NO. 84-137
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
THE STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
XARVEY W. LAVERDURE,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF Rl3CORD:
For Appellant :
John Keith, Great Falls, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
J. Fred Bourdeau, County Attorney, Great Falls,
Montana
- -
- -
Submitted on Briefs: June 28, 1984
Decided: August 15, 1984
iq.Jeti r -, '1984
Filed:
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Defendant, Harvey W. Laverdure pled guilty to sexual
assault charges in the District Court of the Eighth Judicial
District on January 31, 1983. He was sentenced April 4,
1983, to twenty years at Montana State Prison, designated. a
nondangerous offender and ordered to make restitution to the
victim for all psychological and medical treatment costs.
Thereafter, defendant retained new counsel. A motion to
withdraw the guilty plea was filed December 6, 1983, heard
December 16, 1983, and orally denied. Defendant now appeals
the written order of December 28, 1983, denying his motion.
We affirm.
The attorney representing defendant at the time the
guilty plea was entered filed a motion for withdrawal of the
plea April 12, 1983, as well as a notice of appeal June 3,
1983. Although no further action was taken on either
proceeding, the notice of appeal removed jurisdiction from
the District Court. State v. Nicks (1957), 131 Mont. 567,
569, 312 P.2d 519, 520. Therefore, the December 6, 1983,
motion should have been a petition for post-conviction
relief, as those petitions are civil proceedings independent
of the underlying criminal matter. Coleman v. State (Mont.
1981), 38 St.Rep. 1352, 1354, 633 P.2d 624, 627. Since the
motion meets the requirements for post-conviction relief
petitions set forth in sections 46-21-101, et seq., MCA, we
will consider the motion to be such a petition.
An information filed April 28, 1982, charged defendant
with sexual assault in violation of section 45-5-502(1) and
(3), MCA:
" (1) A person who knowingly subjects another not
his spouse to any sexual contact without consent
commits the offense of sexual assault.
' (3) If the victim is less than 16 years old and
I
the offender is 3 or more years older than the
victim . . .he shall be imprisoned in the state
prison for any term not to exceed 20 years and may
be fined not more than $50,000."
The deputy county attorney's affidavit in support of the
motion to file the information contained a summary of a
statement given Detective Robert Dykeman by the mother of
A.K. Four-year old A.K. was left in the care of Harvey
Laverdure's wife on April 19, 1982. Upon returning home, she
reported to her mother, in the words of a four-year old, that
defendant had taken her to his bedroom, taken both their
pants down and placed his penis in the area of her rectum.
Upon examining A.K., Dr. Jack Haling reported finding no
trauma to or tearing of rectal or vaginal tissues. However,
he believed something had happened to A.K. because of her
vivid description of a burning sensation in the rectal area.
Upon his arrest April 21, 1982, defendant denied having
put his penis in A.K. but acknowledged having "rubbed off on
her." He stated that he had rubbed his penis on A.K.'s
vagina until climaxing into his shorts. Defendant's first
attorney moved to suppress those statements June 7, 1982. A
hearing on the motion to suppress was held August 30, 1982.
Detective Dykeman testified at the hearing that he gave
Miranda. warnings to defendant three times prior to
defendant's incriminating statements: (1) upon arrest;
(2) upon arrival at the police station; and (3) immediately
prior to the tape recorded interview during which the
statements were made. The motion to suppress was denied.
Defendant had entered a plea of not guilty at his
arraignment and trial was set for November 8, 1982. Pursuant
to a stipulation, the victim's testimony was videotaped
before the District Court and defendant on November 4, 1982.
A.K. 's testimony was essentially the same as the details
relayed to Detective Dykeman by A.K.'s mother.
Defendant failed to appear for trial and a separate
criminal action was initiated for felony bail-jumping.
Subsequently, Randall Skorheim was appointed defendant's
attorney and a new trial date was set. Upon reviewing the
case and prior to the second trial date, Skorheim became
concerned about defendant1s chances at trial. After
conferring with Skorheim, defendant decided to change his
plea to guilty. Defendant signed an acknowledgement of
waiver of rights by plea of guilty January 29, 1983, and
appeared in District Court January 31, 1983, to change his
plea. The bail-jumping charge was dropped.
In his December 6, 1983 motion, defendant requested the
trial court to allow withdrawal of his guilty plea because
(1) at the time the plea was entered, "no factual basis for
the crime was established from the Defendant", and (2)
defendant entered the plea of guilty only because of
assurances from his counsel that "due to the plea agreement
defendant would not receive a jail term as part of his
sentence." The trial court found insufficient evidence to
support defendant's contentions and refused to allow
withdrawal of the plea.
We find no abuse of discretion by the trial court. The
December 28, 1983, order denying defendant's motion is
affirmed.
Review of a motion to withdraw a guilty plea requires
the consideration and balancing of at least three relevant
factors: "(1) the adequacy of the interroga.tion by the
District Court of the defendant at the entry of the guilty
plea as to the defendant's understanding of the consequences
of his plea, (2) the promptness with which the defendant
attempts 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. . . ." State v. Huttinger
(1979), 182 Mont. 50, 54, 595 P.2d 363, 366.
It is undisputed that defendant's attempt to withdraw
his plea was relatively prompt and that the felony
bail-jumping charge against defendant was dropped in exchange
for his plea. Regarding factor one, however, defendant
contends that the court's interrogation of him prior to the
entry of his plea was insufficient because it failed to
establish from defendant the factual basis for the charge
against him.
There is no set rule for when such an interrogation is
sufficient. However, in State v. Lewis (1978), 177 Mont.
474, 582 P.2d 346, we held an interrogation was sufficient
where the trial judge "examines the defendant, finds him to
be competent, and determines from him that his plea of guilty
is voluntary, he understands the charge and his possible
punishment, he is not acting under the influence of drugs or
alcohol, he admits his counsel is competent and he has been
well advised, and he declares in open court the facts upon
which his guilt is based. . . ." 177 Mont. at 485, 582 P.2d
at 352.
In the instant case, defendant signed an acknowledgement
of waiver of rights by plea of guilty which contained a
recitation of the charge against him and its penalty; an
enumeration of the constitutional rights waived when one
pleads guilty; an acknowledgement of defendant's satisfaction
with his counsel; a denial that defendant was under the
influence of drugs or alcohol; and the following statement:
"I believe I am guilty of this offense because . .. I did
assault the girl." At the change of plea hearing, the trial
judge reviewed the acknowledgement of waiver, discussed with
defendant the constitutional rights he would be foregoing by
pleading guilty and ascertained that defendant was aware of
the maximum penalties involved. Under Lewis, this is an
adequate interrogztion.
Further, the statement "I did assault the girl",
adequately illustrates, in this instance, that defendant was
well aware of the factual basis of the charge against him.
Defendant was apprised of the "facts" through the affidavit
filed in support of the motion to file the information and
the testimony of the victim. In addition, defendant, upon
his arrest, confessed to having committed acts which
constitute sexual abuse.
Defendant's second contention was refuted by his own
lawyer following defendant's waiver of the attorney-client
privilege. Defendant testified and still alleqes that
Randall Skorheim promised that if he pled guilty, he would
receive no jail sentence. Skorheim initially testified at
the motion to withdraw hearing that the deputy county
attorney had promised to recommend no jail sentence if
defendant pled guilty. However, during a recess, Skorheim
reviewed his notes in the Laverdure file and discovered that
the promise had been to not recommend a specific time to be
spent in jail. The deputy county attorney testified that she
had promised only to not recommend a specific amount of time,
not no jail sentence at all. No specific jail time was
recommended.
Since the plea agreement was oral, the content of the
plea agreement was a factual question to be determined by the
trial judge. "Sitting without a jury, the trial judge, as
finder of fact, is as fully entitled to believe or disbelieve
a defendant's assertions as a jury would be. " In the Matter
of Hardy (Mont. 1980), 37 St.Rep. 1358, 1360, 614 P.2d 528,
530. There is certainly substantial credible evidence to
support his determination that the defendant was not promised
freedom from jail time in exchange for his guilty plea.
The order of the District Court denying defendant's
motion to withdraw his plea of g
We concur: