State v. Westfall

416 Mont. 366

STATE OF MONTANA, Plaintiff and Appellee,

v.JEFFREY ALLEN WESTFALL, Defendant and Appellant.

No. DA 21-0571.

Submitted on Briefs December 20, 2023.

Decided May 14, 2024.

2024 MT 99.

416 Mont. 366.

__ P.3d __.

Appeal from the District Court of Flathead County. Eleventh Judicial District Court, Cause No. DC-20-277C. Honorable Heidi J. Ulbricht, Judge.

Defendant waived his right to appeal the court’s denial of his request for a fitness evaluation, and the record did not support a conclusion that his plea was involuntary; the two offenses of attempted sexual assault and aggravated assault did not share or have in common two elements—sexual contact and serious bodily injury—and therefore each had an additional element not contained in the other; a single act could be used twice to increase a sentence if neither of the two offenses committed were included in the other; during sentencing, the district court failed to address defendant’s ability to pay when it ordered him to pay $5,228.61 for the costs of the jury and witness, as well as the $50 PSI fee, and the court had to determine his ability to pay the financial obligations imposed.

Affirmed in part, reversed in part and remanded.

For Appellant: Chad Wright, Appellate Defender, Carolyn Gibadlo, Assistant Appellate Defender, Helena.

For Appellee: Austin Knudsen, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena; Travis Ahner, Flathead County Attorney, Andrew C. Clegg, Deputy County Attorney, Kalispell.

JUSTICE McKINNON delivered the Opinion of the Court.

¶1 Jeffrey Allen Westfall (Westfall) pled guilty in the Eleventh Judicial District Court, Flathead County, to attempted sexual assault and aggravated assault. Westfall appeals.

¶2 We restate the issues on appeal as follows:

1. Did Westfall waive his claim challenging the District Court’s failure to order a fitness evaluation when he pled guilty?

2. Do Westfall’s convictions for aggravated assault and attempted sexual assault violate double jeopardy?

3. Did the District Court err when it ordered Westfall to pay the costs of the trial and Presentence Investigation Report (PSI) without inquiring as to his ability to pay?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 F.C., age sixty-nine, and her husband operate a motel and RV resort in Lakeside, Montana. They sleep in bedrooms behind the motel office. At around 12:23 a.m. on August 23, 2020, F.C. woke up to a phone call from a man requesting a room for the night. Shortly thereafter, F.C. heard a knock at the front door of the motel. She left the bedroom to answer it. F.C. saw a man standing at the office door, later identified as Westfall, and opened the door to let him in. The motel is monitored by security cameras which captured the events giving rise to this offense. Westfall entered through the door and followed F.C. around to the back of the counter where he began pushing and punching her in the jaw. F.C. fell to the floor and Westfall continued to hit her and removed her pants. F.C. yelled for her husband, who awoke and began kicking Westfall and moving him towards the front door through which Westfall eventually fled. As a result of the assault, F.C. sustained a broken jaw and bruising over her body.

¶4 The following day, Robyn Ockler, who had been staying in one of the motel rooms, failed to check out on time. When asked by staff why she had not left, she explained that she was stranded because the man she was with left in the middle of the night with their car. She identified the man as Westfall and law enforcement learned that he was currently on probation. Law enforcement met with Westfall’s probation officer, Jake Miller, and Miller viewed the security camera footage from the motel. Miller confirmed that it was Westfall in the motel. Westfall was subsequently apprehended but was admitted to a psychiatric hospital after he attempted suicide.

¶5 The State charged Westfall with attempted sexual intercourse without consent and aggravated assault. Before trial began on April 19, 2021, the court conducted a hearing. Westfall repeatedly interrupted proceedings, argued with his attorney, Greg Rapkoch (Rapkoch), made his own objections, and refused to meet alone with Rapkoch. As a result, Rapkoch requested a Faretta¹ hearing to determine if Westfall wanted to proceed pro se or be appointed new counsel. The District Court ordered everyone but Westfall and Rapkoch to leave the courtroom and asked Westfall if he wanted Rapkoch to continue to represent him. Westfall responded, "[y]es. Absolutely." However, when the court inquired further by asking Westfall questions relevant to whether he could represent himself, Westfall replied, "I don’t know if I can answer that, Your Honor."

¶6 The District Court attempted to proceed with the hearing, but Westfall continually interrupted the proceedings and asked, for example, that Rapkoch tell the court how many days he had been lead attorney on his case. When Rapkoch informed the court that he had been lead counsel for about a week but managing attorney for the case since February, Westfall accused him of having a conflict of interest because Rapkoch’s wife, also an attorney, had represented Westfall in the past. However, when Rapkoch asked if he wanted the hearing continued, Westfall responded, "[a]bsolutely not." Following this exchange the District Court allowed the prosecution back into the courtroom and the hearing continued. Immediately after reconvening, Westfall once again began interrupting the proceedings and the court had to call for another recess. On this occasion, Westfall said he did not have enough time to review information he had received from Rapkoch. However, this complaint was resolved in similar fashion by the court.

¶7 After reconvening, the court clerk began roll call of the jurors. Westfall interrupted again, informing the court that he wanted to represent himself. The District Court called for a recess and had the venire panel and prosecution step outside the courtroom. The District Court then asked if Westfall wanted to represent himself as he had just requested, but Westfall responded, "[y]our Honor, I’m not sure what I wish to do at this point." Westfall then accused Rapkoch of wanting him to be convicted. The District Court reminded Westfall that he had just stated in front of potential jurors that he wanted to represent himself and asked him again if that was what he wished. Westfall responded, "I’m not sure yet, Your Honor" followed by "I guess we’ll have to see how the day goes." Westfall then said he had mental health issues that were not being addressed. The District Court had the prosecution return but kept the jurors outside of the courtroom. Rapkoch requested a fitness determination to evaluate whether Westfall was fit to stand trial. Westfall interrupted the court, indicating "[his] anxiety level [wa]s through the roof." The State, however, maintained that Westfall was engaged in the proceedings, answered questions, and opined Westfall’s latest request for a fitness determination was an attempt to delay proceedings. The District Court denied Westfall’s request, agreeing that his outbursts and requests for an evaluation were a delay tactic. Westfall responded to the court’s denial by screaming and repeatedly stating that he "d[idn’t] understand what [was] going on." Rapkoch requested a continuance, which the District Court denied, and Westfall began banging on the counsel table.

¶8 Following a short recess, the court reconvened with the venire panel present. Westfall immediately interrupted the proceedings stating that the panel was too old. He requested another continuance, but the court informed him it had already made a ruling on that motion. Westfall then claimed he wanted to represent himself and the District Court called for another recess. Once again, the court asked Westfall if he wished to represent himself and Westfall responded that he really wanted a continuance. The District Court reminded Westfall that it had already denied this request and Westfall responded by saying his anxiety was high, his attorney was not prepared, and that he was not receiving a proper defense. After the court denied his request, Westfall reacted by repeatedly stating that he wanted a continuance. When the court would attempt to speak, Westfall would interrupt to say he wanted a continuance.

¶9 The court reconvened with the jury present and began voir dire. Westfall interrupted the proceeding to tell the jury that his attorney was unprepared. At this point, the District Court informed Westfall that it would remove him from the courtroom if he continued to have outbursts. Westfall continued to have outbursts. The District Court called for another recess and determined that Westfall would be placed in a room where he would be able to see and hear the proceedings but would be unable to interact with the jury. Voir dire continued and a jury was selected.²

¶10 After the parties completed opening statements, the victim, F.C., described the assault and the surveillance footage was played for the jury. Thereafter, the parties reached a plea agreement. The State agreed to amend the charge of attempted sexual intercourse without consent to attempted sexual assault and, in return for Westfall’s guilty plea to aggravated assault and attempted sexual assault, the State would recommend a 50-year sentence to the Montana State Prison with a 15-year parole restriction. Westfall would be able to argue for any legal sentence. The State would seek designation of Westfall as a persistent felony offender (PFO). At Westfall’s request, the agreement was made binding on the court. Westfall did not reserve his right to appeal any issues.

¶11 During the sentencing hearing, the State reminded the court that the plea agreement capped the State’s recommendation to a 50-year sentence with a 15-year parole restriction. To make this sentence possible, the State recommended designating Westfall a PFO on...