NO. 93-287
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA,
Plaintiff and Respondent,
-v-
KENNETH ANTHONY ALLEN,
Defendant and Appellant.
APPEAL FROM: District
Court of the Third Judicial District,
In and for the County of Powell,
The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Joseph Massman, Massman Law Office, Helena, Montana
Jerry Strauss, Strauss Law Firm, Minneapolis,
Minnesota
For Respondent:
Joseph P. Mazurek, Attorney General; Elizabeth L.
Griffing and John P. Connor, Jr., Assistants
Attorney General, Helena, Montana; Chris Miller,
Powell County Attorney, Deer Lodge, Montana
Submitted on Briefs: April 7, 1994
Decided: June 21, 1994
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from the denial of Appellant Allen's motion
to withdraw guilty plea by the Third Judicial District Court,
Powell County. We affirm.
We consider the following issue on appeal:
Did the District Court abuse its discretion in denying Allen's
motion to withdraw his guilty plea?
This action arises out of the 1991 prison riot at the Montana
State Prison in Deer Lodge. Kenneth Allen (Allen) was one of a
dozen inmates who were charged with burglary and homicide following
the riot in which five inmates were killed.
On February 3, 1992, the State charged Allen with two counts
of kidnapping, one count of burglary, and five counts of deliberate
homicide based upon the theory of the felony murder rule. Trial
began on September 14, 1992, and proceeded for several days,
Witnesses testified that they had seen Allen involved in the riot
and assault on inmates. On September 16, 1992, Allen entered an
Alford plea pursuant to Alford v. North Carolina (1970), 400 U.S.
25, 91 S.Ct. 160, 27 L.Ed.2d 162. In his plea, Allen pleaded
guilty to one count of mitigated deliberate homicide pursuant to a
plea agreement with the State. All other counts were dismissed.
A pre-sentence report recommended a 40 year sentence without
parole to run consecutively to Allen's current prison term. As
part of the plea agreement, the State agreed not to recommend that
the court impose any particular sentence.
On January 25, 1993, Allen moved the court to withdraw his
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guilty plea. The court held a hearing on March 19, 1993, and
denied Allen's request. Following the hearing, the court sentenced
Allen to 25 years, to run consecutively to Allen's current
sentence.
On April 5, 1993, the District Court issued its findings of
fact and conclusions of law stating that even though 5 46-la-
401(5), MCA, required a mandatory consecutive sentence for Allen,
the court had not used that statute as a basis upon which to
sentence Allen. The court stated that because Allen had a lengthy
history of criminal violence, it was forced by the serious present
circumstances to assign a consecutive sentence. Thus, the court
stated that Allen's understanding of 5 46-18-401(5), MCA, is
irrelevant because Allen's own affidavit acknowledges that he
understood that a consecutive sentence was a possibility.
Allen appealed the court's decision.
Did the District Court abuse its discretion in denying Allen's
motion to withdraw his guilty plea?
At the heart of the controversy in this case is $$ 46-18-
401(5), MCA, which states in part that:
Consecutive sentences. (5) Except as provided in this
subsection, whenever a prisoner is sentenced for an
offense committed while he was imprisoned in the state
prison or while he was released on parole or under the
supervised release program, the new sentence runs
consecutively with the remainder of the original
sentence. . . .
Allen claims that he did not know of the mandatory "consecutive"
sentence provision in this statute and, therefore, must be
permitted to withdraw his guilty plea. Allen argues that his
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counsel did not inform him of this mandatory consecutive sentence
and he received, therefore, ineffective assistance of counsel.
Further, Allen contends that he was under the impression that the
court had discretion to make the sentence concurrent or
consecutive.
The State contends that Allen had been advised of the
mandatory nature of the consecutive sentence and that the District
Court's in-court interrogation of the defendant following the
guilty plea was sufficient.
The record demonstrates that prior to entering his guilty
plea, Allen had actual notice of the fact that his sentence in this
case would be served consecutively to his current sentence. On
March 19, 1993, at the hearing on Allen's motion to withdraw his
guilty plea, defense counsel Strauss stated on the record:
We did, in fact, discuss consecutive sentencing in
chambers with the court before we entered the plea
bargain, and we did, in fact, mention it with Mr. Allen
before he entered his plea, all though [sic] the case law
makes clear that the notion of the consecutive sentencing
should be clear on the district court's interrogation.
And it is to that extent . . .
When advised by Allen that he was not told by counsel of the
mandatory consecutive sentence, the judge proceeded to engage in
his own recollection of what occurred. He remembered that the
consecutive nature of Allen's sentence had been discussed in
chambers and counsel had then left to inform Allen. When asked by
Allen's counsel not to rely on his memory, but on Allen's, the
judge then questioned counsel specifically:
"I'm asking you did you say it [tell Allen that the
sentence had to be consecutive]?"
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Counsel~s on-the-record reply was:
*'My recollection is that we had that discussion."
Further, both Allen's attorneys stated that they remembered
informing Allen of the consecutive sentence. Subsequently, both
attorneys attempted to fall on the sword by arguing to the court
that it should not rely on its own or counsels' memories, but on
Allen's. We conclude that the record shows that Allen knew about
the consecutive sentence.
We note that Montana law requires that the withdrawal of a
guilty plea may be made upon a showing of "good cause." Section
46-16-105, MCA. The discretionary nature of this statute has been
recognized in a long line of cases in which we have stated that we
will not overturn a district court's decision to permit or deny
withdrawal of a guilty plea unless the court has abused its
discretion. State v. Ries (1993), 257 Mont. 324, 849 P.2d 184. We
have further defined a valid plea by stating that such a plea is
one that is made voluntarily and intelligently from the alternative
courses open to the defendant as affirmatively disclosed by the
record. State v. Lance (1982), 201 Mont. 30, 651 P.2d 1003.
In assessing "good causel' to withdraw a guilty plea, this
Court wil.1 evaluate three specific circumstances from the facts
surrounding the case: 1) the adequacy of the district court's
interrogation at the time the plea was entered as to the
defendant's understanding of the consequences of the plea; 2) the
promptness with which the defendant attempted to withdraw the prior
plea: and 3) the fact that the defendant's plea was the result of
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the plea bargain. State v. Bull Coming (1992), 253 Mont. 71, 831
P.2d 578.
Concerning element one, the transcript shows that the judge
was very thorough when questioning Allen. The transcript of the
hearing following Allen's guilty plea shows that the court
carefully questioned him concerning the sufficiency of his legal
counsel, his feelings concerning his decision, his lack of alcohol
or drug influence, his understanding of the nature of the mitigated
deliberate homicide charge, the consequences to pleading guilty to
this charge, the fact that the judge would not be bound by any kind
of recommendation from the parties, his understanding of the loss
of his rights in a trial situation. The court also had Allen
confirm the reason why he felt he was guilty of one count of
mitigated deliberate homicide. Within the court's detailed
questioning of Allen, the court explicitly informed Allen that the
sentence carried a maximum term of 40 years. The judge then
informed Allen that as the sentencing judge he could put any
restrictions on a possible parole that he wished and that he would
not be bound by any suggestions from anyone. Further, the court
explained in great detail what a guilty plea meant to Allen in
terms of foregoing rights such as confrontation of witnesses
against him.
In the present case, the court specifically told Allen that he
could be denied parole totally and as a consequence would have to
serve all 40 years, or that he could be labeled a dangerous
offender and that if so designated he would have to serve 20 of the
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40 years for the offense. The court clearly informed Allen that it
was under no responsibility to accept the conditions of the plea
agreement reached by the parties. We conclude that the District
Court sufficiently interrogated and informed Allen of the
ramifications of his guilty plea. We further conclude that Allen
had actual knowledge of the mandatory consecutive requirements of
§ 46-18-401(5), MCA, and therefore did not have good cause to
withdraw his plea. We hold that the District Court's denial of
Allen's motion to withdraw his guilty plea should be affirmed
because it was not an abuse of discretion. We take this
opportunity to point out that sentencing courts can avoid this
battle by advising defendants of the requirements of § 46-18-
401(5) I MCA, as part of an interrogation.
We hold that the District Court did not abuse its discretion
in denying Allen withdrawal of his guilty plea.
Affirmed.
We Concur:
June 21, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Joseph Massman
MASSMAN LAW OFFICE
P.O. Box 804
Helena, MT 59624
HON. JOSEPH P. MAZUREK, Attorney General
Jennifer Anders and John P. Connor, Jr., Assistants
Justice Bldg.
Helena, MT 59620
Chris Miller, County Attorney
Powell County Courthouse
313 Missouri Ave.
Deer Lodge, MT 59722
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA