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State v. Henderson6/30/2004
had enough evidence to convict, was made with knowledge of the consequences and was voluntary. Of course, not only did Henderson have considerable knowledge of the procedures because of his previous experiences, he had in this case signed a writing that acknowledged he was aware of his rights.
The sentence imposed was exactly what the parties bargained for. A commitment to the Department of Corrections for five years for placement in an appropriate facility or program, which gave Henderson the possibility of placement outside the wall after his sexual assault sentence was discharged or he made parole.
In this proceeding for post-conviction relief, Henderson presented no evidence of a reasonable possibility that the pills in question were not contraband, that his arrest was illegal, or that a dispositive motion was available to him. The record is simply devoid of any real evidence that Henderson's plea was not voluntary.
Henderson, in effect, pled guilty. When a guilty plea is at issue, rather than a verdict of guilty, before any deficient performance of counsel results in a constitutional violation, the defendant must demonstrate that but for such deficient performance he would not have pled guilty and would have insisted on going to trial. State v. Senn (1990), 244 Mont. 56, 59, 795 P.2d 973, 975, citing Hill v. Lockhart (1985), 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210. To establish a constitutional violation of the right to the effective assistance of counsel in the entry of a guilty plea, the evidence must show that there is a reasonable probability that, but for counsel's errors, he would not have pled guilty. A reasonable probability is one that is sufficient to undermine confidence in the outcome. State v. Turner , 2000 MT 270, 65, 302 Mont. 69, 65, 12 P.3d 934, 65. In my view, this means more than a reviewing court would like to have seen a better job of representation. It means that there is some real evidence that the outcome would have been different if the lawyer would have done better. The standard is that more is required than the possibility of some influence on defendant. It is a standard that requires evidence to show that it is probable that a defendant would not have pled guilty.
Henderson has presented only evidence attacking the performance of counsel prior to the time of the hearing on September 11, 1996. He presented no evidence that would undermine confidence in the ultimate outcome of the case. Contrary to the bold statements of the Court, he presented nothing that indicates he was influenced by any lack of prior contact with counsel. Not only is there no evidence to the contrary, the record supports the proposition that with knowledge of the real facts surrounding the charge of possession of dangerous drugs, and with knowledge of the probable outcome, Henderson made a conscious and informed decision to admit that the prosecution had enough evidence to convict him.
It is the obligation of the defendant on a complaint of ineffective assistance of counsel to affirmatively show that he was prejudiced by the alleged errors. Strickland v. Washington (1984), 466 U.S. 668, 693, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674. Contrary to established precedent, the decision of the Court makes the prosecution responsible for alleged attorney errors that it had no means to prevent, and results in reversal of a conviction over eight years later. I dissent.
JOHN WARNER
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