November 25 2009
DA 09-0305
IN THE SUPREME COURT OF THE STATE OF MONTANA 2009 MT 408N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
LIONEL SCOTT ELLISON,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 07-907 Honorable Susan P. Watters, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Herman A. Watson, III, Attorney at Law; Bozeman, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; John Paulson, Assistant Attorney General; Helena, Montana
Dennis Paxinos, Yellowstone County Attorney; Scott Twito, Deputy County Attorney; Billings, Montana
Submitted on Briefs: October 28, 2009
Decided: November 25, 2009
Filed:
__________________________________________ Clerk Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2006, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court 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 Appellant Lionel Scott Ellison (Ellison) appeals from the order of Thirteenth
Judicial District Court, Yellowstone County, denying his motion to withdraw his Alford
plea.
¶3 The issue on appeal is as follows:
¶4 1. Did the District Court err when it denied Ellison’s motion to withdraw his
Alford plea.
¶5 On October 23, 2007, Ellison was charged by Information with the offense of
felony arson in violation of § 45-6-103(1)(a), MCA. The charge arose out of an incident
in May 2007, when a car, belonging to Deane Ames, started on fire while Ellison was
driving. On April 1, 2008, Ellison appeared with his attorney, Jeffrey G. Michael
(Michael), and entered an Alford plea to the arson charge before district court judge, the
Honorable Russell C. Fagg. Ellison filed an Acknowledgement of Waiver of Rights by
Plea of Alford, which indicated that, pursuant to a plea agreement, the State would
recommend a five-year suspended sentence but that Ellison could still argue for a lesser
sentence, including a deferred imposition of sentence. Sentencing was then set for
2 May 29, 2008, but reset after the District Court learned that Ellison had terminated
Michael and retained replacement counsel. Subsequently, Ellison filed his motion to
withdraw the plea arguing that there was new exculpatory evidence, that his plea had
been induced by the prosecutor’s threat to charge him and his mother with witness
tampering and that the State had lost potentially exculpatory evidence. On November 28,
2008, Ellison filed an addendum brief in support of his motion, arguing that he was
involuntarily induced to plead guilty based on a misrepresentation that he could receive a
deferred sentence. On May 5, 2009, the District Court issued its order denying Ellison’s
motion to withdraw his plea reasoning that Ellison had been fully aware of the direct
consequences of his decision to enter a guilty plea. On May 26, 2009, the District Court
followed up its denial of Ellison’s motion by sentencing him to five years, all suspended
in Montana State Prison. Additional facts are discussed below as relevant.
¶6 On appeal, Ellison argues that the District Court erred in denying his motion to
withdraw his plea. Analogizing to State v. Deserly, 2008 MT 242, 344 Mont. 468, 188
P.3d 1057 and State v. Jones, 2008 MT 331, 346 Mont. 173, 194 P.3d 86, Ellison argues
that his guilty plea was involuntary and induced by the misrepresentation that a deferred
sentence was possible. Ellison asserts that § 46-18-201(1)(b), MCA, prohibits a deferred
sentence for persons who have been convicted of a felony on a prior occasion, and that
misrepresentations to the contrary made by his former attorney, Michael, the prosecutor
and the presiding judge render Ellison’s plea subject to withdrawal under § 46-16-105(2),
MCA.
3 ¶7 The State counters that § 46-18-201(1)(b), MCA, does not absolutely prohibit the
district court from deferring the imposition of Ellison’s sentence. The State argues that
since Michael had successfully argued the inapplicability of § 46-18-201(1)(b), MCA, on
behalf of other clients with felony convictions from other jurisdictions, there was nothing
misleading about his advising Ellison that such an argument could be made in Ellison’s
case. In short, the State asserts that since Michael advised Ellison that “it was not very
likely that he was going to get a deferred sentence . . .” Ellison’s guilty plea was not
induced by misrepresentation.
¶8 We review a district court’s denial of a motion to withdraw a guilty plea de novo.
State v. Brinson, 2009 MT 200, ¶ 3, 351 Mont. 136, 210 P.3d 164. A district court’s
underlying factual findings are reviewed for clear error. State v. McFarlane, 2008 MT
18, ¶ 8, 341 Mont. 166, 176 P.3d 1057. A district court’s interpretation of the law and
application of the law to the facts are reviewed for correctness. McFarlane, ¶ 8.
¶9 In relevant part § 46-16-105(2), MCA, provides that:
At any time before judgment or . . . within one year after judgment becomes final, the court may, for good cause shown, permit the plea of guilty or nolo contendere to be withdrawn and a plea of not guilty substituted.
