03/09/2021
DA 19-0057
Case Number: DA 19-0057
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 61N
DAVID W. NELSON,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Third Judicial District,
In and For the County of Powell, Cause No. DV-18-15
Honorable Ray J. Dayton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
David Wayne Nelson, Self-represented, Deer Lodge, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Mardell Ployhar, Assistant
Attorney General, Helena, Montana
Kathryn McEnery, Powell County Attorney, Deer Lodge, Montana
Submitted on Briefs: November 12, 2020
Decided: March 9, 2021
Filed:
cir-641.—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 does not
serve as precedent. The case title, cause number, and disposition shall be included in our
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 David Wayne Nelson appeals the January 2019 judgment of the Montana Third
Judicial District Court, Powell County, denying his petition for postconviction relief from
his 2017 conviction on two counts of Deliberate Homicide. We affirm.
¶3 In 2015, the State charged Nelson with felony Theft, two counts of Deliberate
Homicide, and two counts of felony Obstructing Justice based on allegations that he stole
seventeen 100-ounce silver bars belonging to Gregory Giannonatti, later murdered
Mr. Giannonatti and his mother (Beverly) when confronted about the theft, and then
concealed their bodies and the other evidence of the crimes to avoid arrest and prosecution.
The subsequent investigation further revealed that, at Nelson’s request, his wife
subsequently re-painted the bathroom where the murders occurred, and withdrew the
proceeds of his sale of the stolen silver ($26,000) from a joint account for delivery to him.
The Powell County Sheriff recommended no charges against the wife, however, based on
his view that the investigation indicated that she did so without knowledge of Nelson’s
crimes.
¶4 After initial denials following his arrest, Nelson eventually confessed that he had
indeed stolen the silver bars, murdered the mother and son, and concealed the evidence as
charged. He emphatically asserted, however, that his wife had no knowledge of or
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involvement in any of his crimes. While incarcerated after confessing, Nelson asked to
speak with the Sheriff on several occasions out of concern for his wife to verify that the
State would not prosecute her and to re-emphasize that she had no knowledge of or
involvement in his crimes. Unprompted, Nelson told the Sheriff that he would not plead
guilty if the State was going to prosecute his wife. The Sheriff then passed on Nelson’s
statements to the County Attorney.
¶5 By correspondence to Nelson’s counsel in February 2016, the County Attorney
tendered an initial plea offer proposing that Nelson plead guilty to both homicides and the
theft in return for dismissal of the obstruction charges and a State recommendation for life
sentences on the homicides, 10 years on the theft, and no State recommendation as to
whether the sentences would run consecutively or concurrently. Based on the available
investigative information, the offer further stated that:
[the State] would [also] agree not to pursue potential contemplated charges against
[Nelson’s wife] for Accessory to the Theft [regarding] her withdrawal of the funds
from the bank, [and] Obstructing Justice [regarding the] painting [of] the bathroom.
Nelson did not accept the State’s initial offer.
¶6 However, in September 2016, Nelson accepted a later offer from the State calling
for him to plead guilty to the homicides in return for dismissal of the theft and obstructing
charges and a State recommendation for concurrent life sentences on the homicides with
no recommendation for a parole restriction. Unlike the initial plea offer, the September
2016 agreement did not include the non-prosecution of Nelson’s wife as part of the stated
contract consideration. The written agreement, and concurrently executed written
acknowledgement of waiver of rights, clearly and comprehensively stated and
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acknowledged Nelson’s unequivocal understanding of the full complement of his trial
rights, the waiver effect of his contemplated guilty plea (including, inter alia, waiver of the
right to appeal1), as well as the parties, terms, and effect of the agreement (including the
right to withdraw his plea prior to sentencing if the court was inclined to deviate from the
agreement). The change of plea documents further included express assertions by Nelson
that the agreement was limited to its express terms with no other promises or inducements,
that he entered into it voluntarily without threat or coercion, and that he had adequate
opportunity to consult with his counsel and was satisfied with the representation received.
At the change of plea hearing on September 6, 2016, Nelson appeared with counsel, made
similar comprehensive acknowledgments and representations upon colloquy with court
and counsel, and then pled guilty to the charged homicides.
¶7 Prior to sentencing, both parties filed sentencing memoranda recommending that
the court sentence Nelson in accordance with the terms of the plea agreement. However,
both memoranda noted and acknowledged that life sentences under § 45-5-102(2), MCA,
inherently include a 30-year parole eligibility restriction as a matter of law, regardless of
the lack of an express parole restriction in the sentence imposed by the court. See
§ 46-23-201(4), MCA. At sentencing in March 2017, both parties recommended
concurrent life sentences on the homicides in accordance with the plea agreement, with
acknowledgment that they necessarily included inherent 30-year parole eligibility
restrictions as a matter of law. However, in response to the stated victims’ family concern
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The agreement expressly noted, however, that the waiver of the right to appeal did not include
waiver of the right to appeal based on a challenge of the voluntariness of the plea.
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for assurance that Nelson not be eligible for earlier parole, the District Court indicated its
inclination to impose an express 30-year parole restriction on the concurrent life sentences
and thus inquired of defense counsel as to whether the express parole restriction would
constitute a material deviation from the terms of the plea agreement in light of the
redundant restriction imposed as an inherent matter of law by § 46-23-201(4), MCA. Upon
consultation, Nelson responded through counsel that it would not. The District Court thus
sentenced him to serve concurrent life terms on the deliberate homicides, with express
30-year parole restrictions on each. Nelson did not appeal.
¶8 However, in February 2018, he filed a pro se petition for postconviction relief
alleging that his 2017 conviction and sentence were invalid because: (1) the express
30-year parole restriction constituted a breach of the plea agreement; (2) his guilty plea
was involuntarily coerced by State threats to prosecute his wife based on her after-the-fact
involvement in his crimes; and (3) he received ineffective assistance of counsel (IAC)
based on counsel’s failure to preserve his right to appeal the express 30-year parole
restriction. The District Court ordered a State response and further ordered Nelson’s
counsel to respond to the IAC claim pursuant to In re Petition of Gillham, 216 Mont. 279,
704 P.2d 1019 (1985). In January 2019, upon consideration of the facts of record, the
District Court denied the petition. Nelson appeals pro se.
¶9 A person convicted “of an offense in a court of record who has no adequate remedy
of appeal and who claims” that his conviction occurred in violation of the constitution of
the United States, State of Montana, or Montana law may file a verified petition “to vacate[]
[or] set aside” the conviction. Sections 46-21-101(1) and -103, MCA. However, the
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petitioner has the burden of showing the asserted illegality by a preponderance of the
evidence under the applicable law. Heath v. State, 2009 MT 7, ¶ 16,
348 Mont. 361,
202
P.3d 118; Ellenburg v. Chase,
2004 MT 66, ¶ 12,
320 Mont. 315,
87 P.3d 473; State v.
Cobell,
2004 MT 46, ¶ 12,
320 Mont. 122,
86 P.3d 20. Upon ordering a state response and
consideration of the parties’ factual showings, the court may either grant the petition or
dismiss for failure to state a claim entitling the petitioner to relief. Section 46-21-201(1)(a),
MCA; Herman v. State,
2006 MT 7, ¶¶ 15 and 41-45,
330 Mont. 267,
127 P.3d 422;
Ellenburg, ¶¶ 11-12. The standard of review of a denial of postconviction relief is whether
the lower court’s conclusions of law are correct and whether the predicate findings of fact
are clearly erroneous in the light most favorable to the conviction. Whitlow v. State,
2008
MT 140, ¶ 9,
343 Mont. 90,
183 P.3d 861; In re Jones,
176 Mont. 412, 415,
578 P.2d 1150,
1152 (1978). Whether the lower court correctly dismissed a postconviction IAC claim
presents a mixed question of law and fact reviewed de novo. Whitlow, ¶ 9; State v. Turner,
2000 MT 270, ¶ 47,
302 Mont. 69,
12 P.3d 934. See also Strickland v. Washington,
466
U.S. 668, 698,
104 S. Ct. 2052, 2070 (1984).
¶10 Nelson first asserts that the express 30-year parole restriction constituted a breach
of the plea agreement. However, it is beyond genuine material dispute that the State
recommended concurrent life sentences on the homicides as agreed, without
recommendation for a court-imposed parole restriction. At most, the State noted and
acknowledged that, pursuant to § 46-23-201(4), MCA, the agreed life sentences under § 45-
5-102(2), MCA, included inherent 30-year parole restrictions as a matter of law. In
addition to the fact that the court was not a party to the plea agreement, it is further beyond
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genuine material dispute that Nelson was fully aware of the inherent statutory parole
restriction and, upon consultation with counsel, concurred without objection that the
express restriction contemplated by the court did not constitute a material deviation from
the State’s agreed sentencing recommendation. Aside from the fact that the State had no
part in it, Nelson has further failed to demonstrate that the express 30-year parole restriction
in any event denied him the benefit of his bargain with the State. We hold that the District
Court correctly concluded that the express 30-year parole restriction did not constitute a
breach of the plea agreement.
¶11 Nelson next asserts that his guilty plea was involuntarily coerced by State threats to
prosecute his wife. However, it is beyond genuine material dispute based on the express
language of the plea agreement, Nelson’s accompanying written acknowledgement of
waiver of rights, and his express statements on colloquy at the change of plea hearing that
his guilty plea was not coerced or induced by any State threat or promise to refrain from
prosecuting his wife. While the State’s initial plea offer included non-prosecution of
Nelson’s wife as part of the stated consideration, it is beyond genuine material dispute on
the factual record that the State included that term in the initial offer only at Nelson’s
urging, rather than on the State’s independent volition. It is further beyond genuine
material dispute that Nelson did not accept the State’s initial offer and that, in the
subsequent plea agreement documents and on the record at the change of plea hearing, he
later twice expressly and unequivocally stated and disclaimed that he was not in any way
threatened or coerced to plead guilty and was not induced to plead guilty by any promise
other than as expressly provided in the plea agreement. Aside from cursory assertion,
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Nelson has made no supported factual showing to the contrary. We hold that the District
Court correctly found and concluded that his guilty plea was not coerced or otherwise
induced by any State threat or promise regarding a potential prosecution of his wife.
¶12 Nelson finally asserts that he received IAC based on the failure of counsel to
preserve his right to appeal the express 30-year parole restriction. The Sixth and Fourteenth
Amendments to United States Constitution, and Article II, Section 24, of the Montana
Constitution, similarly guarantee the criminally accused the right to effective assistance of
counsel. Whitlow, ¶ 10; State v. McElveen, 168 Mont. 500, 501-03,
544 P.2d 820, 821-22
(1975); Strickland,
466 U.S. at 686,
104 S. Ct. at 2063 (citing McMann v. Richardson,
397
U.S. 759, 771 n.14,
90 S. Ct. 1441, 1449 (1970)). However, the performance of counsel is
ineffective only if both constitutionally deficient and prejudicial. State v. Herrman,
2003
MT 149, ¶ 17,
316 Mont. 198,
70 P.3d 738. Performance of counsel was constitutionally
deficient only if it “fell below an objective standard of reasonableness measured [by]
prevailing professional norms” under the totality of the circumstances. Whitlow, ¶ 20.
Accord Strickland,
466 U.S. at 688-89,
104 S. Ct. at 2065. In turn, a deficient performance
was prejudicial only upon a showing of a reasonable probability that the outcome would
have been different but for the deficient performance. Ariegwe v. State,
2012 MT 166,
¶¶ 15-16,
365 Mont. 505,
285 P.3d 424; Heath, ¶ 17; Strickland,
466 U.S. at 687,
104 S. Ct.
at 2064. The performance of counsel is presumed constitutionally effective and IAC
claimants bear the heavy burden of overcoming the presumption. Whitlow, ¶¶ 20-21;
Strickland,
466 U.S. at 689,
104 S. Ct. at 2065.
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¶13 It is beyond genuine material dispute on the factual record here that Nelson:
(1) knowingly and voluntarily waived is right to appeal by pleading guilty; (2) knowingly
and voluntarily pled guilty; and (3) concurred with counsel at sentencing that the express
30-year parole restriction contemplated by the court did not constitute a material deviation
from the plea agreement in light of the redundant 30-year restriction imposed as a matter
of law. As to prejudice, it is further beyond genuine material dispute that Nelson at no time
requested that counsel attempt an appeal. Nor has he demonstrated any likelihood of
success had he pursued such an appeal, or that he would have contemporaneously sought
to withdraw his plea but for the alleged deficient performance of counsel. Nelson has thus
made no factual or legal showing sufficient to satisfy either essential element of an IAC
claim. We hold that the District Court correctly rejected the IAC claim regarding the right
to appeal.
¶14 We hold that the District Court correctly denied Nelson’s postconviction relief
petition in toto. 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/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
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