Rose v. Kirkegard et al
Filing
94
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 85 in full. Rose's petition as to Claim Two is GRANTED. Rose's petition as to Claim Six is DENIED. On or before June 30, 2016, the State is required to reoffer the equivalent terms of the plea agreement proposed on May 21, 2003. If the State does not meet the deadline for reoffering the plea agreement, Rose shall be immediately released from custody. Signed by Judge Donald W. Molloy on 6/23/2016. (TAG, )
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
JUN 2 3 2016
Clerk, U S District Court
District Of Montana
Missoula
CV 13-156-M-DWM-JCL
ROBERT L. ROSE,
Petitioner,
ORDER
vs.
LEROY KIRKEGARD; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.
This matter is before the Court on the parties' cross-motions for summary
judgment as to Petitioner Robert L. Rose's claim of ineffective assistance of
counsel (Claim Two) and the State's motion for summary judgment as to Rose's
claim of a speedy trial violation (Claim Six). (Docs. 55, 59.) United States
Magistrate Judge Jeremiah Lynch entered a Findings and Recommendation on
May 5, 2016, recommending that Claim Two be granted and that Claim Six be
denied. (Doc. 85.) The Court agrees.
The parties filed objections to the findings and recommendations and
responses to the objections. (Docs. 86, 87, 90, 93.) The objections are reviewed
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de novo. 28 U.S.C. § 636(b )(1 ). Because the parties are familiar with the factual
and procedural background of this case, it is presented only in the context of the
Court's analysis.
I.
Claim Two: Ineffective Assistance of Counsel
The State objects to the findings and recommendation as to Claim Two.
First, the State argues that Rose has not met his burden of proving his counsel,
Kelli Sather, performed deficiently. The State focuses on the illegality of the
offered plea, insisting that Sather was caught between a rock and a hard place and
setting out hypothetical outcomes for the alternative tactics that were available to
Sather in response to the offer made by the prosecutor, George Com. Yet
regardless of any illegal provision in the offer and any resulting c the plea
bargaining process could have taken, Sather had but one duty in the proper
discharge of her participation in the negotiations. She had a "duty to communicate
formal offers from the prosecution to accept a plea on terms and conditions that
may be favorable to the accused." Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012).
The State also highlights that Com's offer was withdrawn as opposed to expired.
This distinction is immaterial where the proper inquiry is whether the offer was
communicated to the defendant before it "lapsed." Id. at 1409. Finally, the State
focuses on the substance of Sather's counteroffer and the reason for Com's
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withdrawal. The details of the counteroffer and withdrawal, however, do not alter
the undisputed fact that Sather did not timely communicate Com's formal offer to
Rose. Thus, Sather' s representation "fell below an objective standard of
reasonableness." Id. at 1410 (quoting Strickland v. Wash., 466 U.S. 668, 688
(1984)).
Second, the State argues that Rose has not met his burden of proving he was
prejudiced. According to the State, Rose's testimony that he would have accepted
the offer is not credible. The State highlights that Rose did not accept or act on
Com's initial offer, that Sather testified that Rose was mostly concerned about
going to trial, and that Rose did not cite plea negotiations as a basis for his
complaints against Sather. These countervailing facts, however, do not overcome
the testimony showing that Rose was interested in plea bargaining and that he
would have accepted the plea in light of the disparity between the sentence offered
and the sentence received. Smith v. United States, 348 F.3d 545, 551-52 (6th Cir.
2003). Rose has therefore demonstrated a reasonable probability he would have
accepted the plea offer. Frye, 132 S. Ct. at 1409. The State also insists that the
state trial court would not have imposed the sentence recommended in the plea
agreement, however, the court would not have been bound by the sentence
proposed in the agreement. Despite the court's awareness of Rose's complete
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criminal, personal, and psychological history, an acceptable plea agreement
between the parties would have been a factor that enured to Rose's benefit. Given
the evidence that the court regularly accepted plea agreements, there is a
reasonable probability the court would not have rejected the agreement. Rose has
therefore demonstrated a reasonable probability that the end result of his criminal
proceeding would have been more favorable had he been afforded effective
assistance of counsel. Id. at 1410. For these reasons and Judge Lynch's findings
as to Count Two, the State's objection is overruled.
Rose objects to the recommended remedy as to Claim Two. Rose first
argues the Court should consider ordering his immediate release, but he relies on
two cases that predate the remedy guidance set out in Lafler v. Cooper, 132 S. Ct.
1376, 1389 (2012). Lafler provides that "a remedy must 'neutralize the taint' of a
constitutional violation, while at the same time not grant a windfall to the
defendant or needlessly squander the considerable resources the State properly
invested in the criminal prosecution." Id. at 1388 (internal citation omitted).
There, the Court instructed that the appropriate remedy is "to require the
prosecution to reoffer the plea proposal" and "[o]nee this has occurred, the judge
can then exercise discretion in deciding whether to vacate the conviction from trial
and accept the plea or leave the conviction undisturbed." Id. at 1389. Rose's
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immediate release is inappropriate because it is not a part of the remedy outlined
in Lafler, it would constitute a windfall for Rose, and it would not put Rose back
in the position he would have been in if the violation never occurred. Next Rose
argues that ifthe judge decides to reject the reoffered plea agreement, Rose must
be allowed to withdraw his plea rather than his conviction being left undisturbed.
Although Mont. Code Ann.§ 46-12-211(4) requires a trial court to afford the
defendant the opportunity to withdraw his plea if the court rejects a plea
agreement, that provision is inapplicable here. Lafler plainly provides that when
inadequate assistance of counsel causes nonacceptance of a plea offer and further
proceedings led to a less favorable outcome, the conviction is to be left
undisturbed ifthe trial court decides to reject the reofferd plea agreement. 132
S. Ct. at 1389. Rose's proposed remedy would allow him to proceed trial when he
already received a jury trial free of constitutional error and according to Lafler the
proper remedy should "not require the prosecution to incur the expense of
conducting a new trial." Id. Accordingly, Rose's objection is overruled.
II.
Claim Six: Speedy Trial Violation
Rose objects to the findings and recommendation as to Claim Six. Rose
argues that the withdrawal of his first two attorneys, Larry Mansch and Dusty
Gahagan, was not his fault. Yet although the withdrawals may not have been
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Rose's "fault," the delay resulting from the withdrawals is properly attributed to
him as opposed to the State. Rose also insists that the testimony presented at the
January 13, 2016 evidentiary hearing established there had been a breakdown in
the Ravalli County public defender system, but the Court is not persuaded. In
balancing all the relevant factors, it has not been established that Rose was denied
his right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 530 (1972). For these
reasons and Judge Lynch's findings as to Count Six, Rose's objection is overruled.
Accordingly, IT IS ORDERED that the Findings and Recommendation
(Doc. 85) is ADOPTED IN FULL.
IT IS FURTHER ORDERED that Rose's petition as to Claim Two is
GRANTED. On or before June 30, 2016, the State is required to reoffer the
equivalent terms of the plea agreement proposed on May 21, 2003. The state trial
court can then exercise discretion in deciding whether to vacate the conviction
from trial and accept the plea or leave the conviction undisturbed. See Lafler v.
Cooper, 132 S. Ct. 1376, 1389 (2012) (providing instruction for exercising such
discretion). If the State does not meet the deadline for reoffering the plea
agreement, Rose shall be immediately released from custody. See Nunes v.
Mueller, 350 F.3d 1045, 1057 (9th Cir. 2003) ("the constitutional infirmity would
justify Nunes' release, but if the state puts him in the same position he would have
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been in had he received effective counsel, that would cure the constitutional
error").
IT IS FURTHER ORDERED that Rose's petition as to Claim Six is
DENIED for lack of J t .
Dated this
a~
day of June, 2016.
loy, District Judge
United States ·strict Court
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