Ellison v. State

373 Mont. 159

315 P.3d 950

Lionel Scott ELLISON, Petitioner and Appellant

v.STATE of Montana, Respondent and Appellee.

No. DA 13–0198.

Supreme Court of Montana.

Submitted on Briefs Nov. 13, 2013.

Decided Dec. 20, 2013.

For Appellant: Elizabeth J. Honaker, Honaker Law Firm; Billings, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General; Helena, Montana, Scott Twito, Yellowstone County Attorney, Julie Mees, Deputy County Attorney; Billings, Montana.

Justice LAURIE McKINNON delivered the Opinion of the Court.

¶ 1 Lionel Ellison pleaded no contest to arson, a felony. He subsequently obtained new counsel and moved to withdraw his no contest plea. The District Court denied his motion to withdraw, which this Court affirmed. State v. Ellison, 2009 MT 408N, 354 Mont. 393 (table), 222 P.3d 645 (table). Ellison then petitioned for postconviction relief, alleging ineffective assistance of counsel, and that the District Court misinterpreted the arson statute. The District Court denied Ellison's petition, and he now appeals. We affirm.

BACKGROUND

¶ 2 On October 23, 2007, Ellison was charged with arson in violation of § 45–6–103(1)(a), MCA (2005), after a vehicle belonging to Dee Ames sustained fire damage.¹ On April 1, 2008, Ellison appeared with counsel Jeffrey Michael (“Michael”) and entered a no contest plea to the arson charge. Ellison also filed an acknowledgement of waiver of rights, which indicated that the State would recommend a five-year suspended sentence pursuant to a plea agreement, but that Ellison could argue for a lesser or deferred sentence.

¶ 3 During the offer of proof at the change of plea hearing, the prosecutor stated that Ellison damaged a vehicle, and that the value of the vehicle exceeded $1,000. Prior to the hearing, Ellison had obtained an appraisal of the vehicle, which identified its market value as $500. Michael, however, determined that the value of the vehicle was irrelevant to the arson charge based upon his interpretation of the statute, and therefore did not object to the prosecutor's offer of proof.

¶ 4 The prosecutor also proffered that had the State gone to trial it would have presented a surveillance video that showed an individual at the trunk of Ames' parked vehicle shortly before the fire started. The proffer continued that while it was difficult to make out the identity of the individual seen on the video, the video was completely inconsistent with Ellison's version of events. In an affidavit Michael later gave in response to Ellison's petition for postconviction relief, Michael swore that he had reviewed the surveillance video and made the video available to Ellison prior to the hearing. Michael advised Ellison that the surveillance video was inconsistent with Ellison's story and that the State had enough evidence to find Ellison guilty beyond a reasonable doubt at trial. Michael also explained to Ellison that the State had evidence that Ellison offered to pay a potential witness to tell the same story as Ellison about the fire, and that entering a plea to the arson charge would ensure that the State would not charge him with witness tampering. Michael thus determined that the negotiated plea agreement was in Ellison's best interest, and advised him to enter a no contest plea.

¶ 5 After the change of plea hearing, Ellison substituted Michael with attorney Herbert “Chuck” Watson (“Watson”). Watson then filed a motion to withdraw Ellison's no contest plea, arguing that Ellison did not enter it knowingly and voluntarily. The District Court denied Ellison's motion, finding that Ellison had been aware of the consequences of his decision to enter a no contest plea, and that it was not improperly induced. On May 26, 2009, Ellison was sentenced to five years with all time suspended. Ellison next appealed the denial of his motion to withdraw his no contest plea to this Court and raised the singular issue of whether Ellison's plea was knowingly and voluntarily entered.² On November 25, 2009, we affirmed the District Court's ruling.

¶ 6 In February of 2011 Ellison filed a petition for postconviction relief, followed by an amended petition, arguing that the arson statute only applied to property valued at over $1,000, and since the vehicle at issue was worth less than that, there was no factual basis for his no contest plea. His petition outlined three grounds for relief: 1) the District Court erred by accepting a plea on an insufficient factual basis; 2) Michael provided ineffective assistance of counsel by allowing Ellison to enter a plea for a charge that had an insufficient factual basis; and 3) Watson provided ineffective assistance of counsel for failing to raise the issue of the sufficiency of the factual basis of the arson charge on direct appeal. In an affidavit supporting his petition, Ellison swore that Michael never saw the surveillance video, and that Michael did not make the video available for Ellison to view.

¶ 7 In its response, the State contended that Ellison's claims were invalid and procedurally barred. It attached affidavits of attorneys Michael and Watson to refute the ineffective assistance of counsel allegations. On March 15, 2013, the District Court denied Ellison's petition on the merits, concluding that pursuant to the plain language of the statute, the value of a vehicle is irrelevant to the charge of arson. The District Court summarized its reasoning for denying the petition:

Petitioner has failed to demonstrate to this Court that he is entitled to Postconviction Relief. Petitioner entered a knowing and voluntary plea, as determined previously by this District Court as well as the Supreme Court of Montana, waiving all right to challenge nonjurisdictional defects. Regardless, this Court has examined the merits of Petitioner's claim, and found that Petitioner's assertion that the State's offer of proof was insufficient is without merit. Petitioner erroneously interprets the arson statute, arguing that the State was required to demonstrate that the vehicle was valued in excess of $1,000. The plain meaning of the statute proves otherwise. As such, Petitioner cannot demonstrate that the offer of proof was insufficient, nor that his representation was ineffective.

Ellison now appeals the District Court's denial of his petition for postconviction relief.

STANDARD OF REVIEW

¶ 8 We review a district court's denial of a petition for postconviction relief to determine whether the court's findings of fact are clearly erroneous, and whether its conclusions of law are correct. Camarillo v. State, 2005 MT 29, ¶ 8, 326 Mont. 35, 107 P.3d 1265. Ineffective assistance of counsel claims present mixed questions of law and fact that are reviewed de novo. Miller v. State, 2012 MT 131, ¶ 9, 365 Mont. 264, 280 P.3d 272.

DISCUSSION

¶ 9 Ellison argues on appeal that the District Court erred in its interpretation of the arson statute, and in finding that Ellison's defense counsel did not provide ineffective assistance. Two different attorneys have represented Ellison relative to the arson charge: trial counsel Michael, and appellate counsel Watson. Ellison alleges that both provided ineffective assistance of counsel. For reasons discussed below, we do not find either of Ellison's arguments convincing.

¶ 10 Whether the District Court Erred in its Interpretation of the Arson Statute

¶ 11 The Court's first step in interpreting a statute is to look at its plain language. State v. Letasky, 2007 MT 51, ¶ 11, 336 Mont. 178, 152 P.3d 1288. “In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1–2–101, MCA. If legislative intent can be determined by the plain meaning of the words, the Court may go no further in applying any other meaning or interpretation. State v. Booth, 2012 MT 40, ¶ 11, 364 Mont. 190, 272 P.3d 89 (citing State v. Stiffarm, 2011 MT 9, ¶ 12, 359 Mont. 116, 250 P.3d 300).

¶ 12 Section 45–6–103(1)(a), MCA, states that a person commits the offense of arson when,

by means of fire or explosives, the person knowingly or purposely ... damages or destroys a structure, vehicle, personal property (other than a vehicle) that exceeds $1,000 in value, crop, pasture, forest, or other real property that is property of another without consent. [Paragraph break omitted.]

Ellison argues that the District Court erred in concluding that the arson statute clearly and unambiguously states that the $1,000 threshold only applies to personal property. He proposes that “$1,000” modifies all preceding categories of property listed in the statute, including vehicles, and since the fire-damaged vehicle was worth less than $1,000, there was an insufficient factual basis for which to enter a no contest plea to arson.

¶ 13 In considering § 45–6–103(1)(a), MCA, in its entirety, the plain language clearly states that the $1,000 threshold applies only to the category of “personal property,” which does not include vehicles. As the District Court correctly noted, “vehicles are clearly not included in the category of personal property, plainly evidenced by the phrase ‘other than a vehicle.’ ” Ellison's interpretation of the statute, which he concedes is not supported by case law, is based on a partial reading of the statute which omits all the categories of property that follow “personal property.” ³ Such an interpretation violates our precedent establishing that “statutes must be read and considered in their entirety and the legislative intent may not be gained from the wording of any particular section or sentence, but only from a consideration of the whole.” State v. Heath, 2004 MT 126, ¶ 27, 321 Mont. 280, 90 P.3d 426 (citing Home Bldg. & Loan Ass'n of Helena v. Fulton, 141 Mont. 113, 115, 375 P.2d 312, 313 (1962)). Ellison's interpretation of the statute also violates §...