State v. Yother

No. 91-364

IN THE SUPREME COURT OF THE STATE OF MONTANA
1992

STATE OF MONTANA,
plaintiff and Respondent,
-vs-
KENNETH YOTHER,

APPEAL FROM: District Court of the Sixteenth Judicial ~istrict,
In and for the County of Custer,
The Honorable Joe L. Hegel, Judge presiding-

COUNSEL OF RECORD:
For Appellant:
Marcey Femling Schwarz; Schwarz & Custafson, P.C.,
Billings, Montana
For Respondent:
Hon. Marc Racicot, Attorney General,
Patricia J. Jordan, Assistant Attorney General,
Helena, Montana
Keith Haker, Custer County Attorney
Miles City, Montana

Submitted on Briefs: March 26, 1992
Decided: May 1, 1992

Filed:

Clerk
Justice Fred J. Weber delivered the Opinion of the Court.

The District Court for the Sixteenth Judicial District, Custer
County, denied defendant's motion to withdraw his plea of guilty to
the offense of sexual intercourse without consent. Defendant
appeals. We affirm.
The issues for our consideration are:
1. Did the District Court abuse its discretion in denying
defendant's motion to withdraw his plea of guilty?
2. Were defendant's constitutional rights to due process
violated by the denial of his motion to withdraw his plea of
guilty?
The State charged defendant, Kenneth Yother, with sexual
intercourse without consent, sexual assault, and incest, all
committed against the defendant's thirteen-year-old daughter, B.Y.
The affidavit in support of the information stated:
The Court is further informed that through investigation
it was determined that BY, a minor youth, was at her
residence tending to other children when the Defendant,
who was known to the youth, came to her residence at
approximately 3:00 o'clock [sic] A.M. and invited her to
go for a ride in an automobile which he was intending to
purchase. The minor youth, BY, accepted the invitation
for the ride and went with the Defendant. The Defendant
left the neighborhood and drove to a secluded area where
he parked the vehicle. BY requested that he take her
back to her residence. This request was ignored and the
Defendant began talking about young girls that he had
sexual contact with when he was younger. BY attempted to
leave the vehicle with the intent to walk home but was
stopped by the Defendant. He grabbed her by the hair and
pulled her face down to the area of his crotch, where his
pants were open, and she pulled away. The Defendant
proceeded to pull her closer, pulling off her boot and
one of her pants legs. The Defendant held BY down, and,
according to BY, he was able to penetrate her vagina with
his penis.
 At the arraignment,.theDistrict Court advised the defendant
of the charges against him, the maximum penalties, appointed an
attorney and advised defendant of his constitutional rights. The
court further informed the defendant:
You should be advised that if you make a plea
agreement with the County Attorney, that that would be an
agreement between you and the County Attorney and for you
to enter a certain plea and for the County Attorney to
make a certain recommendation to the Court. The Court is
not a party to any such agreement and the Court would not
be bound by such an agreement. Should the Court accept
a plea of guilty pursuant to an agreement or otherwise
the Court would contain [sic] the right to sentence up to
maximum allowable by law. Also, you would not have a
right to withdraw your guilty plea. ...
The defendant pled not guilty to all charges.
On January 21, 1991, the defendant, his attorney, the County
Attorney, B.Y. the victim, and the mother of the victim executed
the Acknowledgment of Rights and Plea Agreement. In the agreement
defendant acknowledged his right to challenge the sufficiency of
the information, his right to object to any evidence obtained in
violation of law, his right to a speedy and public trial by jury at
which he had the right to effective assistance of counsel, the
right to confront and cross-examine witnesses, the right to
testify, the right to call and have witnesses testify, the right
not to be compelled to incriminate himself, the right to have
charges proved beyond a reasonable doubt, and the right to appeal
a finding of guilty. The agreement contained the maximum penalties
for sexual intercourse without consent, sexual assault, and incest.
He agreed that by pleading guilty he would waive all the rights
above referred to. He acknowledged he had been given ample time
and opportunity to discuss the case with his attorney and received
the full benefit of that attorney's advise, and that he was
satisfied with the services of the attorney. He also acknowledged
that he was not suffering from any mental disease or disability;
that he was not under the influence of alcohol, drugs or
medication; and that he had not been threatened, coerced or
otherwise intimidated or influenced in any way. The agreement then
contained the following specific paragraphs regarding the
defendant:
10. I have entered into this agreement freely and
voluntarily and with full knowledge of its terms and
conditions.
11. I understand that a plea bargain agreement is
an aareement between a defendant and a wrosecutor that in
exchange for a particular plea the prosecutor will
recommend a particular sentence.
12. I understand that the Court may not participate
in the making of such an agreement nor is the Court bound
by the agreement.
13. I understand that on my plea of guilty alone I
could lawfully be sentenced to the maximum punishment
authorized for the offense(s) to which I plead guilty and
that the recommendation of the wrosecutina attorney in no
way binds the Court when im~osinqsentence.
14. I understand that the sentence to be imposed is
within the sole discretion of the sentencing judge and
that the State does not make any promise or
representation as to what the sentence will be.
15. I understand that if the Court does not i m ~ o s e
the sentence recommended bv the wrosecutor. the Court is
not reauired to allow me to withdraw my plea of suiltv.
(emphasis added).
The defendant then agreed to plead guilty to the offense of
sexual intercourse without consent as follows:
18. Pursuant to 546-12-204, MCA, and conditioned
3
 upon the understandings specified below, I agree to plead
guilty to the offense of Sexual Intercourse Without
Consent, a felony, as alleged in the Amended Information,
on the following basis:
a. That the County Attorney will recommend
imprisonment in the Montana State Prison for five (5)
years. Three (3) years of said sentence shall be
determinate and must be served in its entirety in the
Montana State Prison, less credit for time spent in the
Custer County Jail.
b. The Defendant shall not be entitled to early
parole or conditional release.
c. While at the Montana State Prison, the Defendant
must complete the Intensive Two Year Sex Offender
Program.
d. Upon release from the Montana State Prison, the
Defendant shall be placed on Parole for a period of two
(2) years.

The agreement further provided in detail that the llprosecution"
would abide by the terms of the agreement throughout all
proceedings, including sentence review and parole, and that the
prosecution would not attempt to alter or renegotiate the terms of
the agreement. The agreement stated that the State agrees that the
defendant shall be entitled to withdraw from the agreement
subsequent to the entry of a guilty plea in the event the State
fails to perform its obligations pursuant to the agreement.
After a hearing, the District Court accepted defendant's plea
of guilty to the offense of sexual intercourse without consent,
resulting in the dropping of the charges of sexual assault and
incest. The court ordered defendant to undergo a psychosexual
evaluation pursuant to 4 46-18-111, MCA.
Defendant was evaluated by Pete Bruno, a licensed professional
counselor. Mr. Bruno concluded that defendant completely denied
any problem with deviant sexuality, that the defendant could not be
accepted into outpatient therapy, and that Bruno could not
recommend him for placement in the Phase I1 (Phase I1 requires a
court order) program at the prison.
Prior to sentencing, defendant moved to withdraw his guilty
plea because: (1) following the plea he was ordered to complete a
Sex Offender Evaluation; (2) the defendant nhope[d]'t he would be
allowed to withdraw his guilty plea if the Judge did not follow the
County Attorney's recommendations; (3) the defendant entered his
plea out of 'Ifear" of what a jury might do; and (4) the court did
not elicit sufficiently "strong evidence" of guilt by establishing
a factual basis for the plea before accepting the plea pursuant to
North Carolina v. Alford (1970), 400 U.S. 25.
In his response to the defendant's motion to withdraw his
guilty plea, the County Attorney contended that the prosecution had
complied with the plea agreement and requested the court to deny
defendant's motion.
In considering defendant's motion to withdraw his plea, the
District Court stated the following regarding the sexual offender
evaluation:
Defendant and his counsel certified to the Court that
they had examined 46-18-101 et seq. and were aware of 46-
18-111, MCA, and knew that the presentence investigation
report is required to include a sex offender evaluation
where the victim of a sex offense is under the age of 16.
In this case, the victim was age 13 at the time of the
offense, requiring the sex offender evaluation. . . .
[I]n Custer County Criminal Cause No. 3313, this Court,
as a condition of deferred imposition of sentence,
previously required this same defendant to obtain a
Sexual Offender Evaluation and follow through with all
recommendations of said evaluation. Defendant failed to
obtain the required sex offender evaluation and absconded
from probation. Ultimately, Defendant's probation was
revoked and Defendant served six months in the Custer
County Jail. The defendant certainly should have
 expected that this.Court would definitely want him to
undergo a sex offender evaluation after his second sex
offense conviction. In light of the above, the Court
finds Defendant's suggestion patently unbelievable that
he was either surprised or unfairly prejudiced by the
requirement of undergoing a sex offender evaluation.
With regard to defendant's claim that he "hope[d]" he would be
allowed to withdraw his guilty plea if the Judge did not follow the
County Attorney's recommendations, the court referred to its
admonition to the defendant both at arraignment and at entry of
plea, that the court would not be bound by a plea agreement. The
court stated the claim was premature because defendant had not yet
been sentenced.
In addressing defendant's argument that he entered his plea
out of "fearv of what a jury might do, the District Court stated
that the question is not whether the defendant acted out of fear or
hope, but is whether defendant was influenced unduly and improperly
either by hope or by fear in making a plea. The court concluded
that there was nothing in the procedures used which would have
given the defendant such false hope or fear or unduly or improperly
influenced him.
Finally, after reviewing the evidence before the court, the
court concluded that it had "no doubt that the defendant . . . had
sexual intercourse with BY". The District Court denied defendant's
motion to withdraw his guilty plea.
At the sentencing hearing, the probation officer who prepared
the presentence investigation testified and recommended that the
sentence be long enough for the defendant to complete the sex
offender program at the prison. She testified it would take about
6
two years to complete the program. She further testified that she
was "leery of the Plea Bargain".
The District Court sentenced defendant to a term of twenty
years in the Montana State Prison with five years to be suspended.
The court based its sentence on defendant's past criminal history,
including a prior sex offense; the fact that the court believed
defendant to be a sexual offender; the presentence investigation
report; the psychosexual evaluation; defendant's threat to society;
defendant's designation as a dangerous offender for parole
purposes; and the need for monitoring the defendant following his
release from prison due to his psychosexual problems. The court
explained its reasons for not following the plea agreement.
Following the Plea Bargain Agreement would have
allowed the defendant to serve a relatively short prison
term without confronting his sexual problems and without
obtaining the treatment required to rehabilitate the
defendant.
Following the sentencing, defendant filed a second motion to
withdraw his plea of guilty stating only that the County Attorney
did not oppose the motion. The District Court denied the motion
stating:
Before the court is Defendant's Motion to Withdraw
Guilty Plea. Presumably, this Motion to Withdraw Guilty
Plea is being proffered because the earlier Motion was
filed before sentencing and the plea bargain provided
that if the Court did not follow the recommendations of
the County Attorney in the plea bargain, the County
Attorney would not resist such a motion. Therefore, the
Court assumes that the County Attorney does not resist
the motion. In light of such non-resistance and the fact
that a hearing has not been requested, the court deems
the matter submitted. Based on the evidence in the
record and for the reasons stated in its memorandum
denying the earlier motion,
Defendant's motion is hereby denied.
 Defendant filed a third motion to withdraw the guilty plea on
~uly12, 1991, stating:

The sentence was given in conformance with the
recommendation at the Sentencing Hearing of Sheila
Rebich, Adult Probation Officer. This recommendation was
made in violation of her expressed representations to
defense counsel. Defendant Kenneth Yother relied upon
those representations when he entered his plea of guilty.
Defendant's reliance upon a probation officer's word
and belief in her word should be considered legitimate.
Defendant's reliance and belief in the veracity of
Probation Officer Sheila Rebich gave rise to his hope
that the Court would follow the Plea Agreement.
The County Attorney filed a memorandum in opposition to
defendant's motion to withdraw his guilty plea. In the memorandum,
the County Attorney stated:
It should be noted that the Plea Agreement provided that
the County Attorney would recommend imprisonment in the
Montana State Prison for five (5) years with three (3)
years of said sentence to have been determinate and
served in its entirety, less credit for time spent in the
Custer County Jail. The jail time to be served by the
Defendant under the plea agreement, would be close to
what the Defendant will be serving under the terms of the
Court's Order of Commitment. The only real difference is
an extended period of probation for the Defendant.
Defendant replied to the County Attorney's memorandum arguing that
the State, by filing the memorandum, violated its agreement in
regard to withdrawing the plea.
After a hearing, the District Court issued its order regarding
defendant's third motion to withdraw his guilty plea stating:
The Court has not considered any briefing and the County
Attorney has not argued relative to this motion pursuant
to the County Attorney's acknowledged promise not to
resist withdrawal of the plea if the Court did not follow
the County Attorney's recommendation.

The Court notes that the probation officer's
 proposed acquiescence. to the County Attorney's
recommendation was expressly conditional on the Defendant
being able to complete the intensive sex offender program
at the Montana State Prison with that recommended
sentence. After the probation officer consulted with
officials at the Montana State Prison, she found out it
was doubtful whether such a sentence would be workable.

In fact, given the severity of the offense and
defendant's dismal prognosis, the Court would have been
hard-pressedto follow the probation officer's report had
she acquiesced in the County Attorney's recommendation.
Defendant's counsel is aware that the Court sometimes
deviates from the recommendations of the probation
officer. The fact that the Court usually goes along with
the recommendations of the probation officer can no more
give rise to an improper hope, than does the fact that
the Court usually goes along with the recommendations of
the County Attorney. The Defendant was thoroughly
advised that the Court retained the ultimate decision and
could sentence him up to the maximum provided by law. .
, .
Defendant appeals from the District Court's order denying his
motion to withdraw his plea of guilty.

Did the District Court abuse its discretion in denying
defendant's motion to withdraw his plea of guilty?
Defendant contends that he relied on the representations of
the probation officer that she would recommend that the District
Court follow the sentencing recommendation contained in the plea
bargain. He maintains that he entered his plea in reliance on such
representations by the probation officer, and was therefore misled.
The State contends that the statement by the probation officer
was not a part of the plea agreement. The State further points out
that the probation officer's representation that she would follow
the plea agreement was conditioned on the defendant being accepted
into the sexual offender program at the prison.
In State v. Milinovich (lggl), 248 Mont. 373, 812 P.2d 338,
Milinovich and the county attorney entered into a plea agreement
which stated that the prosecutor would, at the time of sentencing,
make no recommendation to the court relative to a term of years to
be served. However, the presentence investigation prepared by the
probation officer recommended that Milinovich be sentenced to 100
years in the Montana State Prison and be designated a dangerous
offender for purposes of parole eligibility. Milinovich claimed
that the probation officer's recommendation was equivalent to a
recommendation by the prosecutor, and therefore violated the plea
agreement.
This Court stated:
The pre-sentence investigation prepared by the
parole/probation officer is authorized by 1 46-18-111,
MCA, and its contents are spelled out in 5 46-18-112,
MCA. Section 46-18-112, MCA, states:
"Whenever an investigation is required, the
probation officer shall promptly inquire into the
characteristics, circumstances, needs, andpotentialities
of the defendant; his criminal record and social history;
the circumstances of the offense; the time the defendant
has been in detention; and the harm to the victim, his
immediate family, and the community . . The
investigation shall include a physical and mental
examination of the defendant when it is desirable in the
opinion of the court."
A sentencina recommendation is merely a factor that
mav or mav not be considered by the iudqe, . . .
(Emphasis added.)
Milinovich, 812 P.2d at 340.
This Court held that the District Court had not abused its
discretion in denying Milinovich's motion to withdraw his plea of
guilty. In doing so, this Court established that the probation
officer's recommendation was not equivalent to a recommendation by
the prosecutor.
In the present case, the County Attorney consistently followed
the agreement in the making of his recommendations to the court.
Following Milinovich, we conclude that the probation officer's
recommendation in this case is not equivalent to a recommendation
by the prosecutor. We conclude that the County Attorney did not
breach the plea agreement with regard to sentencing. As stated by
the District Court, the record demonstrates the defendant was well
informed that the court would not be bound by the sentencing
recommendations contained in the plea agreement.
We hold that the District Court did not abuse its discretion
in denying defendant's motion to withdraw his plea of guilty.
II
Were defendant's constitutional rights to due process violated
by the denial of his motion to withdraw his plea of guilty?
Defendant maintains that the County Attorney breachedthe plea
agreement by opposing the motion to withdraw the plea after
assuring defense counsel that he would not do so, and in so doing
robbed the guilty plea of its voluntary character.
The defendant argues that the memorandum filed by the County
Attorney violated the plea agreement. In that memorandum the
County Attorney pointed out that the jail time to be served under
the plea agreement would be close to the jail time to be served
under the court's order of commitment and that the only real
difference was the extended period of probation under the order.
That was not sufficient to constitute a violation of the plea
agreement. We restate our conclusion that the County Attorney did
not breach the plea agreement. With regard to the issue of
constitutional rights, State v. Martz (19881, 233 Mont. 136, 144,
760 P.2d 65, 70, states:

If the defendant makes a voluntary and intelligent plea,
he knowingly waives [certain] constitutional rights,
regardless of whether or not the judge accepts the
recommendation of the State.
We conclude that the defendant made a voluntary and intelligent
plea and knowingly waived all of his constitutional rights.
We hold that the defendant's constitutional rights to due
process were not violated by the rejection of the plea bargain by
the District Court.
Affirmed.

We Concur:

Chief Justice

Justices
12
Justice Karla M. Gray, specially concurring.

I concur in the majority opinion. While I do not believe in
advisory opinions on legal questions or, in general, the necessity
or propriety of offering advice regarding the practice of law, I
believe that comment on several particulars regarding this case may
assist both counsel and the courts in avoiding problems in future
cases.
The parties agree that part of the plea agreement in this case
was a promise by the County Attorney not to object to withdrawal of
the guilty plea in the event the court failed to follow the
agreement. This promise was not contained in the written plea
agreement, however. All promises and assurances which are part of
a plea agreement should be contained in the written document in
order to avoid disputes and difficulties over nondocumented parts
of a plea agreement. In addition, it is my view that when the
prosecution makes such a promise, it should abide by both the
letter and the spirit of that promise. Under such circumstances,
I believe it is the prosecution's duty to refrain from filing any
brief or memorandum on the subject whatsoever. Here, the content
of the prosecution's Memorandum in Opposition to Motion to Withdraw
Guilty Plea did not constitute a substantive objection to the
defendant's motion; nor did the court rely on it. The Memorandum,
however, technically did violate the letter, and certainly violated
the spirit, of the promise. The Memorandum does not appear to have
affected the outcome; therefore, any error was harmless.
Finally, I believe it is important to note that the defendant
13
in this case entered an ttAlfordplea" to the charge of sexual
intercourse without consent. As discussed in the dissenting
opinion in State v. Cameron (Mont. 1992), - P.2d -, 49 St.Rep.
150, Alford pleas in sex offense cases can result in a variety of
unexpected consequences for defendants who, via the Alford plea,
continue to assert their innocence. See also State v. Imlay
(lggl), 249 Mont. 82, 813 P.2d 979. Some of those consequences
already have arisen in this case duringthe pre-sentence evaluation
and investigation phases. Given that the sentence imposed on this
defendant includes completion of the sex offender program at the
Montana State Prison, and that the program cannot be completed so
long as the defendant continues to deny the conduct, more Alford
plea-related consequences may be ahead for this defendant.

Justice Terry N. Trieweiler, joins in the foregoing special
concurrence of Justice Karla M. Gray.

K ustice
 May 1, 1992

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:

Marcey Felming Schwarz
Attorney at Law
P.O. Box 21386
Billings, MT 59104

HON. MARC RACICOT, Attorney General
Patricia Jordon, Assistant
Justice Bldg.
Helena, MT 59620

Gary E. Burke, Deputy County Attorney

301

ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA

BY:
Depufjl