State v. Hendricks

!\lo. 83-253

I N THE SUPREME COURT OF THE STATE O F M N A J
O T ZA

1983

STATE O MONTANA,
F

P l a i n t i f f and Respondent,

-vs-

J O H N T I C E IiXNDRICKS ,

Defendant and A p p e l l a n t .

APPEAL FROPI: D i s t r i c t Court of t h e Nineteenth J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f L i n c o l n ,
The H o n o r a b l e R o b e r t M. H o l t e r , J u d g e p r e s i d i n g .

COUNSEL O RECORD:
F

For Appellant:

Rerry N. Newcomer, Roundup, Montana

For Respondent:

IIon. Mike G r e e l y , A t t o r n e y G e n e r a l , FTelena, Nontana
W i l l i a m A. D o u g l a s , County A t t o r n e y , L i b b y , Montana

S u b m i t t e d on E r i e f s r S e p t e m b e r 22, 1 9 8 3

Decided: February 2 7 , 1984

Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

On his plea of guilty, John Tice Hendricks was convicted
of four counts of burglary in the District Court, Nineteenth
Judicial District, Lincoln County. He was sentenced to three
years on each of the four offenses, to be served
consecutively, but his sentence of imprisonment was suspended
upon certain conditions. One of the conditions was that he
make restitution for an automobile valued. at $12,000.
Hendricks appeals from that portion of the sentence requiring
him to make restitution for the value of the automobile.
The issue in this case is similar to that of recent
cases plaguing this Court where the District Court iudge
refuses to accept in whole or in part the terms of a plea
bargain negotiated between the defendant and the State, upon
which the defendant changes his plea from not guilty to
guilty.
Hendricks was charged in District Court with eleven
criminal charges. The first four counts included charges
that he burglarized the Asa Wood School, the Libby Junior
High School, the office of Dentist Richard S. Wood, and the
automobile business of Higdem Auto Sales, all in Libby. The
fifth count against him was that he committed theft of
property at the Asa Wood School; the sixth that he committed
theft of property from the Libby Junior High School; the
seventh that he committed theft of a 1982 Capri motor
vehicle, the automobile we are here discussing; the eighth
that he committed theft in the tools taken from Higdem Auto
Sales; the ninth that he committed theft in the property
ta.ken from the dentist's office; the tenth that he destroyed
property in the Asa Wood School; and the eleventh that he
destroyed property in the Libby Junior High School.
Hendricks' attorney and the county attorney of Lincoln
County entered into a plea bargain agreement, whereby
Hendricks agreed to plead guilty to the four counts of
burglary, and the county attorney asreed to dismiss all the
remaining counts on the information. They agreed that the
appellant should not be held accountable for the destruction
of a 1982 Capri automobile. The parties also agree that the
county attorney would make no sentencing recommendation or
present any aggravating circumstances at Hendricks sentencing
hearing. Hendricks was to make restitution of approximately
$612 for tools taken from the Higdem Auto Sales premises.
As background information, it should be stated that on
September 3, 1982, Hendricks and Barry Williams entered the
Higdem Auto Sales building in Libby. Williams threw a rock
through a rear window, and climbed through the window and
then opened the door for Hendricks. Once inside, Hendricks
and Williams siphoned gasoline from vehicles in the shop area
and placed the gasoline in the gas tank of a yellow 1982
Capri automobile. They then placed tool boxes with mechanics
tools inside the Capri. Hendricks rolled up the shop door,
Williams drove the car outside, and Hendricks shut the door
behind him.
Williams then drove the couple to Glacier National Park.
At Glacier Park, they met with a youth, J.P. The three drove
around and stopped in the early morning, leaving the
automobile in a field near a lodge for park workers.
Later J.P., apparently independently of Hendricks and
Williams, returned to the 1982 Capri, poured gasoline on it
and set it afire.
 In accordance with a plea. bargain, the county attorney
dismissed, and the District Court ordered dismissal of, all
of the counts against Hendricks, except for the first four
burglary charges. On February 14, 1983, also in accord with
a plea bargain agreement, Hendricks changed his plea from not
guilty to guilty of the four burglary counts contained in an
amended information.
When Hendricks appeared in court for his change of plea,
the District Court judge interrogated him extensively with
respect to his understanding of the possibility of
punishment, and the sentences applicable. He also informed
the defendant, and the defendant said he understood that the
district judge is not a participant in the plea bargain
agreement and that the judge did not have to follow the
recommendations of the county attorney or the defense
attornev. The defendant then specifics-lly admitted
committing the offense of burglary in each of the four places
named in the amended information against him. In the course
of that interroga.tion, he informed the judge tha.t he and
Williams had taken the 1982 Capri from the Higdem Auto Sales
premises.
At the change of plea hearing, the following colloquy
occurred with respect to restitution:
"THE COURT: I notice there was something about
restitution, in the Agreement, in the amount of
Four Hundred Eighty-some Dollars. Is that --
"MR. NEWCOMER : Four Hundred Ninety-Five Dollars,
Your Honor.
"THE COURT: Is that the value of the tools --
"THE DEFENDANT: Yes.
"THE COURT: --tha.t were not recovered?"
At the end of the change of plea hearing there was further
discussion of restitution:
"THE COURT: Now, Mr. Hendricks, I notice that your
Plea Bargain Agreement calls for restitution. Are
you working?
"THE DEFENDANT: Yes, I am, Your Honor.
"THE COURT: All right. I expect, then, that you
make a maximum effort to make that restitution. I
think your attorney will tell you that, too, it's
very important to me.
"THE DEFENDANT: Yes, Your Honor.
"THE COURT: Okay. Good enough."
There was no further discussion at that point with
respect to restitution and the hearing ended on that note.
The next appearance of Hendricks before the District

Court was for sentencing, on Ma-rch 14, 1983. After
proceeding routinely with that portion of the proceedings
respecting whether there was any legal rea-son not to impose
sentence and after hearing some testimony, the court again
raised the question of restitution:
Q. (Mr. Newcomer) How about -- now the County
Attorney's Office and I sat down and we tried to
portion out the restitution and we agreed that Six
Hundred Twelve Dollars would be your restitution.
You paid One Hundred Seventy-Five Dollars this
morning. How -- what's your plan for paying off
the remaining amount?
"THE COURT: Counsel, something's troubling me
right there. Let's stop.
"Let me ask you how you explain Six Hundred Twelve
Dollars restitution. This is a joint and several
obligation of these people who destroyed this car,
is it not?
"MR. NEWCOMER.: No -- well, this -- Your Honor.
"THE COURT: Now wait a minute! My -- senses, as a
lawyer, kind of got stomped on there. Tell me.
"MR.. NEWCOMER: The car was taken by Mr. Williams
and. my client.
"THE COURT: Okay.
 "MR. NEWCOMER : -- and it was left with this John
Page. My client and Mr. Williams had no idea that
they were going to trash the car out--or have it
destroyed.
"THE COURT: It doesn't make any difference to me
because they all participated in it, and all I can
say is 'Yep, it's joint and several and everybody's
stuck with the whole amount' . . ."
Thereafter, throughout the sentencing hearing, the court
remained fixed in its position that restitution for the Capri
would have to be made and inserted that in the sentencing
order.
No discussion was had at the sentencing hearing or
thereafter about a withdrawal of the plea and no motion was
made by the defendant Hendricks to withdraw his plea.
In the recent case of State v. Cavanaugh (Mont. Decided
December 23, 1983) , - P.2d - 40 St.Rep. 2007, this Court
,
pointed out that when there is a disparity between the
anticipated punishment and the actual punishment meted out by
the District Court, the plea ba.rgain into which the defendant
thought he was entering is not the plea bargain that is
accepted by the trial judge. This Court in that case further
adverted to the Federal Rule of Crimina.1 Procedure, ll(e) ( 4 ) ,
under which the federal court which decides not to accept a
plea bargain gives the defendant a chance to withdraw his
plea. We also adverted to the American Law Institute, A
Model Code of Pre-arraignment Procedure, 5 350.6 (Adopted May
20, 1975) and to th.e American Bar Association Standards
Relating to the Administra.tion of Criminal Justice: The
Function of the Trial Judge, S 4.1 (c) (1974) . In Cavanaugh,
this Court decided that because the concept of "fairness" has
been added by the United. State Supreme Court to the
"voluntary" and "knowing" test used to determine whether you
should be allowed to withdraw a guilty plea, that it would be
fundamentally unfair not to allow the defendant to withdraw
his guilty plea under circumstances where the District Court
refuses to accept the concessions granted by the State in a
plea bargain agreement.
In this case, Hendricks was not given the opportunity to
withdraw his plea of guilty of the four counts of burglary.
Consonant with our holding in Cavanaugh, Hendricks should
have been given that opportunity.
The complication of this case is that the State has
already dismissed the remaining counts against Hendricks with
prejudice. It would be manifestly unfair to allow Hendricks
to withdraw his plea of guilty to those four charges which he
has been convicted, and not to allow the State to refile
against the defendant the remaining charges dismissed under
the plea bargain agreement.
Accordingly, we remand this case to the District Court
for the following proceedings:
1. On remand to the District Court, the defendant shall
he returned for further proceedings before the District Court
in connection with his sentence. If the trial judge decides
that the final disposition of this case should not include
the restitution concessions contemplated by the plea bargain
agreement, he shall so advise the defendant and then call
upon the defendant to either affirm or withdraw his plea of
guilty. American Bar Association standard.^ Relating to the
Administration of Criminal Justice: Pleas of Guilty, §

