DA 19
- 0413



### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 2 1 MT 90N CITY OF MISSOULA,

Plaintiff and Appellee, v. AARON DEAN STARR,

Defendant and Appellant.
APP EAL FROM: Di strict Court of the F ourth Judicial District , In and For the County

of Missoula , Cause No. DC
- 19
- 148 Honorable Karen S. Townsend , Presiding Judge COUNSEL OF RECORD:

For Appellant: William Boggs, Attorney at Law, Missoula, Montana For Appellee : Au stin Knudsen, M o nt ana Att orney General, Damon Mart in, Assis tant Attorney General , Helena, Montana James P. Nug ent, Mi ssoula Count y Attorney, Keit hi Worthington, Chie f Prosecuting Attorney, Missoula, Montana Submitted on Briefs: February 10, 2021 Decided: April 13, 2021 Filed:

__________________________________________ Clerk 

# sr---6ma•—•f 04/13/2021

Case Number: DA 19-04132

Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Purs uant to Section I, Paragraph 3(c ), Montana Supreme Court Internal Ope rating Rules, this case is decided by me morandum opin ion and shall not be cited and does not
serve as precedent
. Its case title, c ause num ber , and disposition shall be inc luded in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Aaron Dean Starr appeals from an order entered in the F ourth Judicial District Court, Missoula County , af firming the Missoula City Court ’ s denial of his motion to withdraw his guilty plea
. We affirm. ¶3 On Nove mber 1 6, 2017 , Missoula police officers responded to Starr ’ s residence af ter his girlfriend, Stephanie Bean, reported an altercation with Starr. Bean tol d of fice rs that Starr had thrown her to the ground , kicked her in the ribs , an d stomped on her throat. Starr was charged with Partner Family Member Assault (PFMA), Resisting A rrest, and A s sault
. He made h is initial appearance on these ch arges by vide o from the M iss oula County Detention Center o n November 17, 2017
. N o repr esentative from the P ublic D efender ’ s O ffice wa s present, and St arr did not consult with an attorney befo re his plea
. ¶4 No netheless, the record reflects that the Muni cipa l Court Judge explained Starr ’ s rights and how S tarr ’ s case would proceed
. The Judge explained t o Starr that he had the right to plead not guilty and that doing so wou ld allow him time to co nsult with an attorney and evaluate th e evidence ag ainst him. The Judge exp lained th e St ate ’ s burden of proof at trial , that Starr would have the right to confront and cross - examine any3

witness es called against him , an d that Starr had th e right to remain silent or testif y on his own behalf sh ould the matter proceed to trial. The Jud ge explaine d that S t arr had a right to counsel if he could not afford counsel, or he could hire his own attorney . The Judg e also advised Starr that if he was not a citizen and was convicted , he might be deported, and if co nvicted and failed to fol low court orders, he could l ose his dri ving privileges. Starr was then advised of the specifi c charges filed against him and the allegations made as to those charges. The Judge advis ed Starr of th e maximum and minimum penalties f or each offense. ¶5 Starr stated that he un derstood th ese right s but wanted to ple ad guilty to Resisting Arrest and P FMA
. The City informed the Municipal Court that it would dismiss the Assault charge if Starr was pleading guilty t o the other offenses. The Judge asked Starr if he un derstood what the City was offering, and Starr replied that he did. The Judge then asked: “ And you understand that you do have the right to meet with
counsel prior to entering a pl ea in this cas e? ” St arr responded that he understood. The Judge aske d: “ An d you wou ld be waiving th at right? ” t o which Starr replied: “ Yes I am. ” The Judge then reiterated and confirmed that Starr understood the rights he w as giving up by pleading guilty
. Starr state d that he understood. ¶6 Upon the Judge ’ s request , Starr then explained what h a d occurred on November 1 6, 2017
. At one point during the collo quy, Starr stated the following: Then I agreed to have the cops come to maybe assist me, because I was protecting my childre n and my house, and I ’ m a single father, and I have th at right to protect their safety, when some body gets violent toward me like that
. . . I felt attacked or violated
. . . s o that led to harming a family me mber
. . . .4

The Judge a sked Starr whe ther he be l ieved his actions were done in self
- defense
. Starr respon ded th at h e “

just didn ’ t want an altercation with [Bean] and tried [his] best t o avoid it. ” The Judge further clarified : “ OK, but it no netheless turned physical, and you we re the one that then caused injury to her? ” Starr resp onded : “Yes. ” F ollo win g addition al questions regarding his plea to Resisting Arrest, the Municipal C ourt accepted Starr ’ s guilty pleas, impose d a sentence on both counts and , per the C i ty ’ s offer, dis mi ssed the Ass ault char ge. ¶7 For the PFMA charge, the Municipal Court i mposed a sentence of 12 months jail time, all suspend ed except two days (with credit fo r the two days served), a fine of $1 ,000, with $800 sus pended, a $200 credit for time served , and a $ 110 surcharg e fee. F or Resisting Arrest, the court imposed a 6
- month suspe nded jail term, along with a $100 fine and a $100 surcharge. The court ordered St arr to avoid alcohol and bars, to avoid contacting Bean, and to com plete a chemical dependency eval uation , ange r manage ment program, and a two - hour family violence educationa l session
. ¶8 O n August 27, 2018, the City filed an Affidavit for L e ave to F i le an Inform ation charging Starr with two additi onal count s of PFMA. O n November 16, 2018, Starr f iled
a motion to wi thdraw h i s guilty plea from the 2017 PFMA conviction. After th e Municipal Co urt denied the motion, Starr appealed to th e Distric t Court. The District Court affirmed the Munic ipal Court
. Starr ap peals from the District Court ’ s decision.5

¶9 St arr argues on appeal that the fa ctual basis for his plea was am biguous as to a possible justif

iable use of force claim ; the colloquy was deficient in ascertaining whether Starr understood the direct consequence s of his ple a ; and the p lea was coerce d
. Starr argues each rendered his p lea involuntary and constitutes good cause for wi thdrawal
. W e address each argument in t urn. ¶10 On Starr ’ s appeal f rom the Municipal Court, the District Court functioned as an intermediat e appe llate court. See §§ 3
- 5
- 303 and 3
- 6
- 1 1 0, MCA. O n Starr ’ s appeal to this Court, we review the case as if Starr ha d originally filed his appeal in this Court. City of Bozeman v. Cantu , 2013 MT 40, ¶ 10, 369 Mont. 81, 296 P.3d 461 ( citation s omi tted). W e ex amine the record indepen dently of the District Co urt ’ s decision, applying the appropriate standard of review. C antu , ¶ 10 (citation omitted). Our ultimate determination is whether the District C ourt , in its review of the trial court ’ s de c ision, reached the correct conclusions under the ap propriate stan dards of review. Stanley v . Lemire , 2006 MT 304, ¶ 26, 334 Mont. 489, 148 P.3d 643. We review the trial court ’ s findings of fac t to determine whether they are c learly erroneous and its
con c lusions of law t o determine if they are correct. S ta te v. New

bar y , 2020 MT 148, ¶ 5, 400 Mont. 210, 464 P.3d 999 (citation omitted)
. Whether a p lea is voluntary is a mixed question of law and fact that this C ourt reviews de n ovo for corr ectness. Ne wbar y , ¶ 5 ( citation omitted). ¶11 Section 46
- 16
- 105(2), MCA , permits a de fendant to withdraw a previously entered guilty plea for good c ause. “ ‘ Good cause ’ includes the involuntariness of the plea, but it may include other criteria. ” State v. Warclub , 2005 MT 1 4 9, ¶ 16 , 327 M ont. 352,6

114 P.3d 254 (ci ting State v. Lone Elk, 2 005 MT 56, ¶ 19, 326 Mont. 214, 108 P.3d 500 ( rev ’d in part on other grounds ) ). A plea must be voluntary because the defendant is waiving his constitution al rights to not incriminate himsel f and to a trial by jury or judge
. State v. P rindle , 2013 MT 173, ¶ 17 , 370 Mont. 478, 304 P.3d 712 (citing Brady v. U. S. , 397 U .S. 742, 74 8 (1970) ). ¶12 This Court has adopted the Brady st andard to determine if a plea was voluntarily made. State v. Hendri ckson , 20 14 MT 132, ¶ 15 , 375 Mont. 136, 325 P.3d 69 4 (c itatio n omitted)
. Under the Brady standar d, a plea is considered voluntary if the defendant is fully aw are of the direct consequences, including the actual value of any commitments the c ourt, prosecut or, or the defendant ’ s own counsel made to the defe nd an t . Hendri ckson , ¶ 15 ( citing Brady , 397 U.S. at 755 )
. We “will not overturn a district court ’ s denial of a motion t o withdraw a guilty plea if the defendant was aware of the direct consequences of s uch a plea, an d if his plea was not induced by threats , misreprese nt ation , or an improper promise s uch as a bribe. ” Hendrickson , ¶ 15 ( quoting Warclub , ¶ 32 (citing Brady , 39 7 U.S. at 755)). Determining whether a defendant entered a plea voluntarily and wheth e r a district court erred in denying a motion to withdraw a ple a requires case specific c onsiderations, including ‘ the adequacy of the district court ’ s interrogation, th e benefits obtained from a plea bargain , the withdrawal ’ s timeline ss, and other co nside rations that may affect the credibility of the c laims presented
. ’ Hendrickson , ¶ 17 ( quoting State v. McFarlane , 2008 MT 18, ¶ 17 , 341 Mont. 166, 176 P.3d 105 7 )
.7

¶13 Starr first argues that the fa ctual basis for his plea was ambiguous as to a possible justif iable use of force claim
. Starr maintains he ra ised a self
- defense claim when he stated d uring the collo quy : “ I was being attacked , so that ’ s where she might have s uffered some injury
. ” . . . and later “because I was protecting my chil dren and my h ouse, and I ’ m a single father, and I have that right to protect th eir safety, when somebody gets violent toward me like that
. . . I felt attacked or violated
. . . . ” However, when the Municipal Court Judge attempted to clarify with Starr whether there was a viable self
- defense claim , ( “you ’ re not saying that . . . physically she was coming at you ” ) Starr
answe red : “

No. ” Starr argues on appeal that he wa s attempting to prevent Bean ’ s violence to protect hi s children. However , a s the District Court pointed out, it is apparent after reviewing the audio r eco rding that the children were not awake during this argumen t . ¶14 The Munic ipa l Court reviewed this issue , read the briefs, listened to the audio recording , and concluded that Starr ’ s statements , when taken together with the Judge ’ s clarifying questions, did not reveal that Starr had even raised a s elf
- defens e c laim. W e agre e. At most, Starr ’ s explanation of the events reveal ed that a loud argument over lost
car keys took place and Starr felt it unfa ir that Bean was blaming him
. Starr did not describe th at Bean had be en physically violent, that she made any unwanted physical
c ontact with Starr, or that she enga ged in any conduct that would cau se Starr reasonable8

apprehension of bodily injury . 1 The reviewing Municipal Court found : “What is lacking in the exchange is any statement , or even clear suggestion, that the victi m had p hysically assaulted him in any way
. ” The reviewing Municipal Court noted : The choice of the word “ attacked” appears to be the only suggestion in the colloquy that [Starr] was someh ow asserting a legal claim of self
- defen se. Although th at word does require s crutiny, the totality of circumstances of the colloquy indicates the Defendant was not asserting some kind of physical attack that could arguably imply a legal defense of self
- de fense. After reviewing the record, we conclude the se finding s are not clearly erroneous. The presiding Municipal Court reasonably found that Starr had not rai sed a claim of self
- defense. Such inte rpretation and appli cati on of the law i s correct. ¶15 Starr next argues that the colloquy was de ficient in as certaining whether S tarr understood the direct consequences of his ple a . Prior to accepting a guilty plea, a trial court must satisfy the requirements of §§ 46
- 12
- 210 and 46
- 16
- 105, MCA
. 2

1 On appeal to the District Court, Starr cla imed the reviewing Municipal Court ignored the lega l concept that a loud argume nt might give ri se to Starr having rea sonable apprehension of b odily injury . The District Cour t stated in its order:

“ [Starr ] ignores the requi reme ntin a jus ti fiable use of f o rce defense that the amount of

f orce used must be ‘ reasonable. ’ A re asonable r esponse would be to tell [Bean] to shut u

p, ye ll back, or call the cops and ask them to co me and remove her. A lt hough he does not have to retreat, if he truly does not want an al tercation, all he has to do is leave. Taking phy sical action of th rowing her to the ground, kicking her in the ribs, bruising her on her arm and neck when all she has done is yell , is unreasonable
. ” We agree. 2 Under § 46
- 12
- 2 10, MC A, in relevant part , a def endant mu st understand the n ature of the charg es ; the maximum and minimum pena lt ies provided by law fo r such charges ; their right to plead not guilt y ; thei

r right to b e tried by a jury and to co nfront and c ross - examine wi tness es against them ; and thei

r right to not be com

pe lled to reveal

personally incriminat ing info rmation. A defe ndant not represented by an attorney mu st understand that they have the ri ght to be repre sented by an attorne y and that one may be appointed to them if they c annot afford one . They must understand that by pleading guil ty, they waive their right to a trial
. If the defendant i s9

State v. Me lone , 2000 MT 118, ¶ 1 6 , 29 9 Mont. 442, 2 P. 3d 233 (cit ati on omitted)
. The record demonstrates that the Municipa l Court thoroughly complied with these requirements and reviewed St arr ’ s applicable rights, even repeating specific applicable right s throughout th e arraignment, such as hi s right to co unsel. The r ec ord further indic ates that the Judge waited for confirmation from the City regarding whether the PFMA would be a first or second offense so th e Judg e could properly inform Starr of the app l icable pen alty prior to ente ring a plea, despit e having already reviewed both potenti al penalti es. ¶16 Nevertheless, Starr now asserts on appeal that although informed by the Municipal Court of the max imum penalties and the rights he w ould be waiving prior t o pleading gui lty , he was no t informed that the Muni cipal Court c ould ( and would) imp ose the
maximum sentence for each count . H e also asserts that the Municipal Court did not address whether Starr understood the probation conditions that the Municipal Court
w ould i mpos e and what eac h of those conditions re quired of Starr . Starr argues th at for him to have fully understood the consequen ces of his guilty plea, the Municipal Court

“would have had to direct his attention to each of the probation conditions it intended to i mpose, detailing such matters as cost for each, [ an d ] hours required to perform each
. . . . ” A court accep ting a guilty p lea is not required to advise a defendant of every possible collateral consequence ( United Sta tes v. Wills , 881 F.2d 823, 825 not a ci tizen , they must understand that thei r guilt y plea might r esul

t in dep orta

tion. Sect io n 46
- 16
- 105 (b) , MCA , pr ovid es , in relevant part, that a court mu st accept a guilt y plea when “the court has informed the d efendant o f the con sequences of the plea and of the maxi mum penal ty provided by law that may be impos ed u

pon accept ance of the plea. ”10

(9 th Cir. 198 9 ) ; s ee Torrey v. Estelle , 842 F .2d 234, 235
- 36 (9 th Cir. 1988) ) n or the financial or social cost of each probation conditi on as it potentially could relate to a defendant. Si mply because the results failed to turn out as he expected or desired does not mandate a court to allow Starr to withdraw his guilty plea. Lone Elk, ¶ 27. ¶17 Starr faults the Municipal Court for making no inquiry into whether the plea was primarily motivated by a need for immediate release from jail
. Starr offers no objective pro of to support a claim of coercion on the bas is that he n eeded to care f or his children other than his reference that he is his children ’ s sole custodian and was ‘ panicked ’ at the prospect of them bein g alone. State v. Brinson , 2009 MT 200, ¶ 12, 351 M ont. 136, 210 P. 3d 164 ( “ allegations of having had certain mental impressio ns at the time of the plea must be supported by objective pro of in the record
. ” )
. Notab ly, n either the City nor the Municipal Co urt p ro mised Starr an immediate release from custody upo n pleading gui lty. ¶18 Regardless, Starr contends that his plea was coerce d because he was primarily motivated to plead guilty by a n eed for immediate release from jail
. St arr , however, knew he faced potential jail time prio r to entering his guilty plea , and there were no guarantees or assurances from the City or the Municipal Court that any plea agreement would a llow him to be immediately released
. T o the contrary , Starr was aware of the applicable penalties and that he might face additional jail time. The Municipal Court read Starr the penalties for the charges, gave Starr the option to ask for an attorney, and informed him that if he chose to plead not guil ty, he would have more time to revi ew the
ca se and facts. Starr p lead ed guilty anyway. Neither the City, nor the Municipal Court11

induced him to enter the agreeme nt based on threats, misrepresentation s, or im proper promises. Even if Starr ’ s guilty plea was motivated in p art by his desire to be free from custody and r et

urn to his children, we are co nvin ced that his p le a was voluntarily made, and we have no reason to doub t that his admissi on of guilt w as truthf ul. ¶19 Importantly , we note that Starr received the benefit of the bargain from his plea agreement. At the beginn ing of the arraignment, the Munic ipal Court instructed Starr on the penalties for PF MA, Resisting A rrest, and A ssault. When Starr indicate d th at he wished to plead guilty, the City dropped the Assault charge as a part of the plea. At sente ncing, Starr re ceived a 12
- month jail sentenc e, w ith all except two days suspended. The Munic ipal Court rounded Starr ’ s 36
- hour jail time

—already served

— up t o two days , and as a result, Starr was not required to serve any additional jail time. The Municipal Court fin ed Starr a total of $310 out of a p o tential maximum of $2,000. By all
a ccounts, Starr ’ s guilty plea was be neficial for him. ¶20 Finally, as a “ cas e - specific consideration , ” we acknow ledge the fact that Starr ’ s plea was un counseled, and we recogn ize the discr etion with which a trial court m ust
exe rcise when accepting such a plea
. We note, however, that any crimin al defendant has a right to waive counsel an d plead guilty. The Sixth Amendment does not require a court to “ advise the defendant th at waiving the ass is tance of counsel
. . . entai ls the ri sk that a viable defense will be overlooked , ” nor does it require the court “ admonish the defendant that by wa iving his right to an attorney he will lose the opportunity to obtain an independent opin ion on whether , un de r the facts and applicable l aw, it is wise to plead guilty. ” Iowa v. Tovar , 541 U.S. 77, 81 (2004 )
. O n at least three occ asions the12

Municipal Court either advised Starr of his right to counsel or conf irmed that Starr understood that h e was waiving such right. The Municipal Court i nformed St arr of the nature of the charges ag ainst him and the range of all owable punishments. Starr exercised his right to pro ceed without counsel but doing so did not render his plea involuntary. ¶21 The District Court correctly upheld the Municipal Court ’ s de nial of Starr ’ s motion to withdraw his guilty plea. ¶22 We have determined to decide this case pursuant to Sectio n I, Paragraph 3(c ) of
our Internal Ope rating Rules , which provi des for me morandum opinions
. In the opinion
o f the Court, the cas e p resents a qu estion control led by settl ed law or by the clear application of appli cable standards of review. ¶23 We a ffirm. /S/ LAURIE McKINNON We concur: /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ DIRK M. SANDEFUR /S/ JIM RICE