State v. Flamm

No. 84-520
IN THE SUPREME COURT OF THE STATE OF MONTANA

1985

STATE OF I.IONTANA,

Plaintiff and Respondent,
-vs-
DONALD FLAMM,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Allen Beck, Billings, Montana

For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Harold Hanser, County Attorney, Billings, Montana

Submitted on Briefs: March 21, 1985

Decided: April 16, 1985

Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Defendant, Donald Flamm appeals the August 17, 1984,

order of the Thirteenth Judicial District Court, County of
Yellowstone, which revoked a previously ordered suspended
sentence and denied his motion to withdraw an earlier plea of
guilty. We affirm the order of the District Court.
In March 1981, defendant was charged with alternative
counts of criminal mischief, both felonies. Defendant
entered pleas of not guilty to both counts on May 20, 1981.
On September 22, 1981, the Yellowstone County Attorney's
Office filed its notice to increase punishment pursuant to

S 46-18-503, MCA (1981), the persistent felony statute.
Thereafter, defendant moved on November 12, 1981, to withdraw
his plea of not guilty and enter a plea of guilty to the
second criminal mischief count. On that same day, the State
moved to dismiss Count I and the notice of increased
punishment. Both motions were granted. Defendant was
sentenced December 23, 1981, to a term of ten years at the
Montana State Prison, with the entire term suspended upon the
usual terms and conditions. The County Attorney had
recommended that defendant be required to serve the entire
sentence.
In October 1982, defendant was charged in North Dakota
with the delivery of a controlled substance a.nd with being an
accomplice to the delivery of a controlled substance.
Following a jury trial, defendant was convicted on both
charges and sentenced to six years in the North Dakota State
Prison. Defendant lost his appeal of those convictions.
However, the United States Court of Appeals for the Eighth
Circuit has granted his application for a certificate of
probable cause in a habeas corpus action.
 Upon extradition to Montana, defendant was given notice
of the State's March 21, 1983, petition to revoke the
December 23, 1981, order suspending his ten-year sentence.
Following numerous procedural maneuverings, defendant
appeared with court-appointed counsel on August 8, 1984, for
a hearing on the petition to revoke. Defendant also moved to
withdraw his November 12, 1981, plea of guilty. The trial
judge thereafter granted State's petition to revoke and
denied defendant ' s motion to withdraw. Defendant is
presently serving his ten-year sentence at Montana State
Prison.
Defendant raises the following issues in his appeal:
1. Whether the District Court erred in denying
defendant's motion to withdraw his plea of guilty?
2. Whether the District Court had authority to revoke
the order s~zspendingdefendant's sentence?
Defendant contends that he pled guilty to Count I1 only
as a result of the combined inducement of his attorney and
probation officer. The trial judge found this contention to
be unsupported by the evidence and denied defendant's motion
to withdraw his plea of guilty.
"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 interrogation 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. ...
I '1
State v. Laverdure
(Mont. 1984), 685 P.2d 375, 377, 41 St.Rep. 1570,
1572, citing State v. Huttinger (1979),
182 Mont. 50, 54, 595 P.2d 363, 366.
A trial judge's interrogation of a defendant seeking to
enter a guilty plea has been held to be sufficient if 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 ..
. ." State v. Lewis (1978),
177 Mont. 474, 485, 582 P.2d 346, 352.
Defendant in this case was questioned regarding nearly all
these issues. His private attorney also stated that he was
satisfied tha-t defendant knew he was guilty and that
defendant's entry of plea was made voluntarily and without
coercion.
Defendant's attempt to withdraw his plea was not prompt.
In fact, defendant did not attempt to withdraw his plea until
nearly three years after it was entered, when he was in
danger of having his suspended sentence revoked.
Finally, defendant's plea was apparently the result of a
plea bargain. A second count against defendant and notice of
the State's intent to have him designated a persistent
offender were dropped the day defendant entered his guilty
plea.
There is no evidence in the record of defendant being
coerced to plead guilty. Given defendant ' s previous record,
the State had every right to attempt to have him designated a
dangerous offender. That portion of the trial judge's order
denying defendant's motion to withdraw his plea of guilty is
affirmed.
Defendant's second issue was not raised at the lower
court level. Absent plain error in the trial court, we will
not consider issues raised for the first time on appeal.
Rule 103(d), M0nt.R.Evid.i Reno v. Erickstein (Mont. 1984),
679 P.2d 1204, 1207-1209, 41 St.Rep. 537, 540-542. There is
no error here. Section 46-18-203, MCA, allows a sentencing
judge to revoke the suspension of a sentence at his
discretion. One condition of defendant's suspended sentence
was that he refrain from violating any laws. Defendant
admitted to the sen.tencing judge that he had violated the
I-aws of North Dakota by delivering a controlled substance.
The trial judge did not abuse his discretion when he revoked
defendant's suspended sentence.
Affirmed.

We concur: /