3.3 (h) (1974).
2. Before the defendant is given the opportunity to
withdraw his plea, however, the county attorney shall be
allowed to present evidence, if any, of prejudice to the
State resulting from its inability to prosecute the charges
which had been dismissed under the plea bargain. If the
court finds prejudi-ce to the State such that withdrawal of
the guilty plea would result in injustice, the convictions
now existing shall be affirmed.
3. If the county attorney does not present such
evidence of prejudice, or if the District Court finds no
prejudice to the State in reinstating the dismissed charges,
the defendant must, if he decides to withdra.~his plea of
guilty, agree as a condition thereto that the county attorney
may refile in the District Court the dismissed criminal
charges against him which were subject to the plea bargain
agreement, and further agree that in subsequent criminal
proceedings as to those charges he will not raise the issue
of estoppel, res judicata, double jeopardy or any other
defense which attacks the propriety of refiling the dismissed
criminal charges.
4. If the defendant decides not to withdraw his guilty
plea and to stand upon his plea of guilty to the four charges
of burglary upon which he has been convicted, the sentence of
the District Court, including restitution for the Capri
automobile is hereby affirmed.

//
\
'-.,

We Concur:
 Justices

Mr. Justice L.C. Gulbrandson dissenting.

I respectfully dissent.
The majority relies upon State v. Cavanaugh, supra,
for its order remanding this case for further proceedings.
I respectfully dissented in Cavanaugh, but I now
accept that holding as Montana law. However, that opinion
clearly states that it was to be applied prospectively only,
and its use retroactively appears to me to be a
misapplication of the law.
In my view, Judge Holter was correct in requiring that
full restitution be made to the innocent victim, and I would
Mr. Justice Daniel J. Shea concurring and dissenting:
I join the opinion holding that defendant Hendricks
should have been given the opportunity to withdraw his plea
of guilty to the four counts of burglary. However, I do not
agree with that part of the opinion giving the county
attorney the power to prevent withdrawal of the pleas by
presenting evidence of prejudice to the State if a trial were
required.
The question of whether defendant should have been
granted the right to withdraw his pleas of guilty is a due
process question and cannot be tied to the State's ability to
prosecute once the pleas are withdrawn. Therefore I would
grant to the defendant the choice of whether he will withdraw
his pleas of guilty and go to trial. I do agree, however,
that if defendant makes this choice, it is fair that the
State should be permitted to reinstate and proceed with the
dismissed charges.
 I N THE SUPREME COURT O F THE STATE O MONTANA
F

No. 83-258

STATE O MONTANA,
F

D e f e n d a n t and Respondent, -.

VS .
J O H N TICE HENDRICKS,
D E C 3 l 1384
p l a i n t i f f and A p p e l J - a n t -
&fL@! Yb/ -j ;Ef*$*~$@ay

CLERK OF SUPWEPVfE COURT
8 m - E OF MORITAMA
ORDER ON R.EHEARING

This Court handed down its original opinion in this

c a u s e on F e b r u a r y 27, 1984, r e p o r t e d i n 4 1 St.Rep. 315.

