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McDowell v. State

Supreme Court of Montana

November 27, 2018

SHAWN EARL McDOWELL, Petitioner and Appellant,
v.
STATE OF MONTANA, Respondent and Appellee.

          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

          For Appellant: Joseph P. Howard, Joseph P. Howard, P.C., Great Falls, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana

          Cory J. Swanson, Broadwater County Attorney, Townsend, Montana

          OPINION

          James Jeremiah Shea, Justice.

         ¶1 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 Montana Reports.

         ¶2 Shawn Earl McDowell appeals from the Order of the First Judicial District, Broadwater County, denying McDowell's Petition for Postconviction Relief (PCR). We affirm.

         ¶3 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.[1] The District Court set another status hearing for January 30, 2009. The District Court requested that Neal appear at that hearing.

         ¶4 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.

         ¶5 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.

         ¶6 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.

         ¶7 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 negotiations.

         ¶8 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, ...


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