State v. Mesler

No. 83-409
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JAMES I. TJIESLER,
Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County Cascade,
The >HonorableR. D. McPhillips, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Mark Bauer, Great Falls, Montana

For Respondent :
Hon. Mike Greely, Attorney General, Belena, Montana
J. Fred Bourdeau, County Attorney, Great Falls, Montana

Submitted on Briefs: March 9 , 1984
Decided :

Filed:

Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

This case comes on appeal from an order of the
District Court, Eighth Judicial District, Cascade County,
denying James I. Mesler's petition for post conviction
relief. We affirm.
On the morning of May 14, 1979, Mesler pointed a gun
at a clerk in the Super America station in Great Falls and
took less than $50 from the cash register. Within fifteen
minutes of the robbery, Mesler was apprehended and taken
back to the Super America station where the clerk identified
him as the man who had robbed him at gunpoint. Mesler had
been released from Idaho State Prison on parole eight days
prior to the robbery. Subsequently, Mesler was charged by
information with robbery. Prior to Mesler's trial, the
defense counsel's motion to suppress a number of
incriminating statements made by Mesler was denied.
Following the District Court's denial of Mesler's motion for
suppression of evidence, a plea bargain agreement was
negotiated between Mesler, Mesler's counsel and the State.
The plea bargain was set forth in a written agreement which
was signed by the parties and filed with the District Court.
Under the terms of the plea bargain agreement Mesler agreed
to withdraw his plea of "not guilty" and to enter a plea of
"guilty" to the charge of robbery. In exchange, the county
attorney agreed to recommend that Mesler receive a sentence
no greater than ten years without parole and that he not be
designated a dangerous offender. An additional provision of
the plea bargain permitted Mesler to withdraw his plea of
guilty and to reinstate his plea of not guilty "in the event
the district court [did] not concur in the terms and
conditions of [the] agreement and impose a ten year sentence
without parole."
The District Court complied with the plea bargain in
all particulars and entered a ten year sentence without
parole while designating Mesler a non-dangerous offender.
Mesler sought sentence review and the sentence was left as
originally imposed.
Approximately nine months after he was imprisoned,
Mesler filed a petition for a writ of habeas corpus with
this Court. In that petition Mesler challenged the
constitutionality of Section 46-18-202(2), MCA, which
permits District Court judges to sentence persons convicted
of felonies to imprisonment without parole or participation
in the prisoner furlough program. This Court denied the
petition. Cavanaugh and Mesler v. Crist (Mont. 1980), 615
P.2d 890, 37 St.Rep. 1461.
On August 12, 1982, Mesler filed a motion for
post-conviction relief with the District Court seeking
relief from confinement in the close custody unit of the
prison and asking the District Court to allow him to
withdraw his guilty plea and to vacate his conviction.
Mesler asserted the State had violated the plea bargain
because he had been held in close custody for twenty-four
months. According to the administrative rules regarding
classification of inmates in effect at the Montana State
Prison, Mesler's "without parole" designation was
determinative of his custody classification and the period
of time that Mesler was required to spend in close custody.
Dangerous offenders and those sentenced without eligibility
for parole had to serve twenty-four months in close custody
and those classified as nondangerous were required to serve
six months in close custody prior to being considered for
transfer to lower custody levels.
After a hearing on the matter, the District Court
entered its findings of fact and conclusions of law on May
11, 1983, and held: (1) Mesler fully understood the plea
bargain agreement when he entered his plea of guilty and
knew what the trade-offs were as well as the potential
sentence had he gone to trial and been convicted; (2) no
misrepresentation was made to Mesler; (3) neither the
counsel for the State, counsel for Mesler, Mesler himself
nor the District Court were aware of the prison regulations
pertaining to close custody for inmates that were not
eligible for parole; (4) the prison could impose such rules
and regulations as it deemed reasonable with respect to
incarcerating inmates if it did not violate specific Montana
statutes; (5) the statute governing the "non-dangerous"
designation makes no reference to prison custody levels; and
(6) Meslerfs request was moot because Mesler had already
served his time in close custody and was no longer in the
unit. Accordingly the District Court denied Mesler's
petition for post-conviction relief. From the order of the
District Court Mesler appeals.
Appellant asserts the District Court should have
allowed him to withdraw his original guilty plea because the
Montana State Prison violated the terms and conditions of
the plea bargain by keeping him in close custody for
twenty-four months. In addition, appellant argues he should
at least be credited for the additional "good time" he could
h a v e r e c e i v e d had h e b e e n p l a c e d i n c l o s e custody for six

months before reclassification rather than twenty-four

months before reclassification. Appellant bases this

argument on Section 53-30-105, MCA, which provides for a

maximum good time allowance of ten days per month for

i n m a t e s a s s i g n e d t o c l o s e c u s t o d y b u t a maximum o f t h i r t e e n

days per month for those classified as medium two and

minimum s e c u r i t y c l a s s i f i c a t i o n s .

A change of p l e a w i l l be p e r m i t t e d o n l y i f it f a i r l y

appears the defendant was ignorant of his rights and the

consequences of his act, or h e was unduly and improperly

i n f l u e n c e d e i t h e r by hope o r by f e a r i n m a k i n g t h e p l e a , o r

if i t a p p e a r s t h e p l e a was entered under some m i s t a k e or

misapprehension. S t a t e v. McAllister ( 1 9 3 4 ) , 96 Mont. 348,

30 P.2d 821. Each c a s e m u s t b e e x a m i n e d on i t s own r e c o r d .

The m o t i o n r e s t s w i t h i n t h e D i s t r i c t C o u r t ' s d i s c r e t i o n and

t h e e x e r c i s e of t h a t d i s c r e t i o n w i l l n o t be d i s t u r b e d a b s e n t

an abuse of discretion. S t a t e v. H a y n i e ( 1 9 8 0 ) , 1 8 6 Mont.

3 7 4 , 607 P.2d 1128. S t a t e v . N e l s o n ( 1 9 7 9 ) , 1 8 4 Mont. 491,

603 P.2d 1050.

I n t h e present case, t h e District Court did n o t abuse

its d i s c r e t i o n i n denying a p p e l l a n t ' s motion t o withdraw h i s

guilty plea.

S e c t i o n 46-18-404, MCA, provides for the designation

of a p e r s o n a s a non-dangerous o f f e n d e r and s t a t e s , "[tlhe

s e n t e n c i n g c o u r t s h a l l d e s i g n a t e a n o f f e n d e r a non-dangerous

offender for t h e purposes of eligibility f o r p a r o l e under

p a r t 2 of c h a p t e r 23." S e c t i o n 46-23-201, MCA, states that

p r i s o n e r s sentenced under S e c t i o n 46-18-202(2), MCA, are not

eligible for parole consideration. Nothing is s a i d a b o u t
how prisoners are to be incarcerated when committed to the
prison without parole and designated non-dangerous.
The terms and conditions of the written plea bargain,
which was signed by the appellant and his counsel, provided
that the County Attorney agreed to recommend to the District
Court that the appellant would receive no sentence in excess
of ten years without parole. Nothing in the written plea
bargain indicates there was a promise made to the appellant
that certain conditions of incarceration would be adhered to
in exchange for appellant's guilty plea. Nothing in the
transcript of the August 30, 1979 hearing on the motion to
change plea and impose sentence indicates appellant or his
counsel believed or expected appellant was to be placed in
close custody for six months rather than twenty-four months.
Thus, the State did not violate any terms of the agreement
which was relied upon by the appellant in entering into the
plea bargain and for which withdrawal of appellant's plea
might have been appropriate.
There are three important factors that should be
considered when a defendant attempts to withdraw his guilty
plea: (1) the adequacy of the District Court's
interrogation at the time the plea was entered as to the
defendant's understanding of the plea; (2) the fact the plea
resulted from plea bargaining; and (3) the promptness of the
motion to withdraw the plea. Nelson, supra, 603 P.2d at
1053. Factors (1) and (3) are pertinent in this case:

(1 The adequacy of the District Court's interroga-
tion. The record shows the District Court thoroughly
interrogated the appellant regarding his understanding and
expectations of the plea bargain agreement. The appellant
expressed his understanding of the agreement several times
and neither the appellant nor his counsel expressed any
concerns or expectations about custody classification at the
Montana State Prison. There is no question appellant was
competent and satisfied with the competency of his defense
counsel.
(3) The promptness of the motion to withdraw the plea.
Appellant was sentenced to the Montana State Prison on
~ u g u s t30, 1979. Thus, appellant waited approximately three
years to request withdrawal of his guilty plea. Moreover,
in appellant's May 27, 1980 application for writ of habeas
corpus challenging the constitutionality of his sentence,
nothing is mentioned concerning an alleged failure of the
State to abide by the terms and conditions of the plea
bargain agreement. The record reflects that appellant's
reasons for the omission in the May 27, 1980, writ of habeas
corpus were "[e]xasperation, ignorance, oversight." Section
46-21-105, NCA provides:
"What grounds for relief waived if not
raised. All grounds for relief claimed
by a petitioner under this chapter must
be raised in his original or amended
petition. Any grounds not so raised are
waived unless the court on hearing a
subsequent petition finds grounds for
relief asserted therein which could not
reasonably have been raised in the
original or amended petition. When a
petitioner has been afforded a direct
appeal of his conviction, grounds for
relief that could reasonably have been
raised on direct appeal may not be raised
in his original or amended petition."
The Commission Comments to Section 46-21-105, MCA indicate
that the object of this section is to eliminate the
unnecessary burden placed upon the courts by repetitious or
specious petitions. Thus, the Commission Comments state,
"[ilt is highly desirable that a petitioner be required to
assert all his claims in one petition. Unless good cause is
shown why he did not assert all his claims in the original
petition, his failure to assert them constitutes a waiver."
Appellant has failed to demonstrate good cause why he did
not assert in his petiton for habeas corpus the State's
alleged failure to abide by the plea bargain agreement.
Appellant argues he is entitled to additional good
time because he should have been held in close custody for
only six months and would have been earning three more days
of good time per month after that time. There is no
guarantee that appellant would have been held in close
custody for only six months even if the prison custody
classification system would have been applied as appellant
asserts it should have been applied. Prison officials take
numerous factors into consideration before reclassification
occurs including: institutional misconduct, work record,
criminal charges while incarcerated, involvement with drugs
and alcohol, length of sentence and an inmate's physical and
mental well being. We cannot now speculate as to what the
prison officials decision may have been regarding the
appellant's reclassification.
Finally, appellant argues that the District Court
erred in holding his petition moot based on the fact that
the appellant is no longer in the close custody security
unit of the Montana State Prison. Appellant bases this
argument on his assertion that the State has deprived him of
the additional three days per month good time he could have
received had be been placed in close custody for six months
rather than twenty-four months prior to reclassification. A
case is "moot" when it no longer presents a justiciable
c o n t r o v e r s y b e c a u s e i s s u e s i n v o l v e d h a v e become a c a d e m i c o r
dead. Sigma C h i Fraternity v. Regents of University of

C o l o r a d o ( 1 9 6 6 ) , 258 F.Supp. 515. Our p r e v i o u s d i s c u s s i o n
c o n c e r n i n g a p p e l l a n t ' s a l l e g e d good t i m e a n d t h e f a c t t h a t
a p p e l l a n t i s no l o n g e r b e i n g h e l d i n c l o s e c u s t o d y i n d i c a t e s
t h e D i s t r i c t Court d i d not e r r i n its decision.
Affirmed.

/
Justice
P L
W e concur:

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Chief J u s t i c e