Hendricks was convicted of burglary in the District

Court, Ninteenth Judicial. D i s t r i c t , L i n c o l n County. He w a s

sentenced to three years in each of four offenses, to be

served consecutively, but h i s s e n t e n c e of imprisonment wa-s

suspended upon c e r t a i n c o n d i t i o n s . One o f t h e c o n d i t i o n s was

t h a t h e make r e s t i t u t i o n f o r a n a u t o m o b i l e v a l u e d a t $12,000.

H e n d r i c k s a p p e a l s from t h a t p o r t i o n o f t h e s e n t e n c e r e q u i r i n g

him to make restitution for the value of: t h e a u t o m o b i l e .

Because t h e S t a t e and H e n d r i c k s had e n t e r e d i n t o a p l e a

bargain, through t h e i r respective counsel, and b e c a u s e the

District Court chose not to follow t h e t e r m s of the plea

bargain, this Court in its original opinion, under our

h o l d i n g i n S t a t e v . Cavanaugh (Mont. 1 9 8 3 ) , 673 P.2d 482, 40

St.Rep. 2007, remanded t h e c a u s e t o t h e D i s t r i c t C o u r t f o r

f u r t h e r proceedings. I n o u r o r i g i n a l o p i n i o n h e r e , we s a i d

that if on remand the District Court decided on final
disposition of the case not to agree to the restitution

concessions involving t h e 1982 C a p r i a u t o m o b i l e , i.t should

g i v e t h e d e f e n d a n t a chance e i t h e r t o a f f i r m o r withdraw h i s

p l e a of g u i l t y . However, we a l s o p r o v i d e d t h a t i f t h e c o u n t y

attorney presented evidence of prejudice to the State

r e s u l t i n g from i t s i n a b i l i t y t o p r o s e c u t e o t h e r c h a r g e s which

have been d i s m i s s e d under t h e p l e a b a r g a i n , t h e n t h e s e n t e n c e

would b e a f f i r m e d .

The oriqinal opinion in this c a u s e was d e c i d e d by a

p a n e l of f i v e J u s t i c e s assigned t o t h e case. Three of the

i u s t i c e s a g r e e d t o t h e remand f o r f u r t h e r p r o c e e d i n g s on t h e

basis just stated. A f o u r t h i u s t i c e agreed t h a t Hendricks

s h o u l d have t h e o p p o r t u n i t y t o withdraw h i s p l e a o f g u i l t y ,

b u t t h a t t h e county a t t o r n e y s h o u l d n o t b e a b l e t o p r e v e n t

t h e w i t h d r a w a l of h i s p l e a of g u i l t y by p r e s e n t i n g e v i d e n c e

of p r e j u d i c e t o t h e s t a t e i f a t r i a l were r e q u i r e d . A fifth

j u s t i c e d i s s e n t e d i n any e v e n t t o t h e remand.

The State petitioned f o r a rehearing, contendinq t h a t

only t h r e e justices of t h e C o u r t had d e c i d e d t o a l l o w t h e

S t a t e t o show e v i d e n c e a s t o t h e d i s m i s s e d c h a r g e s , i f the

d e f e n d a n t withdrew h i s p l e a . The S t a t e contended t h e r e f o r e ,

that the opinion as written was not a decision of the

m a j o r i t y of t h e C o u r t .

W e granted r e h e a r i n g and o r a l argument was had on t h e

matter before this Court on September 24, 1984. On

r e c o n s i d e r a t i o n by t h e f u l l C o u r t ,

IT I S NOW HEREBY ORDERED:

1. The s e n t e n c e imposed upon t h e d e f e n d a n t John T i c e

Elendricl;~ i s modified by s t r i k i n g therefrom all- provisions

r e l a t i n g t o r e s t i t u t i o n t o be made by him f o r o r on a c c o u n t
of the 1982 Capri automobile, and as so modified, the
iudgrnent of the District Court is affirmed.
2. This Order is prospective only, and shall apply only

to payments not heretofore made by Hendricks relating to said
1-982 Capri automobile.
DATED this 213 day of December, 1984.

We Concur:

%&,%& Justice
Chief

Justices

Mr. Justice L. C. Gulbrandson, dissenting:
I dissent for the same
the Opinion in this cause.

ustice