No. 14608
I N THE S P E E C O W OF THE ST=
UR M O PONTANA
F
1979
STATE O ICWTANA,
F
P l a i n t i f f and Respondent,
THOMAS CRAIG HILrn,
Defendant and Appellant.
Appeal fm: D i s t r i c t Court of the Third Judicial D i s t r i c t ,
Hon. Robert J. Boyd, Judge presiding.
Counsel of Record:
For Appellant:
Byron Boggs argued, Anaconda, Mntana
For Respondent:
Hon. Mike Greely, Attomey General, Helena, bbntana
Chris Theeten argued, Assistant Attorney General, Helena,
Mntana
John Radonich, County Attorney, Anaconda, Mntana
Kevin Campana argued, Deputy County Attomey, Anaconda, Mntana
submitted: June 4 , 1979
JIJi 3 jj
cm
Decided: - k2 3 1979
m
Filed:
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
This appeal is from an order of the District Court for
Deer Lodge County denying defendant's motion to withdraw a plea
of guilty to the charge of first degree murder.
Defendant confessed that on October 12, 1973, he forced
Elwood Maney, a resident of Anaconda, into the trunk of a car,
drove him into the surrounding countryside and shot him. After
his arrest, he entered a plea of not guilty and gave notice
of his intention to rely on the defense of mental disease or
defect. He was then committed to Warm Springs State Hospital
for examination and testing. While at the hospital, he was
examined by Dr. M. F. Gracia, a psychiatrist, who found him
competent to stand trial, able to appreciate the criminality of
his conduct and capable of conforming his conduct to the requirements
of law. Due to behavioral problems at the hospital he was transferred
to the State Prison at Deer Lodge where he was examined by Dr.
Dean Beismeyer, a clinical psychologist. Dr. Beismeyer agreed
with Dr. Gracia's findings regarding defendant's competency to
stand trial but testified that in 1973, he felt there was "a
very good question about his ability to be [criminally] responsible."
Dr. Beismeyer's report did not influence Dr. Gracia to alter his
opinion. In addition, defendant was examined by Dr. Vern Cressey,
a psychiatrist who had previously treated him. Dr. Cressey's
report concurred with Dr. Gracia's.
After the psychiatric reports were filed, defendant withdrew
his plea of not guilty and pleaded guilty to first degree murder
on March 27, 1974. Although no transcript of these District
Court proceedings is available, the minute entry is as follows:
"State is ready to proceed, nefendant is ready to
proceed with hearing. This being the time set for
hearing change of plea. Mr. Scanlon one of counsel
for Defendant moved the Court that Defendant be
allowed to change plea of Not Guilty of First Degree
Murder to plea of Guilty. Mr. Hilton is present
at this time with his counsel. State has no objec-
tion Mr. Hilton was questioned by the Court. Defen-
dant was advised of his right to trial by Jury,
witnesses State offered dismissal of Count #I1
Defense counsel had opportunity to seek all evidence.
Mr. Yelsa counsel for State of Montana gave summary
of incident which took place, the time of the murder.
Defendant was asked if he wished to enter a plea
at this time to which he answered, yes. Let the
records show that the Court makes the following
findings:
"(1) That the Defendant is competent to enter a plea.
"(2) That this is knowingly made with the understand-
ing of the nature of the charge and of the direct
consequences.
" (3) That it is voluntary and made without any im-
proper inducements or conditions and free from
coersion [sic] with the understanding of the nature
of the charge and indirect consequences.
"That the plea was made after consultation with
competent counsel.
"That there is factual bases for the plea and at
this time the Court will accept a motion from the
County Attorney for dismissal of Count #II. Court
accepts the plea of guilty. Defendant waived 2 days
to enter plea. Upon conclusions of all testimony,
the Defendant was sentenced to commitment to
Montana State Penitentiary for the rest of His Natural
Life. Defendant was then delivered to the custody
of the Sheriff of Deer Lodge County for delivery to
Montana State Prison commitment to State Peniten-
tiary signed and filed. "
In September 1978, defendant filed pro se motions for
additional psychiatric examination, appointment of counsel and
for vacation of his guilty plea and sentence. From the motion
it is clear that defendant desires to stand trial and rely on the
defense of mental disease or defect. Counsel was appointed and
advised defendant that his guilty plea would have to be withdrawn
before trial could take place. A hearing on the matter was held
in November 1975, before the Honorable Robert Boyd in the District
Court for Deer Lodge County.
Dr. Beismeyer testified that he now felt there was a "very
high probability" that defendant suffered from a mental disease
"at the instance of the crime" and that when the crime was
allegedly committed, he did not appreciate the criminality of
his conduct and was not able to make his conduct conform to
the requirements of law. Defendant testified that he pleaded
guilty for three reasons: (1) He was afraid to return to
Anaconda for trial because of fear of personal injury to himself.
(2) He had formed an intimate relationship with another inmate
at the prison and his main concern at the time was to continue
the relationship. (3) At the time he was unable to effectively
communicate with the appointed psychiatrists and psychologists but
is now able to accept his possible insanity.
Judge Boyd found, concluded and ruled as follows:
"I am sure that after five years in the prison
there are relatively few prisoners who would not be
willing to explore any avenue possible to them to
relieve themselves of that imprisonment. I find
it extremely difficult to buy Mr. Hilton's humani-
tarian reasons for wanting to be in the prison when
I consider the related circumstances of the offense,
including lying in wait, stuffing Mr. Maney in the
trunk of his car and then putting a shotgun to his
head, all of which took a substantial period of time.
"I do not believe that if the testimony of Dr.
Beismeyer had been presented to me at the same time
as the reports of the psychiatrists who have testi-
fied that I would come to any other or different
conclusion and would still find that and do still
find that Mr. Hilton was competent to enter a plea
at the time that he entered the plea, that he did
it freely and voluntarily, that he had consultation
of competent counsel, that by so doing he waived
any technical defenses that he might have.
"The motion for additional psychiatric evaluations
is denied.
"The motion to withdraw the plea of guilty and
enter a plea of not guilty by reason of mental disease
or defect is likewise denied."
The sole issue faced by this Court is whether the District
Court erred in denying defendant's motion to withdraw his guilty
plea. We hold it did not.
Section 46-16-105 (2) PICA provides :
"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 substi-
tuted."
Such requests are addressed to the sound discretion of the
trial court and are subject to review only where an abuse of
discretion is shown. State v. pepperling (1978), Mont .
Various circumstances surrounding the entry of a plea,
mandate withdrawal of a guilty plea.
A plea may be withdrawn if defendant is persuaded or coerced
into pleading guilty by his attorney, State v. Nicholas (1912),
46 Mont. 470, 472-473, 128 P. 543, 544, or if the plea is
entered involuntarily or by one not competent to know the con-
sequences of his action or by one who is induced to plead guilty
by "fear, persuasion, promise or ignorance." State ex rel. Foot
81 Mont.
v. District Court et al. (1928),/495, 504, 263 P. 979, 982.
Likewise, if the plea is entered because of mistake or apprehension,
it may be withdrawn. State v. McAllister (1934), 96 Mont. 348,
353, 30 P.2d 821, 823. The thread which runs throughout the
cases is that the plea must be entered voluntarily and with an
understanding of the nature of the action. State v. Mack (1958),
134 Mont. 301, 330 P.2d 968; State v. McBane (19541, 128 Mont.
369, 275 P.2d 218; State v. Casaras (1937), 104 Mont. 404, 66
P.2d 774. It is to these questions that the District Court's
discretion is addressed. State v. Pepperling, supra.
"The fundamental purpose of allowing the withdrawal
of a plea of guilty is to prevent the possibility
of convicting an innocent man. Therefore, a plea
of guilty need be deemed involuntary only where it
appears that the defendant was laboring under such
a strong inducement, fundamental mistakes, or
serious mental condition that the possibility exists
he may have pleaded guilty to a crime of which he
is innocent. (Citing cases.)" State v. Pelke
(1964), 143 Mont. 262, 271, 389 P.2d 164, 169.
The most recent case on point is State v. Huttinger (19791,
Mon t . , 595 P.2d 363, 36 St.Rep. 945. In that case,
we found an abuse of discretion in the trial court's refusal to
allow a withdrawal of the plea. Our decision was based primarily
on the fact that the interrogation by the judge was inadequate
to determine if Huttinger's plea was truly voluntarily and
freely entered.
In the instant case, there is no contention that the
guilty plea was involuntary or unintelligently entered. The
thrust of defendant's argument is that new evidence showing
him to be mentally incompetent at the time of the alleged crime
mandates the vacation of his plea. From our examination of the
record we are unable to agree that any new evidence exists. Dr.
Beismeyer testified that in 1973 he believdthere was a "good
question" as to whether defendant was criminally responsible.
By 1978 the "good question" had evolved into a "high probability".
Once a defendant properly pleads guilty he waives all factual
defenses as well as constitutional violations which occur prior
to the plea. State v. Turcotte (1974), 164 Mont. 426, 428, 524
P.2d 787, 788. Thereafter, "[hle may only attack the voluntary
and intelligent character of his plea . . ." Tollett v. Henderson
(1973), 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235,
243; Pepperling, 582 P.2d at 346, 35 St.Rep. at 1079; Turcotte,
164 Mont. at 428, 524 P.2d at 789.
In Falu v. United States (S.D. N.Y. 1969), 308 F.Supp.
1051, aff'd 421 F.2d 687, the court held:
"[The] contention [that he was not criminally
responsible for the crime because of insanity]
was waived when petitioner, in full possession
of his faculties and represented by able counsel,
freely, voluntarily and intelligently pleaded
guilty to the crime charged."
In State v. Barber (1972), 262 La. 443, 263 So.2d 719, the
facts were nearly identical to those here. Defendant pleaded
not guilty and not guilty by reason of insanity and was found,
by a sanity commission, to be mentally competent. He withdrew
his plea and entered a guilty plea. Upon request to withdraw
the plea, the Court said:
"A plea of guilty waives all defects prior to the
plea except those jurisdictional defects which
appear on the face of the proceedings." Barber,
263 So.2d at 719.
At the time defendant entered the guilty plea, the
District Court found he did so freely and voluntarily. The
finding was repeated upon defendant's motion to withdraw and
was not an abuse of discretion by the trial court. Thus, it
is not subject to attack. State v. Nance (1947), 120 Mont.
152, 184 P.2d 554. Judge Boyd, as the trier of the facts,
determined the credibility of the witnesses and the weight to
be given their testimony. He was well within his powers when
he discounted defendant's asserted "humanitarian reasons" for
pleading guilty and dismissed them as a cause of involuntariness.
Likewise he was correct in viewing Beismeyer's testimony as
pertinent only to defendant's mental state when he entered the
plea.
As the trier of fact, Judge Boyd was able to believe some
witnesses and disbelieve others. He recited that Beismeyer's
testimony did not influence him to change his mind about the
voluntary nature of defendant's plea; nor would it have influenced
him if available at the time of entry of the plea.
Alternatively, defendant argues that certain anonymous
threats caused him to plead guilty. If this had in fact been a
cause of the plea, withdrawal would be proper. Apparently the
trial court discounted defendant's credibility and considered
these as an afterthought. It was within its discretion to do so.
We note that when threats are received such as would deprive a
defendant of a fair trial, a motion for a change of venue is proper.
The order of the District Court is affirmed.
Chief Zustice
We Concur:
Justices