No. 89-182
IN THE SUPREME COURT OF THE STATE OF MONTANA
JOHN CLEVELAND BENJAMIN,
Petitioner and Respondent,
JACK McCORMICK, Warden,
Montana State Prison,
Respondent and Appellant.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Powell,
The Honorable Ted L. Mizner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Marc Racicot, Attorney General, Helena, Montana
Robert F. W. Smith, Assistant Attorney General,
Helena, Montana
For Respondent:
John S. Forsythe, Esq., Forsyth, Montana
Submitted on Briefs: March 22, 1990
Decided: May 8, 1990
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
The State of Montana appeals a writ of habeas corpus issued
by the Third Judicial District Court, Powell County, ordering the
warden of the Montana State Prison to release prisoner John
Benjamin on parole. The District Court found that Benjamin did not
fully understand the consequences of his guilty plea when the
sentencing court, prosecuting attorney, and defense attorney
represented that he would be incarcerated approximately one year
under the terms of his plea bargain agreement, but the sentence and
agreement required completion of a two-year sexual offender
program. We affirm.
ISSUES
The State raises three issues:
1. Did the habeas corpus court err in not enforcing the peti-
tioner's plea bargain agreement as written?
2. Did the sentencing court err by representing that the
petitioner would be incarcerated for approximately one year when
the court had no authority to guarantee probation?
3. Did the habeas corpus court err in finding that the peti-
tioner's plea of guilty was not made voluntarily and knowingly?
FACTS AND PROCEDURE
This case presents an unusual set of circumstances. Under the
terms of a plea bargain agreement, John Benjamin pled guilty to
deviate sexual conduct in violation of 5 45-5-505, MCA, and
possession of a dangerous drug in violation of 3 45-9-102, MCA.
The Sixteenth Judicial District Court sentenced Benjamin to the
Montana State Prison for ten years with five years suspended on the
first count and for one year on the second count to run concurrent-
ly. The sentence included nondangerous offender designation and
enrollment in the sexual offenders program.
Prior to accepting the guilty plea, the District Court
elicited Benjamin's statement providing factual support for the
plea. The court also carefully questioned Benjamin to establish
that he voluntarily pled guilty and that he fully understood his
rights and the effect of his plea.
At the time of sentencing, the court stated:
And, of course, if you don't know, in Montana,
a ten year sentence, five suspended, non-
dangerous criminal, you will serve, actually
serve, somewhere around a year, give or take
a few days one way or the other. And the
sentence, of course, will recommend a treat-
ment program.
After one year in prison, Benjamin was denied parole and
petitioned the sentencing court for a writ of error coram nobis.
The court denied the writ holding that it had no jurisdiction to
modify the sentence. In its opinion, the court stated:
Defendant entered into a plea bargain agree-
ment which provided, among other things, that
the defendant would enroll in a sexual of-
fenders program while serving his sentence in
the state prison. It was the belief of the
Court, defense counsel and the county attorney
that the defendant would serve about a year in
the prison. At the time of sentencing, the
Court did not know that attendance in the
sexual offender program in the prison would
enhance defendant's sentence by more than a
year.
Benjamin then petitioned the court for a writ of habeas corpus on
the same grounds, and the court transferred the petition to the
court of appropriate jurisdiction.
The Third Judicial District Court, Powell County, granted the
petition and ordered Benjamin's release on parole. The court found
that Benjamin did not fully understand the consequences of his plea
when entered or during sentencing because the sentencing court, the
prosecuting attorney, and his defense counsel had all represented
that he would serve only one year in prison. Following his
release, the State of Washington re-incarcerated Benjamin for
violating his parole from a previous sentence for sexual offenses.
The State now appeals the habeas corpus court's decision.
We will address two preliminary arguments before reaching the
determinative issue in this case.
PLEA BARGAIN ENFORCEMENT
The parties argue for specific enforcement of different terms
of the plea bargain agreement. Their contentions, however, fail
to consider the current state of the law. In State v. Cavanaugh,
this Court overturned a plea bargain sentence when the district
court failed to inform the defendant that he would not be eligible
for parole. Cavanauqh (1983), 207 Mont. 237, 240, 673 P.2d 482,
484. We held that,
the trial judge, who accepts a plea but re-
jects any other portion of the plea bargain,
[is required] to afford the defendant the
opportunity to withdraw his guilty plea and
enter a plea of not guilty.
