State v. R. Hornback


                                          DA 20-0009


                                         2021 MT 167N


               Plaintiff and Appellee,
                                                                  JUL 0 6 2021
ROBERT GEORGE HORNBACK,                                         Bowen Greenwood
                                                              Clerk of Supreme Court
                                                                 State of Montana
               Defendant and Appellant.

APPEAL FROM:           District Court of the Nineteenth Judicial District,
                       In and For the County of Lincoln, Cause No. DC 87-72
                       Honorable John W. Larson, Presiding Judge


                For Appellant:

                       Chad Wright, Appellate Defender, Koan Mercer, Assistant Appellate
                       Defender, Missoula, Montana

                For Appellee:

                      Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant
                      Attorney General, Helena, Montana

                      Marcia Boris, Lincoln County Attorney, Libby, Montana

                                                   Submitted on Briefs: May 19, 2021

                                                              Decided: July 6, 2021


Justice Ingrid Gustafson delivered the Opinion of the Court.

        Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana


¶2      Defendant and Appellant Robert George Hornback (Hornback) appeals the written

Judgment and Sentence issued by the Nineteenth Judicial District Court, Lincoln County,

on December 10, 2019, which sentenced him to a term of 100 years at the Montana State

Prison (MSP) as a persistent felony offender (PFO), with a 35-year parole restriction, for

the offense of deliberate homicide. We affirm.

¶3     On September 17, 1987, the State charged Hornback with Aggravated Kidnapping,

Deviate Sexual Conduct Without Consent, and Deliberate Homicide for the August 31,

1987 kidnapping, sexual assault, and murder of 8-year-old Ryan VanLuchene in Libby.

On March 3, 1988, Hornback signed an Acknowledgement of Waiver of Rights by Plea of

Guilty, in which he agreed to enter an Alford plea' to an amended charge of Deliberate

Homicide, in violation of § 45-5-102(1)(b), MCA (1985), and PFO. In exchange for his

plea, the State agreed to dismiss the Aggravated Kidnapping and Deviate Sexual Conduct

Without Consent charges with prejudice. The parties agreed to a sentence where Hornback

I North Carolina v. Alford, 

400 U.S. 25


91 S. Ct. 160


would be sentenced to 100 years at MSP, with a 17 1/2-year parole restriction, for

Deliberate Hornicide, and an additional 100 years at MSP, with a 17 1/2-year parole

restriction, as a PFO. The sentences were to run consecutively, for an effective sentence

of 200 years at MSP with a 35-year parole restriction. The plea agreement contained three

attachments: Attachment 1 memorialized the parties' agreements regarding the Alford plea,

length of sentence, dismissal of charges, and sentencing procedure; Attachment 2 listed—

in 29 separate paragraphs, each initialed by Hornback—the evidence the State would have

introduced at trial; and Attachment 3 contained a statement acknowledging Hornback was

satisfied with the services of his attorney. The plea agreement and the three attachrnents

were all signed by Hornback.

¶4     On March 7, 1988, the plea agreernent was filed, along with an Amended

Information which charged Hornback with a single count of Deliberate Homicide for

causing the death of Ryan VanLuchene while committing, or attempting to commit, the

offense of deviate sexual conduct. The District Court held a change of plea and sentencing

hearing on the same day. At the hearing, the court conducted a lengthy colloquy with

Hornback regarding the plea agreement and its attachments. Hornback indicated he

discussed the documents with his attorney, was satisfied with the services of his attorney,

examined the State's evidence, understood he would probably be found guilty by a jury at

trial, and felt the plea bargain was advantageous to hirn. The District Court accepted

Hornback's plea and adjudged him guilty of deliberate homicide and of being a PFO. The

plea agreement waived a presentence investigation, so the District Court proceeded
immediately to sentencing. In accordance with the plea agreement, Hornback was

sentenced to 100 years at MSP, with a 17 1/2-year parole restriction, for Deliberate

Homicide, and an additional 100 years at MSP, with a 17 1/2-year parole restriction, as a

PFO. The District Court stated Hornback was "not to be released on parole under any

condition in less than 35 years."

¶5     Hornback did not directly appeal his conviction or sentence, but did file "a number

of petitions which have the effect of assailing his convictions" in this Court in 1988.

Hornback's petitions did not "directly ask for withdrawal ofthe guilty plea," but did imply

he felt he was coerced by his attorney into the Alford plea. We denied his petitions, noting

that "nothing in the record indicates even slightly that the Alford plea was not intelligently

accepted by [Hornback] and agreed to in open court." State v. Hornback, No. 88-615,

Order (Mont. Feb. 1, 1989). He filed a petition for postconviction relief in this Court in

1990, alleging ineffective assistance of counsel; that counsel coerced him into the Alford

plea; misconduct and coercion by the police and sheriffs departments; and that both blood

and hair evidence in the case had been "negated" by the state crime lab. Hornback also

filed several motions which repeatedly claimed the hair evidence in his case had been

"negated" and sought police files on children who had been murdered in Olney, Illinois,

and Spokane, Washington, as well as files on unsolved child murders in several other states.

We denied Hornback's motions and ultimately denied and dismissed Hornback's petition,

noting it "raise[d] issues previously ruled on by this Court and against the petitioner[1" In

re Hornback, No. 90-513, Order (Mont. Dec. 18, 1990). Hornback filed a petition for a
writ of habeas corpus in federal court in 1991, alleging his plea was not voluntarily made.

The federal district court permitted discovery, including a deposition of Hornback, and

held an evidentiary hearing on Hornback's claims on March 10, 2004. The federal district

court denied Hornback's petition, and its denial was thereafter affirmed in an unpublished

memorandum opinion by the Ninth Circuit Court of Appeals. Hornback v. McCormick,

133 F. App’x 378

 (9th Cir. 2005). The Ninth Circuit found Hornback's "claim that his

plea was involuntary" was "contradicted by the record" and that "Hornback's Alford plea

was entered knowingly, intelligently, and voluntarily[1" Hornback, 133 F. App'x at 381.

       On January 2, 2018, Hornback filed a Petition for Writ of Habeas Corpus or Other

Appropriate Writ in the District Court. In his petition, Hornback alleged he was serving a

facially invalid and illegal sentence because he received separate sentences for deliberate

hornicide and PFO and requested a resentencing hearing. The State conceded that

"imposition of a separate sentence" for Hornback's designation as a PFO was illegal, but

argued a resentencing hearing was not necessary as the District Court could simply strike

the additional 100-year PFO sentence from Hornback's existing sentence. After the

District Court appointed Hornback counsel, Hornback filed an amended sur-reply in

support of his petition where he argued he should be allowed to withdraw his Alford plea

and enter a plea ofnot guilty. In the alternative, Hornback requested an evidentiary hearing

to present further evidence in support of withdrawing his plea. Hornback separately filed

 a Motion to Withdraw Plea.2 The State filed responses to both the amended sur-reply and

the motion to withdraw plea. On September 23, 2019, the District Court issued its Order

Regarding Petitioner's Petition for Writ of Habeas Corpus and Denying Petitioner's

Motion to Withdraw Guilty Plea; Order Setting Sentencing Hearing and Order for

Transport, which found there was not good cause to allow Hornback to withdraw his plea

and set a sentencing hearing for December 3, 2019. At the sentencing hearing, the District

Court orally resentenced Hornback to 100 years at MSP for the offense of Deliberate

Hornicide, with a 35-year parole restriction. The court awarded Hornback credit for the

tirne he had already served on the original sentence. The District Court's written Judgment

and Sentence followed on December 10, 2019.

¶7       Hornback appeals, raising two issues which we restate as follows: (1) whether

Hornback's sentence is illegal, and (2) whether the District Court abused its discretion by

denying an evidentiary hearing on Hornback's motion to withdraw his guilty plea.

¶8       We review criminal sentences for legality. State v. Yang, 

2019 MT 266

, ¶ 8, 


Mont. 486


452 P.3d 897

 (citing State v. Coleman, 

2018 MT 290

, ¶ 4, 

393 Mont. 375

, 431

2 This rnotion was filed in Hornback's habeas case, rather than in his original criminal case. The
State objected, and correctly noted the motion to withdraw plea should have been filed in
Hornback's original criminal case. After noting its objection, and recognizing "the State as
represented by the Lincoln County Attorney is the proper party" to address Hornback's rnotion,
the State responded to the merits of Hornback's motion. The District Court issued its order
denying Hornback's motion to withdraw in the habeas file. On appeal, the State again notes it
"will not challenge the efficacy of Hornback filing his motion to withdraw his plea in the habeas
case rather than in the criminal case[l" We therefore address the merits of the District Court's
denial of Hornback's motion to withdraw plea here because it is, in substance, part of his appeal
of the criminal judgment in this case.


P.3d 26

). "A sentence that falls within the statutory pararneters constitutes a legal

sentence." State v. Clark, 

2008 MT 112

, ¶ 8, 

342 Mont. 461


182 P.3d 62

 (citing State v.


2004 MT 24

, ¶ 10, 

319 Mont. 349


84 P.3d 658


       Hornback argues his felony murder sentence for deliberate homicide with the

predicate felony offense of deviate sexual conduct is facially invalid and therefore illegal.

He did not rnake this argurnent at the District Court and raises it for the first time in this

appeal. Relying on State v. Hansen,

2017 MT 280


389 Mont. 299


405 P.3d 625

, Hornback

asks this Court to vacate his sentence and remand to the District Court for either further

plea proceedings or a new trial. In Hansen, we determined a district court irnposed an

illegal sentence when it accepted a no contest plea to a sexual offense. Hansen, ¶ 12 ; see

also Hardin v. State, 

2006 MT 272

, ¶ 15, 

334 Mont. 204


146 P.3d 746

 (holding Hardin's

claim the district court lacked jurisdiction to accept a no contest plea to a sexual offense

and impose the sentence he received was more accurately characterized as a claim that his

sentence was illegal as exceeding statutory authority). We therefore voided the plea

agreement and vacated the sentence imposed and remanded to the district court to allow

Hansen to "enter a legal plea to the original charges, enter a new plea agreement, or to

proceed to trial." Hansen, ¶ 13. Hansen and Hardin have since been overruled, however,

to the extent that they "fail[ed] to distinguish between an illegal sentence and an invalid

pleall" Gardipee v. Salmonsen, 

2021 MT 115

, ¶ 10, 

404 Mont. 144


486 P.3d 689


¶10   Hornback asserts his plea to felony murder was invalid due to how the State charged

hirn in this case. While the original Information charged Hornback with Deviate Sexual
Conduct Without Consent, in addition to Deliberate Homicide and Aggravated

Kidnapping, the Amended Information charged Hornback with Deliberate Hornicide while

committing the offense of Deviate Sexual Conduct. Section 45-5-102(1)(b), MCA (1985),

provided that a deliberate hornicide constituted felony murder when it was "cornmitted

while the offender is engaged in or is an accomplice in the commission of, an attempt to

commit, or flight after committing or attempting to commit robbery, sexual intercourse

without consent, arson, burglary, kidnapping, felonious escape, or any other felony which

involves the use or threat ofphysical force or violence against any individual." The Deviate

Sexual Conduct statute provided that "[a] person who knowingly engages in deviate sexual

relations or who causes another to engage in deviate sexual relations commits the offense

of deviate sexual conduct." Section 45-5-505(1), MCA (1985). The statute provided for

an enhanced sentence if the deviate sexual conduct was committed "without consent."

Section 45-5-505(3), MCA (1985). "Without consent" meant "(1)the victim is compelled

to submit by force or by threat of imminent death, bodily injury, or kidnapping to be

inflicted on anyone; or (2) the victim is incapable of consent because he is: (a) mentally

defective or incapacitated;(b) physically helpless; or (c) less than 16 years old." Section

45-5-501, MCA (1985).

¶11   In the Amended Information, the State did not charge Hornback with felony murder

with the predicate felony of deviate sexual conduct without consent, it charged him with

felony murder with the predicate felony of deviate sexual conduct. While under the

individual facts of this case there can be no argument that the eight-year-old victim
consented to sexual contact with Hornback, Hornback argues the plain language of the

statutes show the offense of deviate sexual conduct is not a predicate offense to felony

murder when it is not charged as deviate sexual conduct without consent. He is correct on

this point. "In the construction of a statute, we look first to its plain language; if the

language is clear and unambiguous on its face, we need not engage in any further

construction." State v. Felde, 

2021 MT 1

, ¶ 16, 

402 Mont. 391


478 P.3d 825

. Because

the plain language of the deviate sexual conduct statute did not require "the use or threat

of physical force or violence" and deviate sexual conduct was not an enumerated predicate

felony under § 45-5-102(1)(b), MCA (1985), Hornback's plea to felony rnurder was


¶12    Hornback, reaping the benefits of a plea agreernent which saw the State forego

seeking the death penalty and dismissing both felony deviate sexual conduct and

aggravated kidnapping charges, did not object to the validity of his conviction at the

District Court. "It is well established that a plea of guilty which is voluntarily and

understandingly made constitutes a waiver of nonjurisdictional defects and defenses,

including claims of constitutional violations which occurred prior to the plea." Gardipee,

¶ 3 (citing Hagan v. State, 

265 Mont. 31

, 35, 

873 P.2d 1385

, 1387(1994)). Hornback also

had the opportunity to, but did not, appeal his conviction in 1988. By not objecting,

Hornback has waived the clairn challenging the validity of his conviction. See Gardipee,

¶¶ 9, 11. Hornback's 100-year sentence is within the legal range for deliberate homicide

and is, therefore, a legal sentence. Because Hornback's sentence is within the legal range
for deliberate homicide and he has waived any claims challenging the validity of his

conviction, we affirm the District Court's sentence in this case.

¶13    "When a criminal defendant appeals the denial of his motion to withdraw a guilty

plea, we review the trial court's findings of fact to determine whether they are clearly

erroneous and its conclusions of law to deterrnine if they are correct." State v. Newbary,

2020 MT 148

, ¶ 5, 

400 Mont. 210


464 P.3d 999

 (citing State v. Warclub, 

2005 MT 149


¶ 24, 

327 Mont. 352


114 P.3d 254

). Whether a plea is voluntary is a mixed question of

law and fact, which we review de novo. Newbary, ¶ 5 (citing Warclub, ¶ 24). "Except

where rnandated by Title 46, the court has discretion to conduct a hearing on the merits of

a motion." Section 46-13-104(2), MCA. We review a district court's denial of an

evidentiary hearing for a clear abuse of discretion. State v. Terronez, 

2017 MT 296

, ¶ 19,

389 Mont. 421


406 P.3d 947

 (citing State v. Schulke, 

2005 MT 77

, ¶ 10, 

326 Mont. 390


109 P.3d 744

). "A court abuses its discretion if it acts arbitrarily without the employment

of conscientious judgment or exceeds the bounds of reason, resulting in substantial

injustice." Terronez, ¶ 19.

1114   As we have determined Hornback is not serving an illegal sentence, we turn now to

the District Court's denial of his motion to withdraw plea, along with its decision to not

hold an evidentiary hearing on the motion. Hornback asserts an evidentiary hearing was

required because he now asserts new reasons for withdrawing his plea than he has in his

numerous previous atternpts. The State argues Hornback was not entitled to an evidentiary

hearing on these claims and the District Court's denial of a hearing was not an abuse of

discretion. We agree with the State.

1115   "At any time before or after judgment the court may, for good cause shown, permit

the plea of guilty to be withdrawn and a plea of not guilty substituted." Section 46-16-

105(2), MCA (1987). "Good cause 'includes the involuntariness of the plea, but it may

include other criteria.'" Terronez, ¶ 27 (quoting Warclub, ¶ 16). "The fundarnental

purpose of allowing the withdrawal of a guilty plea is to prevent the possibility of

convicting an innocent [person]." State v. Liefert, 

2002 MT 48

, ¶ 10, 

309 Mont. 19



P.3d 329

 (quoting State v. Johnson, 

274 Mont. 124

, 127, 

907 P.2d 150

, 152(1995)).

¶16    Hornback asserts he has "good cause" to withdraw his plea because of

misrepresentations, misconduct, and coercion by State actors prior to entering his plea.

Specifically, Hornback asserts he was coerced into pleading guilty due to an employee at

the state crime lab "matching" his hair to hair§ found on the victim in this case. But for

this evidence, he claims he would not have pled guilty via Alford and would have insisted

on going to trial. The District Court, without holding an evidentiary hearing, found

Hornback did not present good cause to allow hirn to withdraw his plea in this case. The

District Court relied, in part, on a transcript of an evidentiary hearing held by the federal

district court on Hornback's federal habeas corpus petition which dealt with Hornback's

claim regarding the hair evidence to show that his claims in this case were not new and he

had full opportunity to present them in the federal proceeding. At that hearing, Hornback's

original trial counsel testified he hired an expert and was able to neutralize the State's hair
evidence prior to the plea. Beyond this evidentiary hearing relied on by the District Court,

Hornback also made claims the State's hair evidence had been "negated" in his 1990

petition for postconviction relief. Hornback's claims regarding the State's hair evidence

are not new, have been repeatedly rejected by both this Court and federal courts for over

30 years, and do not constitute "good cause" for allowing him to withdraw his plea.

¶17    Hornback's other claims, involving a "crazy" transient allegedly observed and

reported to law enforcement by a local man named Arnold Griner and a physical assault

on Hornback by "Detective Bernall and William Douglass . . . telling him to accept the

plea" also did not require the District Court to hold a hearing. "A hearing on a request to

withdraw a plea is not expressly mandated as a matter of law." Terronez, ¶ 25 (citing

§ 46-16-105(2), MCA). Hornback—who has been telling the story of how he was present

for Ryan's rape and rnurder, but it was actually committed by the supposed "crazy"

transient for over 30 years now—had full opportunity to present witness affidavits to

support his story. See Terronez, ¶ 25. None were presented. While conducting an

evidentiary hearing "would ordinarily be necessary and rnay well have been the prudent

course in this case," Terronez, ¶ 25, we do not find the District Court clearly abused its

discretion by not holding one. In addition, the District Court correctly found Hornback did

not present "good cause" to withdraw his Alford plea in this case.

¶18    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review.

¶19   Affirmed.

                                                     „6/."...5%    Justice

We concur:

             Chief Just e



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