Yother v. State

I N THE SUPREME COURT OF THE STATE OF M N A A
OTN
1978

LESLIE LEROY YOTHER,

P e t i t i o n e r and A p p e l l a n t ,
-vs -
STATE OF MONTANA,

Respondent and Respondent.

Appeal from: D i s t r i c t Court of t h e F i f t h J u d i c i a l D i s t r i c t ,
H o n o r a b l e J a m e s D. F r e e b o u r n , J u d g e p r e s i d i n g .

C o u n s e l o f Record:

For A p p e l l a n t :

James W. Zion a r g u e d , H e l e n a , Montana

For Respondent :

Mike 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 , Montana
Michael McGrath, A s s i s t a n t A t t o r n e y = n e r a l , a r g u e d
H e l e n a , Montana
P a t r i c k F l a h e r t y , B o u l d e r , Montana
Mark Murphy, S p e c i a l Deputy County A t t o r n e y , a r g u e d
B o u l d e r , Montana

Submitted: March 1 5 , 1979

Decided JUL 3 1979

Filed:
Mr. Justice John C. Sheehy delivered the Opinion of the Court.

Petitioner Yother appeals from the order of the District
Court, Fifth Judicial District, Jefferson County, dated March
27, 1978, denying a petition for post-conviction relief. This
petition is based upon proceedings in justice court, a hearing
in District Court on an application for writ of habeas corpus,
and upon the arraignment and sentencing of petitioner in
District Court for first degree assault.
In the early morning of March 9, 1973, petitioner, who
was on parole or probation at the time, appeared at the Clancy
Bar, Clancy, Montana, and allegedly assaulted patrons of that
tavern. Petitioner was arrested by a deputy sheriff responding
to a call about the disturbance at the Clancy Bar. Later in
the day petitioner was charged by complaint of the arresting
officer in the justice court for Boulder Township, Jefferson
County, Montana, with disturbing the peace on March 9, 1973,
at Clancy, Montana, "by tumultuous and offensive conduct; and
. . . by loud, unusual noise, cursing or swearing, fighting
and threatening to fight."
The petitioner allegedly pled guilty to the charge of
disturbing the peace, and was allegedly sentenced to 100 days
in jail or a fine of $1,000 by Justice of the Peace Edwin
E. Kirtley. These allegations are based upon the notation
in Justice of the Peace Kirtley's handwriting on the complaint
that petitioner "pled guilty--bail set $1,000 or 100 days in
jail case sent to district court--case bound over to district
court April 12, 1973." Unfortunately no docket entry was
made regarding the disposition of this action. Petitioner
began serving the jail sentence. Petitioner was thereafter
charged by information on March 16, 1973 with assault in the
first and second degrees and with resisting officers. (The
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action in this cause was commenced prior to the effective

date of the 1973 Criminal Code.) The first degree assault

charges were based upon complaints filed by persons involved
in the altercation at the Clancy Bar.
A psychiatric examination was ordered for petitioner
on March 22, 1973. Petitioner filed a handwritten letter on
March 22, 1973, which the District Court treated as an
application for a writ of habeas corpus. The writ was issued
and a hearing on the writ was continued until after the

examination was completed.
On April 12, 1973, the hearing on the writ was held

before the court. Justice of the Peace Kirtley testified

petitioner did not plead guilty and no sentence was imposed,
rather petitioner was merely held pursuant to a warrant issued

by a parole probation officer. Deputy sheriff W. J. Gwaltney
(the arresting officer) testified that petitioner was brought
before the Justice of the Peace on the complaint of disturbing
the peace and not because of any request by the parole/probation

officer. Deputy Gwaltney further testified petitioner was

arraigned on the charge, pled guilty and was sentenced to
100 days in jail. The deputy also testified petitioner expressed
astonishment at the length of the sentence. The parole/
probation officer testified no warrant was issued for petitioner
for any possible parole/probation violation.
Upon conclusion of the hearing, the District Court quashed

the application for a writ of habeas corpus and denied relief.
The court also determined the proceedings in justice court
had "apparently never been disposed of" and indicated petitioner
could be arraigned on the charges contained in the information.
Petitioner was arraigned at 2:00 p.m. on April 12, 1973
and at that time acknowledged receipt of the information filed
against him and that he read it. The court then advised

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petitioner of the maximum penalties for the charges made
against him, of petitioner's right to remain silent, and
of his right to counsel. Petitioner pled not guilty to the
charges. Later that afternoon, after bargaining by the
county attorney in which he indicated he would seek sentencing
for petitioner under the recidivist statute, the petitioner

through his attorney changed his plea to guilty as to first

degree assault. The court accepted the plea and dismissed
the remaining charges. Petitioner was then sentenced to ten
years in the Montana State Prison. The record does not indicate
whether the court at the arraignment or sentencing ascertained
the petitioner's true name, advised him of his right to bail
(though bond was filed) or whether the court inquired as to

the voluntariness of the guilty plea and the understanding the
petitioner had of the charges as required by statute. Section
46-12-201, -202 MCA (formerly section 95-1606, R. C.M. 1947) .
The petition for post-conviction relief was filed in
District Court on August 19, 1977, and a hearing was conducted
on February 1, 1978. The petitioner offered two grounds for
granting the relief he requested--first, that he had been placed

twice in jeopardy by his prosecution on the assault charges
and second, that his guilty plea had not been completely
voluntary and the District Court failed to ascertain the
circumstances surrounding the plea as it was required to do.
In the hearing, the court granted a motion requesting it to

take judicial notice of the records in the prior proceedings.
The court had before it as evidence the original complaint
filed in the justice court as well as a copy of the Board of
Pardons violation report indicating petitioner had pled guilty
and been sentenced for disturbing the peace.
Petitioner testified at this hearing that he felt he
had pled guilty in justice court and had been sentenced. As
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to the entry of the guilty plea in District Court, petitioner

testified he had been unhappy with his representation by
counsel and had tried to complain but to no avail. Petitioner
further testified he felt his attorney was not representing
him and he did not want to be sentenced as a recidivist as the
county attorney indicated he would ask the court to do.
The District Court denied the relief requested in the
petition specifically finding the petitioner's guilty plea was
knowingly and voluntarily given and that no undue influence
was exerted or threats made with respect to the guilty plea.
The court, however, made no explicit determination with respect
to petitioner's double jeopardy claim.
Three issues confront this Court in this matter. First,
does the record of proceedings in the District Court indicate
the petitioner had pleaded guilty to an offense in justice court
and was sentenced for that offense? Second, if the petitioner

- plead guilty to a charge in justice court, did the charge
did
arise out of the same transaction as the District Court charges
in such a way as to bar the District Court proceedings as being
violative of the constitutional protection against double
jeopardy? Finally, did the District Court considering the
petition for post-conviction relief correctly conclude petitioner

had been properly informed of his constitutional rights and
the voluntariness of his plea firmly established in light of the
record before his guilty plea was accepted?
The scope of our review of a denial of post-conviction
relief is whether substantial evidence supports the findings
and conclusions of the District Court. In the Matter of Jones
(19781, Mont . , 578 P.2d 1150, 1152, 35 St.Rep.
469. The burden the petitioner has when requesting such
relief is to show by a preponderance of evidence that the facts
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justify the relief. 578 P.2d at 1152; see, Young v. Cupp
(1971), 8 Or-App. 41, 491 P.2d 1201.

In the present case, the District Court hearing the
petition concluded petitioner had failed to meet this burden

and therefore denied the post-conviction relief requested.
We disagree and conclude the petitioner had established by a
preponderance of the evidence his claim of double jeopardy and
his claim that the District Court did not affirmatively ascertain
the voluntariness of his guilty plea.
Our review of the record in this matter reveals the only
evidence indicating the petitioner had not pled guilty to, and

thus been convicted of, disturbing the peace is the testimony

of Justice of the Peace Kirtley. Arrayed against this testimony

is the testimony of Deputy Gwaltney who unequivocally stated
petitioner, "plead guilty and Judge Kirtley sentenced him to
a hundred days;" the testimony of the parole/probation officer
that no warrant for petitioner had been issued by his office
contrary to the claim of the justice of the peace; and the

documents admitted in evidence by the District Court, including
a handwritten notation by Judge Kirtley, indicating petitioner

had been convicted of and received a sentence for disturbing
the peace. We therefore find the petitioner - present a
did
preponderance of evidence showing he had been convicted of and

sentenced for disturbing the peace, and the evidence was not so
substantial as to warrant a determination otherwise by the

District Court.
Turning to the second issue in this cause we now must
decide if such conviction would prevent for double jeopardy
reasons a subsequent prosecution for first degree assault. We
note initially petitioner's plea of guilty to the assault charge
is not a bar to the claim of double jeopardy. Menna v. New
York (1975), 423 U.S. 61, 62, 96 S.Ct. 241, 46 L.Ed.2d 195.
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 The United States Supreme Court has decided that a sub-

sequent prosecution is barred by a prior conviction if the

subsequent prosecution is based upon the same acts as was the

prior conviction, if the subsequent prosecution is for an
offense of which the offense in the prior conviction is a lesser
included offense, and if the subsequent prosecution is in a
court which is part of the same sovereign as the court involved
in the prior conviction. Waller v. Florida (1970), 397 U.S.

387, 390, 394-395, 90 S.Ct. 1184, 25 L.Ed.2d 435; see also
United States v. Mechanic (8th Cir. 1971), 454 F.2d 849, 855;
Turley v. Wyrick (E.D.Mo. 1976), 415 F.Supp. 87, 88; State v.
Rook (1973), 14 0r.App. 211, 511 P.2d 1245, 1246. Here the
disturbing the peace charge and the first degree assault charge
each were based upon the acts of petitioner while in the
Clancy Bar, Clancy, Montana. We have already concluded petitioner

was convicted of the charge of disturbing the peace based upon
those acts.
According to the statutes under which the prosecutions
occurred, to establish the offense of disturbing the peace it
was necessary to prove petitioner (1) willfully and maliciously
(2) disturbed the peace of a neighborhood or person (3) by
tumultuous or offensive conduct or (4) by threatening to fight

or fighting. Section 94-3560, R.C.M. 1947. To establish first

degree assault, section 94-601, R.C.M. 1947, the prosecution
had to prove petitioner (1) with the intent to commit a felony
upon the person or property of the one assaulted (2) assaults
another (3) with a deadly weapon. Because the offense of
disturbing the peace essentially required no proof beyond that
required for conviction of the first degree assault charge it
was a lesser included offense of the greater offense of assault.
Brown v. Ohio (1977), 432 U.S. 161, 168, 97 S.Ct. 2221, 53 L.Ed.2d
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187; State v. Lagerquist (1968), 152 Mont. 51, 445 P.2d 910,
916.
Article VIII, Section 1 of 1889 Plontana Constitution
states: "the judicial power of the state shall be vested in
. . . a supreme court, district courts, justices of the
peace, and such other inferior courts as the legislative
assembly may establish in any incorporated city or town."
This provision demonstrates the judicial power to try petitioner
on the charge in justice court springs from the same organic
law that created the District Court in which petitioner was
convicted of a felony. The two courts involved in this
matter are therefore arms of the same sovereign. Waller v.
Florida, 397 U.S. at 393-394.
We conclude this cause falls within the ambit of the
Waller decision and the petitioner here was placed twice in
jeopardy by the subsequent prosecution for first degree assault.
Moreover, the Supreme Court in Brown has held that a prior
conviction for an offense requiring no proof beyond that
necessary for conviction of a greater offense bars the prosecution
for that greater offense. 432 U.S. at 168-169.
Although our determination of the first two issues presented
in this appeal is dispositive, we feel obliged to comment on
the remaining issue, that of the voluntariness of the guilty
plea.
Following its quashing petitioner's writ of habeas corpus,
the District Court arraigned petitioner on the information
filed against him. The court ascertained petitioner had read
the information and then informed the petitioner of the charges
filed against him and the potential penalties involved. The
court further informed the petitioner of his right to counsel
and his right to remain silent. The petitioner indicated he
would like to plead and then entered a not guilty plea. During
the next few hours petitioner spoke with his attorney and with
the county attorney, the latter apparently informing

petitioner that if the case went to trial, increased penalty
under the recidivist statute would be sought. After this
petitioner returned to court and through his counsel withdrew
his earlier plea, personally indicated he was ready to enter
a plea of guilty to first degree assault, and then through

counsel entered the guilty plea to first degree assault. The
remaining charges in the information were dismissed and the

court passed sentence. The court made no inquiry as to the
circumstances surrounding the change of plea, nor did it
inform petitioner of his right to trial by jury and his right
to confront witnesses. Petitioner argues the record before
the District Court mandated a thorough inquiry as to voluntariness

and understanding and failure to do so should result in the
granting of the relief he seeks.

The standard by which the validity of a guilty plea is
judged is whether the plea represents a voluntary and intelligent
choice among the alternative courses of action open to the
defendant as affirmatively disclosed by the record. North
Carolina v. Alford (1970), 400 U.S. 25, 31, 91 S.Ct. 160, 27
L.Ed.2d 162; Brady v. United States (1970), 397 U.S. 742, 747,
90 S.Ct. 1463, 25 L.Ed.2d 747; Boykin v. Alabama (1969), 395

U.S. 238, 243-244, 89 S.Ct. 1709, 23 L.Ed.2d 274; Wilkins v.
Erickson (9th Cir. 1974), 505 F.2d 761, 763. While it is clear

that courts are not required to articulate specific rights when
accepting a guilty plea, Wilkins, supra; State v. Griffin (1975),
1 6 7 Mont. 11, 535 P.2d 4 9 8 , 5 0 3 , an "in depth examination by

the court is desirable and mandatory in cases where the record
requires it." Griffin, 535 P.2d at 503.
The record in this cause discloses the District Court
-
which accepted petitioner's guilty plea made no inquiries other
than if petitioner was ready to enter a plea. The record also
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indicates "bargaining" had taken place between petitioner,

his counsel and the county attorney. We would conclude upon
this record that an in depth examination of the petitioner by
the court accepting the plea was desirable and mandatory. For
the future assistance of District Courts considering a guilty
plea, we recommend reference to State v. Lewis (1978),

Mont. , 582 P.2d 346, 35 St.Rep. 1089 and the scope of
inquiry there employed by the District Court. See also, State
v. Huttinger (1979), Mont . I - P.2d , 36 St.Rep.
945, 951-953.
Having concluded the petitioner demonstrated by a prepon-

derance of the evidence in his petition for post-conviction
relief that he had been convicted of disturbing the peace and

thus was placed twice in jeopardy by the subsequent prosecution
for assault, we reverse the denial of the petition. The

matter is remanded to the District Court with instructions to
allow petitioner to withdraw his guilty plea to the first
degree assault charges and thereafter to dismiss that charge.
The District Court is further instructed to dismiss petitioner
from any custody by the State, or supervision by the Bureau

of Probation and Parole, that is directly attributable to the
conviction for first degree assault.
Judgment reversed and remanded with instructions.

Justice
Mr. Chief Justice Frank I. Haswell dissenting.

I would grant the petition to the extent of vacating
petitioner's guilty plea as involuntary and remand the case
to the District Court for further proceedings. I would not
dismiss the charge on double jeopardy grounds.
In my view, the record before us does not support the
conclusion that petitioner's conviction of disturbing the peace
was based on the same occurrence or incident involved in the
assault charge. The two charges could well have been based on
separate and independent incidents in which case the bar of
double jeopardy would not apply. I would leave this factual

determination to the District Court on remand.

----,--------\-

Justice