No. 84-88
IN THE SUPREME COURT OF THE STATE OF MONTANA
1934
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
WAYNE LESLIE KOEPPLIN,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Jefferson,
The Honorable Henry Loble, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Nicholas C. Jacques, Helena, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
John P. Connor, Jr., County Attorney, Boulder,
Montana
Submitted on Briefs: August 31, 1984
Decided: October 22, 1384
Filed: t~(;~ :Y84
Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Wayne Leslie KoeppLin appeals the 3udgment of the
Jefferson County District Court finding him guilty of miti-
gated delibera.te homicide. The appellant Koepplin raises the
issue of whether the District Court erred in denying his
motion to withdraw his plea of guilty. We find no error and
affirm.
At the time of the homicide, Koepplin and the victim,
Jackie Lynn Koepplin, were recently divorced and living
apart. Shortly after mid.night on LSanuary 20, 1982, appellant
Koepplin followed his former wife to her home after she got
off work. Koeppl-in was intoxicated and witnesses felt he was
in a belligerent mood. An argument between the couple ensued
and Koepplin struck Jackie in the head numerous times. There
were no witnesses to this beating. Jackie collapsed uncon-
scious and Koepplin called an ambulance when she failed to
regain consciousness. Koepplin later stated that Jackie
struck her head against a wall when she lost consciousness.
The victim never recovered from her comatose condition and
died of her in juries nine days later in a Butte hospital-.
An autopsy was performed by the State Medical Examiner
and a resident pathologist a . t the hospital. Their conclusion
was that Jackie Koepplin suffered from seven distinct areas
of trauma to the brain and died of multiple blunt force
injuries to the head. No one of the traumatic injuries alone
cou1.d have caused her death.
Koepplin admitted to an undersheriff the day following
the incident that he had struck Jackie a number of times. At
the scene Koepplin told an officer he had struck her six to
eight times.
The County Attorney for Jefferson County originally
charged Koepplin with deliberate homicide. Allen LeMieux was
appointed to represent Koepplin, a plea of not guilty was
entered and a trial date set. The defendant received a
psychological evaluation that indicated. he was of average
intell-igence, with no evidence of psychotic or neurotic
condition and was competent to stand trial. At the request
of the defendant, several continuances of the trial date
£011-owed within the next nine months. LeMieux moved to
withdraw as counsel due to a conflict with Koepplin and David.
Hull was appointed to represent the defendant in September
1982.
On February 14, 1983, pursuant to a plea bargain agree-
ment, the County Attorney filed an amended information charg-
ing mitigated deliberate homicide, and Koepplin plead guilty
to the lesser charge. No recommendations concerning sentenc-
ing were included in the plea bargain agreement.
Following a presentence investigation and hearing,
Judge Davis sentenced Koepplin to forty years in the state
prison and designated him a dangerous offender for purposes
of parole.
A motion was made to vacate the sentence on the grounds
that the district judge had become involved in the presen-
tence investigation. By stipulation of the parties, the
sentence was vacated and Judge Henry Loble assumed jurisdic-
tion. At this time, on November 3, 1983, Koepplin moved to
withdraw his plea of guilty. He charged that his attorney
Hull had not adequately advised him of the nature of the
charge and that neither Hull nor the court had explained the
elements of negligent homicide to him. Koepplin also alleged
that he had been assured by his attorney he would receive a
light sentence. Thereafter the District Court accepted
Hull's request to be removed as counsel and appointed Nicho-
las Jacques to represent Koepplin.
An evidentiary hearing was held and on December 9,
1983, the court denied Koepplin's motion to withdraw the
guilty plea. On December 13, 1983, Judge Loble sentenced
Koepplin to forty years in prison and also designated him
dangerous for purposes of parole.
Our review is guided by the principles enunciated in
State v. Huttinger (1979), 182 Mont. 50, 595 P.2d 363. There
we stated that three factors should he balanced when consid-
ering a criminal defendant's attempt to withdraw a previously
entered guilty plea. These factors are:
1. The adequacy of the District Court's interrogation
as to the defendant's understanding of his plea;
2. The promptness of the motion to withdraw the prior
plea; and
3. The fact that the defendant's plea was apparently
the result of a plea bargain in which the guilty plea was
given in exchange for dismissal of another charge.
There is no set standard that a trial court can apply
when handling motions to withdraw a plea. The court's deci-
sion is subject to review only upon an abuse of discretion.
In Matter of Brown (19801, 185 Mont. 200, 605 P.2d 185.
The thrust of appellant's argument is that he was not
adequately advised of the charge to which he plead guilty and
that he should have been apprised of the elements of negli-
gent homicide.
At the outset we note that when Koepplin's guilty plea
was entered, he affirmed to the court that he had been given
a copy of the amended information, had read it, and discussed
the nature of the crime with his attorney David Hull.
The c1inica.l psychologist who examined Koepplin found
him to be of average intelligence with a verbal I.Q. of 102,
a performance I . Q . of 103, and a full scale I.Q. of 103.
Thus, this factual situation is distinguishable from that in
which the United States Supreme Court found error of a con-
stitutional dimension in Henderson v. Morgan (1976), 426 U.S.
637, 96 S.Ct. 2253, 49 L.Ed.2d 108. In Henderson a plea was
found. to be involuntary where the defendant was substantially
below average in intelligence and was never informed by the
trial court or counsel that intent was an element of the
crime of second-degree murder to which he plead guilty. The
requisite mental state of the crime to which Koeppl-in plead
guilty is "purposely or knowingly." See, section 45-5-102,
and section 45-5-103, MCA. The amended information that
Koepplin received and read in this case informs anyone of
average intelligence of the necessary mental state:
"The above-named defendant purposely or
knowingly caused the death of Jackie Lynn
Koepplin on January 29, 1982, by striking
her on the head and face on or about
January 20, 1982, but did so while under
the influence of extreme mental or emo-
tional stress for which there was reason-
able explanation or excuse."
Koepplirl stated to the court that he felt he was not
guilty of the charge but believed the State could prove him
guilty. The court interrogated Koepplin, advised him of the
rights he was waiving and made sure he understood there was
no leniency promised by the plea bargain.
Following the entering of the plea, the County Attorney
gave a recital of the proof the State would have presented at
trial. This proof, summarized above, presents strong
evidence that the homicide was deliberate and not negligent
under the terms of the statutes.
"Knowingly" ceusing another person's death in our
criminal code is defined as being aware that it is highly
probable that such a result will be caused by the conduct.
Section 45-2-101(33), MCA. Koepplin's contentions to the
contrary, his acts meet the statutory requirements of miti-
gated deliberate homicide. The trial court had a solid basis
to conclude that when Koepplin struck the victim he was aware
of the high probability of causing her death.
Accepting Koepplin's contentions that he did not intend
to kill Jackie, his acts still meet the statutory require-
ments of mitigated deliberate homicide. Where "purposely or
knowingly" causing a result is an element of an offense, that
element can be established if the result involves the same
kind of harm or injury as contemplated by the defendant,
although the actual degree of injury is greater than intend-
ed. See section 45-2-201 (2)(b), MCA.. Koepplin by his own
admissions intended to slap the victim numerous times about
the head. The result, death by brain damage, may not have
been intended. However, the result that did occur is a more
severe form of the same kind of injury that was
intended--injury to the head area of the victim. In these
instances our deliberate homicide statutes and case law state
that the actor may be held accountable for the unintended
death, if a causal relationship is established pursuant to
section 45-2-201, MCA. See State v. Sigler (Mont. 1984), -
P.2d , 41 St.Rep. 1039. As Judge Loble noted in his
order, a person cannot strike lethal blows and then avoid the
consequences of his actions by saying he was surprised his
victim died or that he did not intend to kill her.
Analogous issues have arisen when appellants have
argued error in e trial court's failure to instruct on a
lesser included offense. For example, in State v. Sotelo
(Mont. 1984), 679 P.2d 779, 41. St.Rep. 568, we found a fail-
ure to instruct on negligent homicide reversible error. This
holding was based on the fact that there was evidence in the
record to support the instruction. Sotelo had been in a
fight with the decedent and could have kicked the victim in
an attempt to free his leg. There was also uncertainty as to
the exact cause of the victim's death.
Similarly, in State v. Azure (19771, 175 Mont. 189, 573
P.2d 179, we reversed a deliberate homicide conviction that
was based on the defendant's guilty plea. Acceptance of the
plea was error where the court failed to advise the defendant
of the elements of the lesser charge of mitigated deliberate
homicide and there was the potential for evidence to be
submitted showing intoxication. We noted in Azure that it is
of vital j-mportance that the defendant have a full under-
standing of the precise form of homicide to which he pleads.
In each of the foregoing cases there was evidence that
supported the lesser charge. Here, there is nothing other
than Koepplin's bare assertion that Jackie Koepplin's death
was negligently caused. In this respect our review is most
similar to that undertaken in State v. Hamilton (1981), 185
Mont. 522, 605 P.2d 1121. In Hamilton the defendant stran-
gled his mother and alleged as error the court's failure to
instruct on negligent homicide as a lesser included offense.
The trial judge stated that this defense was beyond his
wildest imagination and refused the instruction. This Court
agreed saying, 'I. .. [we,] cannot conceive how this death
occurred as a result of negligence. We find no evidence in
the record upon which an instruction of negligent homicide
could be based. . . ." 605 P . 2 d at 1129.
In Azure we stated the general rule that a trial- court
only has to instruct on lesser offenses to which the evidence
is applicable and the jury would be warranted in finding the
accused guilty. Here, given the evidence, no jury could
rationally believe Koepplin was guilty of the lesser offense
and innocent of the greater. See State v. Jackson (1979),
181 Mont. 257, 589 P.2d 1009. Koepplin's admission to having
hit the victim six to eight times combined with the autopsy
report showing death by mul-tiple blunt force injuries to the
head precludes any notion that this crime involved an ordi-
nary slapping or beating. Koepplin made a brutal attack on
his former wife which cannot he equated with negligent homi-
cide by any stretch of the imagination.
In accordance with our admonitions in Azure, the appel-
lant was fully advised by the court of the form of homicide
to which he plead guilty. The facts of the crime fit the
charge made in the amended information. A trial court has no
obliga.tion when receiving a plea to advise the defendant of
crimes that do not fit the facts presented.
Appellant argues tangentially that his attorneys failed
to apprise him of the underlying statutory definitions of
purposely or knowingly. Additionally, he contends that there
was evidence in the record that would have supported an
instruction on negligent homicide had he proceeded to trial.
To the extent that these allega.tions concern questions of
ineffective assistance of counsel, we note that the parties
have neither raised nor briefed this issue.
Koepplin's attorney David Hull. testified that he con-
sidered the lesser offense of negligent homicide such a
minimal option for the defendamt that he did not pursue the
defense. Hull also concluded that Koepplinss admitted intox-
ication the night of the homicide would not further his
defense given the defendant's prior admissions of intention-
ally slapping the victim.
Here, where the outlook for acquittal or conviction on
the lesser offense of negligent homicide was so improbable,
we conclude that the defendant's alleged lack of counseling
on the lesser offense did not render his guilty plea involun-
tary. A plea may be involuntary because the accused does not
understand the nature of the charge against him. Smith v .
OfGra.dy(1941), 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859. We
find the reasoning of the United States Circuit Court of
Appeals for the District of Columbia persuasive:
"It may be argued that a plea of guilty
is not understandingly made when d.efen-
dant is unaware of certain technical
defenses which might very well make the
prosecutor's job more difficult or even
impossible were he put to his proof.
However, we think 'understandingly'
refers merel-y to the meaninq of the
charge, and what acts amount to being
guil-tyof the charge, a.nd the consequenc-
- of pleading guilty thereto.
es . . ."
Edwards v. United States (D.C. Cir.
1958), 256 F.2d 707, 710, cert. denied,
358 U.S. 847, 79 S.Ct. 74, 3 L.Ed.2d 82.
(Emphasis in original.)
Edwards has been cited with approval in several federal and
state court decisions that are analogous to our d.ecision
today. See for example, Lee v. Hopper (5th Cir. 39741, 499
F.2d 456; Larson v. State (Alaska 1980), 614 P.2d 776; Reed
v. State (Fla. App. 3 Dist. 1984), 447 So.2d 933. Cf., State
If there was any doubt that the plea was not voluntar-
ily or intelligently made, the doubt would he resolved in
defenda.ntfsfavor. State ex rel. Gladue v. Eighth Jud. ~ i s t .
(1978), 175 Mont. 5 0 9 , 575 P.2d 65. In the present case the
appellant has failed to raise such doubt.
Considering the second and third Huttinger factors
described above, it is apparent that Moepplin wanted to
withdraw his plea solely because he was dissatisfied with the
sentence he received. We will not lend our assistance to an
accused criminal in escaping the obligations of his plea
agreement after he has received its benefits. State v.
Arbgast (Mont. 1 3 8 3 ) , 656 P.2d 8 2 8 , 40 St.Eep. 45. By way of
the plea agreement, Koepplin avoided the consequences of a
deliberate homicide conviction and possible imprisonment of
100 years.
The record supports the District Court's conclusion
that Koepplin made a voluntary and intelligent plea of guilty
to mitigated deliberate homicide. The court acted well
within the limits of its discretion on the motion to withdraw
the plea. The judgment is affirmed.
?A&4.&& d
Chief Justice
We concur: