02/22/2022
DA 21-0294
Case Number: DA 21-0294
IN THE SUPREME COURT OF THE STATE OF MONTANA
2022 MT 40N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
BOYD VAN FLEET,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and For the County of Madison, Cause No. DC-29-2017-13
Honorable Luke Berger, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Christopher J. King, Attorney at law, Worland, Wyoming
For Appellee:
Austin Knudsen, Montana Attorney General, Roy Brown, Assistant
Attorney General, Helena, Montana
Chris Christensen, Madison County Attorney, Virginia City, Montana
Submitted on Briefs: January 26, 2022
Decided: February 22, 2022
Filed:
c ir-641.—if
__________________________________________
Clerk
Justice Laurie McKinnon 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 Appellant Boyd Van Fleet (Van Fleet) was charged with felony theft of a horse
named “Magic,” Count I; felony theft of a hot tub, Count II; felony removal of livestock
from the State without inspection, Count III; felony theft of livestock and business records,
Count IV; illegal branding of Magic, Count V; and misdemeanor theft of a firearm, Count
VI. The State and Van Fleet entered into a plea agreement and Van Fleet was subsequently
sentenced by the District Court. Van Fleet appeals, arguing that the court did not accept
his plea agreement and that the court should have expressly rejected the agreement and
advised Van Fleet he could withdraw his plea.
¶3 Van Fleet was the ranch manager of Birch Creek Ranch. On May 5, 2007, Van Fleet
purchased Magic in Wyoming for Jim Guyette (Guyette), who owns and operates Birch
Creek Ranch. Guyette paid Van Fleet with a check. On May 31, 2016, Van Fleet was
terminated as a ranch manager and he moved out of the ranch on June 20, 2016. Thereafter,
Guyette noticed that Magic was missing and Guyette contacted police. Through social
media, Magic was eventually located and suspected to be on Van Fleet’s property. Police
executed a search warrant on Van Fleet’s property and found a horse matching Magic’s
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description. Magic had a brand which was inconsistent with livestock records which
marked Magic as a “no brand” on his brand certificate.
¶4 The parties orally reached a plea agreement, but the plea agreement was never
reduced to writing. At the change of plea hearing, the terms of the agreement were
provided to the court and the court confirmed that the plea agreement was an “open” plea,
explaining to Van Fleet that the plea agreement was nonbinding on the court, that the court
did not have to follow the recommendations of any party, and that Van Fleet would not
have the opportunity to withdraw his plea. Van Fleet agreed to enter a no contest plea to
Count I, theft of Magic, in return for the State’s dismissal of all remaining counts.
Additional terms of the plea agreement provided Van Fleet would return Magic to Guyette
and execute a bill of sale establishing that Magic was transferred to Guyette; Guyette would
pay Van Fleet $7,500 for a cattle shipment unrelated to the theft of Magic; and Guyette and
Van Fleet agreed that they would not pursue any claims, both civil and criminal, against
each other.
¶5 The District Court confirmed that Van Fleet was satisfied with his counsel’s
representation, that he understood the terms of the plea agreement, that he was entering the
no contest plea freely and voluntarily, and that he was not under the influence of any
substances. The District Court explained the rights Van Fleet was giving up by foregoing
a jury trial and entering a plea of guilty, and Van Fleet confirmed his understanding.
Van Fleet acknowledged that his no contest plea did not limit the court’s authority to
impose any legal sentence and that the court was not bound by the recommendations of
either the State or Van Fleet. Van Fleet acknowledged that it was in his best interest to
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accept the plea. The District Court accepted Van Fleet’s no contest plea and found him
guilty of felony theft. The matter was set for sentencing.
¶6 Prior to sentencing, Van Fleet filed a motion to withdraw his no contest plea.
Van Fleet explained that he had returned Guyette’s check for $7,500 and that he feared the
State would recommend a prison sentence. The District Court addressed Van Fleet’s
motion to withdraw his no contest plea at the May 3, 2021, sentencing hearing. The court
suggested that Van Fleet wait to see what sentence was imposed before pursuing his motion
to withdraw. If Van Fleet was dissatisfied with the sentence the court imposed, the court
advised it would allow Van Fleet to renew his motion to withdraw his plea. Van Fleet and
his counsel agreed with this approach and agreed that if Van Fleet did not like the sentence
imposed, Van Fleet would renew his motion to withdraw his guilty plea.
¶7 At the sentencing hearing, the State recommended the mandatory minimum fine of
$5,000 and a ten-year sentence of incarceration, with five years suspended. Van Fleet
recommended a probationary sentence and argued that Guyette had not performed under
the plea agreement because Guyette did not send a certified check of $7,500 for the cattle.
Guyette had, in fact, sent checks on two occasions which Van Fleet rejected. The State
responded that the issue of “certified funds” was never a negotiated term of the plea
agreement, and that Van Fleet received the benefit of the plea when the State agreed to
dismiss all remaining counts. The District Court sentenced Van Fleet, imposing an
eight-year sentence to the Department of Corrections, all suspended, and imposed the
$5,000 mandatory minimum fine.
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¶8 Importantly, the District Court once again advised Van Fleet that he could renew
his motion to withdraw his no contest plea. The court gave Van Fleet until Wednesday,
May 5, 2021, to renew his motion. Van Fleet never renewed his motion to withdraw his
guilty plea and the District Court entered its judgment on May 17, 2021.
¶9 This Court generally does not address issues raised for the first time on appeal.
State v. Hatfield, 2018 MT 229, ¶ 15,
392 Mont. 509,
426 P. 3d 569. However, we may
discretionally review unpreserved claims alleging errors implicating a criminal defendant’s
fundamental rights under the common law plain error doctrine. State v. Akers,
2017 MT
311, ¶ 13,
389 Mont. 531,
408 P. 3d 142 (citing State v. Taylor,
2010 MT 94, ¶ 12,
356
Mont. 167,
231 P. 3d 79). The party requesting reversal bears the burden of convincing
this Court that the claimed error implicates a fundamental right and that such review is
necessary to prevent a manifest miscarriage of justice or that failure to review the claim
may leave unsettled the question of fundamental fairness of the proceedings or may
compromise the integrity of the judicial process. Akers, ¶ 13.
¶10 Van Fleet argues for the first time on appeal that he entered into a plea agreement
with the State pursuant to § 46-12-211(1)(a), MCA. Van Fleet argues that because he
entered a –(1)(a) plea agreement, the court should have allowed him to withdraw his plea.
In the District Court, however, Van Fleet never asserted he entered a –(1)(a) plea and
agreed with the court that it could conduct sentencing first and allow Van Fleet to renew
his motion to withdraw his plea after sentencing, if necessary. To properly preserve an
issue or argument for appeal, a party must first raise the issue or argument in the district
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court. Van Fleet did not receive an illegal sentence; thus, the only available review is
through plain error. In order to obtain plain error review, a defendant must:
(1) show that the claimed error implicates a fundamental right and (2) firmly
convince this Court that the failure to review the claimed error would result
in a manifest miscarriage of justice, leave unsettled the question of the
fundamental fairness of the trial or proceedings, or compromise the integrity
of the judicial process.
State v. Norman, 2010 MT 253, ¶ 17,
358 Mont. 252,
244 P.3d 737 (internal quotations
omitted). Van Fleet fails to establish any of the factors warranting the exercise of plain
error review. Van Fleet has waived and abandoned any challenge to his alleged right to
withdraw his no contest plea by failing to renew his motion and challenge to the plea
agreement when given the opportunity to do so by the District Court.
¶11 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
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶12 Affirmed.
/S/ LAURIE McKINNON
We concur:
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ JIM RICE
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