PJo. 83-21
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
1983
T I E STATE O MONTANA,
F
P l a i n t i f f and R e s p o n d e n t ,
-vs-
JAMES CAVANAUGH,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f C a s c a d e ,
The H o n o r a b l e J o e l G. R o t h , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
Steven E. Hagerman, G r e a t F a l l s , Montana
F o r Respondent :
Won. Mike 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
J . F r e d Bourdeau, County A t t o r n e y , G r e a t F a l l s ,
Montana
S u b m i t t e d on B r i e f s : August 25, 1983
Decided: Deceinber 23, 1983
Filed:
DEC 2 a 1983
Clerk
Mr. Justice Frank B. Morrison, Jr. d.elivered the Opinion
of the Court.
Defendant James Cavanaugh appeals the November 22, 1982,
order of the District Court of the Eighth Judicial District,
Cascade County, denying his petition for post-conviction
relief.
On August 9, 1977, Cavanaugh and co-defendant Sam Spicer
were each charged by information with four felony
offenses: count I, deceptive practices; count 11, attempt
(deliberate homicide); count 111, aggravated kidnapping; and
count IV, aggravated assault. Pursuant to a plea bargaining
agreement, each defendant pled guilty on August 15, 1977, to
counts I11 and IV. Once the guilty pleas were accepted, and,
upon notion of the county attorney, counts I and I1 against
both defendants were dismissed.
Cavanaugh and Spicer were each sentenced on September
19, 3.977 to 100 years for aggravated kidnapping and to 20
vears for aggravated assault, the maximum penalties for each
offense. Further, pursuant to section 46-18-202 (2), MCA,
enacted July 1, 1977, the trial judge ordered that Cavanaugh
and Spicer were both ineligible for parole or for
participation in the prisoner furlough program. Co-defendant
Spicer has since died.
James Cavanaugh and James Mesler thereafter filed an
ori..gina.lapplication for a writ of habeas corpus in this
Court, challenging the constitutionality of section
46-18-202(2), MCA, on several grounds: equal protection; due
process; vagueness; and as being an unlawful d-elegation of
legislative authority. We held the statute to be
constitutional on August 14, 1980. See Cavanaugh and Mesler
v. Crist (1980), 615 P.2d 890, 37 St.Rep. 1461.
Now, in this appeal. of the trial court's denial of his
petition for post-conviction relief, Cavanaugh asserts that
his pleas of guilty to the aggravated kidnapping and
aggravated assault charges were not made knowingly,
voluntarily, intelligently or with any understanding of their
consequences for two reasons:
1. He was not told that pursuant to section
46-18-202(2), MCA, he might be denied parole or participation
in the furlough program; and
2. He did not understand. what was transpiring when he
pled guilty.
As we are persuaded by reason one, we find it unnecessary to
address reason two.
Defendant was denied parole and participati-on in the
furlough program pursuant to section 46-18-202(2), MCA, which
states in relevant part:
" (2) Whenever the district court imposes a
sentence of imprisonment in the state prison for a
term exceeding 1 year, the court may also impose
the restriction that the defendant be ineligible
for parole and participation in the supervised
release program while serving his term."
It is undisputed that the possibility of being
ineligible for parole or participation in the furlough
program was not mentioned by either the tria.1 judge or the
county attorney until the sentencing hearing. Cavanaugh
testified at his post-conviction hearing that he had never
been told by his attorney or anyone else, that if he pled
guilty, he might be denied parole. Cavanaugh's original
attorney testified at that same hearing that he did not
recall whether he informed Cavanaugh of that possibility.
Despite extensive efforts to do so, that attorney was
unable to locate Cavanaugh's case file. There is no evidence
contradicting defendant's claim that he was first informed of
the possibility that he might be denied parole at the
sentencing hearing.
Section 46-16-105(1), MCA states:
"Plea of guilty. (1) Before or during trial, a
plea of guilty may be accepted when:
(a) the defendant enters a plea of guilty in open
court; and
(b) the court has informed the defendant of the
consequences of his plea. and of the maximum penalty
provided by law which ma.y be imposed upon
acceptance of such plea."
Defendant pled guilty in open court after being informed of
the maximum penalties for each count. However, defendant
contends that failure to inform him prior to the entry of his
guilty pleas of the possibility that he might be denied
parole constitutes failure to inform him of a consequence of
his plea. Therefore, the tria.1 court should not have
accepted his guilty pleas and he must now be permitted to
withdraw them, pursuant to section 46-16-105(2), MCA:
"(2) 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."
We agree.
The consequences of one's guilty plea includes, among
many other things, the sentence which accompanies such a
plea. "The restriction of parole and furlough program
eligibility is 'a part of the sentence' by the express terms
of [section 46-18-202(2), MCA] . . ." Cavanaugh v. Crist,
615 P.2d at p.893, 37 St.Rep. at p. 1464. Such a restriction
has a great and profound effect upon the ultimate sentence
served by a defendant.
". . . the unavailability of parole directly
affects the length of time an accused will have to
serve in prison. If parole is unava.ila.hle, the
mandatory period of incarceration under a given
sentence is three times as long . . .
It would
seem that such a major effect on the length of
possible incarceration would have great import-
ance
to an accused in considering whether to plead
guilty.
"The danger is that the accused makes his decision
to plead guilty underestimating by a factor of
three the risk of prolonged mandatory
incarceration." Bye v. United States (2nd Cir.
1970), 435 F.2d 177 at p. 180.
Here, defendant knew when he pled guilty that he could
be sentenced to a maximum of one-hundred years for aggravated
kidnapping and twenty years for aggravated assault. He did
not know that he might be found ineligible for parole. A
flat sentence of one-hundred years is far different than the
sentence anticipated. by a defendant who knows he might be
sentenced to one-hundred and twenty years, but presumes that
parole will be possible. Because of the disparity between
the anticipated and actual sentence, the plea ba.rgain into
which defendant thought he was entering was not the plea
bargain accepted by the trial judge.
Federal trial courts are required to allow a defendant
to withdraw his guilty plea if the trial judge refuses to
accept the remainder of the plea bargain. Federal Rule of
Criminal. I?rocedure 11 (e)(4) provides :
"(4) Rejection of a plea agreement. If the court
rejects the plea agreement, the court shall, on the
record, inform the parties of this fact, advise the
defendant personally in open court . ..
that the
court is not hound by the plea agreement, afford
the defendant the opportunity to then withdraw his
plea, and advise the defendant that if he persists
in his guilty plea or plea of nolo contendere the
disposition of the case may be less favorable to
the defendant than that contemplated by the plea
agreement."
The American Law Institute adopted a nearly identical
rule :
"Sentencing Following Plea.
"If, at the time of sentencing, the court for any
reason determines to impose a sentence more severe
than that provided for in a plea agreement between
the parties, the court shall inform the defendant
of that fact and shall inform the defendant that
the court will entertain a motion to withdraw the
plea . . ." The ALI, A Model Code of
Pre-?xraignment Procedure, Section 350.6 (Adopted
May 20, 1975).
The American Bar Association a.lso agrees. The ABA
Standards Relating to The Administration of Criminal Justice:
The Function of the Trial Judge, section 4.1 (c), (1974),
provides:
"Role of the judge in plea discussions and plea
agreements.
" (c) If the plea agreement contemplates the
qranting of charge or sentence concessions by the
trial judge, he should:
" (i) unless he then and there grants such
concessions, inform the defends-nt as to the role of
the judge with respect to such agreements, as
provided in the following subparagraphs;
" (ii) give the agreement due consideration, but
notwithstanding its existence reach an independent
decision on whether to grant charge or sentence
concessions; and
" (iii) permit withdrawal of the plea (or, if it
has not yet been a.ccepted,withdrawal of the tender
of the plea) in any case in which the judge
determines not to grant the charge or sentence
concessions contemplated by the agreement."
And, The ABA Standards Relating to the Administration of
Criminal Justice: Pleas of Guilty, section 3.3 (b) (19741 ,
states:
"Responsibilities of the trial judge.
I' (b) If a tentative plea agreement has been
reached which contemplates entry of a plea of
guilty or nolo contendere in the expectation that
other charges before that court will be dismissed
or that sentence concessions will be granted, upon
request of the parties the trial judge may permit
the disclosure to him of the tentative agreement
and the reasons therefor in advance of the time for
tender of the plea. He may then indicate to the
prosecuting attorney and defense counsel whether he
will concur in the proposed disposition if the
information in the presentence report is consistent
with the re~resentationsma-de to him. - - trial If the -
judge conc;rs, but later decides - - final that the
disposition should not include the charge or
sentence c o n c e s s i o n s ~ c o n t e m ~ l a t e dbv the Llea
agreement, he shall so advike the z f e n ~ n tand
- - uFon the defendant to either affirm or
then call
withdraw - - l e aof auiltv - n o l o contendere."
his ~ - 2 2
or -
(Emphasis addeh.
Finally, the concept of "fairness" has been added by the
United States Supreme Court to the "voluntary and knowing"
test used to determine whether a defendant should be allowed
to withdraw a guilty plea. Santobello v. New York (1971),
404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427. We therefore
adopt the previously discussed standards of the American Bar
Association and F.R.Civ.P. ll(e)(4), and require the trial
iudge, who accepts a plea but rejects any other portion of
the plea bargain, to afford the defendant the opportunity to
withdraw his guilty plea and enter a plea of not guilty.
The decision in this case shall have prospective
application only. The decision applies to defendant James
Cavanaugh and all who are sentenced after the effective date
of this decision. In support of this prospective holding,
see State v. Campbell (1979), 182 Mont. 521, 597 P.2d 1146.
With respect to defendant Cavanaugh, more than six years
have elapsed since sentencing. It would be unfair to the
state to allow withdrawal of the plea if crucial witnesses
are not now available. Therefore, on remand we direct that
the state can elect to have (1) defendant sentenced in
accordance with the plea bargain or (2) defendant withdraw
his plea of guilty with the state being allowed to revive
the dismissed charges. Such a procedure has been followed bv
other courts. See State v. Williams (1971), 107 ~ r i z . 421,
489 P.2d 231.
The order of the District Court denying defendant ' s
petition for post-conviction relief is reversed. This cause
is remanded to the District Court for further proceedings in
conformance with this opinion.
We concur:
%4 # & 4
d
Chief Justick
Justices
Mr. Justice Daniel J. Shea., concurring in part and dissenting
in part:
1 join in the opinion insofar as we have now adopted
meaningful standards for permitting a defendant to withdraw a
guilty plea if the district judge does not abide by the plea
bargain. Justice requires this. I do not, however, agree
that the decision should have prospective application only,
nor do I believe that the State should have the option of
going along with the plea bargain or going to trial on the
charges that were dismissed.
Due process requires that defendants be permitted to
withdraw their pleas where they were not given the chance to
withdraw their plea on the trial court refusing to go along
with the plea bargain. Due process also requires that the
right to withdraw that plea should not depend on the
fortuitious circumstances of whether the plea was entered
before or after our decision.
Nor do I agree that the State should have the option on
remand of dictating to defendant whether he will go to trial
again or whether he must content himself with the benefit of
the plea bargain. It is not defendant who caused the
procedural situation lacking in due process, and it should
not be the defendant who must await his fate at the hands of
the prosecution. Rather, fairness requires that the choice
of obtaining the benefit of the plea bargain or going to
t j
trial on revived charges, should belong to the defendant.
Mr. J u s t i c e L.C. Gulbrandson d i s s e n t i n g .
I respectfully dissent.
In my view, the majority has departed from
l o n g s t a n d i n g p r a c t i c e and h a s a d o p t e d a new R u l e o f C r i m i n a l
Procedure. The m a j o r i t y d e c l a r e s , "We t h e r e f o r e a d o p t t h e
previously discussed standards of the American Bar
A s s o c i a t i o n on F.R.Civ.P. l l ( e ) ( 4 ) , and r e q u i r e the trial
j u d g e , who a c c e p t s a p l e a , b u t r e j e c t s a n y o t h e r p o r t i o n o f
t h e p l e a b a r g a i n , t o a f f o r d t h e o p p o r t u n i t y t o withdraw h i s
g u i l t y p l e a and e n t e r a p l e a o f n o t g u i l t y . "
The a d o p t i o n o f t h i s r u l e g o e s f a r beyond t h e i s s u e
r a i s e d on t h i s appeal. C o u n s e l f o r d e f e n d a n t Cavanaugh h a s
n o t contended t h a t t h e s e n t e n c i n g judge r e j e c t e d any p o r t i o n
o f t h e p l e a b a r g a i n and h a s n o t a r g u e d o r s u g g e s t e d t h a t t h e
a b o v e s t a n d a r d s b e a d o p t e d by t h i s C o u r t .
The s o l e i s s u e was " T h a t D e f e n d a n t ' s G u i l t y P l e a was
n o t done v o l u n t a r i l y , intelligently, knowingly and w i t h a n
u n d e r s t a n d i n g o f t h e c o n s e q u e n c e s o f h i s p l e a and t h e r e f o r e
should be vacated." The main t h r u s t o f d e f e n d a n t ' s a r g u m e n t
i s t h a t h e was n o t told, until just prior t o sentencing,
t h a t t h e s e n t e n c i n g j u d g e c o u l d d e c l a r e him i n e l i g i b l e f o r
p a r o l e , o r f o r t h e p r i s o n f u r l o u g h system, and t h e r e f o r e , h e
d i d n o t understand t h e consequences of h i s g u i l t y p l e a .
S e c t i o n 46-16-105, MCA, s t a t e s t h a t the plea of g u i l t y
may b e a c c e p t e d when t h e c o u r t h a s i n f o r m e d t h e d e f e n d a n t o f
the consequences of his plea. Other courts have
distinguished between direct consequences of the guilty
plea, of which the defendant must be told, and those
collateral consequences of the guilty plea, of which the
d e f e n d a n t need n o t b e t o l d i n o r d e r f o r h i s g u i l t y p l e a t o
be v a l i d . D u r a n t v . U n i t e d S t a t e s (1st C i r . 1 9 6 9 ) , 410 F.2d
689; Spradley v. United States (5th Cir. 1970), 421 P.2d
1043. Ineligibility for parole was not a direct and
necessary corollary to Cavanaugh's guilty plea.
Ineligibility for parole was a "consequence" of the serious
nature of the crimes Cavanaugh committed and his prior
record of five felony and ten misdemeanor convictions as set
forth in the pre-sentence report.
Parole and participation in the supervised release
program, both of which relate to punishment, are
pr ivileges--matters of grace, not rights. Lopez v. Crist,
([font. 1978), 578 P.2d 312, 314, 35 St.Rep. 622, 624;
Petition of Hart (1965), 145 Mont. 203, 206, 399 P.2d 984,
985. When Cavanaugh earlier challenged the
constitutionality of Section 46-18-202(2), MCA, this Court
answered: "The district judges did not deprive petitioners
of a right when they decided that petitioners should be
imprisoned with no possibility of parole or participation in
the furlough program. The district judges withheld grace. 'I
Cavanaugh v. Crist (Mont. 1980), 615 P.2d at 895, 37 St.Rep.
at 1466. Cavanaugh was told of the maximum possible
punishment, but argues that he should have been told that
maximum meant maximum and that there was a possibility that
legislative grace of actually serving a lesser amount of
time might be withheld.
The issue presented by Cavanaugh's appeal is similar
to that addressed in State v. McGuire, No. 82-156-M (D.
Mont. filed April 27, 1983.) In McGuire, the question
presented to the Court was whether a conviction should be
set aside because petitioner was unaware that his prior
conviction might cause him to be designated as a dangerous
offender and that such a designation would affect his
eligibility for parole. The McGuire Court stated that:
"The l a w i s c l e a r t h a t a v a l i d p l e a o f
g u i l t y requires t h a t t h e defendant be
made aware of all 'the direct
consequences of h i s plea.' Wade v .
C o i n e r ( 4 t h C i r . 1 9 7 2 ) , 468 F.2d 1 0 5 9 ,
1060. By t h e same t o k e n , i t i s e q u a l l y
w e l l s e t t l e d t h a t , before pleading, t h e
d e f e n d a n t need n o t be a d v i s e d of a l l
c o l l a t e r a l consequences of h i s p l e a , o r ,
a s one Court has phrased it, of a l l
'possible ancillary or consequential
r e s u l t s which are peculiar to the
i n d i v i d u a l and w h i c h may f l o w f r o m a
c o n v i c t i o n of a p l e a of g u i l t y , . . . ."
I - a t 3 , n. 1.
d.
"The q u e s t i o n o f t h e d e s i g n a t i o n o f t h e
d e f e n d a n t a s dangerous o r nondangerous
does not a r i s e u n t i l t h e t i m e of
sentencing. S e e S e c t i o n 46-18-404, MCA.
~- . t 3 , n. " .2
d a
The McGuire C o u r t w e n t on t o s t a t e : "The p r o b l e m o f how a
state shall designate offenders and what effect that
d e s i g n a t i o n s h a l l h a v e upon p a r o l e i s s o l e l y a q u e s t i o n f o r
t h e s t a t e l e g i s l a t u r e and t h e s t a t e c o u r t s . There is simply
no p r o b l e m o f f e d e r a l c o n s t i t u t i o n a l l a w . " - a t 4.
Id.
The p o s s i b i l i t y o f i n e l i g i b i l i t y f o r p a r o l e , l i k e t h e
p o s s i b i l i t y of designation a s a dangerous offender, is a
discretionary sentencing alternative. They a r e n o t d i r e c t
consequences of the guilty plea and therefore the court
should not be required to inform t h e defendant of these
p o s s i b i l i t i e s a t t h e e n t r y of t h e g u i l t y plea.
I would a f f i r m t h e d e c i s i o n o f t h e D i s t r i c t J u d g e , a n d
would d e f e r t o t h e L e g i s l a t u r e on t h e i s s u e o f a d o p t i n g t h e
described standards.
~ustice/
I j o i n w i t h Mr.
dissent.
J u s t i c e L.C.
4
Gul r a n d s o n i n t h e f o r e g o i n g