State v. Ereth

No

No. 97-584

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 197

STATE OF MONTANA,

Plaintiff and Respondent,

v.

DIANNE ERETH,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable Marge Johnson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

J. Kim Schulke, Attorney at Law, Great Falls, Montana

For Respondent:

Hon Joseph P. Mazurek, Attorney General

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Mark W. Mattioli, Ass't Attorney General, Helena, Montana

Brant S. Light, Cascade County Attorney, Great Falls, Montana

Submitted on Briefs: June 11, 1998

Decided: August 11, 1998

Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Appellant Dianne Ereth (Ereth) appeals from the denial of her motion to
withdraw her Alford plea and from her conviction in the Eighth Judicial District
Court, Cascade County. We reverse and remand.

¶2 Ereth raises the following issues:

¶3 1. Did the District Court err in refusing to allow Ereth to withdraw her guilty
plea?

¶4 2. Did the District Court err in ordering Ereth to pay $10,000 in restitution to the
victims?

¶5 Because we find issue one dispositive, we will not address issue two.

Factual and Procedural Background

¶6 On August 31, 1994, Ereth was charged by information with three counts of
sexual intercourse without consent and two counts of sexual assault, all felonies. The
charges involved J.A., an eleven-year-old boy, and K.A., a nine-year-old girl. Ereth
lived with J.A., K.A., and their mother for a period of time and babysat the children.
The information alleged that Ereth fondled J.A.'s genitalia and penetrated K.A.'s
vagina with her fingers and with a crochet hook. Ereth obtained representation from

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the Cascade Public Defender's Office.

¶7 In September of 1995, at the suggestion of one of her public defenders, Ereth
underwent a "sex offender evaluation." She was evaluated by Lily Kravcisin
(Kravcisin), a licensed professional counselor with InterConnections Counseling
Group, Inc. (InterConnections). Kravcisin's evaluation indicated that Ereth was
willing to undergo counseling and psychotherapy to determine whether she was
repressing memories of the offenses.

¶8 On December 6, 1995, Ereth filed a signed plea agreement and a notice of
acknowledgment and waiver of rights. The District Court issued an order stating
that it would likely reject the agreement. Therefore, the State and Ereth entered into
a second plea agreement. Under the terms of this agreement, Ereth agreed to enter
an Alford plea to two counts of felony sexual assault. In return, the State agreed to
recommend that Ereth receive a five-year sentence with three years suspended on
each offense and to dismiss the two charges of felony sexual intercourse without
consent and one felony assault charge. The agreement also stated: "The Court in it
[sic] discretion may reject a waiver of the mandatory minimum for these charges and
impose a sentence upon the Defendant of up to ten (10) years in the Montana State
Prison with six (6) years suspended on both counts."

¶9 This agreement and Ereth's acknowledgment and waiver of rights were filed on
February 5, 1996. Scott Albers (Albers), Chief Cascade Public Defender, wrote to the
District Court, explaining that he could only convince Ereth to enter an Alford plea,
not a guilty plea. Albers stated: "I do not believe that the defendant in this case is
capable of admitting guilt. Although the facts of the case are against her the only plea
which the defense will be able to bring forward is an Alford Plea."

¶10 After filing the plea agreement, Ereth began sex offender counseling with
InterConnections. On April 12, 1996, the District Court held a change of plea
hearing. At the hearing, Ereth testified that she understood the nature of the
proceedings and had received ample counseling from the Public Defender's office
regarding the options available to her. She described her understanding of an Alford
plea as follows: "That I believe that the facts are overwhelming against me and I
would be found guilty in a trial, but at this point I cannot admit to that guilt."

¶11 Ereth testified that when she entered the Alford plea, she was not sure whether

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she committed the offenses charged. She stated:

Just in talking with the other members of my group [her InterConnections
counseling group], I have come to believe that there is a possibility I could
have done this. And I truly want to find out if I did do this. And that is my
main goal right now in therapy.

Further, when questioned by Albers, Ereth replied as follows:

Q: Is it your belief at this time that you may have committed the offenses
involved and simply have blocked them out of your memory?

A: Yes, it is.

Q: Do you feel that's a substantial possibility?

A: Yes, it is.

Q: And for that reason and that reason alone you're unable to lay a factual
basis yourself that you subjected these children to sexual contact?

A: Yes.

¶12 Debra Baumgart (Officer Baumgart), a deputy with the Cascade County
Sheriff's Department, testified regarding her videotaped interviews with J.A. and K.
A. On the tape, J.A. and K.A. both describe being abused by Ereth. The State also
introduced into evidence the report of Dr. Nancy Maynard, who performed a
physical examination of the children. Dr. Maynard reported K.A. had vaginal tissue
findings consistent with having been sexually abused.

¶13 Kravcisin also testified at the hearing. Kravcisin testified that Ereth was unable
to remember the events surrounding this case, but that Ereth was horrified that she
may have committed these crimes and wanted treatment. Kravcisin explained that
she had been helping Ereth to explore her memory on both a conscious and
unconscious level and that Ereth was close to "realizing" that she had abused J.A.
and K.A. When asked by the District Court whether she had concerns about
implanting false memories through hypnosis, Kravcisin replied, "I believe that for an
untrained therapist, that a therapist can interogenically place into a client a
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memory . . ." but explained how the method she employed avoided implanting false
memories.

¶14 Ereth then pled guilty to two counts of sexual assault and pled not guilty to one
count of sexual assault and two counts of sexual intercourse without consent. The
District Court entered the pleas and set sentencing for July 23, 1996.

¶15 On July 19, 1996, Ereth filed a motion to withdraw her guilty pleas. In an
attached affidavit, Ereth stated that she had always been uncomfortable about
pleading and that through counseling, she had come to the "clear understanding"
that she did not do the crimes with which she was charged. A hearing was held on the
motion in October of 1996. Kravcisin again testified at the hearing. She stated that
Ereth had not received treatment since July 1996. When asked by the District Court
if she still believed that Ereth had suppressed a memory of committing the abuse,
Kravcisin replied: "I don't know quite frankly if she's suppressed it or not. I believe
there's a possibility that she could have. I have not yet, in the work that I've had with
her, found that suppression."

¶16 Ereth testified that she had never been comfortable with the plea. She stated that
Albers had told her if she went to trial, she would go to prison, and that she thought
that a jury would never believe that she did not commit the crimes. She stated that
when she entered the plea, she did not believe that she was guilty of the crimes
charged and did not understand that an Alford plea was an admission of guilt.

¶17 Regarding her therapy with Kravcisin, Ereth testified that she had entered
therapy on the advice of Albers -- "On the chance that I had committed these crimes
and had repressed it, the therapy would, would let me know that I had -- you know, it
would bring that out if I had committed it." However, she testified that she never
reached a point in therapy where she believed she had committed the offenses. Ereth
stated that in May of 1996, she attempted suicide and, after being released from the
hospital, told Kravcisin that she could no longer live with the fact that she had pled
guilty to something she did not do.

¶18 The District Court denied Ereth's motion, holding that Ereth had entered her
plea voluntarily and intelligently. The court found that Ereth knew what she was
doing when she entered her plea and had simply changed her mind. The District
Court set sentencing for March 20, 1997 and ordered Ereth to undergo a psychiatric

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evaluation to determine, for purposes of sentencing, whether she was suffering from
a mental disease or defect.

¶19 Ereth was evaluated by Dr. John Mendenhall (Dr. Mendenhall). Dr. Mendenhall
filed a report with the District Court on March 18, 1997. Dr. Mendenhall found that,
unlike most female sex offenders, Ereth does not suffer from a psychotic disorder. He
found that Ereth "suffers from no dissociative or other mental disorder which
statutorily or psychiatrically ought to give pause to the Court in passing sentence."

¶20 Dr. Mendenhall also sent a letter to the court, outlining the concerns he had
about the treatment program at InterConnections. Dr. Mendenhall stated:

The reports from InterConnections Counseling are based on non-scientific tenets.
The methods used by that facility are not scientifically valid. The contentions of that
facility that hypnosis can be useful in cases of this sort are dead wrong, known to be
dead wrong, and are disavowed by every reputable professional organization in the
field of mental health.

The contention of Lily Kraviscin [sic] that false memories can be implanted is
correct. Her further contention that they cannot be implanted, by virtue of her
advanced methods of hypnosis, by her, is not. . . . The implantation of false
memories is, actually, quite easy. . . . 25% of normal adult research probands can be
made to believe, without hypnosis, without therapy, after a single exposure to a
single oral story, that they personally experienced the events of the story. This
number, in children, by the bye, approaches 100%.

....

The notion that Dianne Ereth, or anybody else, may have committed sexual crimes
and "repressed" their memory is unsupported by scientific evidence. There is no
credible evidence that repression of memory of being the victim of sexual abuse can
happen, much less for being the perpetrator. Even those who make their livings in
the sexual abuse industry, in the face of scholarly research raising very serious
questions about any human ability to "repress memory," have largely abandoned the
idea of "repressed memory."

¶21 On March 19, 1997, the day before sentencing was to be imposed, Ereth moved

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the court to reconsider her motion to withdraw her guilty pleas based on Dr.
Mendenhall's opinions. She also alleged that she had been coerced into the entry of
the guilty plea by her counsel from the Public Defender's Office. Eric Olson, a
Deputy Public Defender, moved to withdraw. The court held a hearing at which Dr.
Mendenhall testified about his findings and opinions regarding InterConnections.
The District Court granted counsel's motion to withdraw and stated that it would
allow further briefing and a hearing on whether Ereth should be allowed to
withdraw her Alford plea. J. Kim Schulke was appointed to represent Ereth.

¶22 A hearing was held on April 30, 1997. Ereth testified that Kravcisin had told her
that only two percent of children who allege they have been sexually assaulted are
lying and that it was likely that Ereth was simply repressing the memory. She stated
that she was never informed by Albers or Kravcisin that, in the medical community,
controversy surrounds the retrieval of repressed memories nor that it was not
standard treatment. Ereth testified that had she known the information contained in
Dr. Mendenhall's letter and report, she never would have entered the pleas. She
admitted, however, that she had agreed to plead guilty prior to starting counseling
with InterConnections.

¶23 At the conclusion of the hearing, the District Court denied Ereth's motion to
withdraw her guilty plea. On June 13, 1997, Ereth was sentenced to a term of five
years, with three years suspended on each of the two counts, with the terms to be
served consecutively. The court also ordered her to pay $10,000 restitution to the
victims.

Standard of Review

¶24 We review a district court's denial of a motion to withdraw a guilty plea for
abuse of discretion. State v. Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175, 177. We
have held that the district court need not apply a particular rule or standard to
determine whether to allow a defendant to withdraw his or her plea, but rather must
consider each case "in light of its unique record." Enoch, 269 Mont. at 11, 887 P.2d
at 177 (citing State v. Radi (1991), 250 Mont. 155, 818 P.2d 1203).

Discussion

¶25 We balance three factors when considering a criminal defendant's attempt to

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withdraw a guilty plea: (1) the adequacy of the court's interrogation at the time the
plea was entered regarding the defendant's understanding of the consequences of the
plea; (2) the promptness with which the defendant attempts to withdraw the plea;
and (3) the fact that the plea was the result of a plea bargain in which the guilty plea
was given in exchange for dismissal of another charge. Enoch, 269 Mont. at 11-12,
887 P.2d at 177.

¶26 We have held that a plea is adequate where the court:

"examines the defendant, finds him to be competent, and determines from him
that his plea of guilty is voluntary, he understands the charge and his possible
punishment, he is not acting under the influence of drugs or alcohol, he admits
his counsel is competent and he has been well advised, and he declares in
open court the fact upon which his guilt is based."

Enoch, 269 Mont. at 13, 887 P.2d at 178 (quoting State v. Mahoney (1994), 264 Mont. 89,
870 P.2d 65). In addition, "it is well-settled that a guilty plea must be a knowing and
intelligent choice among the alternative courses of action open to the defendant." Enoch,
269 Mont. at 13, 887 P.2d at 178 (citations omitted).

¶27 Thus, the purpose of inquiring into the adequacy of the court's interrogation is
to ensure that the defendant has been well advised and that he/she entered the plea
knowingly, intelligently, and voluntarily. The United States Supreme Court has held
that a plea of guilty must represent "a voluntary and intelligent choice among the
alternative courses of action open to the defendant." North Carolina v. Alford (1970),
400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162. This Court will deem a guilty plea
involuntary where it "appears that the defendant was laboring under such a strong
inducement, fundamental mistake, or serious mental condition that the possibility
exists that [s]he may have plead guilty to a crime of which [s]he is innocent." State ex
rel. Gladue v. Eighth Judicial Dist. (1978), 175 Mont. 509, 511, 575 P.2d 65, 66.

¶28 In this case, the District Court's interrogation of Ereth at the change of plea
hearing was substantial. Further, in deciding Ereth's motion to withdraw and motion
for reconsideration, the court held three hearings at which it heard the testimony of
Ereth and several other witnesses. The District Court followed the proper statutory
procedure at the change of plea hearing, and Ereth testified that she had signed and
understood an acknowledgment and waiver of rights. However, Ereth argues that

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because she was under the mistaken assumption that she may have committed the
offenses for which she was charged and she would, through therapy with Kravcisin,
be able to recover memories of the offense, her Alford plea was not a voluntary,
knowing and intelligent choice. Despite the lengths to which the District Court went
to ensure that Ereth understood the consequences of the Alford plea, Ereth was not
well advised. We agree with Ereth that her plea was not voluntarily, intelligently and
knowingly made.

¶29 Dr. Mendenhall testified that "[t]he contentions of [InterConnections] that
hypnosis can be useful in cases of this sort are dead wrong, known to be dead wrong,
and are disavowed by every reputable professional organization in the field of mental
health." Dr. Mendenhall told the District Court that "[t]he notion that Dianne Ereth,
or anybody else, may have committed sexual crimes and 'repressed' their memory is
unsupported by scientific evidence." However, when the District Court asked
Kravcisin about the validity of repressed memory therapy, Kravcisin indicated that
such therapy could be dangerous in the hands of untrained persons, but not in her
own. Kravcisin told the court that she believed that Ereth wanted to remember her
abuse of J.A. and K.A. and was close to "realizing" that she had committed the
crimes.

¶30 Throughout the country, mental health professionals and courts alike are
condemning the use of repressed memory therapies such as those used by
InterConnections. See Julie M. Kosmond Murray, Comment, Repression, Memory,
and Suggestibility: A Call for Limitations on the Admissibility of Repressed Memory
Testimony in Sexual Abuse Trials, 66 U. Colo. L. Rev. 477 (1995); Douglas R.
Richmond, Bad Science: Repressed and Recovered Memories of Childhood Sexual
Abuse, 44 U. Kan. L. Rev. 517 (1996). However, our purpose here is not to discredit
Kravcisin or her theory, but merely to suggest that with knowledge of the substantial
amount of controversy which surrounds repressed memory therapy or of Dr.
Mendenhall's opinion that sexual abusers do not repress memories of their crimes,
Ereth may have chosen not to enter her plea. However, Ereth was never told of the
problems with InterConnections' methods. Rather, she entered therapy on the advice
of counsel. Further, Ereth was told by Kravcisin that because only two percent of
children lie about being assaulted, it was likely that she was repressing memories of
assaulting J.A. and K.A. and needed to recover those memories so she could get well.

¶31 At the change of plea hearing, Ereth testified that she could not recount the facts

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surrounding the sexual assault of J.A. and K.A. because, although she believed there
was a substantial possibility she may have committed the offenses, she must have
blocked them out of her memory. She testified that, "in talking with the other
members of my group, I have come to believe that there is a possibility I could have
done this."

¶32 The State contends that Ereth entered the plea simply because she knew that if
she went to trial, a jury would convict her. The State points out that at the change of
plea hearing, Ereth testified: "I believe that the facts are overwhelming against me
and I would be found guilty in a trial. . . ." It is possible that Ereth entered an Alford
plea simply because she thought the State had overwhelming evidence to convict her
and then, after changing her mind, sought to withdraw the plea. However, it is also
possible that Ereth truly believed that she had repressed any memory of committing
the offenses for which she was charged and hoped, through therapy with
InterConnections, she would be able to recover those memories and get help. We
have held that "if there is any doubt that a guilty plea was not voluntarily or
intelligently made, the doubt must be resolved in favor of the defendant." Enoch, 269
Mont. at 18, 887 P.2d at 181. Given the role that repressed memory therapy played in
Ereth's decision-making process and given the air of uncertainty regarding the
validity of this therapy, there is at least doubt as to whether Ereth's Alford plea was
entered voluntarily. Thus, we determine that Ereth's pleas were not voluntarily,
knowingly and intelligently made and that the first consideration set forth in Enoch,
269 Mont. at 11-12, 887 P.2d at 177, weighs in Ereth's favor.

¶33 The second consideration under Enoch, 269 Mont. at 12, 887 P.2d at 177, is the
promptness with which the defendant attempted to withdraw the pleas. "Because
each case presents its own unique factual circumstances, we have declined to adopt
specific parameters defining the timeliness of a motion to withdraw." Enoch, 269
Mont. at 12, 887 P.2d at 178. In this case, Ereth filed her signed plea agreement and
waiver of rights on February 5, 1996 and began counseling with InterConnections
that month. The change of plea was entered on May 9, 1996. Ereth filed her notice of
withdrawal of guilty plea on July 19, 1996, a few days before the date on which
sentencing was set and ceased further counseling with InterConnections. Apparently,
Ereth determined that the repressed memory therapy was not working within that
period of time and promptly moved to withdraw her plea. We determine that, given
the unique factual circumstances of this case, Ereth's motion was filed in a
reasonably prompt manner. Thus, this factor weighs in favor of allowing Ereth to

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withdraw her plea.

¶34 The third factor, whether the plea was given in exchange for dismissal of another
charge, weighs against Ereth. The State agreed to dismiss two counts of sexual
intercourse without consent and one count of sexual assault and waive the mandatory
minimum sentence for the remaining charges in exchange for Ereth's Alford plea.
However, since we have determined that Ereth's plea was not voluntarily, knowingly
and intelligently made, we hold that the District Court abused its discretion in
refusing to allow Ereth to withdraw her Alford plea.

¶35 Ereth also argues that the District Court erred in refusing to allow her to
withdraw her plea because she received ineffective assistance of counsel. Because we
hold that the District Court abused its discretion in refusing to allow Ereth to
withdraw her plea, we will not address this argument.

¶36 Based on the foregoing, we reverse and remand.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER

/S/ WILLIAM E. HUNT, SR.

Justice James C. Nelson dissents.

¶37 I respectfully dissent from the Court's determination that Ereth's pleas were not
voluntarily, intelligently and knowingly made. In my view they were, and,
accordingly, I would affirm the decision of the District Court denying Ereth's motion
to withdraw her guilty pleas. First, it is necessary to review the pertinent trial court
proceedings and the record.

¶38 At her change of plea hearing, Ereth testified that she spent considerable time

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discussing the proceedings against her with her counsel, Scott Albers. She stated that
she had ample opportunity to obtain legal counsel and understood the alternatives
available to her. She testified that she read the acknowledgment of waiver of rights
with the help of her attorney and that she signed the waiver. She stated that she was
not under the influence of alcohol or drugs. She testified that she had been fully
apprised of the negotiations with regard to the plea agreement.

¶39 In explanation of her decision to enter the Alford plea, Ereth testified:

at this present time I do not wish to enter--do not wish to say that I did do this,
but I feel that if this were to go to trial at this point, that the facts are
overwhelming against me and it would result in a guilty verdict.

On being asked if she wished to proceed with her change of plea, she stated that she
wished to proceed.

¶40 After receiving evidence regarding the children's statements and videotaped
interviews and Dr. Maynard's physical examination findings substantiating sexual
abuse, Albers questioned his client. Ereth testified that she had "no doubt" that she
would be convicted if a jury believed the evidence introduced at the change of plea
hearing. In response to her counsel's inquiry about whether she understood the
Alford pleas, she testified:

I believe that the facts are overwhelming against me and I would be found
guilty in a trial, but at this point I cannot admit to that guilt.

¶41 Ereth then testified that she understood that she could receive a ten-year prison
sentence; that she understood the severity of the situation; and that she would be
required to register as a sex offender. She also stated that she wished to avoid going
to trial:

Q. [By Mr. Albers] Now, you are entering this plea, as I understand it,
because you wish to avoid the trial at all costs?

A. Yes, I do.

Q. Could you explain to the what you consider to be the eventual outcome of

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a trial?

A. The eventual outcome, I believe at this point [is] that I would be found
guilty.

¶42 Ereth also testified with respect to Ms. Kravcisin’s evaluation:

Q. [By Mr. Albers] That evaluation is of concern to me because it would
indicate for the Court that you may not have committed this crime.

A. Yes.

Q. That report indicates that you do not come from a family that has a heavy
history of sexual abuse.

A. Right.

Q. It also has a number of statements from family members which would deny
the fact that you possibly could have done this?

A. Yes.

Q. It’s my understanding that your horror of the crime that is charged and
your terror of possibly going to prison are the two principal things motivating
this plea at this time?

A. Yes.

Q. And that this is the best option that you can come up with or that I’ve been
able to offer or any attorney has been able to offer to keep you out of prison?

A. Yes.

Finally, Mr. Albers asked if Ereth believed she was probably guilty, to which she
responded, "Yes."

¶43 Following Ms. Kravcisin’s testimony Ereth pleaded "guilty" to Counts I and V
and "not guilty" to the remaining three counts of the information. Judge Johnson

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accepted Ereth’s Alford pleas and ordered a presentence investigation.

¶44 At the hearing on Ereth’s motion to withdraw her pleas, although she stated that
she was not comfortable with the plea and was never happy with it, she nevertheless
maintained that she personally believed a jury would not believe her and that she
would be convicted. Moreover, on cross examination by the county attorney, Ereth
admitted her plea was made freely and voluntarily; that she understood the
consequences of her plea; that she suffered from no mental disability; that she
believed she would be found guilty; and that she never informed anyone at the
change of plea hearing that she was under undue influence or duress. Furthermore,
she admitted that she indicated satisfaction with her attorneys at her change of plea
hearing.

¶45 In denying Ereth's motion to withdraw her plea, Judge Johnson stated that she
had no question that Ereth "knew what she was doing." Judge Johnson also noted
that Ereth was "intelligent" and simply changed her mind. The court observed that
there was no indication that Ereth’s pleas of guilty were anything but a voluntary
and intelligent assessment of her situation and that it was this assessment of the
charges and evidence presented which prompted her entry into a very beneficial plea
agreement. The judge found that Ereth was simply "unhappy with the result of her
choices." I agree with the trial court's appraisal.

¶46 The majority opinion concentrates almost entirely--and erroneously, in my
estimation--on Ereth’s claim that she pleaded guilty under pressure from her
attorney and on the basis of questionable repressed memory therapy. I cannot agree.
As we pointed out in State v. Enoch (1994), 269 Mont. 8, 887 P.2d 175, "a guilty plea
must be a knowing and intelligent choice among the alternative courses of action
open to the defendant." Enoch, 269 Mont. at 13, 887 P.2d at 178. See also North
Carolina v. Alford (1970), 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162.

¶47 The record in this case indicates that Ereth chose to plead guilty because that
alternative course of action was the one most likely to keep her out of a lengthy
prison sentence. Given Ereth’s testimony at the various hearings regarding her
change of plea, as referenced above, there is simply no merit to her claim that she
was pressured by her attorney to plead guilty or that her pleas were somehow
induced by her misapprehension of the repressed memory therapy in which she
participated. In point of fact, her own testimony clearly indicates that her motivation

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for pleading guilty was simply to avoid a jury trial and the possibility of a lengthy
period of incarceration for her crimes. Ereth stated on several occasions during the
change of plea hearing that the "facts were overwhelming" against her and that she
had "no doubt" that a jury would convict her. In truth, even under her own
assessment of her situation, she had few viable options available except to plead
guilty.

¶48 We have recognized that a plea is not involuntary simply because it was entered
to avoid the possibility of a greater punishment had the case gone to trial. State v.
Milinovich (1994), 269 Mont. 68, 71, 887 P.2d 214, 216 (citing Brady v. United States
(1970), 397 U.S. 742, 751, 90 S.Ct. 1463, 1470, 25 L.Ed.2d 747). Moreover, Ereth’s
unwillingness to admit her guilt, either then or now, is not a basis for allowing her to
withdraw her pleas.

[A]dmission of guilt . . . is not a constitutional requisite to the imposition of
criminal penalty. An individual accused of a crime may voluntarily,
knowingly, and understandingly consent to the imposition of a prison
sentence even if he is unwilling or unable to admit his participation in the acts
constituting the crime.

Alford, 400 U.S. at 37, 91 S.Ct. at 167. Similarly, Ereth’s dissatisfaction with her previous
decision is not a valid reason to allow her to go back on her plea agreement where the
record clearly and unequivocally shows that her pleas were knowingly, voluntarily and
intelligently made at the time.

¶49 The majority acknowledges the three-factor test which this Court utilizes in
reviewing a district court’s denial of a criminal defendant’s attempt to withdraw a
guilty plea. Enoch, 269 Mont. at 11-12, 287 P.2d at 177. Indeed, in considering
whether the court’s interrogation of Ereth was adequate, the majority concludes that
Judge Johnson’s interrogation was "substantial" and that she followed the proper
statutory procedures at the change of plea hearing. Furthermore, we note that in
deciding Ereth’s motion to withdraw and motion for reconsideration the court held
three hearings at which it heard the testimony of Ereth and other witnesses.
Nonetheless, in spite of this record, we conclude that Ereth’s plea was not
voluntarily, intelligently and knowingly made. In coming to this conclusion we
improperly substitute our judgment for that of the District Court's, purely and
simply.

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 No

¶50 In my opinion, Judge Johnson, in the proper exercise of her discretion, refused
to contravene Ereth’s obviously voluntary pleas. The District Court thoroughly
examined Ereth and found her not only to be competent but intelligent. Judge
Johnson determined that Ereth’s pleas were voluntary even though she would not
admit to her guilt; that she understood the charges and potential punishment; that
she understood the rights she was waiving; that she was not under the influence of
drugs or alcohol; and, that she was satisfied with her attorneys. The District Court,
having heard the testimony and having judged Ereth’s credibility, was certainly in
the best position to determine whether her pleas were knowing, intelligent and
voluntary. This Court, on the record here, has no business interfering with Judge
Johnson's decision. See State v. Hilton (1979), 183 Mont. 13, 19, 597 P.2d 1171, 1174.

¶51 Ereth's choice to plead guilty was an intelligent choice among alternative courses
of action--she could go to trial, be convicted on the "overwhelming evidence" of her
guilt and spend a substantial number of years behind bars or, alternatively, she could
plead guilty and guarantee dismissal of some of the charges against her and a more
favorable prison sentence. She, wisely, chose the latter.

¶52 I would hold that the District Court did not abuse its discretion in denying
Ereth’s motion to withdraw her guilty plea and, accordingly, I would affirm Judge
Johnson's decision. I respectfully dissent from our failure to do so.

/S/ JAMES C. NELSON

Justice Karla M. Gray joins in the foregoing dissent.

/S/ KARLA M. GRAY

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