07/05/2016
DA 15-0395
Case Number: DA 15-0395
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT162N
STATE OF MONTANA,
Petitioner and Appellee,
v.
TRACY ANN HARLESS,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. CDC 13-377(A)
Honorable Greg Pinski, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jason T. Holden, Katie R. Ranta, Faure Holden Attorneys at Law, P.C.,
Great Falls, Montana
Daniel Donovan, Attorney at Law, Great Falls, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
Attorney General, Helena, Montana
John W. Parker, Susan Weber, Cascade County Attorney, Great Falls,
Montana
Submitted on Briefs: May 25, 2016
Decided: July 5, 2016
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶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 Tracy Ann Harless challenges the validity of her nolo contendere plea to the
charge of negligent homicide arising out of the death of her one-year-old grandson while
in her care. Harless makes two basic substantive arguments on appeal; first, that her plea
was not voluntary because the court did not explain the elements of the crime of
negligent homicide, and second, that the District Court’s colloquy was insufficient to
accept a plea of nolo contendere because sufficient evidence was not presented in the
record to establish her guilt.
¶3 For relief, Harless states that her “Nolo Contendere plea must be set aside and the
case remanded to a different district court judge for further proceedings.” However, in
response to the State’s argument that she failed to raise her issues before the District
Court, Harless asserts that “[t]he State misses [her] arguments. It is not about her seeking
to withdraw her Nolo Contendere plea. Her argument is not revolutionary—she is simply
pointing out that her Nolo Contendere plea is constitutionally infirm.” Harless did not
move to withdraw her plea in the District Court. Thus, we take from Harless’ positions
that she believes her plea was invalidly entered, and that she seeks not to withdraw her
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plea, but to simply be afforded a repeat process of entering her plea before a new district
court judge.
¶4 We review whether a plea was entered voluntarily de novo. State v. Locke, 2008
MT 423, ¶ 12,
347 Mont. 387,
198 P.3d 316. We review a district court’s factual
findings for clear error. Locke, ¶ 12. A court may not accept a plea of nolo contendere
without first determining, among other things, that the plea is voluntary. Section
46-12-204(2), MCA. A defendant’s plea is voluntary only when the defendant is fully
aware of the direct consequences of the plea. State v. Lone Elk,
2005 MT 56, ¶ 21,
326
Mont. 214,
108 P.3d 500. To determine whether a defendant entered a plea voluntarily
we examine “case-specific considerations.” State v. Frazier,
2007 MT 40, ¶ 10,
336
Mont. 81,
153 P.3d 18.
¶5 Harless contends her plea was not entered voluntarily because the District Court
did not inform her of the elements of negligent homicide. However, a review of the
record indicates Harless was fully aware of the charges against her. Harless was
represented by counsel. The information alleged that Harless had committed the offense
of negligent homicide for “negligently causing the death of another human being.” The
attached affidavit stated, in some detail, the State’s theory of the case and supporting
facts. At the change of plea hearing, the District Court confirmed that Harless had
listened to, and understood, the testimony of the investigating detective. The District
Court also confirmed Harless understood the rights she was giving up in exchange for
pleading nolo contendere, including the right to instruct the jury on lesser-included
offenses, that she had made the decision under advice from counsel, that she had not been
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coerced or threatened by anyone into accepting a plea, that she understood what pleading
nolo contendere meant, that she understood the State’s sentence recommendation was not
binding on the court, and that she acknowledged if the case went to trial the State could
likely prove and the jury would likely convict Harless of negligent homicide.
¶6 It is simply a misstatement of the record for Harless to contend she did not know
she was pleading nolo contendere to negligent homicide, or that she did not understand
the consequences of pleading nolo contendere to negligent homicide. The District
Court’s failure to provide a rote statement of the elements of negligent homicide at one
particular point in the proceeding did not render Harless’ plea involuntary.
¶7 A defendant may enter a plea of nolo contendere if the defendant considers the
plea to be in the defendant’s best interest and the court determines that there is a factual
basis for the plea. Section 46-12-212(2), MCA. There is a “factual basis for the plea”
when there is “strong evidence of guilt.” Frazier, ¶ 21.
¶8 The record contains “strong evidence” of guilt. The information and attached
affidavit stated the following facts: the child died from a fatal drug overdose of
oxycodone; Harless had a prescription for oxycodone; Harless was babysitting the child
on the night in question; and Harless told the investigating detective that she had been
responsible for the child getting “the pill.” At the change of plea hearing, the
investigating detective testified that: Harless sold drugs out of the home; Harless
admitted to hiding pills in various places in the residence; the child was in the sole care of
Harless at the time; Harless admitted the child could have only gotten oxycodone from
her; Harless had told the child’s mother that the mother could hate Harless forever; and
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Harless had told a neighbor administering CPR to the child that she had “just killed [her]
grandson.”
¶9 The record establishes “strong evidence” of guilt and the District Court’s finding
was therefore not clear error.
¶10 We have determined to decide this case pursuant to Section 1, Paragraph 3(c) of
our Internal Operating Rules, which provides for unpublished opinions. This appeal
presents no constitutional issues, no issues of first impression, and does not establish new
precedent or modify existing precedent. The District Court’s findings of fact were not
clearly erroneous and its interpretation and application of the law were correct.
¶11 Affirmed.
/S/ JIM RICE
We Concur:
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ LAURIE McKINNON
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