No. 93-327 INTHE SUPREME COURT OF THE STATE OF MONTANA 1994

ROBERT HAGAN, Petitioner and Appellant,

v. STATE OF MONTANA, Respondent and Respondent.

APPEAL FROM: District Court of the Sixteenth ~udicial District, In and 

### for the County of Rosebud, The Honorable Joe L. Hegel, Judge presiding.

COUNSEL OF RECORD: For Appellant: Jay F. Lansing, Moses Law Firm, Billings, Montana 

### For Respondent: Hon, Joseph P. Mazurek, Attorney General, Carol 

### E. Schmidt, Assistant Attorney General, Helena, Montana Garry P. Bunke, Custer County Attorney, ~iles City, Montana 

# T-Y p:

<J , Submitted on ~riefs: February 17, 1994 .& r

## - "C Decided: March 22, 1994

STATE @PI4

### Justice Terry N. 

### ~rieweiler delivered the opinion of the Court. Robert Hagan filed a petition for post-conviction relief in the District Court for the Sixteenth Judicial District in Rosebud County after he pled guilty and was convicted of attempted sexual intercourse without consent, in violation of 5 

### 45-5-503, MCA (1987). Hagan alleged that his conviction was improper and violated his constitutional rights because the victim was his natural daughter and the only crime with which he could have been charged, convicted, and sentenced was incest, in violation of 5 

### 45-5-507, MCA (1987). Following a hearing on the merits of Hagan's petition, the District Court dismissed the petition for post-conviction relief. We affirm. The issue on appeal 

### is whether the District Court erred when it dismissed Hagan's petition forpost-conviction relief. On February 27, 1989, the Rosebud County Attorney charged Robert Hagan in the District Court for the Sixteenth Judicial District with attempted sexual intercourse without consent, a felony, in violation of § 

### 45-5-503, MCA (1987), and aggravated assault, a 

### felony, in violation of § 

### 45-5-202, MCA. The alleged victims of the charged offenses were Hagan's minor daughters. On September 14, 1989, Hagan pled guilty to the offense of attempted sexual intercourse without consent. This plea was not the result of a plea bargain agreement but was entered after Hagan signed anacknowledgment ofhis rights. During thehearing on this matter, Hagan's attorney testified that he had advised Hagan thatthe offense of incest, which carries a lowermaximum penalty, may have been themost applicable affensebased on the alleged conduct. However,Hagan1sattorney stated that Hagan

### was pleading guilty 

### to the offense described in the information, which was attempted 

### sexual 

### intercourse without consent. Based 

### on the 

### testimony received and the courtlsquestioningofHagan, the court found that Hagan was competent,and had entered his guilty

### plea knowinglyand voluntarily. The ~istrict Court also found that Hagan understood he was waiving 

### all of his rights, including the right to appeal a finding of guilt, by pleading guilty. The charge of aggravated assault was reduced by the State to the charge of misdemeanor assault. Hagan also pled guilty to the reduced charge. The District Court sentenced Hagan to 30 years in theMontana State 

### Prison,with ten suspended 

### if Hagan met certain conditions, for the offense of attempted sexual intercourse without consent, and to six months imprisonment in the Rosebud County Jail for the offense of misdemeanor assault. 

### The Court 

### furtherordered 

### that the two sentences be served consecutively, and designated Hagan a dangerous offender for purposes of parole eligibility. Hagan did 

### not appeal the entry of 

### his guilty pleas 

### to this Court. However, on 

### May 29, 1992, Hagan filed 

### a petition in the District Court forpost-conviction hearing and relief,pursuant to 55 46-21-101through -203, MCA. Inhis petition, Hagan argued that sexual intercourse without consent, in violation of 

### 5 45-5-503, MCA (19871, and incest, in

### violation of 1 45-5-507, 

### MCA (1987),are two separate and distinct crimes, and due to the fact that the alleged victim was Hagan's natural daughter, the only offense with which he could have been charged, convicted, and sentenced was the offense of incest. He further argued that if the court found that these two offenseswere not separate and distinct crimes, and if Hagan could be charged, convicted,and sentenced for either crime for the same or identical conduct, then his constitutional rights were violated, including his rights to equal protection and due process of law, as well as the separation of powers doctrine. Based on these assertions, Hagan sought relief from his conviction for attempted sexual intercoursewithout consent, and requested the court tovacate and set aside that conviction and to order that he be charged with the offense of incest which carries a lowermaximum penalty. Hagan did not assert in his petition for post-conviction relief thathis guiltyplea to either charge was made involuntarily

orunknowingly,or thathehad ineffectiveassistanceof counselat the time the plea was entered. On July 1, 

### 1992, the Statemoved to dismiss the petition for post-conviction relief on the grounds that Hagan was procedurally barred from seeking the relief requested pursuant to 5 

### 46-21-105, MCA, because he could have raised these claims on direct appeal. The District Court denied the motion to dismiss and ordered the State to address the merits of Hagan's petition. An evidentiary hearing was held to allow evidence in support of Hagan'spetition on December 7, 

### 1992. At that time, in addition

### to testimony concerning themerits of thepetition,John Forsythe, the attorney who had represented Hagan during the criminal proceedings, testified aboutHaganls mental state when thecriminal charges were brought against him. Forsythe testified that Hagan

was very distraught and "self-destructive" and "acted against his interests regularly, and seemed to do everything he could to harm his own best interests with respect to the criminal charges." Nonetheless, Forsytheconfirmed thathehad discussed the issue of incest with Hagan and pointed out that it carried a 

### lowermaximum penalty. However, Hagan insisted this defense not be brought up because hewanted tobe "punished"by receiving themaximum penalty forhis acts. Forsythe conceded that Hagan's waiver of that issue was voluntary, but alleged that it was not an intelligent waiver because Hagan "wasn't acting in his own self-interest." On cross-examination, Forsythe stated thathe did notbelieve Hagan suffered from any mental defect which would have excused liability under the penal statutes. He testified that Hagan was "intelligent, competent, [and] aware" and had made a voluntary decision to plead guilty. On May 14, 1993, 

### the District Court issued its opinion and order. The court first held that Hagan1s claims were jurisdictional and were not waived by pleading guilty. However, after considering the merits of Hagan1s petition, the court concluded there were no grounds for relief and dismissed the petition for post-conviction relief. From this order, Hagan appeals.Did the District Court err when it dismissed Hagan's petition for post-conviction relief? It is well established that a plea of guilty which is voluntarily and understandingly made constitutes a waiver of nonjurisdictional defects and defenses, including claims of constitutional violations which occurred prior to theplea. Statev. Turcotte (1974), 164Mont. 426, 428, 524 P.2d 787, 788. Thereafter, the defendant "may only attack the voluntary and intelligent character of his plea. Statev.Hilton (1979)

### , 183 Mont. 13, 18, 597 P.2d 1171, 1174 (citing Tollettv.Henderson (1973), 411 U.S. 258, 93 S. Ct. 1602, 36 L. Ed. 2d 235). As stated by the Supreme Court in Tollett, 411U.S. at 267: [A] guilty plea represents a break in the chainof events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in factguilty of the offense with which he is charged, he may not thereafter raise independent claims relatingto thedeprivation of constitutionalrightsthat occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the plea 

## . 

# . . 

# . The District Court based its dismissal of Hagan's request for post-conviction relief upon its conclusion that his constitutional rights,includinghis rights to equal protection and dueprocess of law, as well as the separation of powers doctrine, were not violated when he was charged, convicted, and sentenced for attempted sexual intercourse without consent. Without addressing the merits of the court's conclusions, we conclude that a proper basis for denying post-conviction relief is Hagan's waiver of theright to raise these claims after entering a knowing and voluntary guilty plea. This Court will uphold the decision of a district court, if correct, regardless of the lower court's reasoning in reaching its decision. Wolfev.Webb (1992), 251Mont. 217, 824 P.2d 240; Dismmct No. 55v. Mussekhell County (1990)

## , 245 Mont. 525, 802 

### P.2d 1252.In this instance, Hagan does not challenge the voluntary and intelligent nature of his plea. Moreover, as demonstrated by the transcripts from both the plea hearing and the post-conviction hearing, there is ample evidence that Hagan was competent and had voluntarily and knowingly entered the plea, understood the consequences of the plea, and had been informed prior to entering theplea that an offensewith a lowermaximum penalty may have been applicable to the conduct for which he was charged. The District Court based its conclusion that Hagantsclaims

were jurisdictional on Sword v. State (Wyo. l987), 746 P.2d 423, 425-26. However, we disagree. In UnitedStates v. Cortez (9th Cir. 1992)

## , 973 F.2d 764, 767,theNinth Circuit, citing UnitedStatesv.Broce (1989), 488 U.S. 563, 109 S. Ct. 757, 102 L. Ed. 2d 927,described jurisdictional claims in the context of waiver as "those cases in which thedistrict court could determine that the government lacked the power to bring the indictmentatthe timeofacceptingtheguiltypleafrom theface of the indictment orfrom the record. 'I We agree and hold that jurisdictional claims, in the context of waiver, are limited asdescribed in Cortez. In this instance, we conclude that Hagan's claims are nonjurisdictional because, at the time of accepting the guilty plea, the State did have the power to bring charges against Hagan based on his alleged conduct and nothing to the contrary was evident from the face of the information. Because the validity of Hagants guilty plea is not in question, we conclude that Hagan is precluded from seeking post-conviction relief on thebases that the offense of incest was

more applicable to the facts in this case and that his constitutional rights were violated when he was charged with attempted sexual intercourse without consent. These nonjurisdictional claims were waived when he entered his guilty plea and we decline to address themerits of these arguments. The petition for post-conviction relief was properly denied. Accordingly, the order of the District Court dismissing Hagantspetition for post-conviction relief is affirmed.



## <~WY /' CkefJusticeMarch22, 1994 CERTIFICATEOFSERVICE Ihereby certify that the following certifiedorderwas sentby United States mail, prepaid, to the followingnamed: JayF. Lansing MosesLaw

### Fi P.O. Box2533 Billings,MT 59103 Hon.JosephP. Mazurek Attorney General JusticeBldg. Helena,MT 59620 

### GarryP. Bunke,

### Esq. Special ProsecutorforRosebud County P.O. Box 1407,315Main Miles City,MT 59301

EDSMITH CLERKOFTHESUPREMECOURT STATEOFMONTANA