DA 15-0395

IN THE SUPREME COURT OF THE STATE OF MONTANA

2016 MT162N

STATE OF MONTANA,

 Petitioner and Appellee,

 v.

TRACY ANN HARLESS,

 Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County of Cascade, Cause No. CDC 13-377(A)

Honorable Greg Pinski, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jason T. Holden, Katie R. Ranta, Faure Holden Attorneys at Law, P.C., 

Great Falls, Montana

Daniel Donovan, Attorney at Law, Great Falls, Montana 

For Appellee:

Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant

Attorney General, Helena, Montana 

John W. Parker, Susan Weber, Cascade County Attorney, Great Falls, 

Montana 

Submitted on Briefs: May 25, 2016

 Decided: July 5, 2016

Filed:

__________________________________________

Clerk

07/05/2016

Case Number: DA 15-0395
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Justice Jim Rice 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 Tracy Ann Harless challenges the validity of her nolo contendere plea to the 

charge of negligent homicide arising out of the death of her one-year-old grandson while 

in her care. Harless makes two basic substantive arguments on appeal; first, that her plea 

was not voluntary because the court did not explain the elements of the crime of 

negligent homicide, and second, that the District Court’s colloquy was insufficient to 

accept a plea of nolo contendere because sufficient evidence was not presented in the 

record to establish her guilt.

¶3 For relief, Harless states that her “Nolo Contendere plea must be set aside and the 

case remanded to a different district court judge for further proceedings.” However, in 

response to the State’s argument that she failed to raise her issues before the District 

Court, Harless asserts that “[t]he State misses [her] arguments. It is not about her seeking 

to withdraw her Nolo Contendere plea. Her argument is not revolutionary—she is simply 

pointing out that her Nolo Contendere plea is constitutionally infirm.” Harless did not 

move to withdraw her plea in the District Court. Thus, we take from Harless’ positions 

that she believes her plea was invalidly entered, and that she seeks not to withdraw her 
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plea, but to simply be afforded a repeat process of entering her plea before a new district 

court judge.

¶4 We review whether a plea was entered voluntarily de novo. State v. Locke, 2008 

MT 423, ¶ 12, 347 Mont. 387, 198 P.3d 316. We review a district court’s factual 

findings for clear error. Locke, ¶ 12. A court may not accept a plea of nolo contendere

without first determining, among other things, that the plea is voluntary. Section 

46-12-204(2), MCA. A defendant’s plea is voluntary only when the defendant is fully 

aware of the direct consequences of the plea. State v. Lone Elk, 2005 MT 56, ¶ 21, 326 

Mont. 214, 108 P.3d 500. To determine whether a defendant entered a plea voluntarily 

we examine “case-specific considerations.” State v. Frazier, 2007 MT 40, ¶ 10, 336 

Mont. 81, 153 P.3d 18. 

¶5 Harless contends her plea was not entered voluntarily because the District Court 

did not inform her of the elements of negligent homicide. However, a review of the 

record indicates Harless was fully aware of the charges against her. Harless was 

represented by counsel. The information alleged that Harless had committed the offense 

of negligent homicide for “negligently causing the death of another human being.” The 

attached affidavit stated, in some detail, the State’s theory of the case and supporting 

facts. At the change of plea hearing, the District Court confirmed that Harless had 

listened to, and understood, the testimony of the investigating detective. The District 

Court also confirmed Harless understood the rights she was giving up in exchange for 

pleading nolo contendere, including the right to instruct the jury on lesser-included 

offenses, that she had made the decision under advice from counsel, that she had not been 
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coerced or threatened by anyone into accepting a plea, that she understood what pleading 

nolo contendere meant, that she understood the State’s sentence recommendation was not 

binding on the court, and that she acknowledged if the case went to trial the State could 

likely prove and the jury would likely convict Harless of negligent homicide.

¶6 It is simply a misstatement of the record for Harless to contend she did not know 

she was pleading nolo contendere to negligent homicide, or that she did not understand 

the consequences of pleading nolo contendere to negligent homicide. The District 

Court’s failure to provide a rote statement of the elements of negligent homicide at one 

particular point in the proceeding did not render Harless’ plea involuntary.

¶7 A defendant may enter a plea of nolo contendere if the defendant considers the 

plea to be in the defendant’s best interest and the court determines that there is a factual 

basis for the plea. Section 46-12-212(2), MCA. There is a “factual basis for the plea” 

when there is “strong evidence of guilt.” Frazier, ¶ 21.

¶8 The record contains “strong evidence” of guilt. The information and attached 

affidavit stated the following facts: the child died from a fatal drug overdose of 

oxycodone; Harless had a prescription for oxycodone; Harless was babysitting the child 

on the night in question; and Harless told the investigating detective that she had been 

responsible for the child getting “the pill.” At the change of plea hearing, the 

investigating detective testified that: Harless sold drugs out of the home; Harless 

admitted to hiding pills in various places in the residence; the child was in the sole care of 

Harless at the time; Harless admitted the child could have only gotten oxycodone from 

her; Harless had told the child’s mother that the mother could hate Harless forever; and 
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Harless had told a neighbor administering CPR to the child that she had “just killed [her] 

grandson.”

¶9 The record establishes “strong evidence” of guilt and the District Court’s finding 

was therefore not clear error.

¶10 We have determined to decide this case pursuant to Section 1, Paragraph 3(c) of 

our Internal Operating Rules, which provides for unpublished opinions. This appeal 

presents no constitutional issues, no issues of first impression, and does not establish new 

precedent or modify existing precedent. The District Court’s findings of fact were not 

clearly erroneous and its interpretation and application of the law were correct.

¶11 Affirmed.

/S/ JIM RICE

We Concur: 

/S/ MICHAEL E WHEAT

/S/ PATRICIA COTTER

/S/ BETH BAKER

/S/ LAURIE McKINNON