No. 87-049
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1987
STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-vs-
ANDREW C . LN
OG
Defendant and A p p e l l a n t ,
APPEAL FROM: D i s t r i c t Court of t h e F o u r t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f M u s s e l l s h e l l
The Honorable Roy C . Rodeghiero, Judge p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
S o l and Wolfe, Michael S o l
M i s s o u l a , Montana
F o r Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l ,
Barbara Claassen, A s s i s t a n t Attorney General,
H e l e n a , Montana,
P e t e r W. LaPanne, M u s s e l s h e l l County A t t o r n e y ,
Roundup, Montana.
S u b m i t t e d on B r i e f s : A p r i l 1 6 , 1987
Decided: J u n e 11, 1987
Filed:
dM 1 11983
Mr. J u s t i c e Fred J . Weber d e l i v e r e d t h e Opinion o f t h e C o u r t .
Defendant, Andrew C a r l Long a p p e a l s t h e o r d e r o f the
Fourteenth Judicial District Court, Musselshell County,
denying h i s p e t i t i o n f o r p o s t - c o n v i c t i o n r e l i e f . W e affirm.
The b a s i c i s s u e before us i s whether t h e d e f e n d a n t ' s
p l e a o f g u i l t y was p r o p e r l y a c c e p t e d .
Defendant was c h a r g e d by i n f o r m a t i o n w i t h f e l o n y t h e f t
o f a 1 9 7 1 S a b r e c r a f t 2 1 ' b o a t and b o a t t r a i l e r , registered
i n t h e name o f M r . and M r s . Robert N . W a t t s , r e s i d e n t s o f t h e
S t a t e o f Washington.
The f o l l o w i n g f a c t s a r e t a k e n from d e f e n d a n t ' s t e s t i m o n y
before t h e D i s t r i c t C o u r t a f t e r h i s p l e a of guilty t o the
charge of felony t h e f t . For s i m p l i c i t y t h e f a c t s w i l l be s e t
f o r t h i n t h e o r d e r i n which t h e y o c c u r r e d . Defendant was a t
l e a s t an acquaintance of M r . and M r s . Watts d u r i n g t h e t i m e
t h a t he worked i n S e a t t l e a s a r o o f e r . Defendant l o a n e d some
money t o M r . Watts which a p p a r e n t l y was used a s a p a r t o f t h e
purchase price of the boat. The b o a t was damaged i n an
accident when the trailer came u n h i t c h e d from t h e truck.
T h i s o c c u r r e d i n t h e S t a t e o f Washington. Defendant o f f e r e d
t o have t h e b o a t r e p a i r e d i f M r . Watts would a l l o w him t o u s e
it f o r a few months. The r e p a i r s were t o be made i n t h e
S t a t e o f Washington. M r . Watts h e l p e d t h e d e f e n d a n t l o a d t h e
b o a t and t r a i l e r and gave him t h e r e g i s t r a t i o n . A few d a y s
l a t e r defendant's employment o p p o r t u n i t i e s i n t h e S t a t e of
Washington ended and he r e t u r n e d t o Roundup, Montana, with
both the boat and trailer. Defendant anticipated that
f r i e n d s i n Montana would h e l p him f i x t h e b o a t . A few d a y s
a f t e r a r r i v i n g i n Montana d e f e n d a n t phoned M r . Watts and t o l d
him where t h e b o a t was. Defendant t o l d M r . Watts t h a t a f t e r
t h e b o a t was r e p a i r e d he ( t h e d e f e n d a n t ) would u s e t h e b o a t
f o r t h e r e s t of t h e summer and r e t u r n it t o Watts i n t h e
State of Washington some time in the fall. Mr. Watts was
upset because the boat had been financed in the State of
Washington under an agreement which did not allow the boat to
be removed from the State of Washington.
The theft charges were filed a few days later. At his
arraignment, the defendant pled not guilty. Thereafter he
changed attorneys and his plea. After the entry of his
guilty plea, defendant stated that while he claimed part
ownership of the boat, he acknowledged that he had exercised
unauthorized control over the boat and trailer and had
deprived Mr. Watts of the boat; but he also stated that he
had every intent of repairing and returning the boat to Mr.
Watts in the fall of the year. Even though defendant claimed
to have a half ownership of the boat, he recognized that the
title did not reflect that half ownership and he admitted
that Mr. Watts had not given him authority to remove the boat
from the State of Washington. He stated:
And my intentions were to take it back at the end
of September, the first of October. And I under-
stand at this period of time that I was depriving
him of his half ownership of the boat. And that's
what I'm pleading guilty to, Your Honor. I mean it
was not for me to steal the boat from him and he
was never going to see it again. It was not on
those pretentions.
November 2, 1983, hearing transcript, p. 6, 1n. 18 - 25.
Defendant's guilty plea was accepted. He was sentenced
to five years in the Montana State Prison, suspended; and
fined $5,000. A December 22, 1983, attempt to withdraw the
guilty plea on the basis of inadequate representation by
counsel was denied. Probation was subsequently revoked due
to alcohol and firearms violations. Upon leaving Montana
State Prison after 18 months incarceration, defendant pursued
this petition for post-conviction relief. He contends that
insufficient facts were presented to the District Court in
support of the guilty plea and that the plea was not
voluntary.
Three factors should be considered when determining
whether a defendant's guilty plea should be withdrawn:
1. The adequacy of the District Court's interro-
gation as to the defendant's understanding of the
plea;
2. The promptness of the motion to withdraw the
prior plea; and
3. The fact that the defendant's plea was appar-
ently the result of a plea bargain in which the
guilty plea was given in exchange for dismissal of
another charge.
State v. Koepplin (Mont. 1984), 689 P.2d 921, 923, 41 St.Rep.
1942, 1944, citing State v. Huttinger (1979), 182 Mont. 50,
595 P.2d 363.
In its order denying the petition for post conviction
relief, the District Court did not address the promptness of
the motion to withdraw the plea. In addition, the record
discloses that the defendant's plea was not given in exchange
for dismissal of another charge so the third factor is not
pertinent. We focus our analysis on the first factor, the
adequacy of the District Court's interrogation as to the
defendant's understanding of the plea.
Absent an abuse of discretion, a trial judge's decision
not to allow the withdrawal of a guilty plea will be af-
firmed. Koepplin, supra, citing In the Matter of Brown
(1980), 185 Mont. 200, 605 P. 2d 185. Nevertheless, certain
factors must be considered by the trial judge when determin-
ing whether the interrogation of defendant at the time of
plea was adequate.
Where a District Court has done all that it can to
determine from the defendant or otherwise, that the
proposed plea of guilty is voluntarily made, the
defendant understands what he is doing and is
advised of the consequences of his plea, including
the nature and extent of his punishment, has been
adequately advised by counsel, and has been treated
fairly at all stages of the prosecution against
him, and that in fact the defendant states he is
guilty of the charges made, then this Court has a
duty to support the District Court when it allows a
plea of guilty to be entered in place of a plea of
not guilty.
State v. Lewis (1978), 177 Mont. 474, 484, 582 P.2d 346, 352.
Defendant was charged by information with violating
5 45-6-301 (1) (a), MCA.
Theft. (1) A person commits the offense of theft
when he purposely or knowingly obtains or exerts
unauthorized control over property of the owner
and :
(a) has the purpose of depriving the owner of
the property;
Section 45-2-101(19), MCA, defines deprive.
(19) "Deprive" means to withhold property of
another:
(a) permanently;
(b) for such a period as to appropriate a portion
of its value;
(c) with the purpose to restore it only upon
payment of reward or other compensation; or
(d) to dispose of the property and use or deal
with the property so as to make it unlikely that
the owner will recover it.
The thrust of defendant's position is that
§ 45-2-101(19), MCA, defining the term deprive, was not
mentioned in the information or the warrant, by his attorney,
or at the hearing where he pleaded guilty. Therefore, defen-
dant contends that he did not properly understand the charge
against him. Pursuant to State v. Huttinger (1979), 182
Mont. 50, 595 P.2d 363, he contends the guilty plea was
involuntary and should be withdrawn.
