No. 14512
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
IN THE MATTER OF ANTHEL LAVAN BROWN,
a/k/a ROBERT MICHAEL WILCOX, a/k/a
BO-BO-BROWN,
Defendant and Petitioner.
Appeal from: District Court of the Eighteenth Judicial District,
ORIGINAL PROCEEDING:
Counsel of Record:
For Petitioner:
John W. McDonald, Missoula, Montana
James Taylor argued, Missoula, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Mary B. Troland argued, Assistant Attorney General,
Helena, Montana
Donald White argued, County Attorney, Bozeman, Montana
Submitted: October 30, 1979
- rrtnr,
Decided: .jfib!1 ' ISCV
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Petitioner, Anthel LaVan Brown, appeals the order of
the Gallatin County District Court which denied his petition
for withdrawal of his guilty plea. The sole issue in this
appeal is whether the District Court, before accepting
defendant's guilty plea, established that the defendant
voluntarily and understandingly entered his plea on which he
was sentenced.
On November 20, 1978, defendant filed a petition for
postconviction relief with this Court. We remanded the
petition to the District Court which held a postconviction
hearing on December 5, 1978, and filed its order of January
18, 1979, denying defendant's request for withdrawal of his
guilty plea. Defendant appeals the District Court's denial
of his petition.
The State's information charged the defendant with five
offenses: count 1, felony theft; count 2, deliberate homicide;
count 3, sexual intercourse without consent; count 4, robbery;
and count 5, aggravated assault. At his arraignment, the
defendant's attorneys stated that the defendant wished to
enter a guilty plea. The court established on the record its
instruction to the defendant that defendant's attorneys believed
that entry of a guilty plea was not in the defendant's best
interest, and that such a plea was a waiver of his constitutional
rights to trial by jury, to confront and cross-examine witness,
and his right against self-incrimination. Defendant's counsel
informed the court that defendant wished to enter a guilty
plea because of his dislike of maximum security confinement in
the Gallatin County jail. The court stated to the defendant
that such confinement was a necessity and was an irritation
more than anything else. The court asked defendant whether
he believed a guilty plea would result in his sudden release,
and the defendant replied that he knew where he was going.
The court informed the defendant of the maximum charge for
each offense and that the rest of his life even at best would
be spent in confinement. The court stated for the record
that it had received from the county attorney a statement from
a psychiatrist stating that the defendant was sane and capable
to stand trial. The defendant then pleaded guilty to each
of the five counts contained in the information.
The court continued the hearing until the afternoon, and
after recess again went through each of the charges against
the defendant, read to the defendant the acts alleged under
each count of the information, and asked the defendant to
explain in his own words what he did.
With regard to the charge of felony theft, the information
charged the defendant with the theft of a .22 Hi-Standard
revolver, numerous .22 shells, and a suitcase valued in excess
of $150. The defendant admitted that he stole the revolver
and shells but stated that he owned the suitcase. If this were
true, the remaining articles may not have had enough value to
constitute a felony.
The information charged the defendant committed deliberate
homicide by willfully, purposely, or knowingly, or while
engaged in the commission of or attempt to commit a robbery
causing the death of Glen Belnap by shooting him with a fire-
arm. Concerning this charge, the defendant admitted entering
the deceased's premises with a gun, and that the deceased
was dead when he left, but defendant did not recall whether
he fired his gun. The court then read the last three charges,
and to each charge, the defendant stated that he did not do
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anything, that he never even saw the victim of the rape,
robbery, and assault. The court accepted the defendant's
guilty pleas and at defendant's request immediately sentenced
him. The sentence provided that the defendant should serve
the maximum term provided for each of the five counts, a total
of 190 years in prison.
Defendant claims that the District Court erred in
accepting his guilty plea because he professed his innocence
concerning the rape, robbery and assault charges, and could
not recall whether he committed the homicide. Defendant
maintains that the court should have established on the record
a factual basis for each of these charges before it accepted
his plea. Defendant also claims error in the District Court's
failure to instruct defendant that he might mitigate the
charges of felony theft and deliberate homicide.' The final
assertion of error is that the District Court, having been
informed that defendant objected to the nature of his incar-
ceration, should have inquired into conditions of his confine-
ment to determine whether the guilty plea was truly voluntary.
The defendant's first contention is that the District
Court erred in accepting his guilty plea before it established
a factual basis in the record to support the plea. Defendant
cites Boykin v. Alabama (1969), 395 U.S. 298, 89 S.Ct. 1709,
23 L.Ed.2d 274, for the proposition that the trial court
shall not accept a guilty plea without first determining that
it is voluntary with an understanding of the charge. See
also, sections 46-16-105 and 46-12-204(2), MCA. He argues
that the record does not disclose that the District Court
made such a determination here because his guilty plea was
accompanied by a declaration of innocence.
The defendant's argument lacks merit. There is no
constitutional prohibition against accepting the guilty plea
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of a defendant who denied his actual guilt. North Carolina
v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d
162. There is no set standard to be applied by a court in
handling motions to withdraw a guilty plea. State v. Lewis
(19781, 173 Mont. 1, 582 P.2d 346. The trial court's
decision concerning the motion is subject to review only
upon a showing of an abuse of discretion. State v. Doty
(19771, 173 Mont. 233, 566 P.2d 1388. Here there was no abuse
of discretion because the record established by the trial
court includes a substantial factual basis for the plea, and
further shows the defendant's almost obstinate insistence
that he be allowed to plead guilty to all five counts.
The State filed an affidavit of probable cause to support
its motion for leave to file an information. Judge Lessley,
who presided at defendant's arraignment, signed the order
granting the State's motion. The State's affidavit established
the following events:
At lsOO a.m. on the morning of September 23, 1979, a
female taxi cab driver in Bozeman reported to police that
a 20 to 25 year old man, 5'6" tall with blorrjehair and a
mustache and wearing blue denim pants had sexually assaulted
her, and at gunpoint had taken her wallet, a bowling card
receipt with her name printed on the card, and her food stamps.
Later that morning the police received another complaint
concerning a man matching the same description. The com-
plainant reported the theft of a .22 caliber revolver. The
same day a person matching the defendant's description was seen
running from Hoadley's Standard Station where Glen Belnap
was just shot and killed. The deceased was shot five times
with .22 caliber bullets. The fleeing suspect was described
as wearing a blue coat with a fur-lined hood.
The defendant is in fact 5'6" tall, 150 pounds, with
blonde hair and a mustache. He was arrested in Butte,
Montana and taken to the Bozeman police station where he
confessed that he entered Hoadley's Standard Station with
the intent to rob, and that in the course of the robbery he
killed the storeowner. The police obtained a search warrant
and searched defendant's room where they obtained a blue
coat with a fur-lined hood, a pair of blue denim jeans, a
partially burned bowling card with the first name of the rape
victim still visible, some food stamps, and five spent . 2 2
caliber shell casings. The defendant had in his possession
a . 2 2 Hi-Standard revolver when he was arrested.
The defendant was not unaware of the acts charged against
him. The transcript of defendant's arraignment shows that
the court thoroughly familiarized the defendant with acts
alleged in the information concerning each of the five counts.
Under these circumstances, the court did all that it was
reasonably expected to do to enable the defendant to under-
stand the charges against him as they relate to the facts of
this case. We conclude that the State's affidavit and the
transcript of the arraignment established an adequate factual
basis for defendant's plea.
In spite of the thorough procedures taken by the trial
court to protect the defendant's rights, he contends that the
record does not establish that he understood the charge of
felony theft. The defendant argues that since he denied
having stolen a suitcase, and the two items which he admitted
having stolen are probably less than $150 in value, the facts
to which he confessed are only a misdemeanor. Thus, he
argues that the court had a duty to inform him that if he
went to trial and proved that he owned the suitcase, he
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might mitigate the charge of felony theft, a misdemeanor,
and reduce his sentence. See Jones v. State of Montana
(D. Mont. 1964), 235 F.Supp. 673. This argument lacks merit
because the record of the arraignment includes statements by
defendant's counsel that defendant had been informed by counsel
that the acts which he admitted might only constitute a mis-
demeanor. The District Court's repetition of this explanation
to the defendant would not have added to his understanding of
the charge,'and was not required here.
The defendant argues that the record fails to establish
that he understood the consequences of pleading guilty to
deliberate homicide. He maintains that,the court had a duty
to inform him that the charge of deliberate homicide might be
mitigated with a showing at trial that he lacked the intent
willfully, purposely, or knowingly to kill the deceased. See
State v. Azure (1977), - Mont . , 573 P.2d 179, 34 St.Rep.
1569. This argument also lacks merit. The State's information
charged the defendant with willful felony murder as well as
with willful and deliberate murder, and its affidavit of
probable cause stated that defendant had confessed to entering
Hoadley's Standard Station with the intent to rob and in
the course of the robbery had shot the deceased, Glen Belnap.
Thus it was clearly on record that the State had a case
against the defendant on the charge of felony murder.
The last contention raised by defendant is that the court
erred by failing to inquire into the voluntariness of the
defendant's pleas when he stated that he was pleading guilty
to get out of jail and to get out of the county. However, the
record clearly shows that defendant was under no compulsion
to enter his plea. The defendant's counsel stated that
defendant objected to his confinement in the county jail
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because he was placed in maximum security quarters. A
prisoner's dislike of the security quarters is not per se
a factor in determining the voluntariness of his plea. Kress
v. United States (8th Cir. 1969), 411 F.2d 16; ~ e r d o nv.
United States (8th Cir. 1961), 296 F.2d 549, 552, cert.den.
370 U.S. 945 (1962). Neither defendant nor his counsel have
suggested that conditions in the jail were substandard or in
any way abusive. There is nothing in the record to suggest
that the jail conditions coerced the defendant into entering
his plea. Under these circumstances no error was commited
by the District Court in accepting defendant's guilty plea
without further inquiry.
We find that the record developed by the District Court
before accepting the defendant's plea indicates that defendant
pleaded voluntarily and understandingly to each of the charges
against him. Accordingly, the District Court's denial of
defendant's petition for withdrawal of his guilty plea is
affirmed.
Justice
We Concur:
Chief Justice
J
Justices
Mr. Justice Daniel J. Shea will file a written dissent at
a later time.