State v. Wilkinson

No. 83-181
IN THE SUPF?JIME COURT OF THE STATE OF MONTANA
1984

STATE OF MONTAPJA,
Plaintiff and Respondent,
-vs-
KATHLEEN RACHEL WILRINSON ,
Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.

COUNSEL OF RECORD:
For Appellant:

Ferguson 6( Mitchell; Carol Plitchell argued,
Plissoula, Montana

For Respondent :
Bon. Mike Greely, Attorney General, Helena, Montana
Chris Tweeten argued, Asst. Atty. General, Helena
Robert L. Deschamps, 111, County Attorney, (Karen
Townsend, Deputy) Missoula, Montana

Submitted: 1/13/34
Decided: 3/26/84

Clerk
Mr Justice John Conway Harrison delivered the Opinion of the
Court.

The appellant, Wilkinson, appeals from an order of the
Missoula County District Court, denying her motion either to
withdraw her plea of guilty to a reduced charge of negligent
homicide, or be sentenced in accordance with a plea bargain
struck by the parties. We affirm the action of the District
Court.
The facts surrounding the case involve the death of
19-month-old Paul Tucker Wilkinson, on February 23, 1982,
who was found dead in an East Missoula trailer, where he
resided with his mother, the appellant, and her boyfriend,
William R.ussel1 Sigler. Within a month of the death, on
March 18, 1982, the appellant was charged with a negligent
homicide in connection with the death of her son. This
charge was based upon her failure to secure medical
attention for her child. Sigler was charged with deliberate
homicide. When subsequent investigation convinced the
County Attorney's office that the accountability theory,
approved by this Court in State v. Powers (Mont. 1982), 645
P.2d 1357, 39 St.Rep. 989, might apply, the negligent
homicide charge against the appellant was dismissed and a
new information was filed charging her with deliberate
homicide.
The trials of the appellant and Sigler were bifurcated
upon motion of defense counsel for Sigler. The Sigler trial
was scheduled to begin in early August of 1982, while that
of the appellant was set for a later date. In July, 1982,
the appellant's counsel approached the State about a
possible plea bargain. While the State was generally
willing to accept a guilty plea to a reduced charge of
negligent homicide, the State was unwilling to agree to two
of appellant's demands. Those demands were: (1) that the
State either agree to recommend probation or make no
recommendation as to incarceration; (2) that a dependant and
a neglected child action relating to the then-pregnant
appellant's unborn child be dropped.
At the time the Sigler trial commenced on August 4,
1982, no plea bargain agreement had been reached between the
appellant and the State.
The State sought the appellant's testimony against
Sigler. With this object, on August 7, 1982, the State
offered to reduce the charge against the appellant to
negligent homicide and to recommend a sentence of ten years
imprisonment with seven years suspended if the appellant
would plead guilty, give a sworn statement and testify
against Sigler. The prosecution furnished a chart to the
appellant to use in computing parole eligibility dates
within the various sentences then under consideration. The
appellant's counsel advised her that the court was not bound
by the prosecutor's recommendation. The appellant offered
to accept the prosecution's proposal if the recommended
suspended sentence was increased from seven to eight years,
since under a sentence of ten years with eight suspended she
would be eligible for release on parole before the birth of
her baby. The prosecution accepted the offer, and the
defendant made a sworn statement and testified against
Sigler during his trial.
Two days later, on August 13, 1982, the appellant, her
counsel and the Deputy County Attorney, Karen Townsend,
t r a v e l e d t o Polson from Missoula t o a l l o w t h e a p p e l l a n t t o

c h a n g e h e r p l e a b e f o r e J u d g e G r e e n , who was s i t t i n g i n Lake
County. During the trip, Townsend again informed the
defendant that neither her sentence nor parole was
guaranteed, and t h a t t h e c o u r t was f r e e to disregard the

recommenda.tion o f the State. Townsend also informed the
appellant that Judge Green had not followed prosecution
s e n t e n c e recommendations i n s i m i l a r c a s e s .

During t h e h e a r i n g i n Polson, M s . Townsend s p r e a d t h e
e l e m e n t s o f t h e p l e a b a r g a i n on t h e r e c o r d :
"MS. TOWNSEND: Your Honor, I t h i n k p r i o r
t o t h e time Miss W i l k i n s o n a n s w e r s t h i s ,
I would l i k e t o s t a t e f o r t h e r e c o r d ,
which I t h i n k t h e C o u r t i s p r o b a b l y a w a r e
of t h r o u g h media c o v e r a g e , t h a t t h e r e h a s
been, i n f a c t , a p l e a b a r g a i n t h a t h a s
b e e n e n t e r e d by m y s e l f a n d M s . M i t c h e l l
with respect t o t h i s p a r t i c u l a r charge.
P a r t of t h a t p l e a b a r g a i n h a s been
f u l f i l l e d by t h e f i l i n g o f t h i s Amended
Information w i t h a reduced charge.

" S e c o n d l y , I h a v e a g r e e d t o recommend t o
t h e Court a t t h e t i m e of s e n t e n c i n g a
s e n t e n c e f o r Miss W i l k i n s o n which would
be no more t h a n t e n y e a r s i n t h e Montana
State Prison with all but eight
suspended.

"Further, the bargain is that Ms.
Mitchell--
"THE COURT: You said all but eight
suspended?
"MS. TOWNSEND : I'm sorry, eight
suspended. I n o t h e r w o r d s , w i t h two
left.
" F u r t h e r , M s . M i t c h e l l and M s . Ferguson
a r e f r e e t o argue t o the Court f o r a
complete p r o b a t i o n a r y s e n t e n c e i f t h e y
would w i s h t o . So t h e y a r e n o t bound t o
agree t o that.
" F i n a l l y , Your Honor, I t h i n k t h e C o u r t
d o e s know t h e r e i s a s o r t o f a companion
c i v i l case i n connection with t h i s
particular incident. T h e r e h a s been no
a g r e e m e n t t o w h e t h e r we w i l l d r o p o r
 continue, and that case will proceed as
is. "
The appellant's counsel agreed that Townsend's
statement covered the terms of the plea bargain. Judge
Green then questioned the appellant as to her understanding
of the plea bargain:
"THE COURT: Well, Miss Wilkinson, you
understand that the Court had no part in
this agreement?
"THE DEFENDANT: Yes, I do, Your Honor.
"THE COURT: The Court has not bound
itself to follow the recommendations of
the county attorney. I haven't done it
in this case, and I never will. It's up
to the Court to determine the proper
sentence after I have received the
pre-sentence report and considered
everything that is pertinent in your
case.
"THE DEFENDANT: Yes, I do, Your Honor.

"THE COURT: So there have been no
promises made to you outside of the
recommendation that the county attorney
will make to the Court.
"THE DEFENDANT: Yes, Your Honor.
"THE COURT: You understand that? Now
knowing this, do you wish to withdraw
your plea of guilty as charged at this
time?
"THE DEFENDANT: No, Your Honor."

The court further advised the defendant that under her

guilty plea she could be sentenced to up to ten years in
prison and fined $50,000. She responded that she
understood. The court ordered a presentence report and set

sentencing for September 10, 1982.
At sentencing, the appellant called as witnesses Joe
Sobansky, the probation officer, and Dr. Will Stratford, a
psychiatrist who had examined the appellant. Sobansky had
recommended a ten year sentence with none suspended, and
defense counsel's examination of him, covering some eight
pages of transcript, attempted to show that he had
inadequately investigated the case, in part by failing to
consult Dr. Stratford. Townsend's cross-examination of
Sobansky, covering less than two pages of the transcript,
brought out the reason Stratford had not been contacted--he
had made no report--and retraced Sobansky's reasons for his
recommendation, which had been elicited on direct
examination. Defense counsel had no objection to this
cross-examination. Defense counsel's examination of Dr.
Stratford, covering some seven pages of transcript, focused
on Stratford's opinion of the appellant's mental condition
and the appropriateness of the recommended sentence.
Townsend's cross-examination, covering approximately three
pages of transcript, inquired as to the likelihood of
rehabilitation, the fact that counseling would assist the
appellant and that appellant would need vocational training
as a condition of her suspended sentence, and what other
conditions the doctor would recommend. The court in
addition cross-examined Dr. Stratford.
Townsend then unequivocally recommended a sentence of
ten years with eight suspended, as agreed under the plea
bargain. Her recommendation discussed her reasons in depth
and at length. Defense counsel then argued for the plea
bargain, although suggesting that a lesser sentence was
appropriate, particularly recommending that the appellant
receive no jail time. The court then imposed a sentence of
ten years with two years suspended.
Thereafter the appellant moved on September 20, 1982,
to withdraw her guilty plea, or in the alternative that her
sentence be vacated and that she be resentenced in
compliance with the prosecutor's recommendation. The court
set the motion for hearing on October 22, 1982. At the
hearing, defense counsel withdrew the motion to withdraw the
plea and sought only a new sentence of ten years with eight
suspended. Appellant testified that she had agreed to the
plea bargain only because she wanted to be released on
parole before the birth of her child. She acknowledged to
the court that she had been advised by Ms. Townsend and by
Judge Green that the sentence recommendation was not
binding, but stated that she thought the judge would go
along, and that the judge's inquiry at the plea proceeding
was but a formality.
The appellant also presented testimony from an
eight-time felony convict and two public defenders to the
effect that most defendants would subjectively believe the
prosecutor's recommendation would be followed. One of the
appellant's attorneys, Paulette Ferguson, testified that the
appellant accepted the plea bargain because she wanted to be
paroled before the birth of her baby. Ferguson told the
appellant that Judge Green was not bound by the
recommendation, and that parole eligibility did not
guarantee that the appellant would be paroled. Ferguson
admitted that the plea bargaining did not prevent Ms.
Townsend from cross-examining defense witnesses at
sentencing and that the prosecution had no prior notice of
the recommendation that defense counsel w ~ u l d offer at
sentencing.
Following the sentencing, Judge Green entered detailed
findings and conclusions in support of his decision
r e j e c t i n g t h e a p p e l l a n t ' s motion. The c o u r t f o u n d a s f a c t

t h a t t h e a p p e l l a n t had b e e n a d v i s e d by Townsend, by h e r own

counsel twice, and by Judge Green, that the prosecutor's

recommendation d i d n o t bind the court. The c o u r t further

found t h a t M s . Townsend had made t h e r e c o m m e n d a t i o n a g r e e d

upon in the plea bargaining. The c o u r t c o n c l u d e d t h a t t h e

appellant's plea was knowingly and voluntarily made, and

that in particular s h e was a d v i s e d t h a t t h e c o u r t was n o t

bound by the recommendation, and that the prosecutor had

f u l l y complied w i t h t h e p l e a b a r g a i n i n g .

A t the t i m e t h i s case arrived, t h e r e was a l s o p e n d i n g

t h e c a s e of S t a t e v. Cavanaugh (Mont. 1 9 8 3 ) 673 P.2d 482,

40 St.Rep. 2007, wherein this Court adopted the ABA

Standards requiring the sentencing court to inform a

defendant if it is not going to accept the entire plea

bargain, and then give the defendant an opportunity to

affirm or withdraw the guilty plea. See, ABA Standards

R e l a t i n g t o The A d m i n i s t r a t i o n o f C r i m i n a l J u s t i c e ; F u n c t i o n

of the Trial Judge, section 4.l(c) (1974), and ABA

Standards, supra, Pleas of Guilty, sections 2.1 and 3.3,

(1974). A s n o t e d i n t h a t o p i n i o n a m a j o r i t y of o t h e r s t a t e

jurisdictions as well as the federal courts follow this

procedure. S e e , F e d e r a l R u l e s of*% Procedure, l l ( e ) ( 4 ) .
z
Crrm.
c_ .
.

This Court s p l i t four t o t h r e e . However, t h e d e c i s i o n

in Cavanaugh concluded that the standards were to be

adopted, but the decision would be prospective only.

Therein we stated:

"We t h e r e f o r e adopt the previously
d i s c u s s e d s t a n d a r d s o f t h e American B a r
A s s o c i a t i o n and F . R . w , P . l l ( e ) ( 4 ) , and
r e q u i r e t h e t r i a l juhf4'&' who a c c e p t s a
p l e a b u t r e j e c t s any o t h e r p o r t i o n of t h e
plea bargain, t o afford the defendant the
 opportunity to withdraw his guilty plea
and enter a plea of not guilty.
"The decision in this case shall have
prospective application only. The
decision applies to defendant James
Cavanaugh and all who are sentenced after
the effective date of this decision. In
support of this prospective holding, see
State v. Campbell (1979), 182 Mont. 521,
597 P.2d 1146." 673 P.2d at 485, 40
St.Rep at 2011.
There, we established a new procedural requirement for
sentencing. In accordance with the requirement in effect at
the time of the sentencing, the experienced trial judge
carefully advised the appellant that he would not be bound
by the recommendation of the prosecution. Her own counsel,
several times, so advised her, as did the prosecuting
attorney in the case. We find that criminal justice would
be seriously hampered by requiring conformity to an
unannounced new procedure of any trial judge in this state.
As stated by this Court in the unanimous opinion,
State v. Campbell (1979), 182 Mont. 521, 597 P.2d 1146:
"It should be obvious that retroactive
application of this rule would seriously
retard its operation. Litigants have a
right to rely on the law in effect at the
time. The administration of justice
would be seriously hampered by requiring
conformity to an as yet unannounced new
procedural requirement. Law enforcement
agencies and courts are entitled to rely
on the rules pertaining to guilty pleas
in effect at the time the guilty plea was
entered and to determine voluntariness on
the basis of such law." 182 Mont. at
526, 597 P.2d at 1149.
In addition in - -
Campbell, supra, we referred to prior
decisions of this Court and the United States Supreme Court,
in denying retroactive application of the decision.
We note in addition, that the appellant now is on
parole, having been given credit for time she served in the
county jail, has been employed and is under supervision of
state authorities. The crime for which she entered a plea
was serious, homicide, and reviewing the entire transcript
and file on this case, we are of the opinion that she
received "substantial fairness" by the judicial system of
this state.
The decision is affirmed.

We concur:

&d&&
Chief Justice

Justices

Hon. Chan Ettien, District
Judge, sitting in place of Mr.
Justice Frank B. Morrison, Jr.

Mr. Justice Daniel J. Shea dissents and will file a written
dissent later.
Honorable Chan Ettien, District Judge, dissenting:
I dissent.
In State v. Cavanaugh (Decided December 23, 1983),
P.2d , 40 St.Rep. 2007, Cavanaugh was sentenced September
19, 1977.
Wilkinson was sentenced August 13, 1982.
The Cavanauqh ruling is retroactive in favor of its
subject to September 19, 1977, but on the way back by-passes
a judgment on Wilkinson imposed five years later.
The logic of the majority escapes me when both cases
were pending before this Court at the same time.
The Cavanauqh rule should be retroactive from the da.te
of its judgment, September 19, 1977.
While it appears, practically, that Wilkinson has
nothing to gain by reversal-, I would reverse and remand for
her option to change her plea if she wishes, in keeping with
the doctrine of fundamental fairness.

91&( (&
E;
Honora e Chan Ettien, is-
trict Judge, sitting in place
of Mr. Justice Frank B.
Morrison, Jr.
Justice John C. Sheehy, dissenting:
I dissent to the manifest injustice done by this deci-
sion to Kathleen Rachel Wilkinson.
Kathleen without dispute here had an invincible wish to
bear the child she was then carrying outside the prison
walls. To achieve this, she consented by plea bargain to
provide the evidence without which the State coul-d not have
convicted Sigler, but the evidence incriminated herself. Now
the State, worse than Shylock, has extracted the benefit of a
fine quillet of the law--Judge Green told her before her
sentencing, but after she had fully performed her part of the
agreement, that he was not bound by the plea bargain. It is
not enough here, as it was in Cavanaugh, cited above in the
majority opinion, that she be given a chance to withdraw her
plea of guilty. Her prior evidence given in Sigl-er would
convict her now. As Brandeis said in Omstead v. United
States (1928), 277 U.S. 438, 48 S.Ct. 564, 7 2 L.Ed. 944
(Brandeis, J., dissenting) , our government teaches the whole
people by its example. The teaching here is, beware of the
State: it. will trick you if it can. We should order the
District Court in this instance to follow scrupulously the
terms of the agreement the State was so eager to procure
(even though the result she sought to obtajn is now beyond
our power). Only then can this Court wrap itself in the robe
of "substantial fairness."
T also disagree that we must not apply the Cavanaugh
rule here because of our prospective-only line in that case.
Wilkinson got to this Court before Cavanaugh, and in a proce-
dural process beyond Wikinson's control, Cavanauqh
leap-frogged Wilkinson. Injustice is injustice. She sus-
tained a greater injustice than did Cavanaugh. Are we power-
less to remedy injustice?
 D I S S E N T OF MR. J U S T I C E D A N I E L J. SHEA

NO. 83-181

S T A T E O F MONTANA,

Plaintiff and R e s p o n d e n t ,

VS.

KATHLEEN RACHEL W I L K I N S O N ,

Defendant and Appellant.
Mr. J u s t i - c e D a n i e l J . Shea, d i s s e n t i n g :

I dissent. I n S t a t e v . Cavanaugh (Mont. 1 9 8 3 ) , 673 P.2d

4 8 2 , 4 0 St..Rep. 2007, i n d i s s e n t , I s t a t e d o u r holding should

be g i v e n r e t r o a c t i v e a p p l i c a t i o n on due p r o c e s s grounds. If
so, d e f e n d a n t Wilkinson would be g i v e n t h e b e n e f i t of our

h o l d i n g i n Cavanaugh. But even i f i t were n o t g i v e n f u l l

retroactive application, t h e h o l d i n g i n Cavanaugh s h o u l d a t

l e a s t a p p l y t o a l l p l e a e n t r y s i t u a t i o n s t h a t t o o k p l a c e on

o r a f t e r t h e d a t e Cavanaugh e n t e r e d h i s plea--September 19,

1977. If a. v i o l a t i o n o c c u r r e d , and t h e m a j o r i t y c e r t a i n l y

h e l d a v i o l a t i o n o c c u r r e d by g i v i n g Cava.naugh r e l i e f , then

a l l v i o l - a t i o n s t h a t t o o k g l a c e on t h a t same d a t e o r on any

da.te a f t e r September 1 9 , 1977, would be g i v e n t h e b e n e f i t o f

t h e Cavanaugh r u l i n g . I f s o , t h e d e f e n d a n t Wilkinson would be

e n t i t l e d t o r e l i e f i n t h i s case.

Another g r o s s i n e q u i t y e x i s t s h e r e . Although we d e c i d e d

the issue i n Cavanauqh, the i s s u e was not raised in that

case. R a t h e r , it was f i r s t r a i s e d i n t h e p r e s e n t c a s e . It

just s o happened t h a t t h e Cavanaugh c a s e was d e c i d e d b e f o r e

t h e p r e s e n t c a s e , a l t h o u g h t h e p r e s e n t c a s e was t h e n pending

before this Court. It is totally unfair not to give

Wilkinson t h e b e n e f i t o f t h e very i s s u e she r a i s e d i n h e r

a p p e a l s i m p l y b e c a u s e w e d.ecided t h e i s s u e f i r s t i n a n o t h e r

c a s e i n which t h e i s s u e had n o t even