¶10 Under this statutory scheme “good cause” is shown if a defendant demonstrates
that, at the time he entered his plea, he was induced to do so based on misrepresentations
by the court, the prosecutor, the defense counsel or some other party. Brinson, ¶ 8. As
such, the first step in our inquiry into whether a defendant is entitled to withdraw his
Alford plea is whether the court, the prosecutor, the defense counsel or any other party
4 made misrepresentations to the defendant. Here, we determine that no misrepresentations
were made.
¶11 First, Ellison’s defense attorney did not represent to Ellison that a deferred
sentence was guaranteed. Michael’s testimony evidences the fact that he informed
Ellison that a deferred sentence was unlikely given his felony conviction in Wyoming.
Although, despite the limiting language of § 46-18-201(1)(b), MCA, Michael had
successfully obtained deferred sentences for clients with prior felonies from other
jurisdictions, he forewarned Ellison that such a sentence was only a remote possibility.
This advice does not amount to a misrepresentation—it does not constitute “good cause”
for withdrawing a plea.
¶12 Second, the District Court did not misrepresent that a deferred sentence was
promised, or even possible. During the plea colloquy, the District Court explained that
“you may argue for a less[er] sentence, including a deferred sentence . . . .” This
statement only represents that, under the plea, Ellison was permitted to make arguments
in favor of a lesser sentence. Thus, the District Court’s statements do not rise to the level
of “good cause” for allowing the withdrawal of Ellison’s Alford plea.
¶13 Finally, neither the prosecutor nor any other party made misrepresentations
regarding the possibility of a deferred sentence. Ellison’s argument that the prosecutor
Free access — add to your briefcase to read the full text and ask questions with AI
November 25 2009
DA 09-0305
IN THE SUPREME COURT OF THE STATE OF MONTANA 2009 MT 408N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
LIONEL SCOTT ELLISON,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 07-907 Honorable Susan P. Watters, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Herman A. Watson, III, Attorney at Law; Bozeman, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; John Paulson, Assistant Attorney General; Helena, Montana
Dennis Paxinos, Yellowstone County Attorney; Scott Twito, Deputy County Attorney; Billings, Montana
Submitted on Briefs: October 28, 2009
Decided: November 25, 2009
Filed:
__________________________________________ Clerk Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2006, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court 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 Appellant Lionel Scott Ellison (Ellison) appeals from the order of Thirteenth
Judicial District Court, Yellowstone County, denying his motion to withdraw his Alford
plea.
¶3 The issue on appeal is as follows:
¶4 1. Did the District Court err when it denied Ellison’s motion to withdraw his
Alford plea.
¶5 On October 23, 2007, Ellison was charged by Information with the offense of
felony arson in violation of § 45-6-103(1)(a), MCA. The charge arose out of an incident
in May 2007, when a car, belonging to Deane Ames, started on fire while Ellison was
driving. On April 1, 2008, Ellison appeared with his attorney, Jeffrey G. Michael
(Michael), and entered an Alford plea to the arson charge before district court judge, the
Honorable Russell C. Fagg. Ellison filed an Acknowledgement of Waiver of Rights by
Plea of Alford, which indicated that, pursuant to a plea agreement, the State would
recommend a five-year suspended sentence but that Ellison could still argue for a lesser
sentence, including a deferred imposition of sentence. Sentencing was then set for
2 May 29, 2008, but reset after the District Court learned that Ellison had terminated
Michael and retained replacement counsel. Subsequently, Ellison filed his motion to
withdraw the plea arguing that there was new exculpatory evidence, that his plea had
been induced by the prosecutor’s threat to charge him and his mother with witness
tampering and that the State had lost potentially exculpatory evidence. On November 28,
2008, Ellison filed an addendum brief in support of his motion, arguing that he was
involuntarily induced to plead guilty based on a misrepresentation that he could receive a
deferred sentence. On May 5, 2009, the District Court issued its order denying Ellison’s
motion to withdraw his plea reasoning that Ellison had been fully aware of the direct
consequences of his decision to enter a guilty plea. On May 26, 2009, the District Court
followed up its denial of Ellison’s motion by sentencing him to five years, all suspended
in Montana State Prison. Additional facts are discussed below as relevant.
¶6 On appeal, Ellison argues that the District Court erred in denying his motion to
withdraw his plea. Analogizing to State v. Deserly, 2008 MT 242, 344 Mont. 468, 188
P.3d 1057 and State v. Jones, 2008 MT 331, 346 Mont. 173, 194 P.3d 86, Ellison argues
that his guilty plea was involuntary and induced by the misrepresentation that a deferred
sentence was possible. Ellison asserts that § 46-18-201(1)(b), MCA, prohibits a deferred
sentence for persons who have been convicted of a felony on a prior occasion, and that
misrepresentations to the contrary made by his former attorney, Michael, the prosecutor
and the presiding judge render Ellison’s plea subject to withdrawal under § 46-16-105(2),
MCA.
3 ¶7 The State counters that § 46-18-201(1)(b), MCA, does not absolutely prohibit the
district court from deferring the imposition of Ellison’s sentence. The State argues that
since Michael had successfully argued the inapplicability of § 46-18-201(1)(b), MCA, on
behalf of other clients with felony convictions from other jurisdictions, there was nothing
misleading about his advising Ellison that such an argument could be made in Ellison’s
case. In short, the State asserts that since Michael advised Ellison that “it was not very
likely that he was going to get a deferred sentence . . .” Ellison’s guilty plea was not
induced by misrepresentation.
¶8 We review a district court’s denial of a motion to withdraw a guilty plea de novo.
State v. Brinson, 2009 MT 200, ¶ 3, 351 Mont. 136, 210 P.3d 164. A district court’s
underlying factual findings are reviewed for clear error. State v. McFarlane, 2008 MT
18, ¶ 8, 341 Mont. 166, 176 P.3d 1057. A district court’s interpretation of the law and
application of the law to the facts are reviewed for correctness. McFarlane, ¶ 8.
¶9 In relevant part § 46-16-105(2), MCA, provides that:
At any time before judgment or . . . within one year after judgment becomes final, the court may, for good cause shown, permit the plea of guilty or nolo contendere to be withdrawn and a plea of not guilty substituted.
¶10 Under this statutory scheme “good cause” is shown if a defendant demonstrates
that, at the time he entered his plea, he was induced to do so based on misrepresentations
by the court, the prosecutor, the defense counsel or some other party. Brinson, ¶ 8. As
such, the first step in our inquiry into whether a defendant is entitled to withdraw his
Alford plea is whether the court, the prosecutor, the defense counsel or any other party
4 made misrepresentations to the defendant. Here, we determine that no misrepresentations
were made.
¶11 First, Ellison’s defense attorney did not represent to Ellison that a deferred
sentence was guaranteed. Michael’s testimony evidences the fact that he informed
Ellison that a deferred sentence was unlikely given his felony conviction in Wyoming.
Although, despite the limiting language of § 46-18-201(1)(b), MCA, Michael had
successfully obtained deferred sentences for clients with prior felonies from other
jurisdictions, he forewarned Ellison that such a sentence was only a remote possibility.
This advice does not amount to a misrepresentation—it does not constitute “good cause”
for withdrawing a plea.
¶12 Second, the District Court did not misrepresent that a deferred sentence was
promised, or even possible. During the plea colloquy, the District Court explained that
“you may argue for a less[er] sentence, including a deferred sentence . . . .” This
statement only represents that, under the plea, Ellison was permitted to make arguments
in favor of a lesser sentence. Thus, the District Court’s statements do not rise to the level
of “good cause” for allowing the withdrawal of Ellison’s Alford plea.
¶13 Finally, neither the prosecutor nor any other party made misrepresentations
regarding the possibility of a deferred sentence. Ellison’s argument that the prosecutor
“acquiesced in the illusory deferred sentence by the terms of the plea agreement . . .” is
not a tenable argument in this instance. Simply put, none of the relevant parties in this
case misrepresented to Ellison that he was entitled to a deferred sentence. Consequently,
5 we conclude that the District Court properly denied Ellison’s motion to withdraw his
¶14 Having reviewed the record, the District Court’s decision and the parties’
arguments on appeal, we have determined to decide this case pursuant to Section I,
Paragraph 3(d) of our 1996 Internal Operating Rules, as amended in 2006, which
provides for memorandum opinions. It is manifest on the face of the briefs and the
record before us that the appeal is without merit because the findings of fact are
supported by substantial evidence, the legal issues are clearly controlled by settled
Montana law which the District Court correctly interpreted, and the record supports the
District Court’s denial of Ellison’s motion to withdraw his plea.
¶15 Affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ MIKE McGRATH /S/ JAMES C. NELSON /S/ BRIAN MORRIS /S/ JIM RICE