No. 03-320

IN THE SUPREME COURT OF THE STATE OF MONTANA

2004 MT 333

STATE OF MONTANA,

Plaintiff and Respondent,

v.

DEREK WILLIAM YARNALL,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin, Cause No. DC 2001-228

The Honorable Mike Salvagni, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Jennifer Wendt Bordy, Angel Coil & Bartlett, Bozeman, Montana

For Respondent:

Honorable Mike McGrath, Montana Attorney General, Tammy K Plubell,

Assistant Attorney General, Helena, Montana; Marty Lambert, Gallatin

County Attorney, Bozeman, Montana

 Submitted on Briefs: October 30, 2003

 Decided: November 23, 2004

Filed:

__________________________________________

Clerk

Justice Patricia O. Cotter delivered the Opinion of the Court.
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¶1 Derek William Yarnall pled guilty to one count of Mitigated Deliberate Homicide

pursuant to a plea agreement, and was sentenced to the custody of the Director of the

Department of Public Health and Human Services (“DPHHS”) to be placed in a correctional

or mental health facility for a period of forty years. He later moved to withdraw his guilty

plea and have the charges against him dismissed on the grounds that a subsequent Opinion

from this Court interpreted a statute applicable to his case in a way that would change the

outcome of his case. The District Court denied his Motion to Withdraw Plea and Dismiss.

He appeals. We affirm.

ISSUE

¶2 Did the District Court err when it denied Yarnall’s motion to withdraw his guilty plea

and dismiss the charge pursuant to the provisions of § 46-14-221(2)(c), MCA (2001)?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On October 11, 2001, the State filed an Information charging Yarnall with Deliberate

Homicide, for causing the death of his brother James by repeatedly striking him in the head

with a metal bar. Yarnall had been conditionally released from the Montana State Hospital

(“MSH”) about a week before James’ death.

¶4 On October 19, 2001, Yarnall’s counsel moved for an evaluation to determine

whether Yarnall was fit to proceed. Yarnall was transported to MSH where Dr. Joseph Rich

conducted a psychiatric evaluation. On November 15, 2001, Dr. Rich opined that Yarnall

was unfit to proceed. The State then requested that Dr. William Stratford evaluate Yarnall,
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pursuant to § 46-14-204, MCA (2001). Dr. Stratford evaluated Yarnall and concluded he

was fit to proceed.

¶5 After conducting a fitness hearing, the District Court concluded on January 10, 2002,

that Yarnall lacked fitness to proceed. Pursuant to § 46-14-221(2)(a), MCA (2001), the

District Court committed Yarnall to the custody of DPHHS for so long as the unfitness

endured, and set a review hearing for March 22, 2002. The District Court also scheduled the

matter for trial in April 2002.

¶6 On February 13, 2002, the District Court conducted a hearing with counsel present

for both Yarnall and the State. Yarnall’s counsel informed the District Court that a plea

agreement had been reached, but that it could not be presented unless Yarnall regained

fitness to proceed. The District Court vacated the trial date and the pretrial motions

deadlines, but kept the March 22, 2002, hearing date for review of Yarnall’s fitness.

¶7 On March 12, 2002, Dr. John Van Hassel, psychologist, and Dr. Virginia Hill,

psychiatrist, of the forensic treatment facility at MSH, submitted a report which informed the

District Court that they believed Yarnall remained unfit. At the March 22 review hearing,

the State did not contest the findings in the MSH report, but requested that the court hear

evidence concerning whether Yarnall would regain fitness within the reasonably foreseeable

future. The District Court so inquired.

¶8 Dr. Hill testified that Yarnall’s condition had “fluctuated,” and that it was unknown

whether he was expected to regain fitness to proceed in the reasonably foreseeable future.

However, she added, she did not believe she had given Yarnall’s treatment her “best effort”
4

and proposed a new treatment plan which would include more aggressive drug treatment.

Dr. Hill suggested that six months of treatment would allow her to reach a point where she

could accurately determine whether Yarnall would regain fitness to proceed within the

reasonably foreseeable future.

¶9 The State argued that, because it was unclear whether Yarnall would become fit to

proceed within the reasonably foreseeable future, the District Court should extend its order

of commitment until such time as a determination could be made. Yarnall’s counsel

responded that she was not sure the District Court could order Yarnall to be committed for

another six months under § 46-14-221(2)(c), MCA (2001), but that she was “not opposed to

some extension” to see if Yarnall could regain fitness. She added that “even without the

statute I would agree to three months – at least a review hearing within three months.” 

¶10 The court stated,

The way I interpret [§ 46-14-221, MCA] . . . is that by the legislature saying

that if it does not appear the defendant will become fit to proceed within a

reasonable foreseeable future, it leaves open to the court to provide further

treatment if there is an opinion that within the reasonably foreseeable future

he would become fit to proceed. Otherwise that doesn’t make any sense

unless you interpret or read it that way and there’s no time limit on it. So

because if the doctor gives the opinion that he is – he will not become

reasonably fit within reasonable [sic] foreseeable future then something has to

happen but that’s not the opinion here. Dr. Hill’s opinion today and in this

report is that it’s uncertain so that’s how I interpret it. . . .

I don’t think that there’s anything here that precludes subsequent commitments

under the statute if there is an opinion that within the reasonably foreseeable

future he may become fit as long as that continues to be the opinion. I’m not

certain about the six months. I have no problem with doing it for 90 days but

then her testimony is that the treatment plan that [Dr. Hill is] proposing would

take six months. . . .
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[I]n light of that testimony . . . I would commit him to the Montana State

Hospital for further treatment . . . for a period of six months but review his

situation . . . within 90 days. . . .

¶11 The District Court scheduled a hearing for June 21, 2002, to review Yarnall’s fitness.

Due to a miscommunication with the hospital, a written report was not prepared. The court

was informed that there was no significant change in Yarnall’s condition, but that a written

report would be transmitted to the court within two weeks. 

¶12 After receiving the report, the District Court held a review hearing on August 2, 2002.

Yarnall was present. Dr. Van Hassel testified via telephone that he evaluated Yarnall on July

8, 2002, and found that his condition had improved since his previous assessment. Dr. Van

Hassel stated that Yarnall could be considered fit to proceed, opining that, while Yarnall still

suffered from mental illness, he had the capacity to appreciate the charges against him and

would be capable of assisting in his own defense. 

¶13 The District Court concluded that Yarnall was fit to proceed. The State presented a

Proposed Plea Agreement and Amended Information, and the District Court reviewed the

documents and Yarnall’s constitutional rights with Yarnall to ensure that he understood

them. Yarnall pled guilty to the charge of Mitigated Deliberate Homicide, and admitted that

he killed James while under extreme emotional distress. The District Court concluded that

Yarnall had made a knowing and voluntary plea of guilty, and found him guilty.

¶14 The District Court held a sentencing hearing on October 10, 2002, and issued a

Sentence and Judgment in which it found Yarnall guilty of the offense of Mitigated

Deliberate Homicide and ordered Yarnall committed to the custody of the director of
1

 Section 46-14-221, MCA, was amended by the legislature in 2003. The

applicable provision of the statute has some language changes and is now found at § 46-

14-221(3)(a), MCA (2003).

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DPHHS to be placed in an appropriate correctional or mental health facility for custody care

and treatment for a period of 40 years. 

¶15 On November 14, 2002, this Court decided State v. Meeks, 2002 MT 246, 312 Mont.

126, 58 P.3d 167, in which we held that, pursuant to § 46-14-221(2)(c), MCA (2001)1

, a

district court must dismiss criminal charges against a defendant who has been found unfit to

proceed if, after a 90-day review, there is no evidence to suggest that the defendant will

regain fitness within the reasonably foreseeable future.

¶16 On January 24, 2003, Yarnall moved to withdraw his guilty plea and dismiss, based

on our decision in Meeks. The District Court heard the Motion on March 12, 2003. On

April 1, 2003, the District Court issued a Decision and Order denying Yarnall’s Motion.

Yarnall appeals.
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STANDARD OF REVIEW

¶17 Whether the District Court failed to comply with the provisions of § 46-14-221(2)(c),

MCA (2001), constitutes a matter of statutory interpretation. In such a case, we review a

court’s conclusions of law to determine whether its decision was correct. State v. Meeks,

2002 MT 246, ¶ 15, 312 Mont. 126, ¶ 15, 58 P.3d 167, ¶ 15 (citations omitted).

DISCUSSION

¶18 Did the District Court err when it denied Yarnall’s motion to withdraw his guilty plea

and dismiss the charge pursuant to the provisions of § 46-14-221(2)(c), MCA (2001)?

¶19 Yarnall argues that the charges against him should have been dismissed in March

2002, when it was uncertain whether he would regain fitness to proceed in the reasonably

foreseeable future. Yarnall notes that the District Court was correct in reviewing his status

within 90 days of his commitment. However, he claims, the District Court erroneously

concluded that it could commit him for an additional period of time when the psychologists

who evaluated him testified they were unable to determine whether he would regain fitness

in the reasonably foreseeable future.

¶20 Yarnall argues that his case is factually similar to Meeks, in which we concluded that

the trial court failed to comply with the provisions of § 46-14-221(2)(c), MCA (1999).

Meeks, ¶ 26. He maintains, as did Meeks, that although he later regained fitness to proceed,

that fact is immaterial to our consideration of whether the District Court properly applied

§ 46-14-221(2)(c), MCA. He further argues that, while under normal circumstances a guilty

plea would have waived his right to appeal his conviction, in the situation at hand a
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jurisdictional defect existed at the time the District Court accepted his plea. If the District

Court erroneously failed to dismiss his case pursuant to § 46-14-221(2)(c), MCA, he argues,

it would have lacked the jurisdiction to accept his guilty plea, and such a jurisdictional defect

could not be cured by any subsequent proceedings.

¶21 The State points out that Yarnall’s petition was filed more than 60 days after his

judgment of conviction, and thus, his normal appeal time had run. It contends that, although

Yarnall has characterized his appeal as a request for relief from a denial of his motion to

withdraw his guilty plea, the real procedural posture of Yarnall’s appeal is a petition seeking

postconviction relief. The State argues that Yarnall is not entitled to postconviction relief

because he is barred from raising in a postconviction petition that which he could have raised

on direct appeal.

¶22 In its Decision and Order dated April 1, 2003, the District Court concluded that

dismissal of the proceedings pursuant to § 46-14-221(2)(c), MCA, is required only when the

court finds that it does not appear that a defendant will regain fitness within the reasonably

foreseeable future. The District Court maintained that it could not make such a finding based

on the report and testimony presented at the March 22, 2002, review hearing, and thus it was

not required to dismiss the criminal charges. The District Court further pointed out that

Yarnall concurred with its interpretation of § 46-14-221, MCA (2001), and that its

interpretation of the statute is consistent with this Court’s subsequent interpretation of the

statute in Meeks. As the District Court explained, there was no testimony that Yarnall would
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not regain fitness in the reasonably foreseeable future, and thus it was appropriate to commit

him to the state hospital in order to facilitate such a determination.

¶23 Section 46-14-221(2)(c), MCA (2001), states:

The committing court shall, within 90 days of commitment, review the

defendant’s fitness to proceed. If the court finds that the defendant is still

unfit to proceed and that it does not appear that the defendant will become fit

to proceed within the reasonably foreseeable future, the proceeding against the

defendant must be dismissed, except as provided in subsection (4), and the

prosecutor shall petition the court in the manner provided in chapter 20 or 21

of Title 53, whichever is appropriate, to determine the disposition of the

defendant pursuant to those provisions.

¶24 We first consider the State’s contention that Yarnall’s appeal is properly construed

as a petition for postconviction relief and is thus barred from our consideration because it

attempts to raise issues which could have been raised on direct appeal. Yarnall contends that

his appeal is properly before this Court as the District Court’s failure to dismiss is a

jurisdictional defect, which would put the District Court out of compliance with § 46-14-

221(2)(c), MCA (2001), and divest it of the jurisdiction necessary for it to have accepted

Yarnall’s guilty plea.

¶25 In Meeks, the defendant, who had previously pled guilty, was first evaluated by a

doctor in August 1999, and was declared unfit to proceed. Meeks, ¶ 6. A November 1999

evaluation gave no indication Meeks would regain fitness in the reasonably foreseeable

future, nor was any evidence offered in the succeeding six months to suggest that Meeks

might regain fitness. Meeks, ¶¶ 8-10. Nonetheless, Meeks’ commitment continued until

May 2000, when he was finally declared fit to proceed. Meeks, ¶ 12.
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¶26 We held that, because the November 1999 evaluation not only indicated that Meeks

was unfit to proceed, but also contained no specific evidence to suggest that Meeks would

regain fitness in the reasonably foreseeable future, the District Court was required to dismiss

the criminal charges against Meeks, pursuant to § 46-14-221(2)(c), MCA, and it was

reversible error when the District Court failed to do so. Meeks, ¶ 26.

¶27 Although the State in Meeks argued that Meeks’ appeal was not properly before this

Court, we noted that Meeks’ claim was jurisdictional in nature, and was not waived by his

guilty plea, as he alleged that the District Court failed to comply with provisions of § 46-14-

221(2)(c), MCA. Meeks, ¶¶ 18-19. Likewise in Yarnall’s situation, if he were to prevail on

his contention that the District Court erroneously failed to dismiss the charges against him

after the March 22, 2002, fitness hearing, the District Court would have been without

jurisdiction to accept Yarnall’s guilty plea on August 2, 2002. Thus, we conclude that

Yarnall’s appeal is properly before this Court.

¶28 We next consider whether the District Court erred in its application of § 46-14-

221(2)(c), MCA (2001), when it denied Yarnall’s Motion to Withdraw Plea and Dismiss.

We note that subsequent to our decision in Meeks, and during the time in which this appeal

has been pending, we issued our Opinion in State v. Tison, 2003 MT 342, 318 Mont. 465,

81 P.3d 471.

¶29 In Tison, we reversed the district court’s refusal to dismiss the criminal charges

against Tison. Tison, ¶ 16. We concluded that upon expiration of the 90-day commitment

period prescribed by § 46-14-221, MCA, the District Court had failed to make a finding that
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Tison was fit to proceed, nor did it make a finding that it appeared that he would become fit

to proceed within the reasonably foreseeable future. Tison, ¶ 15. Although we did not place

great emphasis on this detail within the Tison Opinion, for our purposes here we note that,

at the time that Tison’s first 90-day commitment ran out, the court simply committed him to

an additional 90-day period without making any findings at all. Tison, ¶ 4.

¶30 In Yarnall’s case, the District Court looked to § 46-14-221(2)(c), MCA (2001), and

attempted to determine what the statute required of the court. See ¶ 10, above. The District

Court reviewed Yarnall’s fitness to proceed within 90 days of his commitment, pursuant to

§ 46-14-221(2)(c), MCA (2001), and found Yarnall still unfit to proceed. 

¶31 Significantly, § 46-14-221(2)(c), MCA (2001), provides that the proceedings must be

dismissed “[i]f the court finds . . . that it does not appear that the defendant will become fit

to proceed within the reasonably foreseeable future. . . .” (Emphasis added.) At the March

2002 fitness hearing, the District Court noted that uncertainty surrounded Yarnall’s

prognosis, but that Dr. Hill’s proposed treatment plan offered the possibility that Yarnall

could become fit to proceed within the reasonably foreseeable future. See ¶ 10, above. At

that hearing, Yarnall’s counsel, observing that the first 90-day commitment period had not

yet expired, did not object to an additional commitment period, although she had reservations

about the proposed six-month length.

¶32 While we do not suggest that defendants who are unfit to proceed should have their

commitments re-extended indefinitely on the slim chance that future treatment may help

them to regain fitness, in the case at hand, we believe that in this case the District Court
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complied with the requirements of § 46-14-221(2)(c), MCA (2001). Yarnall’s situation is

readily distinguishable from that in Tison, in which the court extended Tison’s commitment

without a hearing and without making any findings as to Tison’s prospects for becoming fit

to proceed in the reasonably foreseeable future. Tison, ¶ 4. Likewise in Meeks, the District

Court recommitted Meeks to MSH for further evaluation when his 90-day evaluation

“contained no specific evidence to suggest that Meeks would regain fitness in the reasonably

foreseeable future.” Meeks, ¶ 26.

¶33 Here, while Dr. Hill agreed she was “fairly guarded” about the prediction that “there

may be a chance” that Yarnall could regain fitness in the reasonably foreseeable future, she

also stated, “I really don’t believe I have given my best effort at treating Mr. Yarnall’s

illness. . . .” Dr. Hill stated that she had a specific treatment plan which included a more

aggressive use of drug treatments. Dr. Hill testified that she hoped this new treatment plan

would render Yarnall fit to proceed, and to execute this plan she requested six months of

additional time. The District Court agreed to the six-month commitment but ordered a

review hearing in 90 days.

¶34 While there was some question as to whether Yarnall would regain fitness in the

reasonably foreseeable future at the March 2002 status hearing, testimony was presented

which supported the prospect that he could regain fitness. As is its function, the District

Court weighed the evidence before it and concluded that it could order an additional

commitment because it was not prepared to find that “it does not appear” that Yarnall would
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regain fitness, pursuant to § 46-14-221(2)(c), MCA (2001). In so concluding, the District

Court properly acted within the statutory directive.

CONCLUSION

¶35 Thus, we conclude that the District Court did not err in its interpretation of § 46-14-

221(2)(c), MCA (2001). Its denial of Yarnall’s Motion to Withdraw Plea and Dismiss is

affirmed.

/S/ PATRICIA O. COTTER

We Concur:

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ JIM RICE

/S/ JOHN WARNER