State v. Garner

2014 MT 312, 339 P.3d 1, 377 Mont. 173, 2014 Mont. LEXIS 702
CourtMontana Supreme Court
DecidedNovember 25, 2014
DocketNo. DA 13-0242
StatusPublished
Cited by6 cases

This text of 2014 MT 312 (State v. Garner) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Garner, 2014 MT 312, 339 P.3d 1, 377 Mont. 173, 2014 Mont. LEXIS 702 (Mo. 2014).

Opinion

JUSTICE McKINNON

delivered the Opinion of the Court.

¶1 Daniel Eugene Gamer appeals from an order of the Twenty-First Judicial District Court, Ravalli County, denying his motion to withdraw guilty plea. We affirm.

¶2 The following issues are presented for review:

1. Whether Garner’s motion to withdraw plea was time-barred
2. Whether the District Court erred when it concluded Garner’s guilty plea was voluntary, knowing, and intelligent.

BACKGROUND

¶3 Gamer is a developmental^ disabled 40-year-old man. In the summer of 2009, Gamer lived in a trailer at the Bitterroot Family Campground near Hamilton. He sometimes babysat four-year-old A.D., whose grandmother also lived in the campground. In October 2009, A.D. disclosed to his mother that Gamer had put his mouth on A.D.’s penis. During a forensic interview the following month, A.D. used dolls to demonstrate that Gamer had touched A.D.’s penis with his hand, put his mouth on A.D.’s penis, placed his penis in A.D.’s mouth, and inserted his penis into A.D.’s rectum or buttocks.

¶4 On November 19, 2009, Detective Jesse Jessop of the Ravalli County Sheriffs Office interviewed Gamer. Gamer said he remembered spending time with A.D. the previous summer. Gamer initially denied the allegations of sexual conduct, saying he could not remember because of his “brain problems.” As the interview progressed, Detective Jessop asked Gamer if he had touched AD.’s penis with his hand. Gamer nodded his head, indicating an affirmative response. A few minutes later, Detective Jessop repeated the question. Gamer again nodded his head. Gamer continued to deny the allegations of oral and anal intercourse.

¶5 On December 4,2009, Gamer was charged with three counts of felony sexual intercourse without consent, in violation of § 45-5-503(1), (4), MCA (2007).1 His initial appearance was set for December 10, 2009. Gamer was represented at that appearance by Nick Miller. [175]*175Miller advised the court of Gamer’s possible disability, and requested a continuance of the initial appearance to allow an evaluation of his fitness to proceed. At the continued initial appearance on December 22, 2009, Gamer was represented by David Stenerson. Stenerson informed the court that a full evaluation had not yet been completed, but that Gamer appeared to have “an obvious difficulty with reading and retention and understanding difficult tasks ... .” Defense counsel retained a psychiatrist to perform a “full-blown evaluation” to address “overall mental disease and defect.” Dr. Paul Moomaw evaluated Gamer and determined that he was fit to proceed to trial, although he scored “very low” on language intelligence testing. Dr. Moomaw did not issue a written report, but informed defense counsel of his findings. ¶6 At Gamer’s arraignment on February 11,2010, Stenerson advised the District Court that Dr. Moomaw had “come to the conclusion that [Gamer] can proceed with trial, and we’ll withdraw any objection to that at this point.” Gamer initialed and signed an acknowledgement of rights form. The District Court asked Gamer if he had any concerns about his ability to proceed, and Gamer said he did not. Gamer also said he understood his rights, felt comfortable asking questions of his attorney, and understood the arraignment proceeding. Gamer was informed that he was charged with three counts of sexual intercourse without consent, each of which was punishable by a term of 100 years. Gamer pled not guilty to each count and said he understood the maximum punishment.

¶7 On June 15,2010, the State filed an amended information adding a charge of felony sexual assault, in violation of § 45-5-502(1), (3), MCA. On June 18,2010, Gamer was informed that if convicted of that charge, he could receive life imprisonment or a prison sentence of not less than four years or more than 100 years. Gamer said he understood the charge and the maximum possible punishment. He pled not guilty to the charge of sexual assault.

¶8 A jury trial began on September 7, 2010. Stenerson and Miller represented Gamer during the trial. On the third day of trial, Gamer agreed to plead guilty to sexual assault under § 45-5-502(1), (3), MCA, in exchange for which the State agreed to dismiss the three counts of sexual intercourse without consent. Gamer signed a plea agreement, guilty plea, and waiver of rights. The agreement was an “open plea,” meaning that the State did not agree to make any particular sentencing recommendation and remained free to argue for the maximum possible sentence.

¶9 The plea agreement, guilty plea, and waiver of rights were submitted to the District Court. The District Court questioned Gamer [176]*176extensively to determine Ms understanding of the proceedings. Gamer said he had understood most of the trial so far, and had been able to rely on Ms attorneys to explain things to him. He said he felt comfortable asking Ms attorneys for an explanation if he had difficulty understanding anything about the change of plea process. The District Court asked Gamer if he wanted to speak to Ms attorney before proceeding, and Gamer said he did not.

¶10 The District Court then explained the charge of sexual assault and the possible penalty of not less than four years or more than 100 years. Gamer said he understood the maximum possible penalty. The District Court asked Gamer if he was entering Ms plea voluntarily, and Gamer said yes. The District Court asked Gamer if he believed the plea was in Ms best interests, and he said yes. Gamer said he had been given sufficient time to review Ms rights with Ms attorneys, and had no questions about them. He agreed he had full knowledge of the rights he was waiving. He said he was satisfied with the services of Ms attorneys.

¶11 Stenerson then questioned Gamer about the factual basis for the plea. Gamer said he touched A.D.’s penis with Ms hand during the summer of2009, when A.D. was four years old. The District Court then additionally advised Gamer that because the victim was under 16 years of age, Gamer would be required to serve at least 30 days in jail. The State then recited the terms of the plea, including Gamer’s understanding and agreement that he could not withdraw Ms plea once entered. The District Court accepted the plea, ordered a psychosexual evaluation, and dismissed the three counts of sexual intercourse without consent. The jury was excused.

¶12 Dr. Robert Page conducted the psychosexual evaluation. Dr. Page observed that Gamer presented with some cognitive delays wMch may affect Ms comprehension, and therefore recommended a full neuropsychological evaluation. Dr. Page concluded that Gamer was dependent on others and tended to seek reassurance. During the evaluation, Gamer was able to describe the allegations against him. He understood that as part of Ms plea agreement, if he admitted to sexual assault, the State would dismiss the other charges. Gamer could not tell Dr. Page the potential sentence for sexual assault, and said he wanted to go home to care for Ms cats. Gamer was aware Dr. Moomaw had evaluated him and found Mm fit for trial, and Gamer said he felt “somewhat capable.”

¶13 A neuropsychological evaluation was performed by Dr. Paul Bach. Dr. Bach concluded that Gamer’s cognitive abilities were in the low-average range. He concluded Gamer was not mentally retarded, [177]*177although he was functioning at a “borderline abnormal level.” Dr.

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Bluebook (online)
2014 MT 312, 339 P.3d 1, 377 Mont. 173, 2014 Mont. LEXIS 702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-garner-mont-2014.