No. 87-287
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plaintiff a.nd Respondent,
-vs-
ROBERT DARRELL MARTZ,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Byron Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Larry Jent, Bozeman, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Betsy Brandborg, Asst. Atty. General, Helena
Wm. Nels Swandal, County Attorney, Livingston,
Montana; Daniel B McGregor, Deputy
Submitted on Briefs: June 30, 1988
Decided: August 5, 1988
Filed:
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Defendant Robert Martz appeals his plea of guilty and
subsequent conviction of tampering with physical evidence, a
felony, in violation of S 45-7-207, MCA. Martz plead guilty
to the charge on January 19, 1987, in the Sixth Judicial
District, Park County, in accordance with a plea agreement
and was released on his own recognizance until the sentencing
hearing, scheduled for February 2, 1987. Martz was arrested
for various misdemeanor crimes before sentencing. At the
sentencing hearing, the District Court refused the suspended
sentence recommended by the State. Martz received a sentence
of four years in prison. We affirm.
Defendant raises four issues on appeal:
1. Whether the District Court properly denied defen-
dant's motion for new counsel.
2. Whether defendant received effective assistance of
counsel.
3. Whether the District Court properly accepted defen-
dant's guilty plea to the felony charge of tampering with
physical evidence.
4. Whether the defendant was entitled to withdraw his
guilty plea following the District Court's rejection of the
plea agreement.
At 1:10 a.m. on November 1, 1986, Robert Martz was
arrested in Livingston, Montana, for obstructing a police
officer. While being booked, the police officer discovered
in Martz's pocket a cellophane packet containing a green
substance. Martz attempted to wrest the packet from the
police officer and a struggle ensued. Martz gained control
and swallowed the packet. He was then charged by information
with the felony of tampering with physical evidence, in
violation of S 45-7-207(1) (a), MCA. The defendant later
claimed that he was intoxicated at the time of arrest.
Defendant appeared initially on November 14, 1986,
before Park County District Court Judge Byron Robb. At the
appearance Public Defender Dan Yardley was appointed counsel
to Martz. Judge Robb told defendant that if Martz negotiated.
a plea agreement with the State, according to S 46-12-204,
MCA, the court had no duty to accept a recommended sentence
and was not bound to allow any guilty plea withdrawal.
Defendant was then arraigned on November 21, 1986, and plead
not guilty to the counts charged in the information. On
December 29, 1986, Yardley filed a motion to disqualify Judge
Robb for prejudice against the defendant. Judge Robb denied
the motion on the grounds that (1) the defendant failed to
submit an affidavit in support of the motion, as required by
S 3-1-805, MCA, and (2) there was no evidence of prejudice by
the District Court.
Martz filed a motion pro se for dismissal of Yardley as
his counsel claiming Yardley was incompetent in the area of
criminal law. The motion was filed also on the grounds of
prejudice and conflict of interest claiming Dan Yardley's
brother Jack had prosecuted Martz previously, causing Jack to
adversely influence Dan's counseling.
The District Court denied the motion after holding a
hearing sua sponte to discuss defendant's reasons for his
motion. Judge Robb stated there was no prejudice simply
because Dan Yardley and Jack Yardley were brothers and Jack
Yardley had prosecuted Martz in a completely separate action.
In addition, the District Court also appointed Jack Yardley
to act as co-counsel for Martz.
On January 16, 1987, the State and Martz negotiated a
plea agreement in which defendant would plead guilty to the
charges of tampering with physical evidence in exchange for a
recommendation to Judge Robb by the State of a four-year
suspended sentence.
Martz entered a change of plea on January 19, 1987,
after a detailed colloquy between Judge Robb and Martz. The
District Court informed the defendant of his right to an
attorney and inquired as to whether he was satisfied with the
representation. The District Court addressed the right to
jury trial, the maximum penalty for the crime, and the charg-
es filed. After accepting Martz's guilty plea, the District
Court directed that defendant be released on his own recogni-
zance until sentencing.
On January 24, 1987, prior to the sentencing hearing,
defendant was arrested and charged with several misdemeanors,
including theft and resisting arrest.
Sentencing was held February 2, 1987. After inquiring
into the crimes charged to defendant while on his own recog-
nizance, Judge Robb explained that he did not think a sus-
pended sentence was proper under the circumstances and
sentenced defendant to four years in the Montana State
Prison.
The first issue brought forth on appeal is whether the
District Court properly denied appellant Martz's request for
new counsel. Appellant claims that Dan Yardley is (1) incom-
petent in the field of criminal law, and (2) was prejudiced
in his representation because he was unduly influenced by his
brother Jack, who prosecuted Martz previously. In the hear-
ing held sua sponte by Judge Robb, the defendant was informed
that Dan Yardley had been a practicing attorney for thirty
years and had handled criminal cases in the past. He was
therefore regarded as competent counsel.
Judge Robb also addressed the complaints of prejudice.
According to the court, Jack Yardley had been employed in the
past as both county attorney and public defender and
understood well "representing people on both sides of the
table." Prejudice and conflict of interest would be present
only if Jack Yardley's prosecution of Martz and the charges
at issue overlapped. The District Court denied the motion
because the proceedings were entirely separate.
It is within the sound discretion of the trial court to
rule on the substitution of counsel. Absent a showing of
abuse of that discretion, the decision will not be over-
turned. State v. Long (1983), 206 Mont. 40, 45, 669 P.2d
1068, 1071, citing Good v. United States (9th Cir. 1967), 378
F.2d 934, 935.
When considering a motion for substitution of counsel,
the trial court must inquire adequately into the complaint of
the defendant and must discover whether the conflict was so
great that it resulted in a total lack of communication.
Brown v. Craven (9th Cir. 1970), 424 F.2d 1166; United States
v. Mills (9th Cir. 1979), 597 F.2d 693. The District Court
discovered that although Martz and Dan Yardley did not have a
"meaningful relationship," they had discussed the case at
length. Morris v. Slappy (1983), 461 U.S. 1, 103 S.Ct. 1610,
75 L.Ed.2d 610. Martz charges that Yardley gave little
encouragement of winning the case. But the court found that
this was evidence that Yardley and Martz had communicated and
was sufficient to warrant retaining Yardley as Martz's coun-
sel. We hold that the District Court properly denied the
motion for substitution of counsel.
Issue two is whether the defendant received effective
assistance of counsel from Dan Yardley and Jack Yardley.
Appellant claims that his case was prejudiced because Dan and
Jack Yardley were brothers and Jack would influence Dan into
giving poor representation. Also, Jack Yardley was his
attorney now even though Martz had been prosecuted by him
before.
The court found no merit to the accusation that Dan
Yardley's representation was insufficient. Martz himself
admitted at the change of plea proceedings that he was not
dissatisfied with his attorney. The District Court inquired
into the effectiveness of counsel:
The Court: And you have had some ques-
tion about Mr. Yardley's ability or
competency to advise you concerning the
matter, do you feel satisfied at this
time with his services to you?
Mr. Martz: Yes.
The Court: And has he in fact gone over
and discussed with you the written
agreement here, the acknowledgement of
rights?
Mr. Martz: Yes.
The Court: Do you feel that you do
understand it all right?
Mr. Martz: Yes.
The Court: Any questions that you would
have about it?
Mr. Martz: None.
Appellant now claims that he was prejudiced because his
counsel failed to file an affidavit with the motion for
disqualification of Judge Robb and failed to investigate all
possible defenses. However, we held in State v. Forsness
(1972), 159 Mont. 105, 110, 495 P.2d 176, 178, and State v.
Rose (1980), 187 Mont. 74, 89, 608 P.2d 1074, 1082:
Claimed inadequacy of counsel must not
be tested by a greater sophistication of
appellate counsel, nor by that counsel's
unrivaled opportunity to study the
record at leisure and cite different
tactics of perhaps doubtful efficacy.
Success is not the test of efficient
counsel, frequently neither vigor, zeal,
nor skill can overcome the truth.
Martz's own words show that the assistance of counsel was
sufficient.
Appellant also contends that Jack Yardley, who was
appointed co-counsel after Judge Robb denied the motion,
could not adequately defend Martz because Yardley had previ-
ously prosecuted him. Appellant relies heavily on In Re
Petition of Lucero (1972), 161 Mont. 136, 504 P.2d 992, in
which this Court held there was prejudice between the defen-
dant and his attorney where the attorney had originally filed
the charges in the same case as the acting deputy county
attorney. But here, there is no prejudice. Jack Yardley's
prosecution of Martz was a completely separate case from the
one at issue. In Petition of Pepperling (1973), 162 Mont.
524, 525, 508 P.2d 569, 570, it was stated that:
It is not the law that the one-time
prosecution of a defendant by a former
county attorney forever prohibits that
attorney from defending that individual
on a separate and distinct criminal
charge.
Where the District Court found no prejudice, we hold that
Jack Yardley was properly appointed as co-counsel for appel-
lant Martz, and that Martz received effective assistance of
counsel.
Issue three is whether the District Court properly
accepted defendant's plea of guilty to tampering with physi-
cal evidence. Section 46-16-105, MCA, provides that:
(1) Before or during trial, a plea of
guilty may be accepted when:
(a) the defendant enters a plea of
guilty in open court; and
(b) the court has informed the defendant
of the consequences of his plea and of
the maximum penalty provided by law
which may be imposed upon acceptance of
such plea.
The plea given, according to § 46-16-105, MCA, must be
a voluntary and intelligent choice after the defendant has
heard defense alternatives open to him as affirmatively
disclosed by the record. State v. Lance (1982), 201 Mont.
30, 651 P.2d 1003; Schantle v. Crist (1980), 188 Mont. 176,
612 P.2d 673; Yother v. State (1979), 182 Mont. 351, 597 P.2d
79.
Appellant argues that the court did not adequately
inform him of his alternatives to a guilty plea and, there-
fore, prevented him from making a voluntary and intelligent
choice. However, in the initial appearance by Martz on
November 14, 1986, Judge Robb informed Martz that if he made
a plea bargain agreement with the State, the court was not
bound by the recommended sentence, nor was the court bound to
allow the defendant to withdraw the guilty plea. Also, the
colloquy between Judge Robb and Martz demonstrates that the
appellant made a well-informed decision:
The Court: All right. In regards to
the matter, Mr. Martz, I want to try to
make certain you do understand your
rights concerning the matter. I had
previously set the case for a jury trial
on February 2, which is about two weeks
away. And of course notwithstanding
anything that has occurred up to this
time you are entitled to that jury trial
to determine your guilt or innocence in
this case if you want, you are aware of
that?
Mr. Martz: Yes.
The Court: In the event of a jury
trial, Mr. Martz, you understand, of
course, it is up to the jury alone to
decide your guilt or innocence and not
me?
Mr. Martz: Yes.
After the appellant entered a plea of guilty, the court
continued its colloquy:
The Court: . . .
I previously advised
you [at the initial appearance] of the
penalty prescribed by our State law, and
I would readvise you, Mr. Martz, that
that, of course, is up to ten years in
the State Prison or a fine of up to
$50,000.00 or both, you are aware of
that possible penalty still?
Mr. Martz: Yes.
The Court: And in the event I did not
accept or approve the plea bargain
agreement you realize that possible
penalty could still be imposed?
Mr. Martz: Yes.
Therefore, appellant was informed of his constitutional
rights and made aware of the possible alternative pleas and
their consequences.
The appellant contends that the foregoing colloquy was
not sufficient . Martz claims that he was unaware of
S 45-2-203, MCA, which allows the court to take into consid-
eration the defense of intoxication, where the existence of a
mental state is an element of the offense. According to
appellant, in order for him to make a voluntary and intelli-
gent decision, the court must inform him of all available
defenses. However, in State v. Day (1981), 195 Mont. 151,
155-156, 635 P.2d 568, 571, we held that:
A discussion of defense strategy goes
beyond the realm of trial court duty.
If trial courts had to discuss potential
defenses with an accused, the judge
would have to advise the accused regard-
ing potential constitutional challenges,
as well as affirmative defenses existing
under statutes. These responsibilities
are vested in defense counsel and not in
the trial judge.
Here, the District Court informed Martz of his consti-
tutional rights, the consequences of a guilty plea, the
possible maximum penalty involved, and that the court could
not involve itself in the plea agreement and was not obligat-
ed to accept the recommended sentence. This is sufficient
under § 46-16-105 and fulfills the requirements for a volun-
tary and intelligent plea.
The last issue is whether the defendant was entitled to
withdraw his plea of guilty following the District Court ' s
rejection of the recommended sentence. Review of a motion to
withdraw a guilty plea requires the consideration and balanc-
ing of 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, ... 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 3 6 3 ,
366.
