No. 93-597
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JOSEPH WILLIAM MILINOVICH,
Defendant and Appellant.
t;lS t m i t l ,
CLERK OF S U P R E M E COUH I
STATE OF MONTANA
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Powell,
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Andrew P. Suenram; Jones, Hoffman & Suenram,
Dillon, Montana
J. Cort Harrington, Jr., Attorney at Law,
Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorqey General,
Elizabeth L. Griffing, John P. \Connor, Jr.,
Ass't Attorneys General, Helena, Montana
Submitted on Briefs: September 1, 1994
Decidgd: December 20, 1994
Filed: .-.
Justice John Conway Harrison delivered the Opinion of the Court.
Joseph William Milinovich (Milinovich) appeals the Order of
the Third Judicial District, Powell County, denying his motion to
withdraw his guilty plea to charges stemming from the 1991 riot at
the Montana State Prison. We affirm.
Milinovich was charged with one count of burglary and five
counts of deliberate homicide. The charges were based on
Milinovich's alleged participation in the September 22, 1991 riot
at the Montana State Prison. Milinovich plead not guilty to the
charges and his trial commenced on September 21, 1992. During the
trial he entered pleas of guilty to the burglary charge and one
reduced charge of mitigated deliberate homicide. Pursuant to the
plea agreement, the State dismissed the remaining homicide counts
and made no sentencing recommendation. The State maintained the
right to argue for persistent felony offender designation.
Further, the State agreed not to resist Milinovich's attempts to be
transferred to another state's prison.
During the trial, after the prosecution called twenty
witnesses and the defense called one witness, but prior to
Milinovich's guilty pleas, he requested a conference with the
court. During this conference with the judge, the prosecution, and
appointed defense counsel, Milinovich said that he did not agree
with his counsel's defense strategy, stated he did not know what to
do, and asked the judge for advice. The judge stated that
Milinovich was being represented by "two first-rate lawyersu who
had done as good a job as possible. Several times during this
conference, Milinovich expressed concern that the judge was not
being impartial and was acting against him. In response, the judge
asserted his neutrality and, to support his evenhandedness,
described his record of fairness.
On April 5, 1993, Milinovich was sentenced to ten years in
prison for the burglary plea and twenty years for the mitigated
deliberate homicide plea, the sentences to run concurrent with each
other and consecutive to the sentence Milinovich was already
serving. Milinovich was also sentenced to an additional twenty
years in prison as a persistent felony offender, and the District
Court designated Milinovich a dangerous offender for purposes of
parole eligibility.
On June 2, 1993, Milinovich filed a motion to withdraw his
guilty pleas. The District Court denied the motion. This appeal
followed.
Four issues are presented.
1. Did the District Court Judge's comments regarding the plea
agreement's fairness unfairly induce Milinovich into entering a
plea agreement?
2. Was the District Court's participation in the plea
agreement process improper?
3. Did the District Court err by failing to support its order
denying Milinovich's motion to withdraw his guilty pleas with
specific findings?
4. Was Milinovich's motion to withdraw his guilty pleas
timely?
The standard of review we apply in cases involving a district
court's refusal to allow a defendant to withdraw a guilty plea is
whether the district court abused its discretion. State v. Ries
(1993), 257 Mont. 324, 325, 849 P.2d 184, 185.
I
Did the District Court Judge's comments regarding the plea
agreement's fairness unfairly induce Milinovich into entering a
plea agreement?
Milinovich argues that his conversation with the court created
an inducement so strong that his plea was not voluntary. We
disagree.
Milinovich argues that the District Court Judge's comments
regarding the plea unfairly induced him into accepting the plea.
This argument is contradicted by the record. In In re Fisher (Vt.
1991), 594 A.2d 889, the judge repeatedly explained the defendant's
options, and gave him multiple opportunities to withdraw his plea.
"Explaining the possible consequences of alternative courses of
action does not, in and of itself, render a plea involuntary or the
judge partial." In re Fisher, 594 A.2d at 894. Similarly, in the
instant case, the judge's comments plainly expressed the law and
Milinovich's chances of parole with and without accepting the plea
agreement. The judge explained Milinovich's alternatives without
bias or proposing a plea agreement for him.
Milinovich further contends that he had just heard three days
of evidence against him and believed that he had to accept the plea
agreement. The United States Supreme Court has long held that a
plea is not involuntary simply because it was entered to avoid a
greater punishment. See Brady v. United States (1970)' 397 U.S.
742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747, 760. Milinovich
stated that he was not changing his plea because he was guilty but
rather because he believed "that the State has presented their
[sic] case to the jury in such a way that [he] would be found
guilty." That Milinovich believed he would be convicted does not
render his plea agreement involuntary. The District Court Judge
did not induce Milinovich to accept the plea but rather discussed
some of Milinovich's options and reiterated its commitment to
fairness and impartiality. We hold that the District Court did not
induce Milinovich to accept the plea agreement.
I1
Was the District Court's participation in the plea agreement
process improper?
Milinovich argues that a judge should be prohibited from
participating in the plea process. We disagree.
Milinovich argues that Montana' s plea agreement statute, § 46-
12-211, MCA, is modeled after Rule ll(e) of the Federal Rules of
Criminal Procedure. He concludes that the District Court's
participation in the plea agreement process was improper in spite
of the fact that Montana's 1991 Legislature failed to adopt the
federal prohibition of court participation in plea discussions.
This argument is without merit.
A review of the Commission Comments to § 211 clearly indicates
that the Montana Legislature did not intend to limit court
participation in plea agreement discussions to certain
circumstances. The Commission Comments to the plea agreement
statute, § 46-12-211, MCA, state in part:
Subsection (1) identifies the parties involved in
the plea agreement process. The Commission recognized
that the 1987 statute precluded judicial participation in
the plea negotiations, but the new statute neither
prohibits nor authorizes judicial involvement. The
Commission believed that circumstances sometimes warrant
judicial participation in such discussions.
The Legislature did not identify limits of court participation in
the plea agreement process. We must, therefore, consider on the
record here, whether the court's participation in the plea
agreement process was impermissible.
The transcript here, as noted above, fails to indicate that
the District Court Judge took any active role in the discussions
and negotiations relative to the plea; nor did he offer or in any
way indicate what the terms of the agreement should be. In
addition the District Court Judge did not make any promises to
Milinovich, nor did he threaten him with any action if he decided
not to enter a plea of guilty. The plea bargaining process was to
be made by Milinovich and the prosecution. On this record, we
conclude that the District Court Judge did not improperly
participate in the plea bargaining process, nor did he wrongfully
induce or coerce Milinovich to enter a plea of guilty.
Did the District Court err by failing to support its order
denying Milinovichls motion to withdraw his guilty pleas with
specific findings?
Milinovich argues that because the District Court's order was
not supported by specific written "details of its decision making
process," the court abused its discretion. We disagree.
Milinovich correctly cites State v. Long for the proposition
that " [a]bsent an abuse of discretion, a trial judge1 decision not
s
to allow the withdrawal of a guilty plea will be affirmed." State
v. Long (1987), 227 Mont. 199, 202, 738 P.2d 487, 489. ~ilinovich
incorrectly relies on State v. Azure to support his contention that
failure of a district court to support its order with details of
its decision making process is, in and of itself, a clear abuse of
discretion. See State v. Azure (1977), 175 Mont. 189, 193, 573
P.2d 179, 182. In Azure, neither the record nor the district court
made clear that the defendant had a clear understanding of the
charge and plea. Azure, 573 P.2d at 183. In the instant case
there is no contention that Milinovich did not understand the plea.
More important, the record explicitly supports the court ' s order.
We consider three factors when determining whether a
defendant's guilty plea should be withdrawn:
[TI he adequacy of the court1s interrogation as to the
defendant's understanding of the plea; the promptness of
the defendant's motion to withdraw the plea; and the fact
that the defendant's plea was the result of a plea
bargain in which the guilty plea was given in exchange
for dismissal of another charge.
. . .
Absent an abuse of discretion, this Court will affirm a
district court's refusal to permit the withdrawal of a
guilty plea.
State v. Coggins (1993), 257 Mont. 440, 442, 849 P.2d 1033, 1035;
citing Lonq, 738 P.2d at 489. The District Court in the instant
case complied with the statutory requirements for accepting a
guilty plea and thereby met the first part of the Cossins test.
The District Court interrogated Milinovich about his understanding
of the plea and its voluntariness in open court and fully informed
Milinovich of the consequences of his plea and the maximum sentence
that could be imposed based on that plea. See § 46-16-110, MCA.
The court informed Milinovich of his right to counsel and
ascertained that Milinovich was satisfied with his counsel in
connection with the plea negotiations. The court informed
Milinovich of his right to continue with the trial, confront
witnesses, remain silent, cross-examine State witnesses, and
present evidence on his own behalf. The court made sure Milinovich
understood his plea agreement.
We next consider the promptness of Milinovich's motion to
withdraw his plea. In Cossins, 849 P.2d 1033, we held a
defendant's motion to withdraw his guilty plea filed five months
after he entered his guilty plea was untimely. That defendant
filed his motion prior to sentencing and had participated in the
preparation of his presentence report after the plea was entered.
Cossins, 849 P.2d at 1035. Here, Milinovich entered his guilty
plea on September 24, 1992. On June 2, 1993, after sentencing, and
more than eight months later, he moved to withdraw his guilty plea.
During this eight-month delay, Milinovich participated in the
preparation of the presentence report and did not mention his
concerns about, or intention to move to withdraw, his plea. At the
sentencing hearing Milinovich's counsel reserved the right to argue
a motion to withdraw his guilty plea, but did not otherwise advance
the motion. Milinovich's counsel stated that the motion was not
filed earlier because each of Milinovich' s two attorneys thought
the other had filed the motion. For purposes of determining
whether the District Court abused its discretion in refusing to
permit Milinovich to withdraw his plea, we hold that Milinovich's
motion to withdraw his plea was neither timely nor untimely. This
factor works neither for nor against Milinovich for this issue.
We now turn to the third factor, whether Milinovich's guilty
plea was the result of a plea agreement in which the guilty plea
was given in exchange for dismissal of another charge, and whether
he had "good cause" for withdrawing his plea pursuant to 5 46-16-
105(2), MCA. The third factor is intended to prohibit a criminal
from "escaping the obligations of his [or her] plea agreement after
accepting the benefits thereof." Coqqins, 849 P.2d at 1036; citing
State v. Huttinger (1979), 182 Mont. 50, 62, 595 P.2d 363, 370.
The benefit granted to Milinovich was accepting a significantly
lesser charge and recommended sentence and dismissal of four
homicide charges. Milinovich received twenty years under the plea
agreement where he could have been sentenced to 600 years had he
been found guilty of the original charges. Milinovich received a
great benefit from the plea agreement. Moreover, Milinovich
received exactly what he bargained for. See State v. Reynolds
(1992), 253 Mont. 386, 392, 833 P.2d 153, 156. We have often held
that this Court "will not lend its assistance to an accused
criminal in escaping his or her obligations of a plea bargain after
accepting its benefits." Reynolds, 833 P.2d at 157. Furthermore:
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 disturbed absent an abuse of discretion.
Benjamin v. McCormick (1990), 243 Mont. 252, 256, 792 P.2d 7, 10;
citing State v. Mesler (1984), 210 Mont. 92, 96, 682 P.2d, 714,
716. In the case at bar, the record suggests no violation of any
of the factors considered in Benjamin. The District Court did not
abuse its discretion when it denied ~ilinovich'smotion to withdraw
his guilty plea.
It is appropriate for district courts to explain their
reasoning when refusing motions to withdraw guilty pleas. However
it was not an abuse of discretion for the court in this case not to
fully explain its reasoning because the record clearly supports the
refusal to grant Milinovich's motion to withdraw his guilty plea.
Because we have concluded that Milinovich's pleas were voluntary,
the pleas were properly accepted by the court, and the motion to
withdraw the pleas was properly denied, we need not consider the
timeliness question presented in issue four.
Af f irmed.
We concur:
Chief Justice