It is undisputed that neither the information nor the
warrant mentioned 45-2-101(19), MCA; and that the section
was not discussed at the hearing. No evidence has been
presented that defendant's counsel at the time of the entry
of the guilty plea did or did not discuss this section with
defendant. To avoid this problem in the future, the District
Courts are requested to ascertain that a defendant under-
stands the statutory definition of the term "deprive".
Regardless whether defendant understood the actual
meaning of the term "deprive", the District Judge determined
at the close of the November 7, 1986, hearing on defendant's
petition to withdraw his plea of guilty, that defendant had
admitted sufficient facts to support his plea of guilty.
First of all, the Defendant ... got on the stand
today and admitted facts sufficient to bring him
within the theft statute and to support his plea of
guilty. The fact that he took this boat and Mr.
Watts helped him load it and so forth, he admitted
himself that he did not tell Mr. Watts that he was
taking it out of the State; that at the time it was
being loaded, Mr. Watts apparently felt or figured
it would be repaired within that State within sixty
miles of where the boat was picked up. And that
the Defendant Mr. Long knew that was what Mr. Watts
was thinking, and he didn't tell Mr. Watts anything
different although he knew, or the inference is at
least there that Mr. Watts would not have wanted
the boat taken out of the Statute [sic], and that
Mr. Watts was under the impression that it was
going to stay in the State of Washington at the
time Mr. Long picked up the boat.
. . . it is apparent to the Court that Mr. Long
knew or should have known that Mr. Watts did not
want the boat removed from the State of Washington
and that Mr. Watts -- the inference is that Mr.
Watts would not have allowed him to take the boat
if he figured it was going to be taken from the
State.
November 7, 1986, transcript, p. 46, In. 12 - 27 and p. 47,
In. 1 - 3 and 7 - 13.
Defendant's testimony presents a close question as to
whether he deprived Watts of the boat. However, defendant
did state at the initial hearing that he deprived Mr. Watts
of the boat when he moved to Montana. November 2, 1983,
transcript, p. 6, In. 15 - 23. And, at the November 7, 1986,
hearing, defendant testified as follows:
Q. (By Mr. Pratt) Mr. Long, I believe you stated
that you did not have authority to bring that boat
to Montana; is that correct?
A. He did not know I was bringing it to Montana,
no. He knew I was taking it to get it fixed and
use it.
Q. You picked it up in Bellview, Washington, or
somewhere in that area?
A. I picked it up in Federal Way, Washington, at
his residence, and he loaded it for me.
Q. And what was his understanding when you left
with the boat?
A. That I would be taking it to a repair shop in
the vicinity of Bellview, Washington, to get it
repaired it [sic], and use it.
Q. You never did tell him that you were removing
it from the State of Washington; is that correct?
A. No, I didn't.
Q. And, of course, once that boat got to Montana,
he had no ability to have access to it; is that
correct? He didn't have access to it while you had
the boat in Montana; right?
A. There was too many miles difference. He knew
where the boat was at. He had been to my property
prior.
November 7, 1986, transcript, p. 21, ln. 7 - 27, p. 22,
In. 1.
We conclude there is substantial credible evidence to
support the factual determination of the District Court and
in particular its conclusion that the defendant had admitted
sufficient facts to support his plea of guilty. The record
further supports the legal conclusion that defendant had
deprived the record owners of the property within the defini-
tion of 45-2-101(19), MCA. In particular, the record is
sufficient to establish that defendant deprived the record
owners of the property for such a period of time as to appro-
priate a portion of its value. The record shows that Robert
Watts had borrowed money using the boat as security and given
the boat as a security interest. Under the loan instruments,
the property was not to be taken out of the State of Washing-
ton. By removing the boat to Montana, defendant did withhold
the property for a sufficient period to appropriate a portion
of its value so far as the record owners are concerned. We
affirm the conclusion of the District Court that defendant
had admitted sufficient facts to support his plea of guilty.
Defendant also argues that the District Court misstated
the value of the property needed to support a felony theft
conviction. It is true that B 45-6-301, MCA, was amended in
1983 to change the value of stolen property from $150 to
$300. We do not find it necessary to address this contention
at length. The uncontradicted evidence in the record estab-
lished that the boat and trailer were worth at least $4000.
We affirm the District Court.
fvChief Justice
&D~&m/
Justices