DA 15-0495

IN THE SUPREME COURT OF THE STATE OF MONTANA

2017 MT 152N

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

GARY LEE ENZLER,

 Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,

In and For the County of Lewis And Clark, Cause No. BDC 2011-101

Honorable Jeffrey M. Sherlock, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Chief Appellate Defender, Koan Mercer, Assistant

Appellate Defender, Helena, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, Tammy K Plubell,

Assistant Attorney General, Helena, Montana

Leo Gallagher, Lewis and Clark County Attorney, Melissa Broch,

Deputy County Attorney, Helena, Montana

Submitted on Briefs: April 19, 2017

 Decided: June 20, 2017

Filed:

__________________________________________

Clerk

06/20/2017

Case Number: DA 15-0495
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Chief Justice Mike McGrath 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 Gary Lee Enzler (Enzler) appeals from the denial of his post-sentencing motion to 

withdraw his guilty plea. We affirm. 

¶3 Enzler pled guilty to four counts of felony sexual assault of a minor in 2011. The 

District Court conducted a colloquy during which Enzler clearly and affirmatively 

answered questions about the facts of the case and stated he understood the consequences 

of his plea. The District Court accepted Enzler’s guilty plea and ordered a pre-sentence 

investigation. Dr. Bowman Smelko, psychologist, and Tracy Vaughn, LCPC, conducted 

separate psychological evaluations of Enzler prior to sentencing. Both Smelko and Vaughn 

determined Enzler was competent, rational, and understood what he was doing. At the 

sentencing hearing, the District Court deviated from the plea agreement. It gave Enzler the 

opportunity to withdraw his guilty plea. After consultation with counsel, Enzler stated he 

did not wish to withdraw his plea. The District Court sentenced Enzler to forty-five years 

in the Montana State Prison with twenty-nine years suspended. 

¶4 In January 2014, Enzler filed a motion to withdraw his guilty plea, and counsel was 

appointed. Enzler asserted he pled guilty because his trial attorneys told him to do so and 
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that he was not in his “right mind.” In August 2014, Enzler’s counsel filed a request for 

psychological evaluation and moved to find Enzler unfit to proceed. The State did not 

object. The District Court found he was unfit to proceed and ordered him transported to 

the Montana State Hospital for observation and evaluation. 

¶5 On May 4, 2015, the District Court conducted a hearing on the motion to withdraw 

his guilty plea. Enzler was present but did not testify. The District Court denied Enzler’s 

motion, finding that while he was currently suffering significant mental health issues, the 

focus of the proceeding was Enzler’s competency at the time of the change of plea hearing 

in 2011. Enzler appeals. 

¶6 This Court reviews a district court’s denial of a motion to withdraw a guilty plea 

de novo. State v. Hendrickson, 2014 MT 132, ¶ 12, 375 Mont. 136, 325 P.3d 694. Whether 

the plea was voluntarily entered is a mixed question of law and fact. Hendrickson, ¶ 12.

¶7 For the first time on appeal, Enzler argues that the District Court violated his right 

to due process by holding an evidentiary hearing on his motion to withdraw while he 

claimed to be unfit to proceed. As a general rule, this Court will not entertain new issues 

that were not raised in the district court. State v. Peterson, 2013 MT 329, ¶ 26, 372 Mont. 

382, 314 P.3d 227. We decline to do so here. Plain error review is discretionary. State v. 

Favel, 2015 MT 336, ¶ 13, 381 Mont. 472, 362 P.3d 1126. 

¶8 A plea of guilty is constitutionally valid only to the extent it is voluntary and 

intelligent. State v. Usrey, 2009 MT 227, ¶ 17, 351 Mont. 341, 212 P.3d 279. For a 

defendant’s guilty plea to be voluntary, the defendant must be mentally competent and able 

to understand the plea. Usrey, ¶ 17. We will uphold a district court’s findings of fact, 
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including if a plea was voluntary and intelligent, unless they are clearly erroneous. Usrey, 

¶ 13. Findings of fact are clearly erroneous if they are unsupported by substantial evidence. 

Usrey, ¶ 13. 

¶9 The District Court found that Enzler’s 2011 guilty plea was made voluntarily and 

intelligently. He signed a written plea agreement and advised the court he “read every 

page” and absolutely understood it. Enzler actively participated in the colloquy, assuring 

the District Court he was fully aware of the direct consequences of his plea and able to 

understand the proceedings. He was represented by counsel and he answered yes to the 

court’s question if he was happy with the services of his attorney. He told the court that 

no one had pressured him to enter a guilty plea. His attorneys indicated they believed 

Enzler had been properly advised of his rights. Further, the presentence psychological 

evaluations of Enzler both showed he was competent at the time of his guilty plea.

¶10 The findings that Enzler was competent to plead guilty in 2011 are determinative. 

They were supported by substantial evidence and we see no basis in fact or law to disturb 

the District Court’s denial of Enzler’s motion to withdraw his guilty plea. 

¶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/ MIKE McGRATH
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We Concur: 

/S/ DIRK M. SANDEFUR

/S/ LAURIE McKINNON

/S/ BETH BAKER

/S/ MICHAEL E WHEAT