STATE v LONE ELK
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No. 96-093 IN THE SUPREME COURT OF THE STATE OF MONTANA 1997 STATE OF MONTANA, Plaintiff and Respondent, v. LLOYD F. LONE ELK, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Todd Baugh, Judge presiding. COUNSEL OF RECORD: For Appellant: Roberta A. Drew, Deputy Public Defender, Billings, Montana For Respondent: Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana; Stacy Farmer, Deputy Yellowstone County Attorney, Billings, Montana Submitted on Brief: August 7, 1997 Decided: December 18, 1997 Filed: Justice William E. Hunt, Sr., delivered the Opinion of the Court. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal Operating Rules, this decision shall not be cited as precedent and shall be published by its filing as a public document with the Clerk of this Court and by a report of its result to the West Group and to State Reporter Publishing Company. In proceedings before the Thirteenth Judicial District Court, Yellowstone County, Lloyd F. Lone Elk pled guilty to a charge of felony domestic abuse of his wife. He now appeals,arguing that his wife s extra-judicial statement may not be admitted into evidence as an excited utterancewithout independentevidence of the underlying startling event, and that a conviction based on hearsay violates the right to confrontation under the U.S. and Montana Constitutions. We affirm, basedon our conclusionthat when Lone Elk enteredhis guilty plea, he waived appealof both issueswhich he now raises. On May 27, 1995, Lone Elk s wife approached two police officers on a Billings, Montana street, yelling hysterically that her husbandhad beenbeating her up and pushedher down. Moments later, Lone Elk approachedand identified himself, whereupon he was arrestedfor domestic abuse. Lone Elk s wife subsequentlydecidednot to testify againsthim. The information tiled againstLone Elk allegedthat he fought with and pushedto the ground Beverly Lone Elk, his wife, scaringher. The State proposed to offer into evidence the police officers testimony concerning Mrs. Lone Elk s statement to them when she first approachedthem. Lone Elk s position was that this statement must be suppressed. 2 On September6, 1995, Lone Elk entereda plea of guilty, reserving the right to argue his yet-to-be-filed motion to dismiss based upon his contention that Mrs. Lone Elk s statement to the two police officers must be suppressed. At the top of the written plea agreement form was a handwritten NOTE : State and Defendant and the Ct. agree that if the Defense prevails on their Motion regarding confrontation of accuserand hearsay exceptions the D will be allowed to w/draw plea. The written plea agreement also included the hand-written notation: Conditional plea ct. retains jurisdiction to settle legal issues. At the end of the change of plea hearing, the court sentencedLone Elk to two years in prison, all suspended. Subsequently, agreedand anticipated under the plea agreement, as Lone Elk filed his motion to dismiss. In December 1995, after briefing and a hearing on the legal issues,the court denied the motion to dismiss. Lone Elk appeals. Our review of the record concerningthe plea agreementas discussedin open court on September6, 1995, and as memorialized in the written plea agreementestablishesthat the agreementhad nothing to do with reserving any issuefor appeal. Rather, the agreementwas that Lone Elk would be allowed to withdraw his guilty plea if he prevailed on the motion to dismiss which he planned to file in District Court No mention was made in the court below that Lone Elk was reserving any issuesfor appealunder 5 46-12-204(3), MCA. Therefore, we conclude that the general rule applies: all allegednonjurisdictional defects, including claims of constitutional violations, are waived 3 upon entry of a guilty plea. The defendant may only attack the voluntary and intelligent characterof his plea. & Stilson v. State(1996), 278 Mont. 20,22,924 P.2d 238,239. Lone Elk doesnot claim on appealthat his guilty plea was not voluntarily or intelligently entered. BecauseLone Elk failed to reserveany issuesfor appealunder 5 46-12-204(3), MCA, when he pleaded guilty, he waived appeal concerning the admissibility of his wife s statement, and his conviction is affirmed. Justice We Concur: Justices
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