We have already established that the inquiry by the
trial court was sufficient, that the plea was a result of a
plea bargain agreement, and also that the defendant fully
understood the circumstances and consequences of making the
guilty plea.
... the granting or refusal of permis-
sion to withdraw a plea of guilty and
substitute a plea of not guilty rests in
the discretion of the trial court and is
subject to review only where an abuse of
discretion has been shown.
State v. Nance (1947), 120 Mont. 152, 164, 184 P.2d 554, 560;
State v. Doty (1977), 173 Mont. 233, 566 P.2d 1388, 1930. We
rely on the discretion of the trial court in denying the
attempted withdrawal of the guilty plea.
Appellant contends that S 46-12-204, MCA, which lists
the requirements of plea bargains, is unconstitutional.
Section 46-12-204 provides:
(1) The defendant shall enter a plea of
guilty or not guilty to the indictment,
information, or complaint. If the
defendant refuses to plead to the in-
dictment, information, or complaint, a
plea of not guilty must be entered.
(2) The court may refuse to accept a
plea of guilty and shall not accept the
plea of guilty without first determining
that the plea is voluntary with an
understanding of the charge.
(3) (a) A plea bargain agreement is an
agreement between a defendant and a
prosecutor that in exchange for a par-
ticular plea the prosecutor will recom-
mend to the court a particular sentence.
A judge may not participate in the
making of, and is not bound by, a plea
bargain agreement. If a judge does not
impose a sentence recommended by a
prosecutor pursuant to a plea bargain
agreement, the judge is not required to
allow the defendant to withdraw a plea
of guilty.
(b) Before a judge accepts a plea of
guilty, he must advise the defendant:
(i) of all. the provisions of subsection
(3)(a);
(ii) of the punishment as set forth by
statute for the crime charged;
(iii) that prior to entering a plea of
guilty, the defendant and his counsel
should have carefully reviewed Title 46,
chapter 18, and considered the most
severe sentence that can be imposed for
a particular crime; and
(iv) that the judge may impose any
sentence allowed by law.
Appellant alleges that because the judge would not
allow him to withdraw his guilty plea after rejecting the
recommended sentence, he deprived defendant of his constitu-
tional rights. It is understood that defendant waives cer-
tain constitutional rights by pleading guilty, among those
the right to trial and the right against compulsory self-in-
crimination. Boykin v. Alabama (1969), 395 U.S. 238, 89
S.Ct. 1709, 23 L.Ed.2d 274. If the defendant makes a volun-
tary and intelligent plea, he knowingly waives these consti-
tutional rights, regardless of whether or not the judge
accepts the recommendation of the State. Where there has
been a proper colloquy regarding the defendant's rights and
liabilities of a guilty plea, where he has been informed of
his constitutional rights, where the defendant is aware that
he is giving up those rights, and where the plea bargain
agreement is clear as to its limitations, then the judge does
not have to accept a guilty plea withdrawal attempt. Section
46-12-204, MCA, is not unconstitutional.
Next the appellant argues that the trial court rejected
the plea agreement and, therefore, the plea of guilty itself.
However, the judge accepted the plea. of guilty in this case,
but rejected the recommended sentence by the State. Section
46-12-204, MCA, clearly states that the judge does not have
to accept a recommendation by the State and does not have to
allow a withdrawal of the guilty plea.
The language in the Federal Rules of Criminal Proce-
dure, Rule 11 (e) is similar to S 46-12-204, MCA. Under Rule
11 (e) (1) ( B ) the government can make a recommendation with the
understanding that such recommendation is not binding on the
court. In interpreting Rule 11 (e), the Ninth Circuit Court
of Appeals, in United States v. Henderson (9th Cir. 1977),
565 F.2d 1119, held that a judge could accept the plea of
guilty and reject the recommendation by the State without
being bound to allow withdrawal of the plea.
The District Court in the case on appeal, accepted the
plea of guilty, but rejected the recommended sentence.
According to the District Court, because Martz had committed
a series of misdemeanors while on his own recognizance, he
was not worthy of the prosecution's recommended sentence.
"[I]t is the sole province of the trial court to determine
whether a motion to withdraw a guilty plea should be grant-
ed." In re Matter of Hardy (19801, 188 Mont. 506, 509, 614
P.2d 528, 531. On these grounds the court properly denied the
motion to withdraw the guilty plea.
Affirmed.
We concur: