No. 14662
I N THE SUPREME COURT O F T H E S T A T E O F MONTANA
1 97 9
THE S T A T E O F MONTANA,
Plaintiff,
-vs-
L E V 1 CAMPBELL, P r o S e ,
Defendant.
O R I G I N A L PROCEEDING:
C o u n s e l of R e c o r d :
For D e f e n d a n t :
L e v i C a m p b e l l , Pro S e , D e e r L o d g e , M o n t a n a
For P l a i n t i f f :
Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
Harold Hanser, County Attorney, B i l l i n g s , Montana
Submitted: July 10, 1979
Decided: JG; 1 1 1979
Filed: ....
, ,
Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
This is an original proceeding for habeas corpus by
Levi Campbell, an inmate of the Montana State Prison serving
a 10-year sentence for aggravated assault.
On September 11, 1976, petitioner was charged with
three counts of aggravated assault in violation of section
94-5-202 (1)(ar,. (b), (c), R.C.M. 1947 as amended, now section
45-5-202 (.a), (b), (c). MCA, in the District Court of Yellow-
stone County. The incident forming the basis of the charges
involved a fight in a bar on the south side of Billings,
Montana, wherein petitioner allegedly cut and injured one
Robert Haworth with a broken beer glass.
Petitioner was represented by court-appointed counsel
at all stages of proceedings.
Petitioner initially entered a plea of not guilty to
the charges. On October 26, 1976, the day his jury trial was
to begin, petitioner pleaded guilty to Count I and Counts I1
,
and I11 were dismissed. Petitioner was sentenced to 10 years
imprisonment which he is presently serving.
Prior to the petition now before us, petitioner filed
a petition for habeas corpus in the District Court of Yellow-
stone County. An evidentiary hearing was held thereon, and on
January 8, 1979, the District Court entered findings of fact,
conclusions of law, and an order denying the petition. The gist
of the District Court's denial was that the rule announced by
this Courq State v. Azure (1977), Mont . , 573 P.2d 179,
34 St.Rep. 1569, should not be applied retroactively.
Petitioner thereafter filed the present petition in
this Court seeking to have his guilty plea, conviction and
sentence vacated, and the cause remanded to the District Court
for a new trial. The grounds alleged are that his quilty plea
was not voluntary because he did not understand the true nature
of the charge of aggravated assault and he did not understand
the difference between aggravated assault and the lesser included
offense of misdemeanor assault. Petitioner contends this con-
stitutes a denial of due process mandated by Section 1 of the
Fourteenth Amendment of the United States Constitution.
This Court granted petitioner's motion to file and
proceed in forma pauperis and ordered the Attorney General to
file a written response to the petition and brief. This has
been done, and the matter has been submitted to us for decision.
Petitioner first contends that at the time he entered
his plea of guilty to the charge of aggravated assault he did
not understand the true nature of the charge. The record belies
this contention. Petitioner was given a copy of the Information
specifying the charge. He was represented by counsel who dis-
cussed the charge with him, the evidence against him, informed
him generally that an element of the charge was serious injury
with a weapon or the threat thereof, and that he understood the
circumstances in which he stood and that he very probably would
be convicted.
The presiding judge carefully questioned petitioner
concerning his guilty plea. Petitioner stated to the presiding
judge that the charge was true; that he understood the possible
penalty on the charge; that he had received no promises for
pleading guilty; that he would be giving up his right to a jury
trial; his right to call witnesses in his behalf; his right to
cross-examine witnesses against him; and his right to remain
silent. The presiding judge explained that the county attorney's
office had indicated that they would recommend a 10-year sentence
and that he had not indicated any disagreement with that recom-
mendation. The presiding judge accepted petitioner's plea of
guilty as voluntary. Based on this record we hold that peti-
tioner, at the time he entered his plea of guilty, understood
the true nature of the charge of aggravated assault,
The focus of the present petition, however, is that
petitioner was not advised and did not understandythe differ-
ence between aggravated assault and the lesser included offense
of misdemeanor assault and, therefore, his plea of guilty was
not voluntary. Petitioner principally relies upon Azure, supra
and Jones v. Montana (1964), 235 F.Supp. 673, in support of
his contention.
Doubt as to whether a plea of guilty was voluntarily
or knowing should be resolved in favor of trial on merits.
State v. Doty (1977), Mont .
, 566 P.2d 1388, 34 St.Rep.
State v.
731;/Casaras (1937), 104 Mont. 404, 66 P.2d 774. Denial of a
motion to withdraw a guilty plea is addressed to the sound dis-
cretion of the trial court which will not be disturbed absent a
showing of abuse of that discretion. State v. Lewis (.l978),
Mont . , 582 P.2d 346, 35 St.Rep. 1089; State v. Nance
(19471, 120 Mont. 152, 184 P.2d 554. Specific statutory re-
quirements in effect at the time of petitioner's plea of guilty
were and are that the trial court must determine at the outset
that a guilty plea is voluntary with an understanding of the
charge. Section 46-12-204 MCA. Any time before or during trial,
a plea of guilty may be accepted by the trial court after the
court has advised the defendant of the consequences of his plea
and the maximum penalty provided by law. At any time before or
after judgment upon good cause shown, a plea of guilty may be
withdrawn. Section 46-16-105 MCA.
Here the record shows trial court complied with the
statutory mandates then in effect. Additionally, the guidelines
set forth in State v. Griffin (1975), 167 Mont. 11, 535 P.2d
498, were followed.
Petitioner contends that Jones v. Montana, supra,
requires that at the time of plea defendant must know and
understand the difference between the crime charged and a
lesser included offense where his plea of guilty is not volun-
tary. Jones is distinguishable on the facts. There the defen-
dant was charged with nighttime burglary and consistently
maintained the burglary had been committed in the daytime, a
lesser offense. His conviction on a guilty plea to the offense
charged was set aside because the difference between the two
was neither known by or explained to the defendant. His plea
of quilty was the result of a fundamental mistake and hence
involuntary.
Here, petitioner knew at the time of entry of his plea
of guilty that serious bodily injury to the victim with a weapon
or the threat thereof was a required element of the crime of
aggravated assault. He knew that he was charged with purposely
and knowingly committing the offense. Petitioner now claims the
assault was accidental or negligent. His counsel, in effect,
struck a plea bargain with the county attorney's office on a
10-year sentence. Petitioner knew that he would be subject to
a greater period of imprisonment upon conviction after a jury
trial and his counsel had advised him that he would probably be
convicted. Petitioner, with full knowledge of these facts,
entered a plea of guilty. Unlike Jones, there was no funda-
mental mistake here.
Finally, petitioner contends that our decision in Azure
requires that the record of arraignment in the District Court
must show that he was informed of the elements and effects of
lesser included offenses of which a jury could possibly find him
guilty. The District Court's findings of fact on the prior
petition show that, at the time petitioner entered his plea of
guilty, he was not advised that in the event he had a trial by
jury on the charge that the jury would in all probability have
been instructed as to lesser included offenses such as misde-
meanor assault; or that, if the petitioner had a trial by jury
and if he testified that the events at the time of the offense
occurred in the same manner as he testified at the time of this
hearing, the probability is that the trial judge would in fact
instruct the jury as to the lesser included offense of misde-
meanor assault.
At the time of entry of petitioner's plea no such
requirement as thereafter articulated in Azure was present in
the law of Montana. We decline to give Azure retroactive
effect.
Recently we articulated a three part test to determine
whether a decision should be applied retroactively: (1) the
decision must establish a new principle of law overruling
established precedent on which litigants have relied, or it
must decide an issue of first impression, the resolution of
which was not clearly foreshadowed; (2) the rule in question
must be examined to determine whether its retroactive applica-
tion will further or retard its operation; and (-3) the equity
of retroactive application must be considered. State v, LaRoque
(1978)t Mont . , 583 P.2d 1059, 35 St.Rep. 1281.
Azure introduced a new procedural requirement that the
trial court must advise the defendant of matters relating to
lesser included offenses and that the record of the plea entry
alone is to be examined to determine whether this has been done.
Azure established a new principle of law not previously artic-
ulated.
It should be obvious that retroactive application of
this rule would seriously retard its operation. Litigants have
a right to rely on the law in effect at the time. The admini-
stration of justice would be seriously hampered by requiring
conformity to an as yet unannounced new procedural requirement.
Law enforcement agencies and courts are entitled to rely on the
rules pertaining to guilty pleas in effect at the time the .
guilty plea was entered and to determine voluntariness on the
basis of such law.
Our ruling in Azure does not implicate "the integrity
of the factfinding process." Rather, it goes to the issue of
whether a guilty plea represents "a voluntary and intelligent
choice among the alternative courses of action open to defen-
dant." North Carolina v. Alfred (1970), 400 U.S. 25, 91 S.Ct.
The following decisions of the Montana Supreme Court
have denied retroactive effect to a subsequent decision altering
the law of criminal procedure: State v. Chappel (1967), 149
Mont. 114, 423 P.2d 47; Petition of Jones (19661, 148 Mont. 10,
416 P.2d 540. The United States Supreme Court has denied retro-
active application in the following cases: Johnson v. New
Jersey (1966), 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 848;
Linkletter v. Walker (1965), 381 U.S. 618, 85 S.Ct. 1731, 14
L.Ed.2d 601; Griffin v. California (1965), 380 U.S. 609, 85
S.Ct. 1229, 14 L.Ed.2d 106; Mapp v. Ohio (19611, 367 U.S. 643,
81 S.Ct. 1684, 6 L.Ed.2d. 108, 84 ALR2d 933. Other state court
decisions denying retroactivity include: People v. Gonzales
(1977)I Colo. , 565 P.2d 945; State v. Pierson t1977),
22 Ran. 498, 565 P.2d 270, cert.den. 434 U.S. 868, 98 S.Ct. 207,
54 L.Ed.2d 145; Wood v. Morris (1976), 87 Wash.2d 501, 554 P.2d
1032; State v. Stenrud (1976), 113 Ariz. 327, 553 P.2d 1201;
King v. State (Okla. 1976), 553 P.2d 529; Hagenios v. Warden
(1975), 91 Nev. 328, 535 P.2d 790.
The equity of retroactive application indicates that
it should not be applied. This conclusion is based on the facts
of this case as well as the decisions heretofore cited.
For these reasons we hold that the rule announced in
State v. Azure, supra, shall not be retroactively applied.
The petition is denied.
Chief Justice