No. 91-547
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
EDWARD F. MILLER,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Carbon,
The Honorable Maurice R. Colberg, Jr., Judge
presiding.
COUNSEL OF RECORD:
For Appellant:
Arthur J. Thompson: Thompson & Sessions, Billings,
Montana.
For Respondent:
Hon. Marc Racicot, Attorney General, Helena,
Montana; Paul D. Johnson, Assistant Attorney
General, Helena, Montana; A. W. "Tony" Kendall,
Carbon County Attorney, Red Lodge, Montana.
Submitted on Briefs: April 23, 1 9 9 2
Decided: June 2, 1992
Filed:
CLERK OF SUPRE:;$: COURT
STATE OF i b i i i i d ' i ' A i $ ~
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
Defendant Edward F. Miller appeals the order of the District
Court for the Thirteenth Judicial District, Carbon County, denying
his Motion to Withdraw Guilty Pleas. Miller's motion was based on
the recanting of testimony on which he based his Alford plea to the
charges against him. We affirm.
The sole issue on appeal is whether the District Court abused
its discretion in denying the motion to withdraw pleas.
D. and D., Miller's stepsons, ran away from home in June of
1989. The boys walked and hitchhiked to Denver, Colorado to stay
with an aunt. The aunt notified authorities in Denver that the
boys were runaways. Subsequently, D. and D. told Denver police
that they had experienced abuse from Miller and that they feared
both Miller and their mother. The boys accused Miller of beating
them with his fists, a two-by-four board, and a jack handle in
addition to instances of sexual abuse.
Denver police reported the boys' story to Denver Social
Services. Social Services ultimately decided that the boys should
be returned to the Carbon County, Montana, Department of Family
Services and made arrangements for Ed Lambrecht, a Carbon County
social worker, to meet the boys at the airport in Montana. Upon D.
and D.'s return to Montana, Lambrecht placed the boys in various
foster homes, but they ran away each time.
On April 18, 1990, Miller was charged by amended information
with one count of felony assault and two counts of felony sexual
assault involving his three minor stepchildren. In addition to the
2
assault and sexual assault allegations against Miller by the boys,
Miller's stepdaughter alleged sexual assaults by Miller. This
physical and sexual abuse was alleged to have occurred with
increasing frequency between January and June of 1989. Written
statements and video-taped interviews of the children, detailing
the children's allegations, were relied on in filing the charges.
On April 23, 1990, Miller entered into a plea bargain
agreement with the prosecutor in Carbon County; Miller agreed to
plead guilty in exchange for the county attorney's recommendation
of deferred sentences. Maintaining his innocence but agreeing that
sufficient evidence was available to convict him, Miller entered an
"Alford plea." See North Carolina v. Alford (1970), 400 U.S. 2 5 ,
9 1 S.Ct. 160, 27 L.Ed.2d 162.
On June 18, 1990, Miller filed a motion to withdraw his guilty
pleas on the basis that he was unaware of certain consequences when
he entered the pleas. The District Court denied the motion. Prior
to Miller's sentencing, the three children sent handwritten letters
to the District Court again detailing their abusive home
environment. The court considered these letters and, in October
1990, sentenced Miller to three consecutive terms of three years in
the Montana State Prison with eight of the nine years suspended.
On appeal, we affirmed the District Court's denial of the motion to
withdraw. State v. Miller (1991), 248 Mont. 194, 810 P.2d 308.
Sometime after June 1, 1991, and before July 8, 1991, and
against Lambrecht's advice, D. and D. went to live with their
mother, S.M. The boys wrote letters to the court at this time,
recanting portions of their previous statements, letters, and
interviews describing the abuse. D. and D. stated that they
amplified and exaggerated the original charges against Miller at
the urging of Ed Lambrecht. They asserted that Lambrecht
threatened to have them placed in Pine Hills School for Boys unless
they exaggerated the alleged abusive incidents.
Miller based his second motion to withdraw pleas, made July 8,
1991, on these recantations. After holding a hearing on the
motion, receiving testimony and considering the entirety of the
record before it, the District Court denied Miller's motion on the
basis that neither minor boy was recanting truthfully.
Absent an abuse of discretion, a trial judge's decision not to
allow the withdrawal of a guilty plea will be affirmed by this
Court. State v. Long ( 1 9 8 7 ) , 227 Mont. 1 9 9 , 7 3 8 P.2d 487. Miller
argues that he should be permitted to withdraw his plea because two
of the three victims have recanted their testimony. He contends
that the court abused its discretion by refusing to allow him to
withdraw the pleas on the basis of undisputed new evidence that D.
and D. exaggerated the charges.
The State contends that our review of this case is similar to
our review of a motion for new trial based on recanting testimony.
It argues that recanting testimony should be viewed with extreme
suspicion by the courts. United States v. Adi (5th Cir. 1 9 8 5 ) , 7 5 9
F.2d 4 0 4 . In addition, the State argues that the district court
has the discretion to evaluate the recanting testimony for
veracity. State v. Perry (1988), 232 Mont. 455, 758 P.2d 268.
In Perry, we adopted the prevailing judicial attitude that
recanting testimony is to be viewed with great suspicion. Perrv,
232 Mont. at 4 6 6 , 758 P.2d at 275. While Perrv dealt with a motion
for a new trial based on the recanting of trial testimony, the
rationale for viewing recanting testimony with suspicion is equally
applicable here.
On its face, a recantation reveals a witness to be unreliable;
it also raises other questions, such as whether the motive for
recanting is fear. w,
232 Mont. at 466, 758 P.2d at 275. We
stated in Perry that the weight to be given recanting testimony is
for the district court to determine and that a new trial is
required only when the court is satisfied that the recantation is
true. Perrv, 232 Mont. at 466, 758 P.2d at 275.
Here, the recanting witnesses testified at a hearing on
Miller's motion. The court observed the demeanor and heard the
testimony of both the recanting victims and Lambrecht. In its
Findings of Fact and Conclusions of Law, the District Court
specifically concluded that the minor boys' recantation was false.
The court relied on numerous factors in making that determination.
First, the recantations came soon after the boys moved back into
their mother's home. In addition, and of particular significance,
the boys' original statements to Denver authorities preceded any
contact with Lambrecht relating to their initial allegations. The
court also noted the children's interest in the defendant's
ultimate sentence throughout the earlier proceedings. Finally, the
stepdaughter victim did not recant.
The District Court held a hearing on ~iller's motion to
withdraw his pleas. It heard and e v a l u a t e d testimony, considered
all the evidence, concluded that the recantations were not true,
and denied the motion, We hold t h a t t h e court did not abuse its
discretion.
Af finned.
We concur: