DA 09-0583

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 252

STATE OF MONTANA,

Plaintiff and Appellee,

v.

THOMAS GREGORY FERRIS,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County of Cascade, Cause No. CDC 08-117(d)

Honorable Dirk M. Sandefur, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Robin A. Meguire, Attorney at Law, Great Falls, Montana

For Appellee:

Steve Bullock, Montana Attorney General; Jonathan M. Krauss,

Assistant Attorney General, Helena, Montana

John Parker, Cascade County Attorney; Susan Weber, Deputy

County Attorney, Great Falls, Montana

Submitted on Briefs: August 25, 2010

Decided: December 1, 2010

Filed:

__________________________________________

Clerk

December 1 2010
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Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Thomas Gregory Ferris appeals from the District Court’s August 26, 2009 order 

denying his motion to withdraw his guilty plea. We affirm.

BACKGROUND

¶2 In March, 2008, the State charged Ferris with felony distribution of dangerous

drugs after he sold hydrocodone to an undercover informant. Law enforcement officers

electronically monitored the transaction through a body wire worn by the informant. The

monitoring was not authorized by a search warrant.

¶3 The State filed notice of its intent to treat Ferris as a persistent felony offender

based upon a prior felony drug conviction. Ferris, with representation by counsel,

subsequently pled guilty to felony criminal distribution of dangerous drugs. He executed

a document captioned “Acknowledgement of Waiver of Rights by Plea of Guilty” in

which he acknowledged, among other things, that the plea was voluntary and that “I fully

understand what I am doing.” His attorney signed a separate certification that Ferris had

been advised of his rights to go to trial and that he was voluntarily entering the plea.

¶4 Ferris also executed a written plea agreement which provided in part that “[e]ach

party understands and agrees that a plea of GUILTY entered to any charge pursuant to

this agreement cannot be subsequently withdrawn.” The State agreed to recommend a

ten-year sentence at the Montana State Prison with five years suspended, to run

concurrently with Ferris’ sentence for his prior conviction. The State also agreed to not
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seek designation as a persistent felony offender, even though Ferris had numerous prior

felony convictions.

¶5 The District Court conducted a change of plea hearing on August 7, 2008. The

District Court examined Ferris in detail as to his understanding of the plea agreement and

of the rights he waived by pleading guilty. Ferris testified that he was pleading guilty

voluntarily and that he understood the proceedings. The District Court specifically

inquired into the factual basis for the plea. Ferris acknowledged that he sold drugs to an

undercover informant who was wearing an electronic transmitting device. The District

Court accepted Ferris’ guilty plea. At a subsequent sentencing hearing Ferris’ attorney

noted that Ferris was “willing to enter into this [plea agreement] rather quickly so that he

can get this resolved, which I think is a benefit to the State and to all of us.” The District

Court sentenced Ferris according to the plea agreement.

¶6 After Ferris entered his guilty plea but before he was sentenced this Court decided

State v. Goetz, 2008 MT 296, 345 Mont. 421, 191 P.3d 489. That case held that a search

warrant was required for electronic monitoring of a defendant’s conversations with an

informant in his home notwithstanding the informant’s consent. Neither the attorneys nor

the District Court mentioned Goetz at the sentencing hearing.

¶7 In May, 2009, Ferris requested appointment of counsel to raise Goetz issues. The

Public Defender appeared for Ferris and on June 29, 2009, filed a motion to withdraw the

guilty plea so that Ferris could seek suppression of the surveillance evidence based upon

Goetz. After briefing, the District Court denied the motion to withdraw the plea based
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primarily upon Ferris’ failure to raise any Goetz issue prior to sentencing. This appeal

followed.

STANDARD OF REVIEW

¶8 A district court may permit a defendant to withdraw a guilty plea upon good

cause, § 46-16-105(2), MCA. An involuntary plea can justify withdrawal, but is not the

only basis for establishing good cause. State v. Wise, 2009 MT 32, ¶ 9, 349 Mont. 187,

203 P.3d 741. Good cause analysis has been based upon the adequacy of the district

court’s interrogation at the time the plea was entered; the promptness with which the

defendant attempts to withdraw the plea; and whether the plea resulted from a plea

bargain in which the guilty plea was given in exchange for dismissal of another charge.

State v. Boucher, 2002 MT 114, ¶ 25, 309 Mont. 514, 48 P.3d 21. The fundamental

purpose of allowing withdrawal of a plea is to guard against conviction of an innocent

person. Id. This Court reviews a denial of a motion to withdraw a guilty plea de novo.

State v. Usery, 2009 MT 227, ¶ 12, 351 Mont. 341, 212 P.3d 279.

DISCUSSION

¶9 Issue 1: Whether the District Court erred by denying Ferris’ motion to withdraw 

his guilty plea. This case is controlled by our recent decision in State v. Andrews, 2010 

MT 154, 357 Mont. 52, 236 P.3d 574. In that case this Court held that a guilty plea is 

made on the basis of the law applicable at the time the plea is accepted by the district 

court, and that the plea may not be withdrawn if a later judicial decision changes the law. 

Andrews, ¶ 12. The Goetz decision that changed the law here was decided after Ferris 
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entered his guilty plea, and therefore does not provide the necessary good cause for

withdrawing the plea.

¶10 Ferris argues in his reply brief on appeal that notwithstanding Andrews, his guilty

plea was not voluntary or “at the very least, the fact that he was not informed of Goetz

undermines the voluntariness of his plea.” As noted above, the written plea agreement as

well as the colloquy conducted by the District Court at the time the plea was accepted

clearly indicated that the plea was entered voluntarily. In addition, he admitted he sold

drugs to an undercover informant and he received the benefit of the plea agreement.

1

 The 

basis for Ferris’ argument is the assertion that Ferris’ trial attorney had the obligation to 

advise him that the Goetz appeal was pending but undecided at the time of his guilty plea. 

Ferris cites no law in support of this proposition. We decline to adopt a standard that 

requires trial counsel to be aware of the issues in all cases pending on appeal, and to 

advise clients on how each of those cases might affect his situation.

¶11 Issue 2: Whether Ferris’ attorney provided ineffective assistance. Ferris contends

that his attorney provided ineffective assistance by failing to raise the Goetz issue at the

time of sentencing and that no record review is necessary because no plausible

justification exists for the failure to do so. This Court reviews ineffective assistance of

1 As in Andrews, even if Goetz applied to Ferris’ case, the State could still have had

evidence to convict based upon the testimony of the confidential informant, the drugs

recovered and the observations of the officers. Ferris argues on appeal that there was

“no indication in the record that the CI ever agreed to testify” and that it is unlikely that

the CI would be called as a witness. To the contrary, the Information charging Ferris

with the offense specifically listed the CI as a witness for the State and nothing appears to

indicate that the CI would not or could not testify. See State v. Schwartz, 2009 MT 234,

351 Mont. 384, 212 P.3d 1060.
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counsel claims under the principles set out in Strickland v. Washington, 466 U.S. 668,

104 S. Ct. 2052 (1984). The defendant must establish that his attorney’s performance

was deficient and that the deficient performance prejudiced the defense. Baca v. State,

2008 MT 371, ¶ 16, 346 Mont. 474, 197 P.3d 948. Counsel’s performance is deficient if

it falls below an objective standard of reasonableness measured under prevailing

professional norms and in light of the surrounding circumstances. Whitlow v. State, 2008

MT 140, ¶ 20, 343 Mont. 90, 183 P.3d 861. The defendant must overcome a strong

presumption that counsel’s actions were within a broad range of reasonable professional

assistance. Baca, ¶ 17. The defendant must demonstrate prejudice by showing a

reasonable probability that the result of the proceeding would have been different but for

counsel’s deficient performance. Id.

¶12 Ferris’ attorney could have asserted Goetz as a ground for withdrawing the guilty

plea at the time of the sentencing, assuming that Ferris would have chosen to try to

withdraw his plea at that time. However, the District Court could have denied a motion to

withdraw on the ground that the plea was knowingly and voluntarily entered, and could

have decided, as this Court did in Andrews, that a change in the case law is not a

sufficient ground for withdrawing a plea. So, while Ferris’ attorney could have raised

Goetz at the time of sentencing, Ferris cannot demonstrate prejudice or that there is a

reasonable probability that the result would have been different and that he would be

allowed to withdraw his plea. Absent a conclusion that the result would have been

different, we cannot determine that Ferris’ attorney was ineffective for failing to raise

Goetz at the sentencing hearing.
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¶13 Affirmed.

/S/ MIKE McGRATH

We concur:

/S/ MICHAEL E WHEAT

/S/ JIM RICE

/S/ BRIAN MORRIS

Justice Patricia O. Cotter dissents.

¶14 I dissent. I would conclude that Ferris’s counsel provided ineffective assistance in

failing to timely raise Goetz in an effort to withdraw Ferris’s guilty plea, and would

reverse and remand to allow Ferris to renew his motion to withdraw his guilty plea.

¶15 The majority concludes that this case is controlled by our decision in State v.

Andrews, 2010 MT 154, 357 Mont. 52, 236 P.3d 574 (Leaphart, Cotter & Nelson, JJ.,

dissenting). In Andrews, we held that a court decision which changes the law, and which

is rendered after a defendant voluntarily changes his plea to guilty, does not provide the

necessary good cause for withdrawing a guilty plea. Andrews, ¶ 12. In dissent, Justices

Leaphart and Cotter argued that, under State v. Lone Elk, 2005 MT 56, ¶ 19, 326 Mont.

214, 108 P.3d 500, overruled in part on other grounds, State v. Brison, 2009 MT 200,
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¶ 9, 351 Mont. 136, 210 P.3d 164, “intervening circumstances or any other reason for [a

defendant] withdrawing his guilty plea that did not exist when he pleaded guilty”

constituted good cause for withdrawing a plea, and that a change in the law occurring

after a change of plea was just such a circumstance justifying the withdrawal of the guilty

plea. Andrews, ¶ 17 (Leaphart & Cotter, JJ., dissenting). Justice Nelson, writing

separately, opined that “a new rule for the conduct of criminal prosecutions is to be

applied retroactively to all cases, state or federal, pending on direct review or not yet

final,” id. at ¶ 25 (quoting Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716

(1987)), and that because Andrews’ conviction was not yet final when the new rule was

announced, there was “good cause” for him to withdraw his guilty plea. Id. at ¶ 27.

¶16 I appreciate that the foregoing analyses in Andrews were minority positions. I

submit, however, that our recent decision in State v. Reichmand, 2010 MT 228, 358

Mont. 68, ___ P.3d ___, underscores the correctness of the minority positions in Andrews

and compels us to reverse Ferris’s conviction and remand to allow Ferris to raise Goetz

and Reichmand in support of a renewed motion to withdraw his guilty plea.

¶17 In Reichmand, Reichmand was found guilty of two counts of criminal

endangerment. Reichmand, ¶ 1. At trial, the jury heard the taped conversations of a

confidential informant (CI) buying drugs from Reichmand, thanks to a warrantless

recording of those conversations arranged by a drug task force. Id. at ¶ 3. After the

verdict but before sentencing, our decision in Goetz came down, and in response,

Reichmand filed a motion to set aside the jury verdict. Id. at ¶ 4. The District Court

denied the motion, concluding that because Reichmand failed to assert a Goetz-type
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claim prior to or during trial, he was not “similarly situated” to the defendant in Goetz, as

required under our decision in State v. Foster-DeBerry, 2008 MT 397, 347 Mont. 164,

197 P.3d 1004. Id. at ¶ 5.

¶18 On appeal in Reichmand, we reversed, and in so doing, overruled Foster-DeBerry.

Reichmand, ¶ 11. We concluded that one need not have objected below in order to gain

the retroactive benefit of a new rule of criminal procedure. Id. at ¶ 12. We endorsed the

retroactivity principles announced in State v. Egelhoff, 272 Mont. 114, 125, 900 P.2d 260,

267 (1995), rev’d on other grounds, Montana v. Egelhoff, 518 U.S. 37, 116, S. Ct. 2013

(1996), and argued by Justice Nelson in his Andrews Dissent at ¶ 26, to the effect that “a

new rule for the conduct of criminal prosecutions is to be applied retroactively to all

cases, state and federal, pending on direct review or not yet final.” Reichmand, ¶ 14

(citing Egelhoff, 272 Mont. at 125, 900 P.2d at 267).

¶19 As the Court notes, Ferris had pled guilty but had not yet been sentenced when we

announced our decision in Goetz. Supra ¶ 6. Thus, his conviction was at that point “not

yet final.” The Court here concludes that although his counsel could have raised Goetz in

an effort to withdraw his guilty plea prior to sentencing, his failure to do so is not

ineffective assistance, as the District Court could have denied the motion in any event.

Supra ¶ 12. Respectfully, I disagree with the Court’s logic. Had Ferris’s attorney timely

raised Goetz in an effort to withdraw his guilty plea before sentencing, there is surely a

reasonable probability that the result of the proceeding would have been different, as it is

evident from its order that the District Court considered Ferris’s failure to raise Goetz
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prior to sentencing critical to its decision to deny the later motion to withdraw the guilty

plea.

¶20 The implications of Goetz undermine the voluntariness of Ferris’s plea, and

establish the requisite “good cause” for withdrawal of a guilty plea under § 46-16-105(2),

MCA. As we have held, any doubts as to whether good cause exists to withdraw a guilty

plea should be resolved in favor of a trial on the merits. State v. Tweed, 2002 MT 286,

¶ 25, 312 Mont. 482, 59 P.3d 1105, overruled on other grounds, State v. Deserly, 2008

MT 242, ¶ 12 n. 1, 344 Mont. 468, 188 P.3d 1057.

¶21 I would conclude that in failing to raise Goetz in support of a timely motion to

withdraw his guilty plea before Ferris was sentenced, Ferris’s counsel’s performance was

deficient. Given that the Goetz decision was potentially dispositive of Ferris’s case and

widely heralded among attorneys and in the press, it strains credulity that Ferris’s counsel

would not have known of it or understood its implications for his client. In this

connection, I would conclude that because there was no plausible justification for

counsel’s failure to raise Goetz and its binding warrant requirement before sentencing,

the error is reviewable on direct appeal. State v. Kougl, 2004 MT 243, ¶¶ 14, 19, 323

Mont. 6, 97 P.3d 1095. See also Whitlow, ¶ 18 (citing Lawhorn v. Allen, 519 F.3d 1272,

1275 (11th Cir. 2008) (“Tactical or strategic decisions based on a misunderstanding of

the law are unreasonable.”)).

¶22 Finally, for the reasons implicit in this argument, I would further conclude that

Ferris was prejudiced by this failure. Thus, the requisites of Strickland are met here.

While the Court is correct that there is no guarantee Ferris would have ultimately been
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successful in his efforts to withdraw his plea, all that is needed under Strickland and Baca

is a “reasonable probability” that the result of the proceeding would have been different.

Baca, ¶ 17. That reasonable possibility exists here.

¶23 I would reverse Ferris’s conviction and sentence on the grounds of ineffective

assistance of counsel, and remand to allow counsel to raise Goetz and Reichmand in

support of a renewed motion to withdraw Ferris’s guilty plea. I dissent from our failure

to do so.

/S/ PATRICIA COTTER

Justices James C. Nelson and W. William Leaphart join in the Dissent of Justice Patricia

O. Cotter.

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART