No. 90-423
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
v.
MAY 3 O 1991
JOSEPH WILLIAM MILINOVICH,
CLERK OF SUPREME COURT
Defendant and Appellant. STATE OF MONTANA
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Broadwater,
The Honorable Thomas C. Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
J. Cort Harrington, Helena, Montana
Wendy Holton, Helena, Montana
For Respondent:
Honorable Marc Racicot, Attorney General,
James Yellowtail, Asst. Attorney General,
Helena, Montana; John T. Flynn, County
Attorney, Townsend, Montana
Submitted on Briefs: March 14, 1991
Decided: May 30, T 9 9 1
Filed:
I
': Clerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Defendant and appellant, Joseph William Milinovich
(Milinovich), entered an Alford plea of guilty to the offense of
accountability for deliberate homicide, a felony. He subsequently
moved to withdraw his guilty plea. The First Judicial District
Court, Broadwater County, denied his motion and sentenced him to
60 years in the Montana State Prison. Milinovich appeals from the
District Court's denial of his motion.
We affirm.
The sole issue raised on appeal is whether the District Court
erred when it refused to allow Milinovich to withdraw his guilty
plea.
The crime to which Milinovich pled guilty occurred in July
1989. A factual proffer filed at the time of the guilty plea
states the circumstances of the homicide as follows:
Milinovich was hitchhiking in New Mexico when he met a carload
of several men, women, and children traveling as a kind of family.
He joined the group, which had a hierarchical structure and a
vague, undefined criminal purpose. The group eventually entered
Montana and purchased firearms with money acquired through
panhandling. Somewhere west of Bozeman they met the victim, Larry
Beckwith. Beckwith was traveling to Alaska in his pickup truck;
the group decided to follow him and attempt to find work in Alaska.
Near Townsend, Montana, the group decided not to go to Alaska,
but to rob Beckwith instead. The pickup truck containing the
victim Beckwith, the appellant Milinovich, and one of the other
men, Duncan, pulled off of the road. The car containing the group
was parked further down the road. Milinovich contends, although
the State does not agree, that at this point Duncan forced him at
gunpoint to hit the victim and strike him with a rock. Duncan then
shot the victim five times in the head with a .22 caliber pistol.
The group continued on in the car and truck until the truck
apparently quit running, at which time it was set afire. They went
on to Las Vegas and checked into a motel. Milinovich and Duncan
went out to a nightclub.
Milinovich, Duncan, and one of the women went out the next day
ostensibly to panhandle money. Instead they traveled to Texas,
where Duncan was arrested and jailed for driving while intoxicated.
At the time of Duncan's arrest, Milinovich gave a false name to the
authorities. He and the woman traveled to Missouri where he spent
a few days, and he then proceeded without her to Baltimore,
Maryland, where he was apprehended and returned to Montana.
Milinovich initially pled not guilty to one charge of robbery
and two charges of deliberate homicide, charged alternatively.
Pursuant to a written plea agreement, Milinovich changed his plea
of not guilty to an Alford guilty plea to deliberate homicide by
accountability, a felony. The charge of robbery and the
alternative charge of deliberate homicide were dismissed. A
statutory notice of the defense of compulsion was filed at the same
time . Also at this time, the court ordered a pre-sentence
investigation of Milinovich.
At sentencing, Milinovich moved the court for permission to
withdraw his guilty plea. His two grounds for the motion were that
the State had violated the plea agreement through a recommendation
in the pre-sentence investigation, and that potential exculpatory
evidence had surfaced through the pre-sentence investigation. The
court denied the motion.
Did the District Court err when it refused to allow Milinovich
to withdraw his guilty plea?
Section 46-16-105(2), MCA, controls withdrawal of a plea:
At any time before or after judgment the court may, for
good cause shown, permit the plea of guilty to be
withdrawn and a plea of not guilty substituted.
Milinovich maintains that ''good cause1' in this case is evidenced
by the State's violation of the plea agreement, and by the
discovery of potentially exculpatory evidence that would support
his defense of compulsion. We disagree.
The pertinent part of the plea agreement entered into by
Milinovich and the county attorney states that the llprosecutor
shall, at the time of sentencing, make no recommendation to the
Court relative to a term of years to be served . . . .I1 The pre-
sentence investigation prepared by the probation/parole officer
recommended that Milinovich be sentenced to 100 years in the
Montana State Prison and be designated a Dangerous Offender for
purposes of parole eligibility. Milinovich contends that the
parole officer's recommendation is equivalent to a recommendation
by the prosecutor, and therefore is a violation of the plea
agreement.
The pre-sentence investigation prepared by the parole/
probation officer is authorized by 5 46-18-111, MCA, and its
contents are spelled out in 5 46-18-112, MCA. Section 46-18-112,
MCA, states:
Whenever an investigation is required, the probation
officer shall promptly inquire into the characteristics,
circumstances, needs, and potentialities of the
defendant; his criminal record and social history; the
circumstances of the offense; the time the defendant has
been in detention; and the harm to the victim, his
immediate family, and the community. . . . The
investigation shall include a physical and mental
examination of the defendant when it is desirable in the
opinion of the court.
A sentencing recommendation is merely a factor that may or may
not be considered by the judge, as 5 46-18-103, MCA, makes
sentencing the exclusive province of the judge. "All sentences
under this chapter shall be imposed exclusively by the judge of the
court." Section 46-18-103, MCA.
The first basis of Milinovichls claim is without foundation
because the recommendation was a part of the statutorily authorized
pre-sentence investigation, not a breach of the prosecutor's
agreement.
Next, Milinovich asserts that when he entered his plea he was
under the impression that he knew all of the statements that had
been made by his co-defendants. His pre-sentence investigation,
ordered after he entered his plea of guilty, referred to statements
by a co-defendant made to the parole officer. Further
investigation of those statements led Milinovich to believe that
those statements had potential exculpatory value, and would support
his defense of compulsion. Specifically, the co-defendant implied
that Milinovich had not been present when the decision to rob the
victim was made. Milinovich promptly moved to withdraw his plea
when he discovered this statement.
This Court recently stated in State v. Miller, 48 St. Rep.
The fundamental purpose of allowing a defendant to
withdraw a guilty plea is to prevent the possibility of
convicting an innocent man. Accordingly, a plea of
guilty will be deemed involuntary where it appears that
the defendant was laboring under such a strong
inducement, fundamental mistake, or serious mental
condition that the possibility exists he may have pled
guilty to a crime of which he is innocent.
(Citations omitted.)
While Milinovich may not have been present at the specific
moment the robbery was mentioned, his actions prior and subsequent
to the crime far outweigh any exculpatory value the co-defendant's
statement might have. Although the following statement by the
court refers to the reasons for Milinovichls sentence, it is
instructive as to the reason the single statement by the co-
defendant is not sufficient to support a compulsion defense, and
concomitant withdrawal of the guilty plea:
You knew of the plans to rob Mr. Beckwith. Despite your
indication of your words, the evidence points to it, and
there is no doubt in my mind that you were aware of it.
Mazurkiewicz and you had a discussion about a tire caddy.
... You struck ~eckwithnot only with your fist, but
with a rock. You were riding in the truck with Beckwith.
.. . You may not have intended to have anything to do
with the murder of Mr. Beckwith, but you were certainly
involved in the robbery. . . .
It's a tragic situation. And you were a part of that,
and you have to pay for it.
The statement by the court, coupled with the fact that Milinovich
did nothing to warn the victim of potential trouble, or to notify
the police after the crime had been committed, far outweighs any
evidence supporting a defense of compulsion. We hold that the
District Court did not abuse its discretion in denying Milinovichls
motion to withdraw his plea of guilty.
Affirmed.
We Concur:
--
chief Justice </