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No. 99-361
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 118
299 Mont. 442
2 P. 3d 233
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DAVID A. MELONE,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable John W. Whelan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Assistant Appellate Defender, Appellate Defender Office,
Helena, Montana
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For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Micheal S. Wellenstein,
Assistant Attorney General; Helena, Montana
Robert McCarthy, Silver Bow County Attorney; Brad Newman,
Deputy County Attorney, Butte, Montana
Submitted on Briefs: December 16, 1999
Decided: May 4, 2000
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the opinion of the Court.¶
1 David A. Melone appeals from the Judgment of the Second Judicial District Court,
Silver Bow County, dated April 29, 1999, sentencing him to 20 years in the Montana State
Prison. We reverse and remand.
¶2 Melone raises the following issue:
¶3 Whether the District Court abused its discretion by denying Melone's motion to
withdraw his guilty plea?
FACTUAL BACKGROUND
¶4 On November 4, 1998, the State filed an Information charging Melone with felony
assault in violation of § 45-5-202(2)(a), MCA (1997). The State alleged that Melone
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purposely or knowingly caused bodily injury to Thomas Brosovic with a weapon,
specifically by slashing or cutting his face. On November 12, 1998, Melone entered a plea
of not guilty. The court set Melone's case for jury trial to be held on March 2, 1999.
¶5 On February 19, 1999, Melone filed a Motion to Reduce Charge and a Motion to
Dismiss. On February 22, 1999, the court denied both motions. As a result, Melone
offered an Alford plea. See North Carolina v. Alford (1970), 400 U.S. 25, 91 S. Ct. 160, 27
L. Ed. 2d 162 (upholding the constitutionality of a plea of nolo contendere). The court
took Melone's request for a change of plea under advisement and set a change of plea
hearing for the following day.
¶6 Prior to the change of plea hearing, Melone filed an Acknowledgment of Waiver of
Rights by a Plea of Guilty. In his acknowledgment, Melone stated that he fully understood
that the maximum possible punishment by law for felony assault was ten years and/or a
$50,000 fine, that a dangerous weapon enhancement of up to five additional years for use
of a weapon might apply, and that "[t]he County Attorney's office also gave notice of
Persistent Felony Offender Status if the matter proceeded to trial, which carries an
additional five (5) to one hundred (100) year sentence, consecutive." Melone also stated
that he understood that his sentence could be enhanced on the basis of his previous
criminal record.
¶7 During the change of plea hearing, the court informed Melone that the weapon
enhancement statute was no longer applicable to Melone and stated that the maximum
(1)
penalty for felony assault was "ten years in the Montana State Prison or a $50,000 fine."
Melone testified regarding his version of the facts underlying the felony assault charge.
The court allowed Melone to withdraw his previous plea and enter an Alford plea.
¶8 On March 25, 1999, the District Court sentenced Melone to the Montana State Prison
for a term of ten years for felony assault and an additional ten years to be served
consecutively as a persistent offender. On March 26, 1999, Melone filed a motion
requesting that the court hold a hearing regarding the imposition of a persistent felony
offender enhancement and that the court allow him to withdraw his plea. In this motion,
Melone denied:
[H]e was aware at the time of his entry of an Alford plea that he could be sentenced
to more than ten (10) years for the Assault. Defendant states that he understood that
the persistent designation was not going to be imposed since it was not
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discussed . . . .
¶9 By Order dated April 20, 1999, the court rejected Melone's motion to withdraw his
plea, but granted his motion for a new sentencing hearing and vacated its previous
sentence and judgment. On April 29, 1999, the court held another sentencing hearing.
Melone requested and was granted the right to represent himself. The court allowed
Melone to present evidence regarding the applicability of the persistent felony offender
enhancement. Melone did not contest the existence of his prior convictions. The court
affirmed its original sentence. Melone appeals.
STANDARD OF REVIEW
¶10 Pursuant to § 46-16-105(2), MCA, a court may for good cause shown permit a
defendant to withdraw a plea of guilty. See State v. Keys, 1999 MT 10, ¶ 11, 293 Mont.
81, ¶ 11, 973 P.2d 812, ¶ 11. We review a district court's denial of a motion for the
withdrawal of a guilty plea for an abuse of discretion. See Keys, ¶ 11 (citing State v.
Bowley (1997), 282 Mont. 298, 304, 938 P.2d 592, 595).
DISCUSSION
¶11 Whether the District Court abused its discretion by denying Melone's motion to
withdraw his guilty plea?
¶12 Melone contends that a voluntary and knowing waiver of constitutional rights when a
defendant pleads guilty to a crime, includes the right to be informed of the maximum
possible sentence not only for the crime charged, but also for collateral sentencing
enhancements. Melone claims that the District Court did not inform him that he could
receive an additional sentence of up to 100 years because of his potential status as a
persistent felony offender. As a consequence, Melone asserts that his plea was not
knowing and voluntary.
¶13 The State contends that a review of the court's interrogation of Melone, as well as
Melone's acknowledgment, reveals that at the time of his plea he understood that he faced
the persistent felony offender enhancement provision. The State contends that the
following evidence indicates that Melone's plea was voluntary, knowing, and intelligent:
Melone received a persistent felony offender notice from the State; the prosecutor
informed Melone of a possible persistent felony penalty immediately prior to the court's
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questioning of Melone; and, Melone's acknowledgment indicates that he understood that
he faced a possible enhancement because of his prior record.
¶14 The test for determining the validity of a guilty plea is whether the plea represents a
"voluntary, knowing, and intelligent choice among the alternative courses of action open
to the defendant." See Keys, ¶ 12 (citing State v. Radi (1991), 250 Mont. 155, 159, 818
P.2d 1203, 1206). 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. See Keys, ¶ 12
(citing State v. Enoch (1994), 269 Mont. 8, 18, 887 P.2d 175, 181).
¶15 Pursuant to § 46-16-105(2), MCA, a court may for good cause shown, permit a
defendant to withdraw a plea of guilty. See Keys, ¶ 11. To determine whether good cause
was shown and whether the court abused its discretion, we consider the following factors:
(1) the adequacy of the district court's interrogation at the time of the plea regarding the
defendant's understanding of the consequences of the plea; (2) 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; and (3) the promptness with which the defendant attempted to withdraw
the plea. See Keys, ¶ 11 (citing State v. Johnson (1995), 274 Mont. 124, 127-28, 907 P.2d
150, 152). Both parties agree that our determination of whether the District Court abused
its discretion by denying Melone's motion to withdraw his plea depends on the adequacy
of the court's interrogation at the time of the plea regarding Melone's understanding of the
consequences of his plea.
¶16 We have stated that prior to accepting a guilty plea, the trial court must satisfy the
requirements of §§ 46-12-210 and 46-16-105, MCA. See State v. Roach, 1999 MT 38, ¶ 9,
293 Mont. 311, ¶ 9, 975 P.2d 817, ¶ 9. Section 46-12-210(1)(a)(iii), MCA, provides, in
relevant part, that "[b]efore accepting a plea of guilty or nolo contendere, the court shall
determine that the defendant understands . . . the maximum penalty provided by law,
including the effect of any penalty enhancement provision." (Emphasis added.) Section 46-
16-105, MCA, provides, in relevant part, that a court may accept a plea of guilty or nolo
contendere when "the court has informed the defendant . . . of the maximum penalty
provided by law that may be imposed upon acceptance of the plea."
¶17 Upon a review of the court's oral questioning, we are convinced that the court did not
adequately inform Melone of the maximum penalty Melone faced as a result of his change
of plea. The court informed Melone that the maximum penalty he could receive for the
offense of felony assault was "ten years in the Montana State Prison or a $50,000 fine."
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The court also informed Melone that the weapon enhancement provision did not apply to
his case. However, the court did not mention the fact that Melone faced a potential
enhancement as a persistent felony offender of up to 100 years.
¶18 The State contends the fact that the prosecutor informed Melone of a possible
persistent felony offender enhancement penalty immediately prior to the court's
questioning of Melone is sufficient to cure any defect in the court's colloquy. Just prior to
the court's oral questioning of Melone, the prosecutor stated that "[Melone] would still
face the potential penalty as a repeat offender." This statement is insufficient to meet the
requirements of § 46-16-105, MCA. The plain language of § 46-16-105(1)(b), MCA,
expressly requires that the court inform the defendant of the maximum penalty that might
be imposed as a result of the plea. The prosecutor's statement was insufficient because it
was not information provided by the court, nor did it inform Melone of the maximum
penalty he faced.
¶19 Nevertheless, to determine whether a trial court adequately informed a defendant
regarding the consequences of his plea, we have reviewed not only the court's oral
questioning of the defendant, but also the defendant's written acknowledgment. See State
v. Walker (1986), 220 Mont. 70, 72-73, 712 P.2d 1348, 1350; see also § 46-12-210(2),
MCA. In his acknowledgment, Melone states that "[t]he County Attorney's office also
gave notice of Persistent Felony Offender Status if the matter proceeded to
trial." (Emphasis added.) Melone also stated that "[m]y sentence can be enhanced or
lengthened because I have a previous record of criminal offenses."
¶20 The statements in Melone's acknowledgment regarding the applicability of the
persistent felony offender enhancement are insufficient to resolve our doubts regarding
whether Melone was aware that his sentence could be enhanced by up to 100 years as a
result of his plea. Rather, it appears that Melone was under the mistaken belief that he
risked a persistent felony offender enhancement only if he proceeded to trial. As we have
already noted, any doubt that a guilty plea was not voluntarily or intelligently made must
be resolved in favor of the defendant. See Keys, ¶ 12.
¶21 Lastly, the State contends that Melone has not shown good cause to withdraw his plea
because Melone received a persistent felony offender notice from the prosecution. We
conclude that this notice does not comply with the express language of the statutes which
govern a trial court's acceptance of a plea. This notice is not evidence that the court
determined that Melone understood that the persistent felony offender enhancement was
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applicable to his case as required by § 46-12-210(1)(a)(iii), MCA, nor is it evidence that
the court informed the Defendant of the maximum possible penalty he faced as required
by § 46-16-105(1)(b), MCA. Rather, the notice is simply evidence that the prosecutor
informed Melone that the prosecution intended to seek a persistent felony offender
enhancement.
¶22 We conclude that the District Court abused its discretion by denying Melone's motion
to withdraw his guilty plea. The court did not adequately inform Melone of the
applicability of the persistent felony offender enhancement or the maximum penalty
Melone faced as a result of his plea as required by the statutes governing a district court's
acceptance of a guilty plea.
¶23 We reverse and remand to the District Court to permit Melone to withdraw his plea.
/S/ JIM REGNIER
We Concur:
/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
/S/ WILLIAM E. HUNT, SR.
/S/ TERRY N. TRIEWEILER
1. Section 45-5-202(3)(a), MCA (1997), actually provides for a sentence of up to 10 years in prison or a
$50,000 fine, or both, for a felony assault conviction.
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