 08-37 Honorable James P.
Reynolds, Presiding Judge
Appellant: Joseph P. Howard, Joseph P. Howard, P.C., Great
Appellee: Timothy C. Fox, Montana Attorney General, Tammy A.
Hinderman, Assistant Attorney General, Helena, Montana
J. Swanson, Broadwater County Attorney, Townsend, Montana
Jeremiah Shea, Justice.
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
Shawn Earl McDowell appeals from the Order of the First
Judicial District, Broadwater County, denying McDowell's
Petition for Postconviction Relief (PCR). We affirm.
On October 24, 2008, the State charged McDowell with
attempted deliberate homicide and aggravated burglary.
McDowell was indigent, and Kristina Neal of the Helena Office
of Public Defender (OPD) was appointed to represent him.
Initially, their relationship was amicable. However, Neal and
McDowell both testified the relationship deteriorated when
Neal would not file certain motions for McDowell, and
McDowell felt Neal was not doing enough on his behalf. Due to
the strained relationship with Neal, and against her advice,
McDowell began filing his own pleadings with the District
Court. Without resolution of McDowell's pro se filings,
and on Neal's motion, the District Court vacated the
scheduled trial date and set a change of plea hearing and
status hearing for January 9, 2009. The parties had reached a
plea agreement whereby the State would reduce the attempted
homicide charge to assault with a weapon and make certain
sentencing recommendations to the District Court. At the
January 9, 2009 hearing, McDowell declined to change his plea
as contemplated and stated that he no longer wanted OPD
representation and intended to either hire private counsel or
proceed pro se. The District Court set another status
hearing for January 30, 2009. The District Court requested
that Neal appear at that hearing.
On January 30, 2009, McDowell appeared in chambers with Neal,
Prosecutor John Flynn, and Judge Dorothy McCarter for a
status hearing. It is unclear whether Neal acted in her
capacity as counsel or to provide standby representation to
McDowell. There is no mechanical recording of the meeting,
and no court reporter was present. Both McDowell and Neal
recall Judge McCarter advising McDowell he should accept the
plea agreement because it was "a good deal," a
"great offer," "the best deal" he could
get, and that it would be "unwise" to reject the
agreement. Neal did not object to Judge McCarter's
comments, either at the time of the hearing or afterwards.
On April 24, 2009, the State filed an Amended Information and
Waiver of Rights by Plea of Guilty. Pursuant to the Amended
Information, McDowell was charged with assault with a weapon,
in violation of § 45-5-213, MCA, and felony burglary, in
violation of § 45-6-204, MCA. The same day, McDowell
signed an acknowledgment and waiver, and pled nolo
contendere to the State's charges. State v.
McDowell, 2011 MT 75, ¶ 4, 360 Mont. 83, 253 P.3d
812. On May 28, 2009, McDowell obtained new OPD
representation, Bryan Norcross. On June 12, 2009, the
District Court held a sentencing hearing. Through Judge
Jeffery Sherlock, the District Court imposed a twenty-year
prison sentence, with five years suspended, on the count of
assault with a weapon and a twenty-year sentence, with ten
years suspended, on the count of burglary, to run concurrent
to the assault conviction.
On June 10, 2010, McDowell moved to withdraw his plea, and
the District Court denied his Motion. McDowell appealed,
arguing (1) Prosecutor Flynn breached the plea agreement, and
(2) the District Court erred for not crediting McDowell for
time served. McDowell, ¶ 2. In 2011, this Court
affirmed McDowell's convictions and remanded for the sole
purpose of crediting McDowell's pre-conviction time
served. McDowell, ¶¶ 25, 28. McDowell did
not further appeal his judgment.
On May 1, 2012, McDowell filed a pro se PCR Petition. The
State filed an objection. In McDowell's May 29, 2012
reply to the State's objection and in his October 27,
2014 amended PCR Petition, McDowell argued, in relevant part,
that Judge McCarter impermissibility participated in the plea
negotiations and this participation had a coercive effect on
his decision to accept the State's plea offer. He also
argued Neal was ineffective when she failed to object to
Judge McCarter's improper participation during the plea
On September 9, 2016, the District Court conducted an
evidentiary hearing into the merits of McDowell's PCR
Petition. The parties offered evidence and testimony and
subsequently submitted proposed findings of fact and
conclusions of law. McDowell testified that although he
wanted to "go to trial," he nevertheless "felt
forced to plead guilty and accept the bargain or  proceed
to trial and face certain conviction." McDowell
testified that he "felt there was no other option"
but to plead nolo contendere. McDowell stated,
"I felt what Judge McCarter said to me and what  Neal
said was the right way to go." When asked by the
District Court what would have happened had Neal objected to
Judge McCarter's comments or advised him to ignore them,
McDowell testified, ...