NO. 90-608
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
-vs- APR 2 9 1991
EDWARD F. MILLER,
C!.ER1< OF SUPREME COURT
Defendant and Appellant. STATE OF MONTANA
APPEAL FROM: District Court of the Thirteenth Judicial District.
In and for the County of Carbon,
The Honorable Maurice R. Colberg, Jr., Judge
presiding.
COUNSEL OF RECORD:
For Appellant:
Arthur J. Thompson, Billings, Montana
For Respondent:
Hon. Marc Racicot, Attorney General; Paul D.
Johnson, Assistant Attorney General, State of
Montana, Helena, Montana; A. W. Kendall, County
Attorney, Red Lodge, Montana.
Submitted on Briefs: March 14, 1991
Decided: April 29, 1991
Filed:
Justice R. C. McDonough delivered the Opinion of the Court.
The defendant Edward F. Miller appeals the order of the
Montana Thirteenth Judicial District Court denying his motion to
withdraw his plea of guilty. The issue raised on appeal is whether
such denial constitutes an abuse of discretion by the District
Court. We affirm.
Miller was charged with one count of assault and two counts
of sexual assault, all felonies. He appeared before the District
Court on April 23, 1990 and moved to withdraw his earlier plea of
not guilty and replace it with a guilty plea. The record indicates
that Miller and the State had entered a plea bargain agreement
whereby in exchange for Miller's plea of guilty, the county
attorney agreed to recommend two three-year deferred sentences for
sexual assault, and one four-year deferred sentence for assault,
all to run consecutively. Miller entered pleas of guilty to all
counts pursuant to North Carolina v. Alford (1970), 400 U.S. 25,
91 S.Ct. 160, 27 L.Ed.2d. 162, maintaining his innocence but
conceding that the State had sufficient evidence to convict him.
A presentence investigation and report was ordered, and
sentencing was scheduled to take place on May 29, 1990. On that
date, Miller's attorney, Gary Spaeth, moved to withdraw as counsel.
The motion was granted, Miller asked for appointed counsel, and
Arthur J. Thompson was appointed as counsel of record. Miller also
indicated at this time that he wished to change his plea to not
guilty. On June 18, 1990, Miller's new counsel filed a motion to
withdraw his guilty plea.
A hearing was held on June 25, 1990, before the District
Court. Originally scheduled as a sentencing hearing, the court
now took up the matter of Miller's motion to withdraw his guilty
plea, and scheduled an evidentiary hearing on the matter for July
23, 1990. After the hearing the court denied the motion to
withdraw the plea on August 2, 1990.
At sentencing on October 22, 1990, the court took note of the
plea agreement and sentencing recommendation in the pre-sentence
report. The court chose not to follow the recommendations made by
the county attorney. It sentenced ~ i l l e rto three years in the
Montana State prison on each of the three charges, to run
consecutively, for a total of nine years. The court then suspended
all of the sentence except for one year.
Miller moved the court for a stay of execution of the sentence
pending appeal of the court's order denying the motion to withdraw
the guilty plea. The court granted the stay. We now consider
Miller's appeal of the court Is denial of the motion to withdraw his
plea.
Section 46-16-105, MCA, provides:
46-16-105. P l e a of guilty. (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.
(2) At any time before or after judgment the court
may, for sood cause shown, permit the guilty plea to be
withdrawn and a plea of not guilty substituted.
It is important to note that when a plea of guilty is accepted
pursuant to an agreement between the defendant and the State, the
trial court is not bound by that agreement. Section 46-12-
204 (3)(a), MCA. However, in this case, Miller moved to with drab^
his plea prior to the District Court imposing a different sentence
than the one recommended by the prosecutor. At the hearing on his
motion to withdraw, Miller alleged that he had first retained a
Colorado attorney, Rowe Stayton, as counsel, and then Mr. Spaeth
was hired to act as local counsel. He further alleged that Mr.
Stayton recommended that he enter the plea agreement, but failed
to correctly inform him of some the consequences of his plea. In
particular, Miller alleged that he was not informed that he would
have to report to a probation officer, he would be unable to leave
the state freely, and that he might not be allowed to own a
firearm.
Three factors should be considered when determining whether
a defendant's guilty plea should be withdrawn:
1. The adequacy of the District Court's interrogation
as to the defendant's understanding of the plea;
2. The promptness of the motion to withdraw the prior
plea;
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. Long (1987), 227 Mont. 199, 201, 738 P.2d 487, 489.
Absent an abuse of discretion, a trial judge's decision not to
allow the withdrawal of a guilty plea will be affirmed. Lonq, 738
P.2d at 489. Here, the defendant's motion was promptly made.
Also, there is no question that the District Court's interrogation
of Miller regarding his plea was adequate. The court fully
informed the defendant of the consequences of his plea and of the
maximum penalty provided by law which could be imposed upon
acceptance of the plea. The court also informed and the defendant
understood that the court was not bound by the plea bargain
agreement. Thus, we now consider the third factor, that the plea
was entered pursuant to a plea bargain agreement, and consider
whether the defendant has shown "good cause1' for withdrawing his
plea. Section 46-16-105(2), MCA.
We recently reviewed the subject of a defendant's request to
withdraw a guilty plea in Benjamin v. McCormick (1990), 243 Mont.
252, 792 P.2d 7. "When a 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. Benjamin, 792 P.2d at 10. We further noted:
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 with the District Court's
discretion and the exercise of that discretion will not
be disturbed absent an abuse of discretion.
Benjamin, 792 P.2d at 10, quoting State v. Mesler (1984), 210 Mont.
92, 96, 682 P.2d 714, 716. The fundamental purpose of allowing a
defendant to withdraw a guilty plea is to prevent the possibility
of convicting an innocent man. State v. Pelke (1964), 143 Mont.
262, 271, 389 P.2d 164, 169. Accordingly, a plea of guilty will
be deemed involuntary where it appears that the defendant was
laboring under such a stronq inducement, fundamental mistake, or
serious mental condition that the possibility exists he may have
pled guilty to a crime of which he is innocent. State ex re1
Gladue v. Eighth Judicial District (1978), 175 Mont. 509, 511, 575
P.2d 65, 66; Pelke, 389 P.2d at 169.
In Benjamin, the record contained sufficient evidence to
establish that the sentencing court, prosecutor, and defense
counsel all apparently failedto recognize that the sexual offender
program lasted two years after assuring the defendant he would be
incarcerated for only one year pursuant to a plea agreement. We
affirmed the District Court's holding that the plea was based on
error, and affirmed the court's order releasing defendant on parole
after one year. Benjamin, 792 P.2d at 10. Similarly, in Gladue,
we allowed the defendant to withdraw his earlier plea of guilty.
There, the record contained sufficient evidence that the defendant
had always maintained his innocence and pled guilty only after his
attorney told him that he did not feel that he had a very good
chance in a jury trial. The evidence indicated that the defendant
felt that he could not prove himself innocent after the codefendant
in the case had pled guilty. This Court held that such evidence
raised serious questions about whether defendant's guilty plea was
given voluntarily and not allowing the defendant to withdraw the
plea was an abuse of discretion. Gladue, 575 P.2d at 67.
In the case at bar, we hold that the District Court did not
abuse its discretion in denying the defendant's motion to withdraw
his plea. Here, the record does not contain similar evidence of
a fundamental mistake or stronq inducement. The fundamental
mistake complained of by Miller was the alleged omission of
relatively minor points regarding the terms of his probation under
6
the deferred sentences. Miller allegedly understood that such
terms would have permitted him to travel freely from Montana into
Wyoming, possibly own a firearm, and not require him to report to
a probation officer. Considering the nature of these terms, the
mistake alleged in this case does not amount to a "fundamentalI1
mistake as in Benjamin, where the misunderstanding led the
defendant to unknowingly subject himself to an additional year of
incarceration. Nor can we find an abuse of discretion by the
District Court in holding that these relatively minor terms of
probation, that Miller allegedly thought he would receive pursuant
to the plea bargain agreement, were significant enough to induce
him to plead guilty to a crime of which he was innocent. The
District Court did not abuse its discretion in refusing to allow
the defendant to withdraw his plea of guilty.
AFFIRMED.
We Concur: