No. 05-531 IN THE SUPREME COURT OF THE STATE OF MONTANA 2006 MT 272

GEORGE H. HARDIN, Petitioner and Appellant,

v. STATE OF MONTANA, Respondent and Respondent.

APPEAL FROM: The District Court of the Fourth Judi cial District, In and For the County of Missoula, Cause No. DV 2005-41, Honorable Douglas G. Ha rkin, Presiding Judge COUNSEL OF RECORD: For Appellant: Edmund F. Sheehy, Cannon and Sheehy, Helena, Montana For Respondent: Honorable Mike McGrath, Atto rney General; John A. Paulson, Assistant Attorney General, Helena, Montana Fred Van Valkenburg, Count y Attorney; Kirsten LaCroix, Deputy County Attorney, Missoula, Montana

Submitted on Briefs: August 8, 2006 Decided: October 24, 2006 Filed:

__________________________________________ Clerk2 Justice W. William Leaphart delive red the Opinion of the Court. ¶1 George A. Hardin appeals from the Fourth Judicial District Court’s denial of his petition for postconviction relief. We affirm. ¶2 The issue on appeal is wh ether the District Court e rred in denying Hardin’s petition for postconviction relief. BACKGROUND ¶3 On May 13, 2003, Hardin wa s charged by information w ith one count of felony sexual intercourse without consent and one count of misdemeanor partner or family member assault arising out of alleged incide nts in February 2003. The information was amended to dismiss the misdemeanor charge. Hardin initially pled not guilty to the charge of sexual intercourse without consen t and trial was set for November 12, 2003. ¶4 Hardin was represented by Ma rgaret Borg, an attorney appointed to represent him from the Missoula County Pub lic Defender’s Office. Borg had replaced another Missoula County public defender with whom Ha rdin had expressed dissatisfaction. On the morning of the scheduled tria l, Borg filed a motion to continue the trial, stating that Hardin wanted more time to co nsider whether to go to trial or wh ether to accept an offered plea bargain. The District Court in itially denied the motion and instead allowed Borg and Hardin to confer before the start of trial. ¶5 When the court reconvened, Borg asked th e court to consider complaints that Hardin had raised about her repr esentation of him. Hardin told the court that he felt he and Borg had not spent enough time together pr eparing for trial as they had just met two3 days before trial. In respon se to the court’s questioning, Ha rdin stated he had told Borg all the important aspects of his case. Howe ver, Hardin asked for different representation based on his belief that Borg had not inve stigated the case a nd had not interviewed witnesses he wanted to have te stify on his behalf. Borg e xplained that she contacted and interviewed some witnesses, and she chose not to interview some witnesses because she knew she could not use them at trial. Borg reassured Hardin and the court that she would be willing to go over the defendant’s case w ith him again and explai n her decisions. The court denied Hardin’s request to ha ve Borg removed from his case. ¶6 Just as the jury was about to be brought in for the start of trial, Hardin, through counsel, again requested that the trial be con tinued, but this time waived his right to a jury trial and asked for a benc h trial. The court granted this motion after discussing Hardin’s right to a jury trial with him, and the bench trial was scheduled for later that month. ¶7 A few days after the cancelled trial, Hardin agreed to enter in to a plea bargain wherein he would pl ead guilty and the State would recommend a forty-year prison sentence with twenty-five year s suspended, to run concurre nt with a sentence he was presently serving. Hardin signed a plea agre ement as well as a plea of guilty and waiver of rights. In signing the plea agreemen t, Hardin acknowledged the following: I the undersigned Defendant, afte r full discussion of the charge(s) and penalties with my defense couns el, and after being fully advised of my rights to a jury trial, my unde rstanding of my right to persist in my plea of not guilty and to demand a jury trial, do hereby accept the above offer and agree to enter plea(s) of gu ilty to the charge(s)4 specified. I hereby knowingly waive all objection to any substantive defect in said charge(s) and my right to a jury trial on the charge(s). In executing the plea of guilty and waiver of rights, Hardin further acknowledged he understood his right to be tr ied by a jury and to confront and cross-examine witnesses against him, and if a plea of guilty was accept ed by the court, there would be no further trial of any kind. By signing this document, Hardin also acknowledged he was satisfied with his attorney. ¶8 Hardin appeared in court to change his plea. At the hearing, Borg told the court the parties had executed a plea agreement and that Hardin co ntemplated entering a nolo contendere plea to the charge. After readi ng the charge under the amended information and informing Hardin of the possible punishment and that his rights we re the same as he had under the original information, the court asked whether he pled guilty, not guilty, or nolo contendere. Hardin pled nolo contendere. The court found, based on the affidavit for leave to file the informa tion, that there was a factual basis for the charge, and then confirmed that Hardin believed the plea was in his best interest. Based on the nolo contendere plea, the court found Hardin guilty of sexual intercourse without consent. On January 6, 2004, Hardin was se ntenced according to the term s of the plea agreement and the presentence investigation report. ¶9 On January 7, 2005, Hardin filed a pe tition for postconviction relief. Hardin alleged the court lacked jurisdiction to accept a nolo contendere plea to a sexual offense. He further alleged that he was denied effectiv e assistance of counsel due to Borg’s failure to meet with him earlier and interview the w itnesses he wished to have testify on his5 behalf. He also alleged he was sentence d without a psychosexual evaluation, was not given a copy of his presentence report, and th at his waiver of jury trial was not put in writing, all constituting error. The State respon ded, arguing that Hard in waived his right to raise the issues in postconviction relief and instead should have directly appealed to the Supreme Court. The District Court deni ed Hardin’s petition, and Hardin appeals. ¶10 Hardin alleges in his appeal that the court erred in denying him postconviction relief for the following reasons: (1) the District Court did not have au thority to accept a nolo contendere plea to sexual intercourse withou t consent, and thus it had no authority to sentence him; (2) he was denied effective assistance of counse l when his attorney allowed him to plead nolo contendere to a sexua l offense; and (3) he was denied effective assistance of counsel when his attorney failed to investigate his case prior to his plea. STANDARD OF REVIEW ¶11 The standard of review of a trial cour t’s denial of a petition for postconviction relief is whether the court’s findings of fact are clearl y erroneous and whether its conclusions of law are correct. Hope v. State , 2003 MT 191, ¶ 13, 316 Mont. 497, ¶ 13, 74 P.3d 1039, ¶ 13. A clai m of ineffective assistance of counsel is reviewed de novo

. Hope , ¶ 13. DISCUSSION ¶12 Whether the District Court erred in de nying Hardin’s petitio n for postconviction relief can best be determined by separately addr essing each of the issues he raises in the appeal.6 ¶13 ISSUE 1: Did the District Court err in denying postconviction relief on Hardin’s claim that the court had no aut hority to accept a nolo contendere plea to a sexual offense? ¶14 Hardin contends that the District Court sh ould not have accepted his plea of nolo contendere to sexual intercour se without consent pursuant to § 46-12-204(4), MCA. That statute states that the “court may not accept a plea of nolo contendere in a case involving a sexual offense, as defined in [§] 46-23-5 02, [MCA]” which includes sexual intercourse without consent. Hardin ar gues that the court lacked authority to accept his nolo contendere plea, and as a resu lt, the court also lacked auth ority to sentence him for the offense. Hardin posits this argument in terms of jurisdicti on, which has been defined by this Court as the power or capacity of a court to “entertain the subject matter of the proceeding and render a de termination therein.” Peña v. State , 2004 MT 293, ¶ 22, 323 Mont. 347, ¶ 22, 100 P.3d 154, ¶ 22. Hardin claims that the court lacked jurisdiction to accept a nolo contendere pl ea and render a sentence ba sed on that plea. ¶15 In Peña , ¶ 22, this Court stated: Whether a district court commits a statutory error in imposing a sentence must not be confused with the question of whether the court had the “power” or “capacity” to impo se the sentence in the fi rst instance. An error in sentencing does not divest a distri ct court of subject matter jurisdiction over the case before it. A district court has jurisdiction pursuant to Article VII, Section 4, of the Montana Constitution, in all criminal cases amounting to a felony. Peña , ¶ 23. Like the defendant
in Peña , Hardin is confusing statutory error with the power or capacity of the court to accept a plea or impose a sentence. Hardin’s assertion that the District Court lacked7 jurisdiction to accept the plea and impose the sentence he received is “more accurately characterized as a claim that his sentence wa s illegal as exceeding statutory authority.”
Peña , ¶ 24. ¶16 A challenge to the legality of a sentence can be raised on direct appeal. Peña , ¶¶ 36-37. Section 46-21-105( 2), MCA, provides that, “[ w]hen a petitioner has been afforded the opportunity for a direct appeal of the pe titioner’s conviction, grounds for relief that were or could reason ably have been raised on dire ct appeal may not be raised, considered, or decided in a proceeding brought under this chapter.” Because Hardin did not challenge the legality of his sentence on direct appeal, this claim is procedurally barred by § 46-21-105(2), MCA. Therefore, th e District Court did not err in denying postconviction relief on this issue. ¶17 ISSUE 2: Did the District Court err in denying postconviction relief for Hardin’s claim that he was denied effec tive assistance of counsel when his attorney allowed him to plead nolo contendere to a sexual offense? ¶18 Hardin argues that by allo wing him to plead nolo conte ndere to a sexual offense, contrary to § 46-12-204(4), MCA, his attorney was ineffective. To prove an ineffective assistance of counsel claim, the defendant must meet both prongs of the two-part test established in Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Under the Strickland test, the defendant must show his counsel’s performance was deficient and the deficient performance prejudiced him. Hans v. State , 283 Mont. 379, 391-93, 942 P.2d 674, 681-82 (1997). In ineffective assistance of counsel claims arising8 out of a challenge to a gu ilty plea, the defendant mu st establish prejudice by showing “‘there is a reasonable probability that, bu t for counsel’s errors , he would not have pleaded guilty and would have in sisted on going to trial.’” Hans, 283 Mont. at 392-93, 942 P.2d at 682 (quoting Hill v. Lockhart , 474 U.S. 52, 58, 106 S. Ct. 366, 370 (1985)). We evaluate the prejudice prong in ineffectiv e assistance of counsel claims based upon a challenge to an alleged illegal nolo contendere plea under the same standard set forth in
Hans

. ¶19 In this case, Hardin entered a nolo conten dere plea rather than a guilty plea, and the court accepted that plea. He contends th at his counsel was ineffective in allowing him to enter a nolo contendere plea, contrary to law. It must be noted that the fact that a sentence may be illegal does not necessarily me an that there is merit to a claim of ineffective assistance of counsel. If, for example, an offense carries a mandatory minimum of five years and counsel negotiates a plea for three years, which is accepted by the court, the sentence may be subject to direct challenge as being illegal. However, since the error does not prejudice the defendant but inures to his benefit, it cannot be said that counsel was ineffective in obtaining a more lenient (albeit illegal) sentence. ¶20 We conclude that Hardin cannot sa tisfy the prejudice prong of the Strickland test. His counsel negotiated a plea agreement wher eby Hardin received the benefit of nolo contendere plea; a plea that by statute is sp ecifically not available to someone who, like Hardin, is charged with a sex offense. The court, in accepting Hard in’s nolo contendere plea, did not prejudice him. Rather, Hardin gained the benefits of the plea agreement9 without an express acknowledgement of his guilt. We conclude that Hardin did not receive ineffective assistance of counsel. ¶21 ISSUE 3: Did the District Court err in denying postconviction relief on Hardin’s claim that he was denied effective assistan ce of counsel when his attorney failed to investigate his case prior to his plea? ¶22 In his petition for postconviction relief, Hardin alleges he received ineffective assistance of counsel due to hi s attorney’s failure to meet with him earlier and interview the witnesses he wished to have testify on his behalf, as well as the fact he was sentenced without a psychosexual evaluation, was not gi ven a copy of his presentence report, and his waiver of jury trial was never put in writing. The District Court addressed these issues, determining that these claims were re cord based and should have been raised on direct appeal. See State v. White , 2001 MT 149, 306 M ont. 58, 30 P.3d 340. Alternatively, the court determined under the two-part Strickland test that Hardin failed to establish that any of thes e alleged errors prejudiced hi m. Of these claims, the only issue Hardin continues to raise in his appeal is whether his attorney failed to adequately investigate his case. Hardin does not alle ge that his plea was not entered voluntarily. ¶23 Generally, when a criminal defendant vo luntarily and knowingly enters a guilty plea, he waives the right to appeal all nonj urisdictional defects which occurred prior to entry of the plea, including clai ms of constitutiona l violations. Hagan v. State , 265 Mont. 31, 35, 873 P.2d 1385, 1387 (1994) (citations omitted); State v. Samples , 2005 MT 210, ¶ 11, 328 Mont. 242, ¶ 11, 119 P.3d 1191, ¶ 11 (citations omitted). After entering such a10 plea, the defendant can only challenge th e voluntary character of his plea. Hagan , 265 Mont. at 35, 873 P.2d at 1387. ¶24 When Hardin entered his plea , he signed a plea agreement form and plea of guilty and waiver of rights form. By signing thes e forms, Hardin acknowledged that he was entering his plea knowingly and that he unders tood he was waiving hi s rights. He also acknowledged he was satisfied with his attorney’s services. There is no allegation or evidence in the record that Hardin did not voluntar ily and knowingly enter the nolo contendere plea and understand th e consequences of the plea. Hagan , 265 Mont

. at 35- 36, 873 P.2d at 1387. ¶25 The District Court did not err in denyin g postconviction relief on this claim of ineffective assistance of counsel. ¶26 Affirmed.

/S/ W. WILLIAM LEAPHART

We concur: /S/ KARLA M. GRAY /S/ JOHN WARNER /S/ PATRICIA COTTER /S/ JIM RICE /S/ JAMES C. NELSON /S/ JAMES A. HAYNES Honorable James A. Haynes, District Judge, sitting in place of Justice Brian Morris11