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State v. Montano

Court of Appeals of New Mexico

October 11, 2018

STATE OF NEW MEXICO, Plaintiff-Appellee,
ROMAN F. MONTANO, SR., Defendant-Appellant.


          Hector H. Balderas, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM for Appellee

          Twohig Law Firm Ray Twohig Albuquerque, NM for Appellant



         {¶1} Pursuant to a plea agreement, Defendant Roman F. Montano, Sr. pleaded guilty to first degree criminal sexual penetration, in violation of NMSA 1978, Section 30-9-11(D)(1) (2009), as well as criminal sexual contact of a minor in the second and third degrees, in violation of NMSA 1978, Section 30-9-13(B)(1), (C)(1) (2003). Defendant then moved to withdraw his guilty plea, arguing that his attorney had been ineffective on a number of grounds. At the evidentiary hearing on his motion, Defendant's paramount claim was that counsel provided ineffective assistance by erroneously informing him that his DNA was found on the couch where the incident occurred, when in fact there was no such DNA evidence. It also became clear at the hearing that Defendant had been advised by counsel that he could plead guilty and later attempt to withdraw his plea through another attorney. Although Defendant acted on this advice, he did not claim this advice was ineffective below nor does he make such a claim on appeal. The district court denied Defendant's motion to withdraw his plea, and Defendant appealed. Although the advice regarding the DNA was deficient, we determine that Defendant has failed to establish there is a reasonable probability he would have gone to trial instead of pleading guilty had counsel not acted unreasonably. We therefore affirm.


         {¶2}The charges in this case arose from an incident between Defendant and his then twelve-year-old female cousin G.H. in August 2009. At the time of the incident, G.H. had spent the weekend at Defendant's residence for a family celebration. Other family members were present during the weekend. After G.H. left Defendant's residence, she reported to law enforcement that Defendant had fondled her breast and vagina and had penetrated her vagina briefly. G.H. then underwent a sexual abuse examination during which samples were collected for DNA testing. Law enforcement arrived at Defendant's residence later that evening to execute a search warrant. Defendant waived his Miranda rights and spoke with a law enforcement officer regarding the incident. Defendant stated that the incident occurred on a couch in his residence. Defendant claimed that G.H. initiated sexual contact with him. During the interview, Defendant eventually admitted to touching G.H.'s breast, rubbing his penis against G.H.'s vagina, and briefly penetrating G.H.'s vagina. Law enforcement collected samples from the couch, Defendant, and Defendant's clothing for DNA testing. Defendant was charged with criminal sexual penetration in the first degree (child under 13), two counts of criminal sexual contact of a minor in the second degree, and kidnapping.


         {¶3}This case languished for nearly five years in district court prior to Defendant's guilty plea. Defendant was represented by a public defender until approximately June 2012 when contract public defender Jonathan Miller entered his appearance. Mr. Miller represented Defendant until he pleaded guilty in June 2014 at docket call. Trial was to begin the day of docket call or the next day. The State tendered a plea offer the morning of docket call. At docket call, Mr. Miller moved for a continuance on the ground that he wanted to explore a potential conflict between the investigating agent at New Mexico State Police (NMSP) and G.H.'s mother, who was an employee of NMSP at the time of the incident. Mr. Miller represented to the court that he was otherwise ready for trial. Defendant personally spoke out in support of the motion to continue, asking for additional time to look into the case with Mr. Miller and defense investigator, William David Meek. The court denied the request for a continuance, citing the age of the case. Mr. Miller then reiterated that he was ready to go to trial.

         {¶4} The court recessed for Mr. Miller to speak with Defendant about the pending plea offer. After the almost one-hour break, Defendant moved to discharge Mr. Miller as his attorney. As grounds, Mr. Miller stated that Defendant was displeased because counsel had not previously stressed how damning Defendant's confession was to the case. Mr. Miller again reiterated he was ready to go to trial. In support of his motion, Defendant stated that "there's just been a lot of things that haven't been done properly, and ... I need to seek different counsel[.]" The district court denied the motion to discharge counsel. At that point, the court took another one-hour recess. After the recess, Mr. Miller informed the court that there likely was a plea, at which point the court recessed for another two hours. Upon court resuming, Defendant pleaded guilty pursuant to a plea agreement to first degree criminal sexual penetration and criminal sexual contact of a minor in the second and third degrees. Sentencing was postponed for three months upon the request of the defense to present mitigation evidence.

         {¶5} After pleading guilty, Defendant retained private counsel who filed a motion to withdraw the plea, asserting that Defendant's plea was not knowing and voluntary due to Mr. Miller's ineffective assistance. In the motion, Defendant argued that the public defender contract system was constitutionally deficient, essentially guaranteeing ineffective assistance in this case, and that counsel was deficient by, inter alia, failing to investigate defense witnesses and file a witness list. Five months after filing the motion, Defendant filed a supplement to the motion, asserting that Defendant had been erroneously informed that there was DNA evidence against him and claiming "the [DNA] result was a central factor in the plea discussions[.]" Sentencing was postponed until resolution of the motion.

         {¶6} At the evidentiary hearing on Defendant's motion to withdraw the plea, Mr. Miller, defense investigator Mr. Meek, Defendant's fiancee Erminia Marie Velarde, Defendant, Maurice Moya (expert on investigating crimes against children), and Lelia Hood (director of the contract public defender system) all testified. Relevant testimony is briefly summarized here; additional detail is discussed as needed in our analysis.

         {¶7} At the evidentiary hearing, Mr. Miller readily admitted to erroneously advising Defendant that his semen and DNA were found on the couch. The State's laboratory report in fact did not show a positive test result for semen or male DNA on the couch. Counsel's mistaken belief likely came from a police report in which a preliminary test showed a presumptive presence of semen. Mr. Miller first informed Defendant of this purported DNA evidence at a meeting several days before docket call and advised Defendant that the DNA evidence could be damaging at trial. Prior to this, Defendant had been told by his previous attorney that there was no DNA evidence against him. Defendant understood that the DNA evidence the State allegedly had was on his couch, not on G.H., and that there were plausible alternative explanations for his DNA being on the couch.[1]

         {¶8} At the pre-docket call meeting, Defendant, Ms. Velarde, Mr. Miller, and Mr. Meek met to discuss the case. This was the first time Defendant had met Mr. Meek. Mr. Miller testified that he went over the evidence with Defendant, including Defendant's confession, G.H.'s credibility, and the fact that Mr. Meek had interviewed all the State's witnesses. At the meeting, Mr. Miller told Defendant that he would have a choice at docket call-plead guilty or go to trial-and Defendant wanted to proceed to trial notwithstanding the purported DNA evidence. Mr. Miller testified that he prepared for trial over the weekend and was ready for trial the day of docket call.

         {¶9} At docket call on June 30, 2014, Mr. Miller informed Defendant that trial would begin the next day. Defendant testified that he was caught off guard and was in shock that trial was starting so soon.[2] Mr. Miller told Defendant he was ready to go to trial but explained that he requested a continuance due to Defendant's agitation and nervousness. Defendant testified that he did not believe Mr. Miller was prepared to go to trial because he had not interviewed witnesses identified by Defendant and had not moved to suppress Defendant's confession. During the multiple recesses at docket call, Defendant considered whether to plead guilty or go to trial. Defendant spoke throughout the day with Ms. Velarde, Mr. Miller, and Mr. Meek. Defendant testified that, even though Mr. Miller emphasized the strength of the State's case (including the non-existent DNA), "I honestly was going to go to trial and lose so I could appeal it. That's what I was going to do." But Defendant also testified that he took the plea because of the DNA evidence and because Mr. Miller emphasized the DNA evidence was harmful. Mr. Miller testified that, in his view, the DNA was not so damning, it was Defendant's confession and G.H.'s testimony that concerned him. Mr. Miller advised Defendant to take the plea.

         {¶10} At some point, Defendant asked Mr. Miller if there was any other option. Counsel advised Defendant that he could plead guilty and then attempt to withdraw his guilty plea with another attorney. Mr. Miller made no guarantees about whether this tactic would work, but Defendant thought "it [was] worth a shot." Defendant then entered into ...

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