No. 13316
I N THE SUPREME COURT O THE STATE O F MONTANA
F
THE STATE O F MONTANA,
P l a i n t i f f and Respondent,
DERYL O E S A
P N H W and CHARLES MAXWELL,
D e f e n d a n t s and A . p p e l l a n t s .
Appeal from: D i s t r i c t C o u r t of t h e T h i r t e e n t h J u d i c i a l
District,
Honorable R o b e r t Wilson, J u d g e p r e s i d i n g .
Counsel o f Record:
For A p p e l l a n t :
Moses, Kampfe, T o l l i v e r and W r i g h t , B i l l i n g s ,
Montana
J l . Frank Kampfe a r g u e d , B i l l i n g s , Montana
For Respondent :
Hon. Michael G r e e l y , A t t o r n e y G e n e r a l , H e l e n a ,
Montana
Harold H a n s e r , County A t t o r n e y , B i l l i n g s , Montana
C h a r l e s A. B r a d l e y , Deputy County A t t o r n e y , a r g u e d ,
B i l l i n g s , Montana
Submitted: January 2 4 , 1977
Decided:
Filed:
-JZ$
- '- ,977
M r . J u s t i c e Gene B . Daly delivered t h e Opinion of t h e Court,
Defendants appeal from t h e judgment of t h e d i s t r i c t c o u r t ,
Yellowstone County, which denied defendants' motion t o r e i n s t a t e
t h e i r not g u i l t y p l e a s and deferred defendants' sentence f o r one
year upon t h e condition defendants serve one year i n t h e Yellowstone
County j a i l , while p a r t i c i p a t i n g i n a work r e l e a s e program.
O October 20, 1975, t h e Yellowstone County a t t o r n e y f i l e d
n
an Information charging defendants with t h e f t of a Black Angus s t e e r ,
i n v i o l a t i o n of s e c t i o n 94-6-302(1), R0C.M. 1947. Defendants
were taken i n t o custody and, a f t e r pleading n o t g u i l t y t o t h e
offense a s charged, released on bond pending t r i a l before Hon.
Rbbert H. Wilson. O February 9 , 1976, defendants appeared f o r
n
arraignment before Hon. Charles Luedke. During t h e arraignment
defendants made a motion t o withdraw t h e i r former p l e a s of n o t
g u i l t y t o plead g u i l t y t o felony t h e f t . The d i s t r i c t c o u r t
accepted defendants' g u i l t y p l e a s and ordered pre-sentence i n v e s t i -
g a t i v e r e p o r t s be submitted t o t h e c o u r t p r i o r t o pronouncement
of judgment and sentencing, s e t f o r February 20, 1976. On
February 20, 1976, defense counsel r e a s s e r t e d defendants' d e s i r e
t o withdraw t h e i r o r i g i n a l p l e a s of n o t g u i l t y and e n t e r p l e a s
of g u i l t y t o t h e charge i n t h e Information. The d i s t r i c t c o u r t
granted defendants' motion a f t e r a s c e r t a i n i n g t h a t defendants were
a c t i n g v o l u n t a r i l y and were aware of t h e consequences of a g u i l t y
plea.
O March 5 , 1976, defense counsel f i l e d an a f f i d a v i t i n sup-
n
p o r t of a motion t o withdraw t h e g u i l t y p l e a s previously entered.
On March 23, 1976, t h e d i s t r i c t c o u r t , Hon. Robert H. Wilson pre-
s i d i n g , denied defendants' motion t o withdraw t h e g u i l t y p l e a s and
proceeded to pronounce judgment and sentence defendants.
The district court ordered defendants' sentence be deferred
for one year, the defendants to be placed on probation under
the supervision of the State Board of Pardons. One of the condi-
tions of the one year deferred sentence was that defendants serve
one year in the Yellowstone County jail while taking part in a
work release program which would allow defendants to continue in
their employment.
Defendants present two issues for review:
1 Did the district court err when it refused to grant
.
defendants' motion for withdrawal of guilty plea?
2. Did the district court abuse its discretion when it
deferred imposition of defendants' sentence, but required defendants
to serve one year in the Yellowstone County jail with release for
working hours?
Defendants initially contend the district court erred when
it denied defendants' motion to withdraw their guilty pleas and
reenter their original pleas of not guilty. Defendants' argue
that when they plead guilty to theft they misunderstood the element
of intent. Since defendants shot the steer while "spotlighting"
deer, they conclude the taking of the property was accidental and
the criminal theft fails. The prima facie case for theft is set
forth in section 94-6-302(1), R.C.M. 1947:
"1sA
(). person commits the offense of theft when
he purposely or knowingly obtains or exerts unauthorized
control over property of the owner, and:
" a has the purpose of depriving the owner of the
()
property; or
" b purposely or knowingly uses, conceals, or aban-
()
dons the property in such manner as to deprive the owner
of the property; or
"c
() uses, conceals, or abandons the property knowing
such use, concealment or abandonment probably will deprive
the owner of the property,"
Criminal intent at the time of the shooting of the steer
is unnecessary under the present facts. Even if the steer was
shot "accidentally1', defendants satisfied the prima facie case
for theft when they knowingly butchered a steer belonging to
another and carred the carcass to their home, thus depriving the
lawful owner of his personal property. When defendants initially
withdrew their plea of not guilty in order to enter a plea of
guilty the district court judge thoroughly questioned defendants
on the voluntariness of their act and their knowledge of the con-
sequences of the guilty plea:
"THE COURT :
":
9 * * Now, under
this charge what they're saying
is that you stole and butchered a steer, and when
you plead guilty you're telling me that's (w)hat
you did. Is that what you did?"
Defendants answered in the affirmative.
We hold the district court fully discharged its duty to
insure that defendants submitted their guilty plea voluntarily
and understood the consequences of the plea. Once defendants
entered a plea of guilty they admitted all issues of fact and
nothing remained to go before a jury. The district court did
not err when it failed to grant defendants' subsequent motion
to withdraw the plea of guilty and reenter the plea of not guilty.
State v. Scalise, 131 Mont. 238, 309 P.2d 1010.
Defendants' second issue on appeal attacks the district coutt's
pronouncement of sentence. The district court deferred defendants'
sentence for one year but imposed a one year term in the Yellowstone
County jail with release during normal working hours. Section 95-2206
( ) R.C.M. 1947, is controlling:
I,
"Whenever any person has been found guilty of a
crime or offense upon a verdict or a plea of guilty
the court may:
" 1 Defer imposition of sentence for a period not
()
to exceed one ( ) year for any misdemeanor; for a period
1
not to exceed three (3) years for any felony. The
sentencing judge may impose upon the defendant any rea-
sonable restrictions or conditions during the period of
the deferred.imposition. Such reasonable restrictions or
conditions may include:
"a
() jail base release;
"b
() jail time not to exceed ninety (90) days;
" (c) conditions for probation;
"d
() restitution;.
" ( e ) any other reasonable conditions deemed necessary
for rehabilitation or for the protection of society;
" (f) any combination of the above ."
The significant phrase in section 95-2206(1) is "The
sentencing judge may impose upon the defendant any reasonable
restrictions or conditions during the period of the deferred
imposition." In the instant case the district court confined
defendants to the Yellowstone County jail to be released during
normal working hours, but required them to spend all weekends and
all evenings in the Yellowstone County jail for the entire year
of the deferred imposition of sentence. We find such a restriction
or condition of deferred imposition of sentence to be unreasonable
in light of the conditions of deferred sentence set out in section
95-2206(1)(b). We remand the cause to the district court for
modification of sentence in accordance with section 95-2206(1)(b),
which limits "jail time not to exceed ninety (90) days".
The judgment of the district court is affirmed in part and
reversed in part, consistent with this op
ii/jL.e, fig&zjziz
Chief Justice