NO. 91-029
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Thomas C. Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael Donahoe, Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General; Joseph E.
Thaggard, Helena, Montana
Mike McGrath, County Attorney, Helena, Montana
Submitted on Briefs: November 21, 1991
Decided: February 20, 1992
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
Defendant, James Lee Cameron, was charged with two counts of
felony sexual assault pursuant to 5 45-5-502, MCA. On September
4, 1990, in the District Court for the First Judicial District,
Lewis and Clark County, defendant pled guilty to both counts
pursuant to an Alford plea. Subsequently, defendant moved to
withdraw his guilty plea. The District Court denied his motion and
sentenced defendant to concurrent terms of twenty years
imprisonment, with five years suspended on each count. Defendant
appeals. We affirm.
The issues for our review are:
1. Did the District Court abuse its discretion when it
refused to allow the defendant to withdraw his pleas of guilty?
2. Did the defendant receive ineffective assistance of
counsel with respect to his attorney's advice that he should enter
Alford pleas to the charged offenses rather than proceeding to
trial?
3. Did the District Court deny the defendant due process of
law in violation of the Montana and United States Constitutions?
4. Did a sufficient factual basis exist for the District
Court to accept the defendant's pleas of guilty?
5. Did the District Court commit reversible error by failing
to arraign the defendant on the charges set forth in the amended
information?
On April 18, 1990, the State charged the defendant by
information with two counts of felony sexual assault, pursuant to
§ 45-5-502, MCA. Count I arose from allegations that defendant had
sexually molested his daughter, M.S., between 1985 and 1989. Count
I1 arose from allegations that defendant sexually molested E.P.,
the daughter of a woman with whom defendant had an affair, between
1985 and 1989. Both victims were nine or ten years old at the time
the State filed the information.
Originally, defendant pled not guilty to both charges. Then,
two weeks before the trial date, his attorney, Cort Harrington,
moved the District Court for leave to withdraw as defendant's
attorney. The motion was granted and the trial was postponed.
On May 29, 1990, the District Court appointed Mayo Ashley as
defense counsel. As the September trial date closed in, defendant
became dissatisfied with Ashley's representation. About one week
before trial defendant asked Cort Harrington to resume his defense.
Harrington refused.
Two days before trial, because he was feeling stressed,
defendant met with Lynn Pillman, a licensed professional counselor.
During the meeting defendant expressed to Ms. Pillman his
disappointment with Ashley's representation and told Ms. Pillman
that he did not wish to force the victims to testify in court. Ms.
Pillman explained to defendant that, although she was not an
attorney, she had previously counseled a client who pled guilty and
later, after serving some time without illegal involvement, changed
the plea to not guilty. She suggested defendant talk to his
attorney about entering such a plea.
The morning of trial defendant asked Ashley about an Alford
plea. Later that morning, defendant decided to enter Alford pleas
to both counts of the information.
Prior to entry of the pleas the District Court and defendant
had the following exchange.
THE COURT: You are entitled to have the amended
information read to you in its entirety. Do you wish to
have it read?
MR. CAMERON: No, Your Honor.
THE COURT: I think we've gone over this once
before, but, the maximum possible punishment for sexual
assault is imprisonment in the state prison for a term
not to exceed 2 0 years and a fine of not more than
$50,000. Now, that's on each count. Now, these are
separate offenses, and under Montana law, it is possible
to make sentences run consecutively, that is, one after
the other. So, the maximum amount of prison time that
could be imposed would be 4 0 years in the state prison
and a fine -- fines up to $ 1 0 0 , 0 0 0 ; do you understand
that?
MR. CAMERON: Yes, Your Honor.
THE COURT: Do you understand that you are entitled
to trial by jury in this matter?
MR. CAMERON: Yes, Your Honor.
THE COURT: Now, we had a discussion about the
psychologist in chambers, but other than that, if you
have witnesses that had relevant information, do you
understand that you could have called them to testify,
that is, anybody that might have been a witness to the
situation. I'm not talking about somebody who did an
independent evaluation or anything like that, we're
talking about a witness to what went on; do you
understand that?
MR. CAMERON: Yes.
THE COURT: Now, if you went to trial and you were
found guilty, you could appeal your conviction to the
Montana Supreme Court. You would be represented by an
attorney during that appeal, do you understand that?
MR. CAMERON: Yes.
THE COURT: Now, you have -- you cannot be compelled
to incriminate yourself. That means that you have a
right to remain silent and that can't be used against
you. Mr. McGrath couldn't argue to the jury that Cameron
must be guilty just because he's sitting there not saying
anything. He's not saying anything different than our
witnesses. Do you understand he can't make that kind of
an argument to the jury?
MR. CAMERON: Yes.
THE COURT: How is your head today, is it clear?
MR. CAMERON: Pretty mixed up.
THE COURT: But, you know what's going on?
MR. CAMERON: Yes, Pour Honor.
THE COURT: Now, you've had -- we were supposed to
start trial about an hour and a half ago. You have had
an opportunity to consult with -- 1 don't know who it
:
was, but you made some phone calls and consulted with a
person other than Mr. Ashley; is that correct?
MR. CAMERON: Yes, Your Honor.
THE COURT: And you know what's going on?
MR. CAMERON: Yes.
THE COURT: I understand from Mr. Ashley, that you
wish to enter what's called an Alford plea. I think he's
probably explained to you that's the name of the case of
North Carolina versus Alford or Alford versus North
Carolina, I can't remember. But, anyway, it's a United
States Supreme Court case which essentially says you
enter a plea without having to tell me specifically what
happened. And do you generally understand what an Alford
plea is?
MR. CAMERON: Yes, Your Honor.
THE COURT: That's been explained to you. Do you
have any questions about it?
MR. CAMERON: No, Your Honor.
THE COURT: Now. if you enter a plea. even thoush it
may be an Alford plea, do vou understand that vou can't
later come in here and withdraw that plea and ask that
that plea be withdrawn? Do vou understand?
MR. CAMERON: Yes. Your Honor. (Emphasis supplied.)
Following this colloquy, defendant entered a plea of guilty to
each count pursuant to the Alford case. Before accepting the plea,
the District Court again asked defendant if he understood the
implications of an Alford plea. After the defendant said he did
the District Court asked for an offer of proof and then accepted
the plea. It also ordered that defendant undergo both a sex
offender evaluation and a presentence investigation and set
sentencing for November 1, 1990.
Prior to sentencing, defendant moved the District court for
leave to withdraw his guilty pleas for the following reasons.
(1) "Good cause" exists within the meaning of g46-16-
105, MCA to allow the Defendant to withdraw his guilty
plea because it will prevent the possibility of
convicting an innocent man:
(2) The Defendant erroneously thought that despite his
guilty plea he would have an opportunity to prove his
innocence either before or after sentencing and the
Defendant reached this conclusion based on advise he was
given by his Court appointed counsel;
(3) The Court erred in not granting a continuance to
allow the Defendant to obtain new counsel since no
hearing was held to determine whether the Defendant's
concerns about his Court appointed counsel were true;
(4) The Court erred in denying the Defendant's motion
for an examination of the alleged victims by a defense
psychologist and the denial of this motion deprived the
Defendant of his rights to due process and equal
protection under the Montana and United States
constitutions.
After a hearing, the District Court denied defendant's motion
for lack of good cause shown. Defendant appeals.
Did the District Court abuse its discretion when it refused to
allow the defendant to withdraw his pleas of guilty?
Defendant argues that in entering an Alford plea he still
maintained his innocence. He further contends that he was confused
about the Alford plea and that his case is defensible.
The State maintains that defendant voluntarily pled guilty and
understood the consequences of a guilty plea. The State also
contends that defendant's pleas of guilty were given intelligently
and thus, the pleas were valid. We agree.
Section 46-16-105(2), MCA, provides:
At any time before or after judgment the court may,
for good cause shown, permit the plea of guilty to be
withdrawn and a plea of not guilty substituted.
(Emphasis added).
Defendant has failed to show good cause for the withdrawal of his
guilty pleas.
The determination of good cause is a matter of discretion for
the district court and absent an abuse of that discretion, this
Court will uphold the district court's refusal to permit the
withdrawal of a guilty plea. State v. Miller (Mont. 1991), 810,
P.2d 308, 310, 48 St.Rep. 389, 390. In Miller we stated:
We recently reviewed the subject of a defendant's
request to withdraw a guilty plea in Benjamin v.
McCormick (IggO), 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." Beniamin, 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. ..
.II
Miller, 810 P.2d at 310.
There is nothing in the record to establish that the
defendant's plea was based upon a fundamental mistake or
misunderstanding as to its consequences. In a similar manner,
there is nothing in the record to indicate that the defendant was
i g n o r a n t of his r i g h t s and the consequences of his act, or that he
was unduly or improperly influenced by hope or by fear, or that his
plea was entered under some mistake or misapprehension. As
required in ~iller, have reviewed the record in this case and
we
conclude that the District Court did not abuse its discretion in
denying defendantfsmotion to withdraw his guilty plea. We affirm
that action of the District Court.
A key conclusion on the part of the dissent is that
defendant's attorney failed to explain that there was no
possibility of a favorable sex offender evaluation if the defendant
continued to maintain his innocence. It is that conclusion which
leads the dissent to suggest that defendant should be allowed to
withdraw his plea of guilty. The record in this case does not show
that if the defendant maintained his innocence, there was no
possibility of a favorable sex offender evaluation. That
conclusion is reached by going outside the record. We therefore
restate our previous conclusion that the record does not establish
that the defendanttsplea was based upon a fundamental mistake or
misunderstanding as to its consequences.
I1
Did the defendant receive ineffective assistance of counsel
with respect to his attorney's advice that he should enter Alford
pleas to the charged offenses rather than proceeding to trial?
Defendant maintains that Mr. Ashley did not provide him with
effective assistance of counsel with respect to his Alford plea.
He contends that there was nothing for him to gain by entering an
Alford plea since he maintained his innocence. The State urges
that defendant's claim is without merit and that he has failed to
establish that Mr. Ashleygsassistance was ineffective.
The United States Supreme Court in Strickland v, Washington
(1984), 4 6 6 U . S . 668, 687, set forth the test f o r determining when
counsel is ineffective. The defendant must establish that: (1)
the counselfs performance was deficient; and (2) the deficient
performance so prejudiced t h e defendant a s to deprive him of a fair
trial. With regard to the Strickland test, this Court has stated:
Under t h e two-pronged test set forth in Strickland,
the defendant must first demonstrate that counselgs
perfonnance was deficient .
To demonstrate that a
counselis performance was deficient, defendant must prove
that counsells performance fell below the range of
competence reasonably demanded of attorneys in light of
the Sixth Amendment. Second, the defendant must
demonstrate that the counselgs deficiency was so
prejudicial that the defendant was denied a fair trial.
To satisfy this requirement, the defendant must
demonstrate that but for counselgs deficient performance,
it is reasonably probable that the result of the
challenged proceeding would have been different. When a
guilty plea is at issue rather than the result of a
trial, the defendant must demonstrate that but for
counselfsdeficient performance, the defendant would not
have pled guilty, and would have insisted on going to
trial. (Citations omitted.)
State v. Senn (IggO), 244 Mont. 56, 59, 795 P.2d 973, 975; State v.
Aills (Mont. 1991), P.2d , 48 St.Rep. 960.
Defendant has failed to meet the Strickland test. ~irst,
he
has failed to demonstrate that Mr. Ashley's performance fell below
the range of competence reasonably demanded of attorneys in light
of the Sixth Amendment. Mr. Ashley was prepared to go to trial.
He testified he worked on the case from the time he got it until
the day of trial, at a "minimum of two to three hours a weekH. The
morning of the trial, defendant asked him about an Alford plea.
Mr. Ashley explained an Alford plea to defendant and defendant
understood it, as is clear from the interrogation of defendant by
the trial judge before the pleas were accepted. Defendant attempts
to argue that because he contends he is innocent, he should not
have to pay the consequences of a plea of guilty. That argument is
effectively rebutted by the previously quoted examination by the
court where the maximum penalties were discussed, and where the
defendant acknowledged that it was possible he could receive
sentences totaling forty years in prison and $100,000 in fines.
We conclude that defendant has failed to show in any respect
that his counselisperformance was deficient. As a result we need
n o t address the second prong of t h e test with regard t o p r e j u d i c e ,
W e hold that the defendant did not receive ineffective assistance
of counsel with respect to his attorneyfs advice that he should
enter Alford pleas rather than proceeding to trial.
I11
id the District Court deny the defendant due process of law
in violation of the Montana and United States Constitutions?
Defendant contends that the District Court denied him due
process because the court should have informed him that t o admit t o
t h e offenses would probably require him to attend an inpatient's
sex offender treatment program at the State Prison, and continued
assertion of innocence would prevent him from completing that
program. The record does not contain any information on these
contentions on the part of the defendant.
After a presentence hearing and prior to the sentencing of the
defendant, the District Court stated:
THE COURT: Is there any legal reason why sentence
should not now be pronounced?
MR. DONAHOE: No, Your Honor.
MR. MCGRATH: No, Your Honor.
THE COURT: Mr. Cameron, you have been convicted by
your pleas of guilty of two offenses of sexual assault.
For sexual assault in count one, it is the judgment of
this Court that you be sentenced to Montana State Prison
for a term of 20 years.
In count two, for the offense of sexual assault, it
is the judgment of this Court that you be sentenced to
the Montana State Prison for a term of 20 years. Those
terms will run concurrently, and that I'm also going to
suspend five of those years on certain conditions.
.. .
I've also considered the information contained in
the presentence report. Mr. McGrath was correct, this
has been an emotional case right from the start.
Everybody has been caught up in that emotion. As Mr.
McGrath wanted a much longer sentence, under the
circumstances I: think this is appropriate. I believe
that certain conditions are needed in this case. Those
conditions that I just laid down. If I did not suspend
any of your sentence, you wouldn't have any conditions.
I could fine you, like Judge Davis did yesterday, but my
understanding of the law is that unless a portion of the
sentence is suspended, that I don't retain any
jurisdiction to lay down conditions. That's up to the
parole board.
The record contains no evidence to establish that the District
Court misled the defendant in any way with regard to his claim of
violation of due process of law.
We hold that the District Court did not deny defendant due
process of law in violation of the Montana and United States
Constitutions.
Did a sufficient factual basis exist for the District Court to
accept the defendant's pleas of guilty?
Defendant maintains that there was an insufficient factual
basis for the District Court to accept his guilty pleas.
Again, the defendant's argument lacks merit. In interpreting
North Carolina v. Alford this Court has held that "there is no
constitutional prohibition against accepting the guilty plea of a
defendant who denied his actual guiltw. In the Matter of Brown
(19801, 185 Mont. 200, 204, 6 0 5 P.2d 185, 187.
With regard to the factual basis for the plea, the following
is a portion of the statement made by the prosecuting attorney in
the District Court prior to sentencing:
If we went to trial, the State is prepared to present
both the young victims as witnesses. [M.S.] would
testify that she is the daughter of Jim Cameron, that
over a period of years, over a period of the past five
years, that he subjected her to various types of sexual
assault, including beginning with game -- playing tickle
game, such as that advanced to more sophisticated games
where she was required to touch his penis and genital
area and he would touch her vaginal area and touch her on
the breasts. She would also testify that over a period
of years, that that kind of sexual activity occurred on
a regular basis when she had visitation with him. That
included him touching her with his penis and that she
would also testify that she observed Mr. Cameron
attempting to have intercourse with [ E . P . ] while the
three of them were sleeping in the same bed in Mr.
Cameron's residence in Lewis and Clark County.
[E.P.] would testify to similar events. She is the
daughter of a woman that Mr. Cameron had an affair with.
... She would testify that over a period of years, that
she was involved in various forms of sexual assault with
Mr. Cameron, including, ... tickle games, pornographic
films, touching. He'd have her touch his penis, his
genitals and vice versa, that he attempted to insert his
fingers inside her vagina and occasionally insert his
penis inside her vagina.
In addition to the testimony from the girls, we
would have testimony from Dr. Elizabeth Gunderson who
examined -- performed physical examinations on both of
these girls, would testify that, in fact, [E.P.] was so
frightened that she refused to have Dr. Gunderson
physically examine her, and that she had to undergo -- be
placed under anesthesia out at St. Peter's hospital
before Dr. Gunderson could examine her.
That in Dr. Gunderson's many years of experience,
she had never had a victim that refused an examination
and had to be placed under anesthesia. That in the
course of the physical examination of [E.P.], Dr.
Gunderson concluded that, in fact, there was a
considerable manipulation and healing, and that it is her
opinion that [E.P.] has been sexually molested.
She would also testify that she examined [M.S.],
that she took a history from [M.S.], and she also took a
history from [E.P.]. Both girls indicated that they had
been touched and penetrated by Mr. Cameron.
We would also have testimony from Debbie Huigen who
is a certified licensed counselor who's been seeing
[E.P.] and [her] mother, and Ms. Huigen would testify to
a number of things regarding the dynamics of victims of
sexual assault and would conclude her testimony by saying
that in her opinion, [E.P. ] is, indeed, the victim of
sexual assault and has been sexually abused.
Tom Walstad, also a certified licensed counselor,
would testify that he has, over the period of months,
been counselling with [M.S.], that she has exhibited
considerable symptoms of a victim of sexual assault,
including a seizure disorder that Dr. Gunderson was
prepared to testify about as well; that the seizures, in
fact, stopped after the disclosure in this case and
[M.S. J was assured that she would no longer have to visit
with Mr. Cameron; and t h a t i n Mr. Walstadls opinion,
[M.S.] is, indeed, a victim of sexual abuse.
We hold that the State's offer of proof established an adequate
factual basis for the District Court to accept defendant's pleas.
Did the District Court commit reversible error by failing to
arraign the defendant on the charges set forth in the amended
information?
Defendant urges that the ~istrictCourt violated 5 46-11-
403(l) (d), MCA, when it did not arraign him on the amended
information. The State maintains that the District Court
substantially complied with the arraignment procedures set forth in
§ 46-12-201 and 46-12-202, MCA. The State also urges that
defendant waived any such error when he pled guilty to the charged
offenses without objecting to said irregularities in the
arraignment.
The only difference between the original and the amended
information was the addition of the requisite mental states in the
amended information. The charges were the same. Section 46-11-
205(3), MCA, provides:
The court may permit an information to be amended as to
form at any time before a verdict or finding is issued if
no additional or different offense is charged and if the
substantial rishts of the defendant are not ~reiudiced.
(Emphasis added.)
Here, the substantial rights of the defendant were not
prejudiced when the District Court accepted the amended information
but did not arraign him on it. In addition, as previously quoted,
the court pointed out to the defendant that he was entitled to have
the amended information read in its entirety and asked if he wished
to have it read, to which the defendant responded ttno.tt
When an
amended information makes substantive changes in the charges, he
should be arraigned. Here the amendment was not substantial and
the charges remained the same.
We hold that the District Court did not commit reversible
error by failing to arraign the defendant on the charges set forth
in the amended information.
Affirmed.
We Concur:
Justices
Justice Terry N. Trieweiler dissenting.
I dissent from the opinion of the majority. I would reverse
the District Court's denial of defendant's motion to withdraw his
guilty plea because I conclude that in denying that motion the
District Court abused its discretion.
The defendant's guilty plea is referred to in the vernacular
of criminal lawyers as an AIford plea. It was entered pursuant to
the United States Supreme Court's decision in North Carolina v Alford
.
(1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d. 162. In that case
the Supreme Court held that:
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, 4 0 0 U . S . at 37, 91 S.Ct. at 167, 27 L.Ed.2d at 171.
The problem is that the profession of innocence which can be
maintained concurrently with an Alford plea of guilt has adverse
consequences for any person convicted of a sexual offense. In this
case, the ~istrict Court's failure to explain those adverse
consequences was compounded by representations from the defendant's
attorney which actually misled him concerning the consequences of
his plea.
his Court knows about and cannot ignore the realty of sex
offender therapy. The fact is, under the current state of the art,
no person in Montana can receive sex offender therapy unless he or
she is willing to admit that they committed the sexual offense with
which they are charged. We know that that is true whether the
treatment occurs inside the Montana State Prison or outside its
confines .
In State 1.
1 Donnelly (1990), 244 Mont. 371, 798 P.2d 89, the
defendant was convicted of incest and sentenced to imprisonment at
the Montana State Prison. The District Court also ordered that he
would be ineligible for parole until successful completion of the
sexual offender program at the prison. On appeal, the following
facts were undisputed:
[I]n order to be accepted into the sexual offender
program and receive treatment, defendant must admit to
incest of which he was convicted. Defendant contends
that if he does not admit to incest, he will be denied
treatment, and thus denied parole.
Donnelly, 798 P.2d at 95.
In that case, we held that conditioning parole on defendant's
completion of the sexual offender program under those circumstances
did not violate his privilege against self-incrimination.
In State v. z d a y (Mont. lggl), 813 P.2d 979, 48 St.Rep. 588, the
defendant's prison sentence was suspended on the condition that he
complete a sex offender treatment program outside the prison.
However, that suspended sentence was revoked when the defendant was
repeatedly rejected from sex offender treatment programs in Montana
due to the fact that he denied committing the acts for which he was
convicted. Testimony from Michael Sullivan, the social worker who
had attempted to treat the defendant in that case, was summarized
as follows in our decision:
Sullivan testified that the defendant's denial made it
impossible for him to treat him in their program. He
also testified that there was no other outpatient sexual
therapy program in the State of Montana which would treat
a sexual offender who denied that he was guilty of sexual
misconduct.
The point of mentioning what we know about treatment of sexual
offenders is simply this: The sentence imposed on someone who
pleads guilty to sexual assault is largely dependent on the
presentence investigation. Section 46-18-111, MCA (1989). The
presentence investigation must include an evaluation and
recommendation regarding the defendant's suitability for treatment.
Any person who denies guilt is not a candidate for treatment and is
therefore unlikely to have his sentence suspended and is unlikely
to be paroled once he arrives at the prison. None of these facts
were explained to the defendant prior to the entry of his Alford
plea.
Because the above circumstances were not explained to the
defendant and because he was actually misled regarding the
consequences of his plea, a change of plea should have been
permitted.
In Benjaminv. McCormick (1990), 243 Mont. 252, 792 P.2d 7, the
defendant was led to believe that by entering a plea of guilty to
deviate sexual conduct in violation of 5 45-5-505, MCA, he would
17
serve no longer than one year in prison. However, a condition of
his prison sentence was that he also enroll in and successfully
complete the sexual offender program. The problem that he learned
of upon entering the prison was that the sexual offender program
could not be completed in one year and that he would therefore have
to serve a minimum of two years in prison. In that case, the
District Court ordered the defendant's release on probation and we
affirmed. However, in doing so we reasoned that the same result
would occur under the rules pertaining to the withdrawal of guilty
pleas. In language that is relevant to this case, we stated:
The primary issue in this case is whether Benjamin
voluntarily and knowingly entered his plea of guilty.
Before accepting a guilty plea, the sentencing court must
determine that the plea is "voluntary with an
understanding of the charge, g 46-12-204(2), MCA, and
the court must inform the defendant of "the consequence
of his plea . . . ," $4 46-16-105(1) (b), MCA. The law
does not require the sentencing court to educate the
defendant on all aspects of the relevant law before
accepting a guilty plea. However, when the 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.
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.
State v Mesler (1984), 210 Mont. 92, 96, 682 p.2d 714, 716
.
(citation deleted) .
In this case, Benjamin's guilty plea was based on
error. Both the sentencing court and the habeas corpus
court found that Benjamin was misinformed as to the
consequences of his plea. The record contains sufficient
evidence to establish that the sentencing court,
prosecutor and defense counsel all apparently failed to
recognize that the sexual offender program lasted two
years and assured the defendant that he would be
incarcerated for only one year.
The usual remedy for a guilty plea that is not
voluntarily or knowingly made is to allow the defendant
to withdraw the plea. In this case, however, the habeas
corpus court exercised its discretion to order Benjamin's
release on probation.
Benjamin, 792 P.2d at 10.
It is likewise clear in this case, that the defendant was
ignorant of the consequences of his plea, unduly influenced by hope
that his plea would avoid incarceration, and mistaken in that
understanding.
The majority states that "[tlhere is nothing in the record to
establish that the defendant's plea was based upon a fundamental
mistake or misunderstanding as to its consequences."
That statement is clearly incorrect. At the hearing on
defendant's motion to withdraw his plea, the attorney who
represented him at the time the plea was entered testified. When
asked what explanation he gave to the defendant regarding an Alford
plea, he explained that he told the defendant it was like nolo
contendere. He told the defendant that he could maintain his
innocence but agree that there was sufficient evidence to convict
him. More critically, he explained that if the defendant went to
trial and was convicted, he was more likely to go to prison than if
he entered this plea. He led the defendant to believe that if an
Alford plea was entered there would be a presentence investigation
and a sex offender evaluation which, if favorable, would create a
possibility that the defendant could avoid prison. However, he
failed to explain that there was no possibility of a favorable sex
offender evaluation if the defendant continued to maintain his
innocence. The defendant's attorney gave the following testimony:
Q. And let's reiterate again, what your advice was to
him concerning the Alford plea. As I understand
your testimony, you're suggesting -- or you told
Cameron that if you went to trial and if he was
found guilty, that there was a good chance after
the Judge had heard the victims testify that the
Judge would be more inclined to send him to prison?
A. That's correct.
Q. But, that if he pled guilty, and that he had a good
evaluation, a good presentence report, that it was
possible that you could make an argument that he
could avoid going to prison.
A. I told him I would ask to keep him out of prison.
There could not be any clearer evidence that the defendant
misunderstood the consequences of his plea. In summary, he was led
to believe that he could plead guilty but still maintain his
innocence. He was further led to believe that by pleading guilty
the court would be less likely to sentence him to prison. However,
by pleading guilty to a sex offense and refusing to admit that he
actually committed the offense, he disqualified himself from sex
offender treatment and guaranteed himself not only a prison
sentence, but a longer prison sentence than he would otherwise have
to serve. Under these facts, and our prior case law regarding
withdrawal of guilty pleas, the District Court abused its
discretion by denying defendant the right to withdraw his guilty
plea. That does not mean that the defendant, if guilty, avoids
accountability for his wrongful act, it simply means that the State
should have to prove his guilt, as it was apparently prepared to
do, without the assistance of the defendant's plea which was
induced by misinformation.
For these reasons I would reverse the judgment of the District
Court based on the first issue raised by the defendant, and
therefore, do not address the remaining issues raised on this
appeal.
We concur with the foregoing dissent of Justice Trieweiler.
February 20, 1992
CERTIFICATE OF SERVICE
1 hereby certify that the following order was sent by United States mail, prepaid, to the following
named :
Michael Donahoe
Attorney at Law
P.O. Box 413
Helena, MT 59624
James Lee Cameron
700 Conley Lake Road
Deer Lodge, M T 59722
Hon. Marc Racicot, Attorney General
Joseph E. Thaggard, Assistant
Justice Bldg.
Helena, MT 59620
Mike McGrath
County Attorney
L & C County Courthouse
Helena, MT 59601
ED SMITH
CLERK OF THE SUPREME COURT