09/21/2021
DA 20-0091
Case Number: DA 20-0091
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 239
STATE OF MONTANA,
Plaintiff and Appellee,
v.
MARY DARLEAN WRIGHT,
Defendant and Appellant.
APPEAL FROM: District Court of the Tenth Judicial District,
In and For the County of Fergus, Cause No. DC 18-68
Honorable Jon A. Oldenburg, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Alexander H. Pyle, Assistant Appellate
Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Bree Gee, Assistant Attorney
General, Helena, Montana
Kent M. Sipe, Fergus County Attorney, Jean Adams, Deputy County
Attorney, Lewistown, Montana
Submitted on Briefs: July 28, 2021
Decided: September 21, 2021
Filed:
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__________________________________________
Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.
¶1 Defendant and Appellant Mary Darlean Wright (Wright) appeals from the October
11, 2019 Sentencing Order and Judgment issued by the Tenth Judicial District Court,
Fergus County, which imposed a four-year suspended sentence for her convictions for
Criminal Possession of Dangerous Drugs (CPDD), a felony; CPDD - Marijuana, a
misdemeanor; and Criminal Possession of Drug Paraphernalia (CPDP), a misdemeanor,
following a jury trial.
¶2 We address the following restated issue on appeal:
Whether Wright received ineffective assistance of counsel when her counsel, while
arguing for a deferred sentence, failed to inform the District Court of its authority
to impose an alternative sentence under § 45-9-202, MCA.
¶3 We reverse and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
¶4 In October of 2018, pursuant to a search warrant, officers from the Fergus County
Sheriff’s Department conducted a search of Wright’s residence. Officers found both drugs
and drug paraphernalia in the residence. Wright was arrested and ultimately charged with
two felony counts of CPDD, one misdemeanor count of CPDD, and one misdemeanor
count of CPDP. One of the felony CPDD charges was dismissed before trial. After a
two-day jury trial, Wright was convicted of the three remaining charges. The District Court
thereafter ordered a presentence investigation report (PSI). On August 14, 2019, the PSI
was filed in this matter. Relevant to the present appeal, the PSI disclosed that Wright was
previously convicted of a non-drug-related felony in Texas in 1995. The author of the PSI,
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Probation and Parole Officer Bonnie Boettger (PO Boettger), wrote in the PSI that she
“believes that Defendant is ineligible for a deferred sentence.”
¶5 The District Court held a sentencing hearing on September 12, 2019. PO Boettger
was unavailable and did not testify at the hearing. With no witnesses from either side, the
court proceeded directly to recommendations from the parties. Relevant to this appeal, the
State asked for a five-year commitment to the Montana Department of Corrections (DOC),
with no time suspended, on the felony CPDD conviction. Wright asked for a three-year
deferred sentence on the felony CPDD conviction. The District Court then reminded
counsel for Wright that the PSI stated she was not eligible for a deferred sentence and asked
if she disagreed with that conclusion. Counsel for Wright pointed the District Court to
§ 46-18-201(1)(b), MCA, which states that the “imposition of sentence in a felony case
may not be deferred in the case of an offender who has been convicted of a felony on a
prior occasion, whether or not the sentence was imposed, imposition of the sentence was
deferred, or execution of the sentence was suspended,” and argued the language of “may
not be deferred” was permissive, rather than mandatory, such that the court would have the
discretion to impose a deferred sentence under that statute. The State responded that
Wright was not eligible for a deferred sentence under § 46-18-201(1)(b), MCA, and the
exceptions found in § 46-18-222, MCA, and objected to the request for a deferred sentence.
¶6 The District Court then pronounced its sentence in this case: a four-year DOC
commitment, with all four years suspended, for the felony CPDD charge; a $250 fine, with
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$200 suspended, on the misdemeanor CPDD charge; and six months in the county jail,
with six months suspended, on the misdemeanor CPDP charge. Wright appeals.
STANDARD OF REVIEW
¶7 Ineffective assistance of counsel claims are mixed questions of law and fact which
we review de novo. State v. Larsen, 2018 MT 211, ¶ 6,
392 Mont. 401,
425 P.3d 694
(citing State v. Jefferson,
2003 MT 90, ¶ 42,
315 Mont. 146,
69 P.3d 641).
DISCUSSION
¶8 Whether Wright received ineffective assistance of counsel when her counsel, while
arguing for a deferred sentence, failed to inform the District Court of its authority
to impose an alternative sentence under § 45-9-202, MCA.
¶9 “Article II, Section 24, of the Montana Constitution and the Sixth Amendment to
the United States Constitution, as incorporated through the Fourteenth Amendment,
guarantee a defendant the right to effective assistance of counsel.” Larsen, ¶ 7 (citing State
v. Kougl, 2004 MT 243, ¶ 11,
323 Mont. 6,
97 P.3d 1095). In assessing ineffective
assistance of counsel claims, we apply the two-pronged test set forth in Strickland v.
Washington,
466 U.S. 668,
104 S. Ct. 2052 (1984). Kougl, ¶ 11. Under the Strickland test,
the defendant must (1) demonstrate that “counsel’s performance was deficient or fell below
an objective standard of reasonableness” and (2) “establish prejudice by demonstrating that
there was a reasonable probability that, but for counsel’s errors, the result of the proceeding
would have been different.” Kougl, ¶ 11 (quoting State v. Turnsplenty,
2003 MT 159,
¶ 14,
316 Mont. 275,
70 P.3d 1234).
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¶10 When a defendant raises ineffective assistance of counsel claims on direct appeal,
we must first determine whether the claims are more appropriately addressed in a
postconviction relief proceeding. Larsen, ¶ 8 (citing Kougl, ¶ 14). “[A] record which is
silent about the reasons for the attorney’s actions or omissions seldom provides sufficient
evidence to rebut” the strong presumption that counsel’s conduct falls within the wide
range of reasonable professional conduct. State v. Sartain, 2010 MT 213, ¶ 30,
357 Mont.
483,
241 P.3d 1032 (citing State v. White,
2001 MT 149, ¶ 13,
306 Mont. 58,
30 P.3d 340).
Ineffective assistance of counsel claims are appropriate for review on direct appeal,
however, when “no plausible justification” exists for the actions or omissions of defense
counsel. Kougl, ¶ 15 (citing Jefferson, ¶ 50).
¶11 On appeal, Wright argues she received ineffective assistance of counsel at her
sentencing hearing when her counsel argued for a deferred sentence and then, when asked
by the District Court to give authority for her eligibility for a deferred sentence, pointed
the court to a statute which would make her ineligible for a deferred sentence, rather than
to the Alternative Sentencing Authority (ASA), § 45-9-202, MCA. The State, in response,
claims that Wright’s ineffective assistance of counsel claim is not appropriate for review
on direct appeal, and, if this Court chooses to review the claim on direct appeal, that Wright
has not demonstrated prejudice.
¶12 We first address the State’s contention that Wright’s claim of ineffective assistance
of counsel is not appropriate for review on direct appeal because the record does not
demonstrate “why” Wright’s counsel did not raise the ASA during sentencing. In a case
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such as this, it is unnecessary to ask “why” in the first instance, because this is the
“relatively rare situation where there is ‘no plausible justification’ for what defense counsel
did.” Kougl, ¶ 15. When there is “no plausible justification” for the actions of counsel,
the claim is appropriate for review on direct appeal. State v. Fender, 2007 MT 268, ¶ 10,
339 Mont. 395,
170 P.3d 971 (quoting Jefferson, ¶ 50).
¶13 After the PSI indicated Wright was not eligible for a deferred sentence, Wright and
her counsel nevertheless arrived at the sentencing hearing to argue for a deferred sentence.
Wright was convicted of felony CPDD, in violation of § 45-9-102, MCA. Typically,
judges have discretion to defer sentences, even for felonies, see § 46-18-201(1)(a), MCA,
and for first-offense felony CPDD charges, an offender is “presumed to be entitled to a
deferred imposition of sentence of imprisonment.” § 45-9-102(4), MCA (2017).1 An
important exception to this discretionary scheme is found in § 46-18-201(1)(b), MCA,
which states, “[e]xcept as provided in 46-18-222, imposition of sentence in a felony case
may not be deferred in the case of an offender who has been convicted of a felony on a
prior occasion, whether or not the sentence was imposed, imposition of the sentence was
deferred, or execution of the sentence was suspended.”2 When called upon by the District
1
Since renumbered as § 45-9-102(3), MCA.
2
Section 46-18-222, MCA, provides for exceptions to mandatory minimum sentences, restrictions
on deferred imposition and suspended execution of sentence, and restrictions on parole eligibility.
None of the exceptions found in § 46-18-222(1)-(6), MCA, are implicated in this case.
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Court to provide support for the claim Wright was eligible for a deferred sentence, counsel
for Wright responded:
Your Honor I believe Ms. Boettger indicated that she did not think she was
eligible. There is a felony that is 20 plus years in Mary Wright’s past and I
have reviewed the statutes and you know I find the [c]ourt’s ability, the
statu[t]es regarding the sentences that may be imposed contained in 46-18-
201 use the term “may”. The [c]ourt may sentence in a felony case may not
be deferred. I interpret that language as being permissive to the [c]ourt. It
does not say shall or must and I would request the [c]ourt use the discretion
regarding this sentence.
¶14 Counsel for Wright’s argument before the District Court that the language “may not
be deferred” in § 46-18-201(1)(b), MCA, is permissive, rather than mandatory, is clearly
incorrect. See Van Der Hule v. Mukasey, 2009 MT 20, ¶ 11,
349 Mont. 88,
217 P.3d 1019
(“[C]ourts that have construed legislative use of the phrase ‘may not’ have consistently
held that the phrase is mandatory.”). Under § 46-18-201(1)(b), MCA, then, the District
Court would not have discretion to defer Wright’s sentence. As this was the only statute
cited by Wright’s counsel at sentencing, her client had no real opportunity to receive a
deferred sentence.
¶15 Section 46-18-201(1)(b), MCA, is not the only statute regarding Wright’s eligibility
for a deferred sentence in this case, however. Unmentioned by Wright’s counsel was the
ASA, which provides that a “person convicted of a dangerous drug felony offense under
this chapter may, in lieu of imprisonment, be sentenced according to the alternatives
provided in subsection (2).” Section 45-9-202(1), MCA. The ASA statute further provides
that when a “court determines, either from the face of the record or from a presentence
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investigation and report, that incarceration of the defendant is not appropriate, the court
may, as a condition of a suspended or deferred sentence, impose” certain conditions.
Section 45-9-202(2), MCA (emphasis added).
¶16 We interpret statutes to give effect to the Legislature’s intent, and construe them as
a whole to avoid absurd results. State v. Brendal, 2009 MT 236, ¶ 18,
351 Mont. 395,
213
P.3d 448. “In situations where general and specific statutes exist and the two cannot be
harmonized to give effect to both, the specific statute controls.” Brendal, ¶ 18 (citing State
v. Oie,
2007 MT 328, ¶ 17,
340 Mont. 205,
174 P.3d 937). In Brendal, we were called
upon to determine whether the ASA could be applied when the State sought to sentence
Brendal as a persistent felony offender (PFO). The relevant language of the PFO statute
stated, “[e]xcept as provided in 46-18-222, the imposition or execution of the first 5 years
of a sentence imposed under subsection (1) of this section or the first 10 years of a sentence
imposed under subsection (2) of this section may not be deferred or suspended.” Brendal,
¶ 3 (quoting § 46-18-502(3), MCA). We held that, even though the PFO statutes provide
for imprisonment once a PFO designation has been made, a district court retained its
discretion to issue a sentence which did not provide for imprisonment under the ASA
because the ASA was the more specific statute and requiring imprisonment, in a situation
where a district court found incarceration was not appropriate, defeated the purpose of the
ASA. Brendal, ¶¶ 27-31. Ultimately, we determined “the PFO statutes do not preclude a
district court from providing an alternative sentence under the ASA statute for an individual
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convicted of a drug-related offense in Title 45, chapter 9, provided the required criteria to
impose an alternative sentence are satisfied.” Brendal, ¶ 32.
¶17 Since Brendal, we have reiterated that courts retain the ability to suspend or defer
sentences under the ASA, even when a defendant has been designated as a PFO, which
carries a mandatory minimum term of imprisonment. Larsen, ¶ 17; State v. Walter, 2018
MT 292, ¶ 15,
393 Mont. 390,
431 P.3d 22. The State argues the “may not be deferred”
provision of § 46-18-201(1)(b), MCA, is not in conflict with the ASA, because a district
court could sentence under the ASA to a suspended sentence. We are not persuaded by
this argument, because we have held that, when a court determines incarceration for a
violation of Title 45, chapter 9, MCA, is inappropriate, it may sentence a defendant
“according to the alternatives” provided in the ASA. Larsen, ¶ 17. The ASA statute
provides that a district court may issue a “suspended or deferred sentence.” Section
45-9-202(2), MCA. And, more specifically, we have previously found ineffective
assistance of counsel when a defendant’s attorney did not cite the ASA or Brendal when
arguing for a deferred sentence in the face of the PFO statutes’ mandatory minimum term
of imprisonment. Walter, ¶ 15. We found in that case that the defendant established “a
reasonable probability that, but for his counsel’s errors, he would have received a deferred
or reduced sentence.” Walter, ¶ 16 (emphasis added). It would lead to absurd results if we
accepted the State’s argument regarding § 46-18-201(1)(b), MCA, as it would lead to a
situation where defendants with multiple prior felonies, such that they were eligible to be
sentenced as a PFO, could receive deferred sentences under the ASA and our caselaw,
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while those with only a single felony could not. Importantly, Brendal, Larsen,
and Walter establish that a defendant who is a PFO and who would therefore not qualify
for a deferred sentence under § 46-18-201(1)(b), MCA, because he or she has at least one
or more felonies, may nonetheless, under the ASA, still receive a suspended or deferred
sentence. It would be an illogical result if a PFO defendant could receive a deferred
sentence under the ASA, while Wright, with a single conviction 24 years ago when she
was 19, could not.
¶18 “An attorney’s ignorance of a point of law that is fundamental to his case combined
with his failure to perform basic research on that point is a quintessential example of
unreasonable performance under Strickland.” Walter, ¶ 15 (quoting Hinton v. Alabama,
571 U.S. 263, 274,
134 S. Ct. 1081, 1089 (2014)). With the ASA, along with this Court’s
prior decisions in Brendal, Larsen, and Walter, providing authority for Wright to seek a
deferred sentence under the ASA, there is “no plausible justification” for Wright’s
counsel’s failure to direct the District Court to the ASA, rather than to § 46-18-201(1)(b),
MCA, when making her sentence recommendation. As such, counsel’s performance was
deficient.
¶19 The State argues that, even if she can prove her counsel was deficient for not
directing the District Court to the ASA, Wright cannot prove she suffered the prejudice
prong of the Strickland test. In support of this assertion, the State argues Wright could
have actually received a higher sentence under the ASA than the one given to her in this
case. We are not persuaded by this argument. The State argues the District Court could
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have imposed more onerous restrictions on Wright as conditions of a deferred sentence
under the ASA than she actually received in her suspended sentence in this case. True,
though she also could have received more onerous conditions on her sentence under
§ 46-18-201, MCA, the statute her counsel wrongly cited to, than she actually did. With
the District Court allowed to impose essentially similar conditions under the ASA as it
could under § 46-18-201(1)(b), MCA, her counsel did nothing to protect Wright from
facing more onerous conditions than she actually received in this case, but simply took the
option of receiving a deferred sentence off the table by failing to alert the District Court to
the ASA.
¶20 Given that Wright’s prior felony was very remote (occurring over 24 years prior to
sentencing in this case), not drug-related, and the District Court’s sentence was
rehabilitative in nature—the court rejected the State’s request for a DOC incarceration
commitment—with primary intervention designed toward evaluation and treatment of a
likely substance use disorder rather than punishment, certainly there was a reasonable
probability the court would have deferred imposition of sentence if it believed such was an
available alternative. While we cannot say whether or not the District Court would have
indeed given Wright a deferred, rather than suspended, sentence in this case, we determine
she “has demonstrated ‘a reasonable probability that, but for counsel’s errors, the result of
the proceeding would have been different.’” Larsen, ¶ 19 (quoting Kougl, ¶ 11); see also
Walter, ¶ 16. Her counsel’s deficient performance therefore prejudiced her during
sentencing, and she is entitled to a new sentencing hearing. See Larsen, ¶ 19.
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CONCLUSION
¶21 Wright received ineffective assistance of counsel at sentencing when her attorney,
while arguing in favor of a deferred sentence, failed to cite to the ASA as authority for her
eligibility for a deferred sentence.
¶22 Reversed and remanded for resentencing.
/S/ INGRID GUSTAFSON
We concur:
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
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