Cavanauqh, 207 Mont. at 243, 673 P.2d at 485.
The 1985 Legislature revised 5 46-12-204, MCA, the statute
governing plea bargain agreements. Act approved April 23, 1985,
ch. 606, 5 2, 1985 Mont. Laws 1278, 1279. The statute now clearly
delineates the effect of plea bargain agreements.
A plea bargain agreement is an agreement
between a defendant and a prosecutor that in
exchange for a particular plea the prosecutor
will recommend 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 the prosecutor pur-
suant to a plea bargain agreement, the judge
is not required to allow the defendant to
withdraw a plea of guilty.
Section 46-12-204(3) (a), MCA.
Under the present law, the sentencing court was not a party
to the bargain and was not subject to its terms. The enforce-
ability of the bargain is, therefore, not an issue.
GRANTING PROBATION
The Attorney General argues that by telling Benjamin that he
would be paroled in one year, the sentencing court usurped the
authority of the Board of Pardons by guaranteeing probation. The
Attorney General overstates his position.
First, a fair reading of the sentencing court's statement in
light of the surrounding circumstances does not indicate that the
court intended to guarantee Benjamin's parole. The court certainly
knew that Benjamin1 parole eligibility depended on numerous
s
factors beyond its control. As the sentencing court later stated,
it merely intended that the sexual offender program would not
extend Benjamin's incarceration beyond the normal one-year
incarceration before parole eligibility for a ten-year sentence.
Second, the Board of Pardons does not have exclusive authority
to grant parole. Section 46-23-104(1), MCA, only gives the Board
statutory authority to establish regulations and grant parole
subject to the restrictions set out in 5 46-23-201, MCA. When a
district court finds for a petitioner on a writ of habeas corpus,
it too may order parole under its authority to enter "such
supplementary orders as to reassignment, retrial, custody, bail,
or discharge as may be necessary and proper.Ig Section 46-22-306,
MCA.
VOLUNTARY AND KNOWING PLEA
The primary issue in this case is whether Benjamin voluntarily
and knowingly entered his plea of guilty. Before accepting a
guilty plea, the sentencing court must determine that the plea is
"voluntary with an understanding of the charge, 5 46-12-204 (2),
MCA, and the court must inform the defendant of "the consequences
of his plea . . . , 46-16-105 (1)(b), MCA. The law does not
require the sentencing court to educate the defendant on all
aspects of the relevant law before accepting a guilty plea.
However, when the guilty plea is based upon a fundamental mistake
or misunderstanding as to its consequences, the sentencing court,
at its discretion, may allow the defendant to withdraw the plea.
A change of plea will be permitted only if it
fairly appears the defendant was ignorant of
his rights and the consequences of his act, or
he was unduly and improperly influenced either
by hope or by fear in making the plea, or if
it appears the plea was entered under some
mistake or misapprehension. Each case must be
examined on its own record. The motion rests
within the District Court's discretion and the
exercise of that discretion will not be dis-
turbed absent an abuse of discretion.
State v. Mesler (1984), 210 Mont. 92, 96, 682 P.2d 714, 716
(citation deleted).
In this case, Benjamin's guilty plea was based on error. Both
the sentencing court and the habeas corpus court found that
Benjamin was misinformed as to the consequences of his plea. The
record contains sufficient evidence to establish that the sentenc-
ing court, prosecutor and defense counsel all apparently failed to
recognize that the sexual offender program lasted two years and
assured the defendant that he would be incarcerated for only one
year.
The usual remedy for a guilty plea that is not voluntarily or
knowingly made is to allow the defendant to withdraw the plea. In
this case, however, the habeas corpus court exercised its discre-
tion to order Benjamin's release on probation. The court has the
discretion to determine whether withdrawal of a guilty plea is
appropriate, 5 46-16-105(2), MCA, and to issue orders implementing
its decision for the petitioner, § 46-22-306, MCA. As the court
noted, withdrawal of the plea and further legal proceedings would
not have been appropriate in this case. Benjamin never asked the
court to withdraw his plea or claimed that he was not guilty. He
argued only that he should have been released after one year as the
sentencing court intended.
We hold that, on the facts of this particular case, the
District Court did not abuse its discretion in releasing Benjamin
on parole on the grounds that he did not have an adequate under-
standing of the consequences of his guilty plea.
Affirmed.
We concur: