State v. T. Lucero

2024 MT 52N, 544 P.3d 899

• Court: Montana Supreme Court
• Decided: March 12, 2024
• Docket: DA 21-0327
• Status: Unpublished

Opinion

03/12/2024

DA 21-0327 Case Number: DA 21-0327

IN THE SUPREME COURT OF THE STATE OF MONTANA 2024 MT 52N

STATE OF MONTANA,

Plaintiff and Appellee,

v.

THOMAS JAMES LUCERO,

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDC 2019-115 Honorable Kathy Seeley, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Gregory D. Birdsong, Birdsong Law Office, Santa Fe, New Mexico

For Appellee:

Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana

Kevin Downs, Lewis and Clark County Attorney, Fallon Stanton, Deputy County Attorney, Helena, Montana

Submitted on Briefs: April 26, 2023

Decided: March 12, 2024

Filed:

Vir-6A.-if __________________________________________ Clerk Justice Dirk Sandefur delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, we decide this case by memorandum opinion. It shall not be cited and is not

precedent. Its case title, cause number, and disposition will be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Thomas Lucero appeals his October 2020 judgment of conviction on multiple felony

offenses in the Montana First Judicial District Court, Lewis and Clark County. We affirm.

¶3 In February 2019, the State charged Lucero by Information with: (1) aggravated

kidnapping (two counts) in violation of § 45-5-303(1)(b)-(c), MCA; (2) aggravated sexual

intercourse without consent (three counts) in violation of § 45-5-508, MCA;

(3) partner/family member (PFM) strangulation in violation of § 45-5-215(1)(a), MCA;

and assault with a weapon (two counts) in violation of § 45-5-213(1)(a), MCA. The State

alleged that, after a night of heavy drinking, Lucero committed the above-listed offenses

against his girlfriend (J.F.) at her home in Helena in January 2019. According to J.F., upon

confronting him and demanding that Lucero be quiet around 2 a.m., he began hitting,

punching, and kicking her in a violent rage. Over the next five hours, Lucero threatened

and cut her multiple times with multiple knives, hog-tied and strangled her with a strand

of Christmas lights, stabbed her air mattress, cut her hair, poured Worcestershire sauce in

her wounds, beat her with a metal lamp, and forced vaginal, anal, and oral sex to the point

where J.F. vomited. After allegedly telling her he was going to take her to the Crow

Reservation to dispose of her body, Lucero allegedly forced J.F. at knifepoint to drive them

2 to Billings. After J.F. covertly signaled passing motorists for help, law enforcement

responded and intercepted J.F.’s vehicle and stopped it with spike strips west of Bozeman.

Upon a Miranda rights advisory and waiver, Lucero admitted to police that, incident to an

altercation with J.F. over loud music, he punched and kneed holes in her apartment walls,

and cut her with a knife. Consistent with his account, he was wearing blood-stained

clothing and shoes and possessed a knife matching those later found in J.F.’s apartment.

¶4 Lucero later pled not guilty upon subsequent arrest and formal charging in Lewis

and Clark County. In advance of an October 2020 final pretrial conference, the parties

reached an informal nonbinding plea agreement pursuant to § 46-12-212(2), MCA, which

called for: (1) the State to amend one count of aggravated sexual intercourse down to

sexual intercourse without consent (SIWC); (2) Lucero to enter Alford guilty pleas1 to one

count each of aggravated kidnapping, SIWC, PFM strangulation, and assault with a

weapon; (3) the State to drop all other charges; and (4) each party to make their own

sentencing recommendation. At the scheduled pretrial conference, the District Court

commenced a change of plea hearing on the parties’ informal plea agreement. Shortly into

the change of plea colloquy after granting the State’s motion to amend the charging

Information in accordance with the plea agreement, however, the District Court noted that

Lucero “look[ed] kind of distressed” and “upset.” Though he affirmatively asserted that

he understood his rights and the waiver effect of an Alford guilty plea, Lucero later

1 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970).

3 equivocated by stating he did not think he had any choice but to plead guilty under the

circumstances. Despite the assertion of counsel that, after extensive attorney-client

consultation that included family members, Lucero fully understood and consented to the

agreement, the court postponed the change of plea hearing to afford him additional time to

consider his options.

¶5 When the parties appeared again the next day, defense counsel explained that, upon

further consultation, Lucero fully understood his options and the consequences of pleading

guilty, and was thus ready to change his plea in accordance with his prior plea agreement.

The court then conducted a new change of plea colloquy during which Lucero denied

having any mental, emotional, or physical disability impairing his ability to understand

what was happening, and confirmed that he was now “clearheaded” unlike the day before.

After acknowledging his rights and the waiver effect of a guilty plea, asserting that he was

proceeding voluntarily without coercion, acknowledging that the State would present

evidence at the sentencing hearing to establish a sufficient factual basis for his Alford guilty

pleas, asserting that he was satisfied with his counsel’s representation, asserting that he was

not under the influence of alcohol or drugs, and stating that he understood the maximum

penalties on the offenses to which he would plead, Lucero entered Alford guilty pleas to

each of the agreed offenses. The court then accepted the pleas on the expressly stated

ground that they were knowing, voluntary, and intelligent waivers of his trial rights.

¶6 At sentencing, the State presented several witnesses including, inter alia, the

investigating police detective who gave testimony regarding the alleged facts of the case

4 as originally charged, and a state probation officer who testified in support of the

Department of Corrections presentence investigation report. The defense presented

testimony from Lucero’s father who asked for probation and asserted that Lucero had been

“tricked” into pleading guilty. Upon hearing the respective sentencing recommendations

and arguments of counsel, the District Court sentenced Lucero to serve concurrent 40-year

prison terms, with five years suspended, on aggravated kidnapping and SIWC, and a net

consecutive 15-year prison term on PFM strangulation and assault with a weapon. The

court granted him credit for time-served, designated him a Tier 2 sex offender, and ordered

him to register as both a violent and sexual offender under Title 46, chapter 23, part 5,

MCA. Lucero timely appeals.

¶7 Lucero asserts three errors on appeal. He first asserts that the District Court

erroneously accepted his pleas because he “did not fully understand the possible

punishments for the charges against him,” and because he pled guilty under “duress.” He

next asserts that “both the prosecution or [sic] the district court violated the terms of the

Alford plea” by making an unnecessarily inflammatory factual showing in support of his

Alford pleas that included facts supporting the dismissed charges, and a similarly

inflammatory and impassioned “argument detailing every allegation against” him. He

asserts that the State thereby undermined the plea agreement and denied him “the benefit

of the [plea] bargain” because the unnecessary evidentiary showing and accompanying

argument foiled his expectation that he “would receive a lesser sentence if he entered the

Alford” guilty pleas, and because he did not understand the parole eligibility implications

5 of his pleas. Lucero finally asserts that he received ineffective assistance of counsel (IAC)

in violation of the Sixth and Fourteenth Amendments of the United States Constitution

based on the alleged complicity of his trial counsel in allowing him to plead guilty without

objection and advice that would have avoided his subsequently asserted assertions of error.

¶8 “Failure to contemporaneously object . . . generally constitutes a waiver of the right

to seek appellate review” of an asserted record-based error below. State v. Miller, 2022

MT 92, ¶ 10, 408 Mont. 316, 510 P.3d 17. “However, as a narrow exception to the waiver

rule, we may, in our discretion, review an unpreserved assertion of error under [our]

common law plain error doctrine upon an affirmative showing of: (1) a plain or obvious

error” (2) “implicat[ing] a constitutional or other substantial right” and (3) which “if not

corrected” will “result in a manifest miscarriage of justice or otherwise prejudicially

undermine the fundamental fairness of the proceeding or compromise the integrity of the

judicial process.” Miller, ¶ 10. As a waiver of fundamental constitutional trial rights, a

guilty plea is valid only if made knowingly, voluntarily, and intelligently with sufficient

awareness of all relevant circumstances, any alternative courses of action open to the

accused, and the likely consequences of the change of plea. State v. Radi, 250 Mont. 155,

159, 818 P.2d 1203, 1206 (1991) (citing North Carolina v. Alford, 400 U.S. 25, 91 S. Ct.

160 (1970)); Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1468-69 (1970);

State v. Peterson, 2013 MT 329, ¶ 22, 372 Mont. 382, 314 P.3d 227. The essential question

is whether the record manifests that, upon inquiry, the “defendant understands and accepts

the risks and consequences of a guilty plea as a voluntary, knowing, and intelligent choice”

6 in contrast to trial. State v. Knox, 2001 MT 232, ¶ 17, 307 Mont. 1, 36 P.3d 383 (citing

Radi, 250 Mont. at 159, 818 P.2d at 1206). See similarly State v. Mahoney, 264 Mont. 89,

94-95, 870 P.2d 65, 69 (1994) (guilty plea and concomitant waiver is knowing, voluntary,

and intelligent if upon inquiry defendant “understands the charge” and “possible

punishment,” “is not acting under the influence of drugs or alcohol,” and admits

competence of and satisfaction with representation of counsel—citation omitted). Whether

a guilty plea was knowing, voluntary, and intelligent depends on an array of case-specific

factors under the totality of circumstances. State v. McFarlane, 2008 MT 18, ¶ 17, 341

Mont. 166, 176 P.3d 1057. Relevant factors include, inter alia, the accused’s ability to

soberly comprehend the relevant circumstances and direct consequences of the plea

including the actual value of any commitments to the accused from the court, prosecutor,

or defense counsel; the adequacy of the change of plea colloquy; whether the accused

received effective assistance of counsel; and whether the plea was induced by any threat,

misrepresentation, or improper promise, inducement, or influence. State v. Terronez, 2017

MT 296, ¶¶ 27-28, 389 Mont. 421, 406 P.3d 947; State v. Usrey, 2009 MT 227, ¶ 17, 351

Mont. 341, 212 P.3d 279; Brady, 397 U.S. at 755, 90 S. Ct. at 1472. This searching inquiry

necessarily includes consideration, inter alia, of the state of mind and subjective

impressions of the accused at the time of the plea, based on objective facts and

circumstances of record rather than unsupported, after-the-fact assertions. State v.

Humphrey, 2008 MT 328, ¶¶ 22-23, 346 Mont. 150, 194 P.3d 643. Subsequent assertions

regarding the subjective state of mind or impressions of the accused at the time of change

7 of plea are insufficient to challenge the validity of a plea unless supported by substantial

objective evidence of record and objectively reasonable under the record circumstances.

Humphrey, ¶ 23; accord State v. Burns, 2012 MT 97, ¶ 15, 365 Mont. 27, 278 P.3d 452

(citing Humphrey). Whether a guilty plea was knowing, voluntary, and intelligent is a

mixed question of fact and law, with the ultimate question subject to de novo review on

appeal. State v. Warclub, 2005 MT 149, ¶¶ 17-18 and 22-24, 327 Mont. 352, 114 P.3d

254.

¶9 The related but distinct question of whether an accused received IAC in violation of

the Sixth and Fourteenth Amendments to the United States Constitution is also a mixed

question of fact and law under the two-prong affirmative showing specified in Strickland

v. Washington, 466 U.S. 668, 684-89, 104 S. Ct. 2052, 2063-65 (1984) (i.e.,

constitutionally deficient performance and resulting substantial prejudice). McGarvey v.

State, 2014 MT 189, ¶ 14, 375 Mont. 495, 329 P.3d 576.2 IAC claims are reviewable on

direct appeal only if record-based (i.e., the record fully manifests the rationale for the

disputed action or inaction), or on the rare occasion that no plausible reasonable

justification exists for the subject action or inaction. See, e.g., State v. Olson, 2014 MT 8,

¶ 20, 373 Mont. 262, 317 P.3d 159; State v. Briscoe, 2012 MT 152, ¶ 10, 365 Mont. 383,

282 P.3d 657; State v. Fender, 2007 MT 268, ¶ 9, 339 Mont. 395, 170 P.3d 971; State v.

2 See similarly Heath v. State, 2009 MT 7, ¶¶ 13 and 17, 348 Mont. 361, 202 P.3d 118; Whitlow v. State, 2008 MT 140, ¶¶ 9-11, 343 Mont. 90, 183 P.3d 861; State v. Herrman, 2003 MT 149, ¶¶ 17-18, 316 Mont. 198, 70 P.3d 738; State v. McElveen, 168 Mont. 500, 501-03, 544 P.2d 820, 821-22 (1975).

8 White, 2001 MT 149, ¶ 20, 306 Mont. 58, 30 P.3d 340; Hagen v. State, 1999 MT 8, ¶ 12,

293 Mont. 60, 973 P.2d 233; In re Evans, 250 Mont. 172, 173, 819 P.2d 156, 157 (1991).

¶10 Upon review of the parties’ briefing on appeal and the record below, we hold that

Lucero has failed to meet his burden of demonstrating that the District Court committed

plain error in: (1) accepting his Alford guilty pleas; (2) allowing the State to present the

subject evidence establishing the factual bases of those pleas at sentencing; (3) allowing

the State to make its sentencing recommendation and supporting argument; or (4) not

sentencing him in accordance with his nonbinding plea agreement. Nothing in this Opinion

precludes Lucero from timely asserting a non-record-based IAC claim by petition for

postconviction relief pursuant to Title 46, chapter 21, MCA.

¶11 We decide this case by memorandum opinion pursuant to Section I, Paragraph 3(c)

of our Internal Operating Rules. Affirmed.

/S/ DIRK M. SANDEFUR

We concur:

/S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ JIM RICE