07/06/2021
DA 19-0462
Case Number: DA 19-0462
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 164N
ROBERT L. ROSE,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DV-19-78
Honorable Jennifer B. Lint, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Robert L. Rose, Self-Represented, Deer Lodge, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant
Attorney General, Helena, Montana
William E. Fulbright, Ravalli County Attorney, Hamilton, Montana
Submitted on Briefs: May 26, 2021
Decided: July 6, 2021
Filed:
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__________________________________________
Chief Justice Mike McGrath 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 Robert Rose appeals from a May 21, 2019 Twenty-First Judicial District Court order
denying his petition for postconviction relief without a hearing. We affirm.
¶3 In 2003, Rose was convicted of aggravated kidnapping, assault with a weapon, and
assault on a peace officer and received a 100-year sentence with 20 years suspended.
State v. Rose, 2009 MT 4, ¶¶ 1, 34-35,
348 Mont. 291,
202 P.3d 749 (Rose I). This Court
affirmed the conviction. Rose I, ¶ 125. Rose subsequently sought postconviction relief,
claiming, among other things, that his counsel had failed to inform him of a favorable plea
offer by the State, constituting ineffective assistance of counsel. State v. Rose,
2013 MT 161, ¶¶ 6-9,
370 Mont. 398,
304 P.3d 387 (Rose II). Judge Langton denied the
petition and this Court affirmed the decision, reasoning that the State’s plea offer actually
contained an illegal sentence such that Rose could not show prejudice. Rose II, ¶¶ 7, 25.
¶4 Subsequently, Rose sought habeas relief in United States District Court.
See Rose v. Kirkegard, CV 13-156-M-DWM-JCL,
2016 U.S. Dist. LEXIS 82133 (D. Mont.
May 5, 2016) (Kirkegard I). United States Magistrate Judge Jeremiah C. Lynch disagreed
with this Court’s Rose II decision and determined that Rose had shown a reasonable
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probability that he would have accepted the earlier plea offer had he been afforded effective
assistance of counsel and been notified of the offer. Kirkegard I, 2016 U.S. Dist. LEXIS
at *8-13. Judge Lynch recommended that the prosecution be required to reoffer the
equivalent terms of the original proposed plea agreement to Rose, allowing a state district
court judge to exercise discretion in determining whether or not to accept the plea deal
pursuant to Lafler v. Cooper, 566 U.S. 156, 171,
132 S. Ct. 1376, 1389 (2011). Kirkegard
I, 2016 U.S. Dist. LEXIS at *17. United States District Judge Molloy adopted Judge
Lynch’s findings and recommendations. Rose v. Kirkegard, CV 13-156-M-DWM-JCL,
2016 U.S. Dist. LEXIS 82007, at *4 (D. Mont. June 23, 2016).
¶5 Pursuant to the United States District Court order, the State made Rose a plea offer,
which Rose accepted. State v. Rose,
2017 MT 289, ¶ 12,
389 Mont. 374,
406 P.3d 443
(Rose III). After a hearing, at which Rose was represented by counsel, Judge Langton
rejected the plea agreement, leaving Rose’s convictions undisturbed. Rose III, ¶ 13.
Judge Langton noted Rose’s “complete unwillingness to accept any responsibility for his
actions” at the time the original plea agreement had been offered, concluding that Rose
would not have accepted such a plea deal in 2003 if it had been communicated to him by
his attorney. Rose III, ¶ 13. Judge Langton determined that rejecting the newly-proposed
plea deal was proper under Lafler’s direction to put the defendant in a position as near as
possible to that occupied at the time of the original plea deal offer. Rose III, ¶ 13.
¶6 Rose appealed to this Court. In Rose III, we noted that “Rose argues that the Federal
District Court concluded Rose had demonstrated he would have accepted the Plea Offer,
which precluded the [state] District Court from rejecting the reoffered plea agreement.”
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Rose III, ¶ 18. We rejected Rose’s argument, concluding that the District Court’s decision
was within the discretion it was directed to exercise by the Federal District Court’s remand
order, pursuant to Lafler. Rose III, ¶ 26.
¶7 Rose then returned to federal court and filed a motion to enforce under
Fed. R. Civ. P. 70(a) arguing that the discrepancies between the original and reoffered plea
proposals meant that the State had failed to reoffer Rose the equivalent plea proposal and
was therefore in violation of the federal court’s writ. See Rose v. Guyer, 961 F.3d 1238
(9th Cir. 2020). The Federal District Court denied this motion. Guyer,
961 F.3d at 1242.
It determined that the State could not reoffer the exact same terms as the original offer,
which was “illegal in form” due to implementing separate sentences for Assault with a
Weapon and Rose’s designation as a Persistent Felony Offender, but that the State could
“‘recommend the same aggregate sentence.’” Guyer,
961 F.3d at 1242-43. Moreover, it
found that any remaining discrepancy was attributable to both proposals’ anticipation of
additional terms being incorporated into a final agreement if Rose accepted the offer.
Guyer,
961 F.3d at 1243.
¶8 Rose sought review from the Ninth Circuit. Guyer,
961 F.3d at 1243. After
reviewing Rose’s arguments, the Ninth Circuit denied Rose’s request for a certificate of
appeal, concluding on the merits that reasonable jurists would not debate whether the
district court abused its discretion in finding that the State complied with the federal writ.
Guyer,
961 F.3d at 1248.
¶9 Rose filed his second petition for postconviction relief on February 27, 2019,
alleging nine claims of ineffective assistance of counsel during the remand proceeding
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leading up to Judge Langton’s order rejecting the reoffered plea deal. On April 12, 2019,
Rose moved to disqualify Judge Langton from Rose’s petition for cause. Judge Langton
referred the matter to this Court. Judge Langton then retired from the bench and this Court
denied Rose’s motion as moot.
¶10 District Court Judge Jennifer B. Lint then considered Rose’s petition for
postconviction relief, addressing and rejecting all nine of Rose’s claims of ineffective
assistance of counsel in a May 21, 2019 order. Rose submitted a Motion to Amend
Judgment and/or Make Additional Findings, which was subsequently denied. Rose
appeals.
¶11 This Court reviews a district court’s denial of a petition for postconviction relief to
determine whether its factual findings are clearly erroneous and whether its legal
conclusions are correct. Garding v. State, 2020 MT 163, ¶ 12,
400 Mont. 296,
466 P.3d
501 (citations omitted). Ineffective assistance of counsel (IAC) claims are mixed questions
of law and fact, reviewed de novo. Garding, ¶ 12.
¶12 Rose argues that the District Court erred in denying his nine claims for relief based
on ineffective assistance of counsel in his most recent motion for postconviction relief.
These claims are:
(1) defense counsel failed to preserve any issue for appeal when representing
Rose in the 2016 federal court remand proceedings;
(2) defense counsel failed to challenge the district court’s revisitation of the
federal court’s findings regarding Rose’s underlying Strickland claims,
pursuant to doctrines of issue preclusion, claim preclusion, res judicata, and
the Supremacy Clause of the United State Constitution;
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(3) defense counsel failed to challenge the district court’s written judgment
and order rejecting the plea agreement on grounds that Rose did not express
willingness to accept responsibility in 2002 and 2003;
(4) defense counsel failed to object to the district court’s acceptance of
jurisdiction to assess the acceptance of the plea agreement when the State
failed to follow the federal court’s order to timely offer equivalent terms of the
2003 plea offer;
(5) defense counsel failed to identify and advise Rose of the available
post-judgment Rule 60(b) or Rule 70 motions before a federal court
challenging the State’s new offer as containing inequivalent terms;
(6) defense counsel was ineffective in advising Rose to accept the
unequivalent plea rather than advising to file a post-judgment motion in
federal court;
(7) defense counsel failed to identify the State’s breaches of the plea while at
the same time failing to advance motions and objections to preserve for appeal
a motion to reverse guilty plea and request remedy of enforcement of the plea
agreement;
(8) defense counsel failed to identify and inform Rose of the significance and
legal ramifications of the prosecutor’s alleged in-chambers comments that
undermined the agreement as a whole; and
(9) if the court determines that any other meritorious or potentially meritorious
issue raised herein was not properly preserved by defense counsel either in
trial court proceedings or on appeal therefrom, Rose asserts such failure to be
prejudicial and ineffective under federal and state IAC standards.
¶13 To prevail on an IAC claim, Rose must show that his counsel’s representation fell
below an objective standard of reasonableness, and that the deficient performance
prejudiced the defense. State v. Bekemans, 2013 MT 11, ¶¶ 29-30,
368 Mont. 235,
293
P.3d 843 (citing Strickland v. Washington,
466 U.S. 668,
104 S. Ct. 2052 (1984).
¶14 Rose’s first three claims all take issue with the state District Court’s decision to
reject the reoffered plea agreement during the 2016 remand. These were already addressed
by this Court in Rose III. First, this Court conducted a full review of the District Court’s
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refusal to accept the reoffered plea agreement in Rose III, concluding that the District Court
did not abuse its discretion. See Rose III, ¶¶ 23-26. Thus, Rose was not prejudiced by his
counsel’s alleged failure to preserve specific issues for appeal. Second, this Court already
addressed Rose’s contention that, pursuant to the Supremacy Clause or the doctrines of
issue and claim preclusion, the Federal Court findings should have barred the State District
Court from finding, once again, that Rose would not have accepted the plea at the time it
was originally offered. See Rose III, ¶ 24 (“Lafler and the Federal District Court invited
the [State] District Court to exercise its discretion between either vacating Rose’s
conviction and accepting the reoffered plea or leaving his conviction undisturbed.”). Third,
this Court did specifically address the District Court’s conclusion that Rose’s behavior in
2002 and 2003 indicated an unwillingness to accept responsibility that suggested he would
not have taken the offer at the time it was originally presented. Rose III, ¶ 24 (“The District
Court was familiar with Rose and his behavior at the time the Plea Offer was first made
and concluded Rose would not have accepted it because he was unwilling to accept
responsibility at the time it was first made.”). Thus, any alleged failure by Rose’s counsel
to raise particular issues did not prejudice Rose, as they were fully addressed and rejected
by this Court in Rose III.
¶15 Rose’s claims four through six are based on Rose’s contention that the State failed
to offer him the same plea agreement as the original 2003 offer. The Federal District Court
rejected this argument during Rose’s Fed. R. Civ. P. 70(a) motion to enforce. See Guyer,
961 F.3d at 1242. When Rose sought appellate review, the Ninth Circuit addressed the
arguments on the merits and, determining that reasonable jurists would not debate the
7
matter, declined to provide Rose with a certificate of appeal with which to proceed further.
Guyer, 961 F.3d at 1247-48.
Rose first argues that the specific sentencing recommendation included in
the reoffered plea proposal was not equivalent to the original plea proposal,
which provided only that the State would be “free to argue for what it deems
is an appropriate sentence.” Although Rose concedes that the district court
was correct in finding that the State could have recommended the same
aggregate sentence under both proposals, he asserts that the State’s decision
to recommend the maximum sentence in the reoffered plea proposal
foreclosed the possibility that the evidence and argument at sentencing would
compel a more lenient sentencing recommendation.
However, it is not unreasonable to conclude that the original and reoffered
plea proposals were equivalent in this respect. Rose’s argument ignores the
fact that, when the State made its sentencing recommendation in the
reoffered plea proposal, it had already heard the evidence and arguments at
Rose’s sentencing hearing in 2004. Therefore, Rose was not deprived of the
opportunity to compel a more lenient sentencing recommendation. But, even
if he had been, the original plea proposal never committed the State to
consider the evidence and arguments at sentencing before determining its
sentencing recommendation. Rose also provides us no indication in the
record that the State would have done so in 2003. Thus, it is beyond
reasonable debate that the district court did not abuse its discretion in finding
that the two proposals were equivalent despite the State’s specific sentencing
recommendation in the reoffered plea proposal.
Rose next argues that a number of conditions contained in the final plea
agreement were completely missing from the original plea proposal—
namely, certain conditions of supervision and a waiver of the right to appeal.
But as the district court explained, both proposals contemplated the
incorporation of additional terms and conditions into a final plea agreement
if Rose accepted the offer. Furthermore, Rose identifies no term in the final
plea agreement in 2016 that would not have been present in a final plea
agreement had one been reached in 2003. Therefore, Rose’s comparison
between the final plea agreement and the original plea proposal does not
provide grounds upon which reasonable jurists would debate whether the
district court was within its discretion in finding that the original and
reoffered plea proposals were equivalent.
Lastly, Rose highlights that the original plea proposal provided for a separate
10-year sentence with 5 years suspended for Rose’s status as a PFO
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[(Persistent Felony Offender)], see Mont. Code Ann. § 46-18-502, which
would run consecutively with his sentence for assault with a weapon (an
offense carrying a statutory maximum of 20 years, see Mont. Code Ann.
§ 45-5-213(2)(a)). On the other hand, the reoffered plea proposal provided
for a 30-year sentence with 5 years suspended for assault with a weapon—
presumably the combination of a 20-year maximum sentence under Mont.
Code Ann. section 45-5-213(2)(a) with (what is in effect) a 10-year
sentencing enhancement for Rose’s PFO status.
Because “sentences imposed based on an offender’s status as a PFO replace
the sentence for the underlying felony” under Montana law, State v.
Gunderson, 2010 MT 166,
357 Mont. 142,
237 P.3d 74, 84 (Mont. 2010), the
district court explained that, had the State reoffered Rose the exact same term
as the original plea proposal with respect to Rose’s PFO status, such a
proposal would have been “illegal in form.” Nevertheless, the district court
found the original and reoffered plea proposal equivalent, finding it possible
for Rose to obtain a combined 30-year sentence with 5 years suspended for
assault with a weapon and his PFO status under both proposals. Rose does
not contest the district court’s reasoning.
In conclusion, none of Rose’s arguments demonstrate that reasonable jurists
would debate whether the district court abused its discretion in finding that
the State complied with the Conditional Writ[.]
¶16 Rose, 961 F.3d at 1247-48 (alteration omitted). We find the Ninth Circuit’s
reasoning compelling and adopt it here. Because the State’s offer was equivalent to the
originally-offered plea, Rose cannot show ineffectiveness by his counsel or resultant
prejudice on the basis of this contention.
¶17 In Rose’s seventh claim, he argued that the State was obligated to file an amended
information dismissing the two felonies before Judge Langton reviewed the plea
agreement. Under Lafler, Judge Langton was directed to “exercise discretion in deciding
whether to vacate the conviction from trial and accept the plea or leave the conviction
undisturbed.” Lafler,
566 U.S. at 171;
132 S. Ct. at 1389. Though the State would have
been obligated to file an amended information dismissing the two felonies if Judge Langton
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had accepted the plea agreement, Judge Langton did not, and there was no need for the
State to amend the information pursuant to the agreement.
¶18 In claim eight, Rose argued that defense counsel failed to identify and inform Rose
of the “legal ramifications” of the prosecution’s alleged in-chambers comments opining
that Rose would not have accepted the plea offer had it been tendered in 2003. Rose also
alleges that, at an August 11, 2016 hearing, the court stated, “I know the State is not a
willing participant in this agreement,” to which the prosecutor responded, “we are
obligated and do support the plea agreement.”1 On appeal, Rose argues that a prosecutor
may not, at sentencing, undercut the sentence the prosecutor has obligated him or herself
to recommend through a plea agreement. State v. Rardon, 2002 MT 345, ¶ 22,
313 Mont.
321,
61 P.3d 132 (“[I]t is not acceptable for a prosecutor to aggressively solicit testimony
that is clearly intended to undermine the plea agreement and to convince the sentencing
court that a plea bargained sentence recommendation should not be accepted.”).
¶19 The question, under Lafler, of whether Rose would have, in 2003, accepted the
prosecution’s proposed plea agreement, is distinct from the question of whether a court
should impose the sentence recommended by the prosecution pursuant to a valid plea deal.
Certainly, under Rardon, the State must uphold its end of a plea agreement by refraining
from surreptitiously arguing for a sentence beyond what the State obligated itself to
recommend. Here, the State indicated it intended to do just that when it told the judge that
“we are obligated and do support the plea agreement.” The prosecutor’s statements in
1
Rose did not file this transcript with his petition or this appeal.
10
chambers, allegedly opining that Rose would not have accepted the agreement if he had
been made aware of it in 2003, goes to the preliminary inquiry directed by Lafler. Rose
points to no authority suggesting that the prosecution must refrain from taking a position
on the question of whether a defendant would have accepted a deal when it was first
offered. Pursuant to Lafler, Judge Langton determined that Rose would not have accepted
the plea agreement when originally offered, without the benefit of hindsight that had
accrued after trial. Rose makes us aware of no “legal ramifications” of the alleged
statements made by the prosecutor in chambers, and the prosecution’s statement of support
for the recommended sentence was proper. Therefore, Rose has not shown ineffectiveness
on the part of his counsel or resultant prejudice.
¶20 Rose’s final claim, asserting ineffective assistance of counsel “[i]f this court
determines that any other meritorious or potentially meritorious issue raised herein was not
properly preserved by defense counsel either in trial court proceedings or on appeal
therefrom” was properly dismissed as failing to meet the statutory threshold of
§ 46-21-104, MCA (requiring a petitioner for postconviction relief to “identify all facts”
and include “appropriate arguments and citations and discussion of authorities”).
¶21 Additionally, Rose raises on appeal a claim of judicial bias and vindictiveness by
Judge Langton during the 2016 remand proceedings in which Judge Langton refused to
accept the reoffered plea agreement. Rose’s claim is procedurally barred, as he could have
raised it on direct appeal of Judge Langton’s decision. See § 46-21-105(2), MCA.
¶22 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
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Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶23 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ LAURIE McKINNON
/S/ INGRID GUSTAFSON
/S/ BETH BAKER
/S/ JIM RICE
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