No. 14860
I N T E SUPmME COURT OF THE STATE O M N A A
H F OTN
1980
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THE STATE OF MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
VS .
J O H N N I E BURTON HAYNIE,
D e f e n d a n t and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e Eighth 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 o e l G. Roth, 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 :
A s s e l s t i n e , S t r a u s e & Anderson, G r e a t F a l l s , Montana
Howard S t r a u s e a r g u e d , G r e a t F a l l s , Montana
F o r Respondent:
Hon. 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
Richard Larson argued, A s s i s t a n t A t t o r n e y General,
H e l e n a , Montana
J. F r e d Bourdeau, County A t t o r n e y , G r e a t F a l l s , Montana
M i c h a e l G. B a r e r a r g u e d , Deputy County A t t o r n e y ,
G r e a t F a l l s , Montana
Submitted: F e b r u a r y 20, 1980
Decided : rAi..-i 1 2 39811
Filed:
Mr. Justice John C. Sheehy delivered the Opinion of the Court.
Johnie Burton Haynie appeals from an order denying both
his application for post-conviction relief and his motion to
withdraw a guilty plea. The order was entered by the District
Court, Eighth Judicial District, Cascade County.
On October 11, 1973, an eleven count information was
filed in the District Court, Cascade County, charging Haynie
with one count of indecent exposure, two counts of committing
an infamous crime against nature, three counts of second degree
assault, two counts of committing a lewd and lascivious act
upon a child and three counts of rape. The alleged incidents
involved five different women, including at least two minors.
On that same day, Haynie appeared before the District
Court to hear the charges against him. Haynie was told he
would be given as much time as was necessary to prepare his
pleas. Haynie waived time to prepare his pleas and pleaded not
guilty to all the charges. After the pleas were entered,
Haynie moved for a psychiatric evaluation. The motion was
granted.
At this same time, Haynie was facing a forcible rape
charge in California. Between October 11, 1973 and December 5,
1973, plea bargain negotiations took place between the State,
Haynie and Haynie's defense counsel. The whole point of the
negotiations was to see if Haynie might take advantage of
California's broader facilities for treating Haynie's admitted
sex problem. During these plea negotiations, both the State
and defense counsel advised Haynie of the maximum penalties
involved in all eleven of the Montana charges. They also advised
Haynie of his constitutional rights and that he would waive
those rights by entering a guilty plea.
Haynie appeared in the District Court with his defense
counsel on December 5, 1973. As a result of the plea
bargaining, ~aynie@eac?edguilty to count nine of the information,
rape. In return, the State moved to dismiss the remaining
ten counts of the information. Haynie's plea was accepted,
and the State's motion was granted.
The District Court continued sentencing until after a
determination of the California forcible rape charge. All
parties agreed Haynie would be returned to Montana if found
not guilty of the California charge. If Haynie was found
guilty o r p l m w guilty in California, the Montana District Court
would postpone sentencing Haynie on count nine until after
California determined whether Haynie's problem could be treated.
Haynie was to be brought back to Montana for sentencing upon
such a determination. The District Court explained to Haynie
it could not control what the California court would do. The
District Court also explained it was reserving its full dis-
cretion to impose any sentence on Haynie it deemed suitable.
Haynie expressed his understanding.
On December 7, 1973, Haynie waived extradition. He
was transferred to California four days later. Haynie plead
guilty to the California forcible rape charge on February 26,
1974. He was sent to an institution for "mentally disordered
sex offenders" for a determination of his chances for rehabil-
itation. Haynie was determined not to be amenable to treatment.
On August 23, 1974, the California court sentenced Haynie to
an indeterminate sentence of three years to life.
While serving his California sentence, Haynie requested
to be returned to Montana for sentencing on count 9. He was
transferred to Montana under the Interstate Agreement on
Detainers.
On December 10, 1974, Haynie appeared in the District
Court, Cascade County. He was informed his former defense
counsel was now the Great Falls city attorney and would not
be able to represent Haynie during the sentence proceeding.
Haynie was told a public defender would be appointed.
Haynie appeared in the District Court for sentencing
on January 22, 1975. No presentence report was ordered. The
District Court knew Haynie's juvenile record and his prior
criminal record. Haynie was represented at the sentence
hearing by Vaughn Barron. Barron was the first defense counsel
to talk to Haynie since his return from California. Barron
first met Haynie shortly before the sentence hearing. Upon
being informed of this, the District Court asked Haynie if he
wanted time to talk to Barron. Haynie said he wanted to go
ahead with the sentencing. The District Court next asked
Haynie if he was ready for sentencing now. Haynie answered
that he was.
Haynie was found to be a dangerous offender because of
his prior sex crimes. He was sentenced to 99 years at hard
labor in the state penitentiary. The sentence was to be
served consecutively with the California sentence. Prior to
sentencing, the District Court did not inform Haynie of the
maximum possible sentences for rape or the other dismissed
charges.
Haynie was returned to California where he was incarcerated
until August 1977. After the completion of his ~alifornia
sentence, Haynie was returned to Montana to begin his rape
sentence.
Upon his return, Haynie applied to the Montana Sentence
Review Board. On October 24, 1978, that Board decided not
to disturb Haynie's sentence.
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On February 20, 1979, Haynie filed his application
for post-conviction relief. The application alleged
Haynie was denied effective assistance of counsel at the
1975 sentence proceeding. On April 2, 1979, Haynie moved
to withdraw his guilty plea to count 9. Haynie asserted
the District Court did not inform him at the time he entered
his plea of the maximum possible sentence for rape. Three
hearings were held on the application and motion. Haynie
was represented by court-appointed counsel.
The District Court denied both the application and the
motion on the grounds (1) Haynie waived his right to counsel
at sentencing, (2) Haynie's guilty plea was properly accepted,
and (3) Haynie's challenges were not timely.
On July 20, 1979, Haynie moved for a reconsideration of
the above order. A hearing was held on August 3, 1979, and
the motion was denied on August 6, 1979. This appeal followed.
The issues upon appeal are whether the District Court
erred in denying Haynie's petition for post-conviction relief
and his motion to withdraw his guilty plea. There was no
error.
An indigent criminal defendant has a right to counsel
at sentencing. However, that right is akin to any other
constitutional right and may be lost by a knowing and
understanding waiver. Petition of Brittingham (1970), 155
Mont. 525, 529, 473 P.2d 830, 832. The nature of such a
waiver was described in Johnson v. Zerbst (1938), 304 U.S.
458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466, as follows:
"A waiver is ordinarily an intentional
relinquishment or abandonment of a known right
or privilege. The determination of whether there
has been an intelligent waiver of right to counsel
must depend, in each case, upon the particular
facts and circumstances surrounding that case,
including the background, experience, and
conduct of the accused."
Under the facts of this cause, Haynie knowingly and
understandingly waived his right to more extensive counsel
at sentencing.
Haynie knew he was entitled to an attorney at sentencing.
Haynie was not a novice to the criminal justice system.
Haynie's past criminal record is extensive, and Haynie had
previously appeared before this particular sentencing judge
on at least two similar but unrelated charges. Thus, the
sentencing judge was familiar with Haynie's background and
had several opportunities to observe Haynie's understanding
of the criminal justice system. More importantly, the first
thing Haynie did at the sentence hearing was to ask that the
record reflect his lack of counsel at sentencing.
Haynie was offered counsel at the sentence hearing but
rejected the offer. Both Haynie and his attorney, Barron,
told the District Court Haynie did i~othave an opportunity
to talk with counsel prior to the hearing and Barron was
merely "stand-in" counsel. At that point, the following
colloquy occurred:
"THE COURT: Mr. Haynie, do you want time
to talk to Mr. Barron?
"MR. HAYNIE: No, I'd just as soon he'd
stand in for sentencing now.
"THE COURT: Are you ready now?
"MR. HAYNIE: Yes."
Upon appeal, Haynie claims he believed he would only
be allowed a few minutes to talk with Barron and nothing
could be accomplished in such a short time. Yet, both
Barron and Clary, the prosecuting attorney, testified at the
post-conviction hearing that they understood Haynie would
be given as much time as Haynie believed was necessary to
talk with counsel.
Haynie entered his plea with a knowledge of the maximum
penalty possible for the crime charged. While Haynie denies
this, both Glicko, Haynie's initial defense counsel, and
Clary testified at the post-conviction hearing that Haynie
was informed during plea bargain negotiations of the maximum
possible sentences for the crimes charged.
Having decided that Haynie knowingly and understandingly
waived his right to counsel, we will not reach the State's
contention that Haynie is barred by laches from attacking
the sentence procedure.
Haynie next contends he should be allowed to withdraw
his guilty plea to count 9 since the District Court failed
to inform him of the maximum possible sentence for rape. We
do not agree.
A change of plea will be permitted only if it fairly
appears the defendant was ignorant of his rights and the
consequences of his act, or he was unduly and improperly
influenced either by hope or by fear in making the plea,
or if it appears the plea was entered under some mistake
or misapprehension. State v. McAllister (1934), 96 Mont.
348, 353, 30 P.2d 821, 823. Each case must be examined
on its own record. The motion rests within the District
Court's discretion, and the exercise of that discretion will
not be disturbed absent an abuse of discretion. State v.
Nelson (1979), Mont. , 603 P.2d 1050, 1053, 36
St.Rep. 2228, 2232.
We hold the District Court did not abuse its discretion
in denying Haynie's motion to withdraw his guilty plea.
There are three important considerations involved in
a criminal defendant's attempt to withdraw his guilty plea.
These are (1) the adequacy of the District Court's interrogation
at the time the plea was entered as to the defendant's
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understanding of the plea, (2) the promptness of the
motion to withdraw the plea and, (3) the fact the plea
resulted from plea bargaining. State v. Nelson, supra, 603
P.2d at 1053, 36 St-Rep. at 2232.
The District Court's interrogation of Haynie at the
time his plea was entered was inadequate. Haynie was never
informed of his constitutional rights or that he would
waive those rights by entering a guilty plea. Haynie was
also not informed by the District Court of the maximum
possible sentence for rape. Nor did the District Court
find out whether Haynie was dissatisfied with his defense
counsel. Finally and most importantly, the District Court
did not go into the underlying facts of the alleged offense,
the name of the victim and the date and place of the alleged
occurrence. But, these factors alone are not determinative.
The second consideration is the timeliness of the motion
to withdraw the guilty plea. The guilty plea was entered
on December 5, 1973. The first time Haynie expressed dis-
satisfaction with his plea was on April 2, 1979, the day
the motion to withdraw the guilty plea was filed. Haynie
has not explained this delay of over five years. Given this
delay, the availability of witnesses would be a question, and
even assuming their availability, the time lapse would most
assuredly have erased the details of the crime from their
memories. See State v. Lewis (1978), Mont . , 582
P.2d 346, 35 St-Rep. 1089.
Haynie's plea was entered after extended plea negotiations.
Although no written record of the plea bargain was kept,
the State dismissed the 10 remaining charges against Haynie
in exchange for Haynie's guilty plea to the charge of rape.
At the time of the plea, the District Court explained to
Haynie at great length that he would merely be given an
opportunity for treatment and whatever treatment Haynie did
or did not receive in California would not be determinative
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of the Montana sentence he received. Haynie expressed his
understanding several times. There is no question Haynie
was competent to bargain or that he was satisfied with
the competency of his defense counsel. See State v. Huttinger
(19791, Mont . , 595 P.2d 363, 36 St.Rep. 945.
To grant Haynie's motion to withdraw his guilty plea
would be to allow Xal~nieto escape the obligations of his
bargain. However, this Court will not aid an accused to
escape the obligations of a plea bargain agreement after
accepting the benefits thereof. State v. Huttinger,
supra. 595 P.2d at 370, 36 St.Rep. at 954.
Taking these three factors together, we find it was
not error to deny Haynie's motion to withdraw his guilty plea.
Without explanation, Haynie waited almost 5 1/2 years to
take exception to the plea. Moreover, Haynie voluntarily
and understandingly entered the plea bargain with the
sentence open. Haynie may not now seek to avoid the obligations
of that bargain after accepting its benefits.
Having found no merit in Haynie's contentions, we
affirm the District Court order denying Haynie's application
for post-conviction relief and his motion to withdraw his
guilty plea.
p--g:--* Justice ------
We Concur:
hief Justice
A
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Justices
I concur in the result.
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Justice