No. 93-327 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 9 4 

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 

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p: <J , 

Submitted on ~riefs: February 17, 1994 

.& r - "C 

Decided: March 22, 1994 

STATE @P I4 
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 for post-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 an acknowledgment of his rights. During the hearing on this 

matter, Hagan's attorney testified that he had advised Hagan that 
the offense of incest, which carries a lower maximum penalty, may 

have been the most applicable affense based on the alleged conduct. 

However, Hagan1s attorney 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 courtls questioning of Hagan, the court found that 

Hagan was competent, and had entered his guilty plea knowingly and 

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 the Montana 

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 further ordered 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 for post-conviction hearing and relief, pursuant to 

55 46-21-101through -203, MCA. 

In his 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 offenses were 

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 

intercourse without consent, and requested the court to vacate and 

set aside that conviction and to order that he be charged with the 

offense of incest which carries a lower maximum penalty. 

Hagan did not assert in his petition for post-conviction 

relief that his guilty plea to either charge was made involuntarily 

or unknowingly, or that he had ineffective assistance of counsel at 

the time the plea was entered. 

On July 1, 1992, the State moved 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's petition on December 7, 1992. At that time, in addition 
to testimony concerning the merits of the petition, John Forsythe, 

the attorney who had represented Hagan during the criminal 

proceedings, testified aboutHaganls mental state when the criminal 

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, Forsythe confirmed that he had discussed the issue of 

incest with Hagan and pointed out that it carried a lower maximum 

penalty. However, Hagan insisted this defense not be brought up 

because he wanted to be "punished" by receiving the maximum penalty 

for his 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 that he did not believe 

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 the plea. Statev. 

Turcotte (1974), 164 Mont. 426, 428, 524 P.2d 787, 788. Thereafter, 

the defendant "may only attack the voluntary and intelligent 

character of his plea. State v. 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, 411 U.S. at 267: 

[A] guilty plea represents a break in the chain of events 

which has preceded it in the criminal process. When a 

criminal defendant has solemnly admitted in open court 

that he is in fact guilty of the offense with which he is 

charged, he may not thereafter raise independent claims 

relatingto the deprivation of constitutional rights that 

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, including his rights to equal protection and due process 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 the 
right 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), 251 Mont. 217, 824 P.2d 

240 ; Dismmct No. 55 v. 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 

the plea that an offense with a lower maximum penalty may have been 

applicable to the conduct for which he was charged. 

The District Court based its conclusion that Hagants claims 

were jurisdictional on Sword v. State (Wyo. l987), 746 P. 2d 423, 

425-26. However, we disagree. In United States v. Cortez (9th Cir. 

1992) , 973 F. 2d 764, 767, the Ninth 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 the district court could determine that the government lacked 

the power to bring the indictment at the time of accepting the guilty plea from 

the face of the indictment or from the record. 'I We agree and hold that 

jurisdictional claims, in the context of waiver, are limited as 
described 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 the bases 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 the merits of these arguments. The 

petition for post-conviction relief was properly denied. 

Accordingly, the order of the District Court dismissing 

Hagants petition for post-conviction relief is affirmed. 

<~WY /' Ckef Justice 
March 22, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

Jay F. Lansing 

Moses Law Fi 

P.O. Box 2533 

Billings, MT 59103 

Hon. Joseph P. Mazurek 

Attorney General 

Justice Bldg. 

Helena, MT 59620 

Garry P. Bunke, Esq. 

Special Prosecutor for Rosebud County 

P.O. Box 1407, 315 Main 

Miles City, MT 59301 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA