No. 91-046
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
GaRY EUGENE RADI,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gary Eugene Radi, Pro Se, Deer Lodge, Montana.
For Respondent:
Hon. Marc Racicot, Attorney General, Helena,
Montana ; Jennifer Anders, Assistant Attorney
General, Helena, Montana; Robert Descharnps, 111,
County Attorney, Missoula, Montana; Betty Wing,
Deputy County Attorney, Missoula Montana.
Submitted on briefs: June 28, 1991,
Decided: October 8 , 1991
Filed:
Clerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Defendant Gary Eugene Radi pled guilty to two counts of
burglary before the District Court of the Fourth Judicial District,
Missoula County, on April 9, 1990. On May 22, 1990, the Honorable
Jack L. Green, District Court Judge, sentenced defendant to 20
years in the Montana State Prison on each count, the two terms to
run consecutively. Defendant, appearing pro se, made a motion
before the District Court on October 3, 1990, to withdraw his
guilty plea. Defendant appeals from the District Court's order of
November 29, 1990, denying his motion to withdraw the guilty plea.
We affirm.
The sole issue before this Court on appeal is whether the
District Court erred in denying defendant's motion to withdraw his
plea of guilty.
Between the hours of 5 p.m. on November 21, 1989, and 6:20
a.m. on November 22, 1989, 2 J t s Produce in Missoula was unlawfully
entered. Once inside 2J's Produce, the individuals gained entrance
to an adjacent business, A & I Distributing. Various items,
including a VCR recorder, a radio, a safe, a number of chain saws,
an acetylene cutting torch, a 2J's Produce van, and a variety of
food items, were stolen from both premises.
On November 22, 1989, a confidential informant gave the police
information concerning the burglaries. The informant told the
police that three individuals were involved in the burglaries and
gave the police additional details concerning the crimes. He
identified one of the participants as an individual recently
released from the Montana State Prison, known to him as "Dan." He
gave police a description of the individual, as well as his
address. With this information, and the assistance of the Adult
Probation and Parole Office, the individual was identified as Dan
Gochanour by the police. The informant said the second individual
involved was "Big Brad." He related that Big Brad was an
ex-convict and gave police a detailed description of the man.
Police checked with personnel at the Life Skills Center in Missoula
who indicated that Brad Eisenman was known to them as Big Brad and
that he fit the description given by the informant. The informant
did not know the identity of the third individual involved.
Information by this informant also led the police to an
individual named Monte Anderson. On November 28, 1989, the police
interviewed Anderson. He recounted that a day or so before
Thanksgiving he was staying over at his sister's apartment and had
passed out on her couch in the evening. Around midnight, three
individuals entered the apartment. Anderson overheard the
individuals discussing 2J's Produce and a van, and saw the
individuals bringing a number of food items and a chain saw into
the apartment. Anderson identified the three individuals as Dan
Gochanour, Brad Eisenman, and a man he did not know, named Gary.
From a Probation and Parole photograph of defendant Radi, Anderson
identified him as the Gary he had seen on the night in question.
The police obtained a search warrant for each of the
residences of Radi, Eisenman, and Gochanour. Some of the stolen
items were found at each residence. At the residence of the
defendant the police found a chain saw, VCR recorder, and a roll
of pennies with writing on it indicating it was the property of
A & I Distributing. Additionally, the police found six dozen
Cascade Poultry eggs, three pounds of Darigold unsalted butter with
2J1s stickers, seven packages of Montana Legend meat, and several
bags of coffee. These food items matched the description of items
stolen from 2J1s Produce. Similar quantities and types of food
items were found at the Eisenman and Gochanour residences.
On December 13, 1989, defendant was charged by information
with two counts of burglary in violation of § 45-6-204, MCA.
Charges were also filed against Gochanour and Eisenman. Defendant
entered a plea of not guilty to the charges on December 21, 1989.
On the morning his trial was to begin, April 9, 1990, defendant
appeared with counsel and requested that he be allowed to withdraw
his plea of not guilty. The District Court then accepted
defendant's guilty plea and ordered the matter set for sentencing.
Following a pre-sentencing investigation on May 22, 1990, defendant
was sentenced to 20 years in the Montana State Prison on each of
the two counts, the terms to run consecutively. On October 3,
1990, defendant appeared pro se and filed a motion to withdraw his
guilty plea in the Missoula County District Court. This motion was
denied on November 19, 1990.
Defendant contends the District Court erred in not allowing
him to withdraw his guilty plea. At trial, defendant was to rely
upon several witnesses to establish alibi as a defense. Defendant
alleges that action by the prosecutors for the State effectively
prohibited him from calling these witnesses to establish his
innocence, and that as a result his guilty plea was not voluntary.
Before discussing the particular details of defendant's
contention, we first state some general principles governing the
withdrawal of a guilty plea. Concerning pleas in general,
5 46-12-204, MCA states in part:
46-12-204. -
The p l e a p l e a bargains. (1) The defendant
shall enter a plea of guilty or not guilty to the
indictment, information, or complaint. If the defendant
refuses to plead to the indictment, information, or
complaint, a plea of not guilty must be entered.
(2) The court may refuse to accept a plea of guilty and
shall not accept the plea of guilty without first
determining that the plea is voluntary with an
understanding of the charge.
Additionally, 5 46-16-105, MCA, provides that:
46-16-105. Plea o f 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 may be imposed upon acceptance of
such plea.
(2) At any time before or after iudment the court mav,
for qood cause shown, permit the plea of quiltv to be
withdrawn and a plea of not quiltv substituted.
[Emphasis added.]
This Court has consistently stated that "[tlhere is no set
rule or standard which can be relied on in any given case where a
motion is made to withdraw a guilty plea." State v. Huttinger
(1979), 182 Mont. 50, 55, 595 P.2d 363, 366. Each case involving
a motion to withdraw a guilty plea must be considered in light of
the specific record of the case. State v. Griffin (1975), 167
Mont. 11, 21, 535 P.2d 498, 503.
Initially, the grant or denial of a motion to withdraw a plea
of guilty is within the sound discretion of the trial court.
Matter of Hardy (1980), 188 Mont. 506, 614 P.2d 528. "A denial of
a request to withdraw a guilty plea is subject to review only when
there has been an abuse of discretion by the trial court." State
v. Wilson (1982), 198 Mont. 305, 314, 645 P.2d 958, 963.
The process of pleading guilty to a criminal charge involves
a waiver by the criminal defendant of numerous constitutionally
based rights and protections. In light of the importance of the
rights waived, it is a well-settled legal principle that a guilty
plea must be a voluntary, knowing, and intelligent choice among the
alternative courses of action open to the defendant. North
Carolina v. Alford (1970), 400 U.S. 23, 91 S.Ct. 160, 27 L.Ed.2d
162.
This concept is expressed in the Montana statutes governing
pleas. Additionally, this Court has added if "there is any doubt
that a plea is not voluntary, the doubt should be resolved in the
defendant's favor. On application to change a plea, all doubts
should be resolved in favor of a trial on the merits." Huttinser,
595 P.2d at 367. "The fundamental purpose of allowing the
withdrawal of a guilty plea is to prevent the possibility of
convicting an innocent man." State v. Arledge (1987), 228 Mont.
225, 232, 741 P.2d 7 8 1 , 785.
There are at least three factors which this Court has
determined should be considered in every case in which a defendant
attempts to withdraw a 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 promptness of the motion to withdraw the plea; and
3. The fact that the defendant's plea was apparently the
result of a p l e a bargain in which the guilty p l e a was given in
exchange for dismissal of another charge. State v . Long (1987),
227 Mont. 199, 201, 7 3 8 P.2d 4 8 7 , 489.
Defendant alleges that prior to trial he intended to rely on
the testimony of his common-law wife Jeannie Roberts and
co-defendant Dan Gochanour to establish the defense of alibi.
Shortly before trial the State entered into a plea agreement with
co-defendant Gochanour. Defendant claims that Gochanour was not
to be sentenced until after defendant's trial, and that the State's
agreement with Gochanour would have been withdrawn if he had given
evidence during the trial exonerating defendant. Additionally,
defendant claims that Roberts was precluded from testifying on his
behalf. He argues that if Roberts had testified truthfully as to
his whereabouts on the night in question she would somehow have
been forced to implicate Gochanour in the crime. By so doing, she
would have subjected defendant and his son, who is currently
incarcerated in the Montana State Prison, to potential retaliation
for having assisted the authorities in convicting Gochanour.
Defendant contends that upon realizing his two crucial
witnesses had been placed in a situation in which they could not
testify without retaliation from the State, he decided out of fear
to change his plea from not guilty to guilty. Defendant quotes
from this Court's opinion in State v. Mesler (1984), 210 Mont. 92,
682 P.2d 714, wherein we stated that:
A change of plea will be permitted only if it fairly
appears the defendant was ignorant of his rights and the
consequences of his act, or he was unduly and improperly
influenced either by hope or by fear in making the plea,
or if it appears the plea was entered under some mistake
or misapprehension.
Mesler, 682 P.2d at 716. Defendant urges that this case falls
within the class of cases described in Mesler in which a change of
plea should be permitted.
The usual basis on which to attack the denial of a motion to
withdraw a guilty plea is that at the time the plea was entered the
district court judge failed to adequately explain the significance
of the guilty plea to the defendant. While the trial court's
interrogation of defendant is not specifically attacked in this
instance, it is helpful in determining if the plea was voluntary.
At the time the plea was entered, the following discussion took
place between the court and defendant:
THE COURT: Now this is Criminal Cause No, 9037, the State
of Montana against G a y E. Radi, and the record should show that
the defendant is personally present in court with his
counsel, Public Defender Smith. State of Montana is
represented by Deputy County Attorney Wing.
Now, Mr. Radi, you have been charged with two counts of
burglary, felonies, and you have entered a plea of not
guilty, and this is the time set for trial of your cases.
The jury is coming at this time. They're to be here by
10:OO o'clock, and it's twenty minutes until 10:OO. But
I am informed that you wish to change you plea; is this
correct?
THE DEFENDANT: Yes, sir.
THE COURT: And why do you wish to change your plea?
THE DEFENDANT: I was involved in the crime.
THE COURT: You realize that you have a right to a trial
by jury on these charges. That in the event you go to
trial, you have the riqht to cross-examine the witness
called by the state, vou have the riqht to call witnesses
in your own behalf, and the burden is on the State to
prove your guilt beyond a reasonable doubt.
THE DEFENDANT: Yes, sir.
THE COURT: You have the right to be confronted by your
accusers, and you have the privilege against self-
incrimination.
THE DEFENDANT: Yes, sir.
THE COURT: These axe rights you have.
THE DEFENDANT: Yes.
THE COURT: And i f you do change your plea to a plea of
guilty, you'll be giving up all of these rights.
THE DEFENDANT: Yes, sir.
THE COURT: You understand that.
THE DEFENDANT: Yes.
THE COURT: Now has anyone made any promise of leniency,
told you things would go easy with you if you were to do
this?
THE DEFENDANT: No.
THE COURT: Has the sheriff or anyone else used force or
threats of force to cause you to do this?
THE DEFENDANT: No.
THE COURT: Is this vour own free and voluntarv act after
havinq discussed the matter fullv with vour attorney?
THE DEFENDANT: Yes, sir. [Emphasis Added.]
The trial court then explained to defendant that the court
would not be bound by the plea agreement. The court then explained
the maximum possible sentence which defendant could receive.
Finally, before accepting defendant's guilty plea, the court
repeated the discussion concerning defendant's rights and the
consequences of pleading guilty.
The District Court's colloquy adequately apprised defendant
that by pleading guilty his right to call witnesses on his behalf
to present favorable testimony, or to cross-examine the witnesses
called by the State, was waived.
Co-defendant Gochanour could have been called as a witness by
defendant. Defendant contends that "it was made crystal clearrr
that if Gochanour gave testimony exonerating defendant that
Gochanour's plea agreement with the State would be rescinded and
he would be sentenced to prison for the maximum possible term. The
State counters that Gochanourrs plea agreement was in no way
dependent upon his testifying either for or against defendant.
Defendant has now come forward with an affidavit written by
Gochanour after Gochanour accepted the plea bargain and was
sentenced to a term in prison significantly shorter than the
maximum possible sentence he could have received. Gochanour now
states that the third person involved in the crimes was not
defendant, butthe now deceased Monte Anderson. Without attempting
to discuss the trustworthiness or timing of the present affidavit,
we conclude that the District Court did not abuse its discretion
when it found that defendant was not prohibited from calling
Gochanour as a witness on his behalf if he had chosen to do so.
Further, defendant's fear of retaliation for the testimony of
Roberts has not in any way been related to acts of the State.
We turn next to the issue of whether defendant's guilty plea
was the result of a plea bargain in which the State agreed to
dismiss a charge in return for a plea of guilty. The State did not
dismiss any charges, but did agree not to pursue a persistent
felony offender designation which could have added anywhere from
five to 100 years on each of defendant's convictions. The State
argues that this is comparable to having dismissed a charge and
thus weighs in favor of allowing the plea bargain to stand. We
agree. This Court has stated many times that it will not lend its
assistance to an accused criminal in escaping the obligations of
his agreement after accepting the benefits thereof. State v.
Koepplin (1984), 213 Mont. 55, 689 P.2d 921.
Defendant has not brought forward evidence sufficient to
convince this Court that the District Court's decision denying his
motion to withdraw the guilty plea was an abuse of discretion. As
we have previously stated:
Where a District Court has done all that it can to
determine from the defendant or otherwise, that the
proposed plea of guilty is voluntarily made, the
defendant understands what he is doing and is advised of
the consequences of his plea, including the nature and
extent of his punishment, has been adequately advised by
counsel, and has been treated fairly at all stages of the
prosecution against him, and that in fact the defendant
states he is guilty of the charges made, then this Court
has a duty to support the District Court when it allows
a plea of guilty to be entered in place of a plea of not
guilty . I 8
State v. Long (1987), 227 Mont. 199, 202, 738 P.2d 487, 489;
quoting from State v. Lewis (1978), 177 Mont. 474, 484, 582 P.2d
We hold that defendant's guilty plea was voluntary, knowing,
and intelligent. The District Court did not abuse its discretion
in denying defendant's motion to withdraw his guilty plea.
Affirmed.
Justice
We concur:
October 8, 1991
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
fallowing named:
Gary E. Radi
700 Conley Lake Rd.
Deer Lodge, MT 59722
Hon. Marc Racicot, Attorney General
Jennifer Anders, Assistant
Justice Bldg.
Helena, MT 59620
Robert Deschamps, 111, County Attorney
Betty Wing, Deputy
Courthouse
Missoula, MT 59802
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA