No. 13689
I N THE SUPREME COUXT OF THE STATE O F MONTANA
1977
STATE O F KONTANA,
-vs-
CHARLES RAY DOTY,
Respondent.
O R I G I N A L PROCEEDING:
C o u n s e l of R e c o r d :
For A p p e l l a n t :
D o u g l a s H a r k i n arqued, C o u n t y A t t o r n e y , Hamilton,
Montana
For R e s p o n d e n t :
G a r n a a s , H a l l , R i l e y and P i n s o n e a u l t , M i s s o u l a ,
Montana
J. R o b e r t R i l e y argued, I l i s s o u l a r M o n t a n a
Submitted: Play 1 8 , 1 9 7 7
Decided : jUL 2 9 1977
Filed:
J'UL 28 1Vj-
Mr. Justice John Conway Harrison delivered the Opinion of the
Court .
This is an original proceeding. Petitioner state of
Montana seeks a writ of supervisory control or other appropriate
relief directing the district court, Ravalli County, the Hon.
Edward T. Dussault presiding, to vacate its order reversing the
order of Justice of the Peace Ruth A. Daniels denying defendant's
motion to withdraw his plea of guilty, and to substitute therefor
an order affirming the denial of defendant's motion in the cause
entitled State of Montana, Plaintiff v. Charles Ray Doty, Defendant,
Criminal Cause No. C/1569, Ravalli County.
On April 15, 1976, defendant Charles Ray Doty was charged
with the criminal offense of misdemeanor theft, pursuant to section
94-6-382, R.C.M. 1947. The complaint was filed in the justice
court, Ravalli County, before Justice of the Peace Ruth A. Daniels.
Defendant Doty was found to be an officer of the Missoula City
Police Department with approximately nineteen years of law enforce-
ment experience.
On April 27, 1976, Doty appeared in Ravalli County justice
court with his attorney, Harold Holt of Missoula, for arraignment.
At that time, Doty entered a plea of not guilty. The court set
June 16, 1976 as the date of trial. The trial date was subse-
quently continued to June 22, 1976. Doty conferred with his
attorney on several occasions between the arraignment and the date
of trial concerning his defense to the charge.
On June 17, 1976, following a telephone conversation with
a friend, Doty telephoned Douglas Harkin, the Ravalli County
attorney, and arranged for a meeting concerning the pending
criminal action. Prior to the meeting, Doty attempted to contact
his attorney of record for advice on the matter. in ding him
unavailable, Doty consulted Missoula attorneys H. L. Garnaas and
J. Robert Riley concerning the upcoming trial. He was advised
the attorneys could not be prepared for trial upon such short
notice. No further advice was given.
Doty proceeded to Hamilton to discuss the case with the
county attorney, unaccompanied by counsel. The county attorney
was apprised of the fact Doty was unable to reach his attorney
prior to the meeting. During the discussion, the county attorney
detailed the evidence he intended to use against Doty. The re-
mainder of the conversation concerned the legal and non-legal
ramifications of a change of plea to guilty and failure to so
change the plea, although the substance of this portion of the
conversation is unclear. Doty returned to Missoula to again seek
the advice of his attorney, who was still not available. Doty
did speak briefly with his attorney's partner, William Murray,
who indicated he was insufficiently informed to be able to render
advice. On that same afternoon, and without discussing the matter
with his attorney of record, Doty returned to Hamilton. Approxi-
mately two hours after the meeting with the county attorney, he
appeared in justice court unaccompanied by counsel, and withdrew
his plea of not guilty, entering a plea of guilty in substitution.
Doty was sentenced at that time.
On June 22, 1976, Doty filed a motion to withdraw
his plea of guilty, together with an affidavit in support of his
motion. In sum, Doty alleged in his affidavit the change of plea
was improvidently made, in that it was made without the advice of
counsel, and that at the time of the change of plea, he was
"* * * distraught, unable to think clearly or to fully appreciate
the significance of his act * * *." A hearing was held on the
motion on June 25, 1976. The motion was subsequently denied.
The decision was appealed to the district court, the case being
submitted on the record, including the transcript of the hearing
held on June 25, 1976, and the briefs of the respective parties.
The district court on December 6, 1976, entered an order
reversing the decision of the justice court and remanding it for
a trial on the merits. It is from this order the state brings its
application for a writ of supervisory control or other appropriate
writ.
This Court is asked to determine whether the district
court erred or abused its discretion in reversing the order of
the justice court; in allowing withdrawal of the guilty plea; and
ordering that a trial be had on the merits. Whether defendant
Doty should have been permitted to discuss his case directly with
the county attorney and shortly thereafter change his plea from
not guilty to guilty without the assistance of his counsel of
record is the focus of determination here.
The state of Montana has but a limited right of appeal
in criminal cases. Such right to appeal is statutory, and is
confined to certain specific and narrowly defined instances, set
forth in section 95-2403, R.C.M. 1947. The state has no statutory
right of appeal from a district court order which, as here, has
the effect of granting a defendant's motion to withdraw a plea
of guilty. It is clear where a party has no plain, speedy or
adequate remedy at law, and when there is no right of appeal
from an order of a district court, a writ of supervisory control
may issue to review the action of the district court. State ex
rel. Woodahl v. District Court, 166 Mont. 31, 530 P.2d 780; State
ex rel. Ryder v. District Court, 148 Mont. 56, 417 P.2d 89.
The vast weight of authority establishes the granting or
refusal of permission to withdraw a plea of guilty and substitute
therefor a plea of not guilty rests in the discretion of the trial
court, and is subject to review only upon a showing of an abuse
of discretion. State v. Nance, 120 Mont. 152, 184 P.2d 554;
State v. McAllister, 96 Mont. 348, 30 P.2d 821; State ex rel. Foot
v. ~istrictCourt, 81 Mont. 495, 263 P. 979. Each case must
necessarily be resolved upon its own set of facts and circumstances.
There is no rule or standard which can be relied upon in any given
case. State v. Morgan, 131 Mont. 58, 307 P.2d 244; State v.
Nance, supra. The Ravalli County justice court was, in this case,
the trial court, being vested with original jurisdiction of the
misdemeanor offense by virtue of section 95-302(a), R.C.M. 1947.
Therefore, it was the exercise of discretion by the justice court
that was reviewed on appeal by the district court.
The trial court, in determining the validity of a plea
of guilty, must determine that the plea is entirely voluntary, and
made not inadvisedly, but rather with an understanding of the
consequences. State v. McBane, 128 Mont. 369, 275 P.2d 218;
State v. Casaras, 104 Mont. 404, 66 P.2d 774. It is not merely
the province, but the duty of the court to make such a determination.
The absence of counsel of record for the defendant at the time of
the entry of the plea of guilty is a factor to be considered by
the court in reaching its decision.
The transcript of the hearing held in justice court on the
motion for a change of plea indicates defendant Doty steadfastly
maintained his innocence of the charge until the moment he
changed his plea to guilty. It further appears that prior to
both the meeting with the county attorney and the subsequent
change of plea, Doty had actively sought legal counsel from Harold
Holt, his attorney of record, regarding t h e m a t t e r . The county
attorney and the justice of the peace were aware at the time of
the change of plea that Doty was still represented by ~ a r o l dHolt.
Yet, in determining that Doty's change of plea was understandingly
and advisedly made, the court failed to ascertain that Doty had
in fact consulted with his attorney of record regarding his action,
and the reason his attorney was not present for the proceedings.
Failure to do so, despite Doty's prior experience with courtroom
procedures as a police officer, raises serious doubt as to the
validity of the change of plea to guilty.
This Court has, on numerous occasions, enunciated the
principle applicable in cases of doubt:
" * * * If there is any doubt that the plea is
not voluntary, the doubt should be resolved in
his [the defendant's] favor. On application
to change a plea, all doubts should be resolved
in favor of a trial on the merits." State v.
Casaras, 104 Mont. 404, 413,
See also: State v. McAllister, 96 Mont. 348, 30 P.2d 821.
Here, any irregularity and doubt should have been resolved
by the trial court in favor of defendant, in his motion for a
change of plea; then that doubt could properly be resolved by a
jury. Only through trial on the merits following a change of
plea would the ends of justice best be served in this case.
Therefore, it cannot be said the district court erred in
finding an abuse of discretion on the part of the trial court.
We find no impropriety in the action of the district court suf-
ficient to invoke the supervisory control of this Court.
Relator's petition is denied.
We Concur: