No. 91-533
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
CHARLES LEE REYNOLDS, JR.,
Defendant and Appellant.
APPEAL FROM: District court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Thomas C. Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James G. Hunt; Dix & Hunt Law Firm, Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General; John Paulson,
Assistant Attorney General, Helena, Montana
Mike McGrath, Lewis & Clark County Attorney,
Helena, Montana
Submitted on Briefs: May 7, 1992
Decided: May 28, 1992
Filed:
Justice John Conway ~arrisandelivered the opinion of the Court.
This is an appeal from the District Court of the ~ i r s t
Judicial District, Lewis and Clark County, concerning the
withdrawal of a guilty plea. We affirm.
The sole issue presented for review is whether the District
Court erred by denying appellant's motion to withdraw his guilty
plea.
The appellant, Charles Lee Reynolds, Jr. (Reynolds), was
charged by complaint in the Justice Court of Lewis and Clark
County, on January 4, 1990, with the offense of issuing a bad check
(common scheme), a felony, On January 25, 1990, a second complaint
was filed against Reynolds in Justice Court, charging him with the
offense of criminal trespass, a misdemeanor; intimidation, a
felony; and forgery, a misdemeanor. At that time an arrest warrant
was issued and Reynolds was arrested on that date. Reynolds posted
bond in the amount of $2,500.
On March 22, 1990, Reynolds waived a preliminary hearing on
the charges in Justice Court and was bound over to District Court.
The Lewis and Clark County Attorney filed an information on April
23, 1990, charging Reynolds with the offenses of issuing a bad
check, a felony; and forgery, a misdemeanor. Although the record
is unclear, it appears that the Lewis and Clark County Attorney
dropped the criminal trespass and intimidation charges in the
transmission from Justice to District Court.
Four separate short transcripts of the court proceedings are
filed in this matter: (1) The May 3, 1990, transcript of Reynolds1
initial appearance, arraignment and sentencing in District Court:
(2) the April 5, 1991, transcript of the County Attorney's petition
to revoke Reynolds1 suspended sentence; (3) the July 11, 1991,
transcript entitled "Review Hearing;" and (4) the July 25, 1991,
transcript of Reynoldsv motion to withdraw his guilty plea.
The various transcripts reveal that in early 1990, while
Reynolds was under arrest and being held in the county jail, he
initiated contact with Sgt. Les Hathcock of the Helena Police
Department about becoming a drug informant. After Sgt. Hathcock
discussed this matter with the Lewis and Clark County Attorney,
they agreed to use Reynolds as an informant. Reynolds acted as an
informant for the county between the end of January, 1990 until
April, 1990. During that time, he became well acquainted with the
police officers and the prosecution staff of Lewis and Clark
County. The record indicates that while working as an informant
Reynolds testified at several trials which resulted in over twenty
drug convictions.
On May 3, 1990, Reynolds appeared before the District Court,
without counsel, for his arraignment. At that time the court
advised him that by appearing without counsel he was waiving a
right to which he was entitled, and the court asked whether he was
ready to proceed. Reynolds stated that he did not wish to be
represented by counsel. On appeal, Reynolds indicated that one of
the reasons he felt he did not need an attorney when he entered his
guilty plea was that he had considerable faith in the Lewis and
Clark County Attorney.
Before the court accepted Reynoldsq guilty plea, Reynolds
explained to the court that he and his wife broke up, and as a
result of the break up, he was doing considerable drinking and
gambling. He further testified that before the charges were
brought against him, he issued a number of bad checks to various
Helena area merchants knowing his deposits were insufficient to
cover the amount of checks he wrote. As to the second charge of
forgery, Reynolds testified that he sold a clock for $60 but
altered the check by inserting a one before the s i x thereby making
the amount payable appear to be $160. He cashed the check for
After reading the charges in the information to Reynolds, the
court said to him:
THE COURT: .. .And at the time, you knew that [the $60
check] was made or altered in such a manner that it
purported to have been made by Fae Tickler. Do you
generally understand what's charged in each count?
CHARLES LEE REYNOLDS: Y e s , sir.
Thereafter, the court set forth the maximum possible
punishment for each offense, and after explaining the same the
District Court Judge asked Reynolds, "Do you understand what the
maximum possible punishment is?" To which Reynolds replied wYes,
sir.
Then, the court asked Reynolds:
THE COURT: Now, . . .You are also entitled to be
represented by an attorney. You appear here without an
attorney and do you wish to be represented by an
attorney?
CHARLES LEE REYNOLDS: No, I don't believe so.
THE COURT: You feel that under the circumstances you
will represent yourself; is that correct?
CHARLES LEE REYNOLDS: Yes.
All of this information was available to the trial judge when he
sentenced Reynolds, and the May 3, 1990, transcript reveals
considerable discussion between the court and Reynolds prior to his
entering a plea.
During the May 3, 1990, proceeding, Reynolds entered his
guilty plea and the court proceeded directly to sentencing
Reynolds. Accepting the County Attorney's recommendation, Judge
Honzel sentenced Reynolds to three years in the state prison and
suspended all but time served on the conditions the County Attorney
recommended. Judge Honzel stated:
THE COURT: ...First of all, you make restitution, and
it will probably be in the neighborhood of $3,800, and
the restitution officer will get a final amount. We
won't leave that hanging forever. And, then, we'll have
a final amount probably in thirty days and we1 set that
11
as the time. So, whatever [the restitution officer]
comes up with in thirty days, that's what you'll be
responsible for. If, for some reason, you think [the
restitution officer is] way out of line, youlreentitled
to a hearing on that, and, then, 1'11 determine what the
exact amount i . Otherwise, we'll go with the figure
s
[the restitution officer] comes up with. And youlllbe
a law-abiding citizen.
In addition, you811 be given credit for the time
that you've already served. I guess the way to do that
is, we'll suspend all of it but eight days and youlll be
given credit for the time that you served. I guess
that's the easiest way to handle that.
As far as the reasons, it does comply with the plea
agreement and you have previously had a deferred sentence
and you're not entitled to another one and this is the
type of an offense which requires restitution. From your
standpoint, the one thing that you need to understand is
that if you goof up and you don't make restitution or you
get into further trouble with the law, the county
attorney can ask that your suspended sentence be revoked
and that you begin to serve that sentence.
...
Approximately one year later, on March 18, 1991, the Lewis and
Clark County Attorney petitioned the court to revoke Reynolds'
suspended sentence for his failure to make a good faith effort to
pay the restitution as required by the judgment of the court. The
court held a hearing on that motion on April 5, 1991, wherein the
County Attorney elicited testimony that Reynolds made little or no
effort to comply with the conditions of his suspended sentence;
that he did not make himself available to the restitution officers
of Lewis and Clark County; and, as noted by the restitution
officer, Reynoldsa cooperation with the restitution program was not
very positive.
The transcript reveals that the year after Reynolds pled
guilty, he had earned income of approximately $16,000, gross, and
during December of 1990, and January, February and half of March,
1991, he had drawn unemployment. Out of those funds, a large
percentage was taken to pay child support and other expenses,
however, Reynolds paid nothing toward fulfilling his restitution
obligation.
After that hearing, Reynolds filed a motion to withdraw his
guilty plea on June 7, 1991. The court set July 25, 1991, for
hearing on that motion.
The record reveals that following Reynoldsa guilty plea and
sentencing in 1990, he was charged in United States District Court,
State of Montana, with a violation of 18 U.S. C. 9 922(a)(6), making
6
a false statement on Alcohol, Tobacco and Firearms Form 4473; and
violation of 18 U.S.C. § 922 (g)(1), being a felon in possession of
a firearm for allegedly purchasing a firearm on June 14, 1990.
Apparently, Reynolds' motion to withdraw his guilty plea a year
later was somewhat influenced by the charges in United States
District Court.
The standard of review in cases involving a district court's
refusal to allow a defendant to withdraw a guilty plea is whether
the district court abused its discretion. State v. Cameron (Mont.
1992)t - P.2d _, -, 49 St.Rep. 150, 152. Absent an abuse of
discretion, we will not disturb the district court's decision.
Cameron, - P.2d at -, 49 St.Rep. at 152.
Section 46-16-105(2), MCA, allows the court to permit the
withdrawal of a guilty plea and substitute in its place a plea of
not guilty upon a showing of good cause. This Court considers the
following three factors when determining whether a district court
erred in refusing to allow a defendant to withdraw his 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 consequences of his plea; (2) the
promptness with which the defendant attempts to withdraw
the prior plea; and (3) the fact that the defendant's
plea was the result of a plea bargain.
State v. Walker (1986), 220 Mont. 70, 72, 712 P.2d 1348, 1350
(citation omitted). Here, we carefully considered the above
factors in determining whether the District Court abused its
discretion in denying Reynolds* motion to withdraw his guilty plea.
In reviewing the first factor, the District Court noted that
this Court has held that the procedure it followed is adequate when
7
a district court:
[Elxamines the defendant, finds him to be competent, and
determines from him that his plea of guilty is voluntary,
he understands the charge and his possible punishment, he
is not acting under t h e influence of drugs or alcohol, he
admits his counsel is competent and he has been well
advised, and he declares in open court the facts upon
which his guilt is based. ...
State v. Lewis (29781, 177 Mont. 474, 485, 582 P.2d 346, 352.
Reynolds argues that the District Court's interrogation was
inadequate. Reynolds contends that his motion to withdraw h i s
guilty plea should have been granted because he did not have
counsel at the time he entered his guilty plea. He further claims
that the factual basis for one of his guilty pleas was not
sufficiently established in the record: that the court failed to
properly inform him of a possible defense or a possible lesser-
included offense; and that the court failed to advise him of
consequences of pleading guilty.
The District Court noted that in this case Reynolds was not
represented by counsel, but he knowingly waived his right to
counsel. Further, Reynolds himself initiated discussions about the
possibility of being used as an informant in exchange for favorable
treatment. In the course of that role as an informant he built a
relationship with the Lewis and Clark County law enforcement
officers and he came to rely on that affiliation.
In reviewing the second factor, Reynolds argues that he timely
made his motion to withdraw his guilty plea. Reynolds did not move
to withdraw his guilty plea until some thirteen months after he
entered it. In general, filing the motion to withdraw a guilty
plea over a year after entry of the guilty plea is untimely. State
v. LaTray (1986), 220 Mont. 358, 715 P.2d 52.
Reynolds makes considerable argument concerning his federal
court firearm charge, and argues that the State's position that he
did not timely move to withdraw his plea, having waited thirteen
months after sentencing, is unsubstantiated. We note that due to
the federal firearm charge, Reynolds did not, nor could not, have
acted much faster because he was not aware of or at least was not
arrested for being a felon in possession of a firearm until March
5, 1991, at which time counsel had been appointed for him.
However, we do not find that this was the controlling factor in the
trial court's decision to deny Reynolds' motion to withdraw his
guilty plea.
In reviewing the third factor, Reynolds argues that although
his guilty plea resulted from a favorable plea bargain agreement,
he was unaware that the plea subjected him to another felony, the
possession of a firearm. However, Reynolds received exactly what
he bargained for when the District Court sentenced him according to
the County Attorney's sentencing recommendations.
Reynolds argues that he was not advised that he could not
possess a firearm as a consequence of his guilty plea and that he
did not become aware of that regulation until after he had
purchased the firearm. To this argument the District Court noted
that, as a part of sentencing procedure, it was not aware of any
requirement, nor are we, that defendants should be informed that it
is illegal for a convicted felon to possess a firearm. Here, as in
most proceedings on suspended sentences, Reynolds was informed that
he must be a law abiding citizen. If not, the suspended portion of
his sentence could be revoked.
Reynolds was sentenced May 3, 1990. Subsequently, he
attempted to purchase the firearm on or about June 14, 1990. To
obtain the firearm, Reynolds represented on ATF Form 4473 that he
had not been convicted of a felony punishable by imprisonment for
a term exceeding a year. This was clearly an error. Although
Reynolds may not have known at the time of pleading guilty that
possessing a firearm was illegal, he certainly became aware of it
shortly thereafter when he had to make a false statement to the
seller to obtain the firearm. It is impossible for a district
court to inform a defendant of every illegal action that could
affect the defendant upon entering a guilty plea. The District
Court properly considered this factor when denying Reynolds'
request to withdraw his guilty plea.
Here, the D i s t r i c t Court carefully considered the factors i n
refusing to permit Reynoldsi withdrawal of his guilty plea.
Additionally, the court considered that the County Attorney did not
include in its information in District Court two of the charges
filed in Justice Court; and that the County Attorney recommended a
short suspended sentence with unsupervised probation and payment of
restitution. When accepting Reynoldsf guilty plea and the County
Attorney's sentencing recommendations, the court considered and
made a concession in view of the fact that Reynolds had a prior
felony conviction.
This Court has often held that it will not lend its assistance
to an accused criminal in escaping his or her obligations of a plea
bargain after accepting its benefits. State v. Radi (Mont. 1991),
818 P.2d 1203, 48 St.Rep. 903; State v. Koepplin (1984), 213 Mont.
55, 689 P.2d 921. Considering and balancing all of the factors, we
find the District Court was well within its discretion in denying
Reynolds' motion to withdraw his guilty plea.
Affirmed .
Justices
Justice Karla M. Gray, concurring in part and dissenting in part.
I concur in the majority opinion insofar as it analyzes the
withdrawal of appellant's plea of guilty to the forgery charge. I
respectfully dissent from that opinion, however, on the issue of
withdrawal of appellant's guilty plea to the charge of issuing a
bad check.
The majority notes Reynolds' argument that the District
Court's interrogation at the time of entry of the plea was
inadequate; it also notes his claim that Itthefactual basis for one
of his guilty pleas [to the charge of issuing a bad check] was not
sufficiently established in the record.lf Having so noted, the
majority never addresses this contention. It is my view that
Reynolds is correct and that no factual basis for the intent
element of the offense of issuing a bad check was established at
the time the District Court accepted the plea to that charge.
The record contains the following exchange between the court
and Reynolds with regard to the factual basis for the intent
element:
THE COURT: And I take it that during that
period of time, last June till this January,
you were writing a lot of checks?
CHARLES LEE REYNOLDS: Yes, sir.
THE COURT: And the bank didn't cover a number
of those checks; is that right?
CHARLES LEE REYNOLDS: Yes, sir.
THE COURT: And you knew at the time that you
were short of funds in the account?
CHARLES LEE REYNOLDS: Well, I was making
deposits, yeah -- it wasn't clear at the time.
I was confused and mixed up and emotionally
hurt and I was drinking a lot and gambling a
lot to try to pass time.
THE COURT: Whatever deposits you were making,
they weren't enough to --
CHARLES LEE REYNOLDS: NO, sir.
THE COURT: -- to cover these checks. Where
were you making them to, mostly in the bars
and casinos?
CHARLES LEE REYNOLDS: Yes.
It is clear that the District Court attempted to establish
that Reynolds knew at the time he wrote the checks that his
deposits were insufficient to cover those checks. It is my view,
however, that Reynolds' testimony was that he was confused, upset
and often under the influence of alcohol during the time period at
issue. He responded that, as a matter of fact, the deposits he
made were not enough to cover the checks. This is not a statement
that he knew or intended at the time that the checks would not be
covered. Indeed, the record contains no clear statement that
Reynolds knew at the time he was writing the checks that there were
not sufficient funds in his account to cover the checks. For that
reason, I conclude that sufficient factual basis for the intent
element of the offense of issuing a bad check is not contained in
the record. Therefore, I would hold that the District Court abused
its discretion in denying Reynolds' motion to withdraw his guilty
plea to that charge.