NO. 93-437
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
BEN DANIEL ENOCH, JR.,
Defendant and Appellant:.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Ed McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Anne H. Watson, Herman A. Watson 111; Watson &
Watson, Bozeman, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Jennifer
Anders, Ass't, Attorney General, Helena, Montana
Betty Wing, Deputy County Attorney, Missoula,
Montana
Gubmitted on Briefs: September 22, 1994
~ ~ ~ i dDecember 13, 1994
~ d :
Filed:
Justice Karla M. Gray delivered the Opinion of the Court
Ben Daniel Enoch (Enoch) appeals from the judgment entered by
the Fourth Judicial District Court, Missoula County, on his Alford
plea to the felony offense of issuing bad checks. We reverse,
concluding that the District Court abused its discretion in denying
Enoch's motion to withdraw his guilty plea.
On October 23, 1992, Enoch was charged with a felony violation
of § 45-6-316, MCA, issuing a bad check (common scheme). He
entered a plea of not guilty on November 18, 1992. Enoch's next
appearance before the District Court was on May 10, 1993, for a
change of plea. At that time, Enoch's counsel advised the court:
Your Honor, I have spoken to my client, and I am not sure
if he wants to change his plea. I told him it was his
decision. For the record, there is no plea bargain. Ms.
Wing told me she would recommend a ten-year sentence, and
I told my client, with that in mind, we could plead this
straight up and argue the sentence he wants, and he
expressed some reservations this morning about doing
that, so we need to get information from him about what
he wants to do.
The District Court asked Enoch whether he wanted to go to trial;
Enoch replied that he did. The court then recessed, with the
intent of reconvening fifteen minutes later to schedule a trial
date.
When the court reconvened, Enoch's counsel advised that Enoch
wanted to withdraw his not guilty plea and enter an Alford plea of
guilty. No written waiver of rights was prepared or executed and
no negotiated plea bargain agreement was made. After a short
interrogation, the District Court accepted Enoch's Alford plea and
ordered a presentence report.
Enoch appeared before the District Court on June 28, 1993, for
sentencing. Prior to sentencing, he orally requested to withdraw
his guilty plea. The District Court denied Enoch's motion,
adjudged him guilty of the offense charged, and sentenced him to
ten years imprisonment in the Montana State Prison.
Enoch raises five issues on appeal. The dispositive issue is
whether the District Court erred in denying Enoch's motion to
withdraw his guilty plea. Because we reverse on that issue, we
need not address the other issues raised on appeal.
The principles governing the entry and withdrawal of guilty
pleas are contained in both statute and case law. See State v.
Radi (1991), 250 Mont. 155, 818 P.2d 1203. Trial courts must meet
statutory requirements such as those contained in 5 5 46-12-210 and
46-16-105(1),MCA (1991), before accepting a guilty plea. Section
46-16-105(2),MCA, relates to withdrawal of a guilty plea.
No set rule or standard exists under which a trial court
addresses a request to withdraw a guilty plea; each case must be
considered in light of its unique record. u, P.2d at
818 1206.
Our standard in reviewing a district court's denial of a motion to
withdraw a guilty plea is whether the court abused its discretion.
State v. Reynolds (1992), 253 Mont. 386, 390, 833 P.2d 153, 155.
Three factors must be balanced when considering a criminal
defendant's attempt to withdraw a guilty plea: (1) the adequacy of
the court's interrogation at the time the plea was entered
regarding the defendant's understanding of the consequences of the
plea; (2) the promptness with which the defendant attempts to
withdraw the plea; and (3) the fact that the plea was the result of
a plea bargain in which the guilty plea was given in exchange for
dismissal of another charge. u,
818 P.2d at 1206 (citation
omitted); State v. Koepplin (1984), 213 Mont. 55, 59-60, 689 P.2d
921, 923. Because it is undisputed that Enoch's guilty plea was
not the result of a plea bargain, the third factor weighs in favor
of allowing withdrawal of the plea.
With regard to the promptness factor, it has long been the
rule that a request to withdraw a guilty plea should be made within
a reasonable time. State v. Nance (1947), 120 Mont. 152, 165, 184
P.2d 554, 561. Because each case presents its own unique factual
circumstances, we have declined to adopt specific parameters
defining the timeliness of a motion to withdraw. In State v.
Laverdure (1984), 212 Mont. 31, 35, 685 P.2d 375, 377, we concluded
that a ten-month delay between the guilty plea and motion to
withdraw was relatively prompt; in State v. La Tray (1986), 220
Mont. 358, 363, 715 P.2d 52, 55, a fourteen-month delay was not
timely.
Here, Enoch pled guilty on May 10, 1993. Shortly thereafter,
during an interview with probation department personnel preparing
the presentence report, Enoch stated that he wanted to withdraw
his plea. He reiterated that request during his next appearance
before the District Court on June 28, 1993, one and one-half months
after the entry of his guilty plea and prior to sentencing.
The State of Montana (State) suggests, without citation to
authority, that we should consider Enoch's indecision about whether
to plead guilty or not guilty over the eight-month period between
the filing of the information and the motion to withdraw the guilty
plea in determining whether Enoch's request to withdraw the plea
was timely. Such an approach would radically alter the promptness
factor from one examining time between entry of a guilty plea and
a motion to withdraw that plea to one considering time between the
filing of the charge and efforts to withdraw a guilty plea entered
sometime thereafter. Such an approach also would permit us to hold
a criminal defendant accountable for all time after filing of the
charges in determining whether a motion to withdraw a guilty plea
is timely. Neither our cases nor the fundamental concepts
underlying the promptness factor support the State's position. See
State v. Mahoney (Mont. 1994), 870 P.2d 65, 68-69, 51 St.Rep. 160,
162; Revnolds, 833 P.2d at 156. We conclude that Enoch's request
to withdraw his guilty plea, which followed the entry of the plea
by less than two months, was made within a reasonable time. Thus,
the promptness factor also weighs in favor of allowing the
withdrawal of Enoch's plea.
The final factor we consider is the adequacy of the District
Court's interrogation at the time the guilty plea was entered.
Enoch argues that the court's interrogation was inadequate and, as
a result, that his plea was neither knowing nor voluntary.
We have determined that a court's interrogation on a change of
plea is adequate where the court:
examines the defendant, finds him to be competent, and
determines from him that his plea of guilty is voluntary,
5
he understands the charge and his possible punishment, he
is not acting under the influence of drugs or alcohol, he
admits his counsel is competent and he has been well
advised, and he declares in open court the fact upon
which his guilt is based.
Mahoney, 51 St.Rep. at 161 (citations omitted). In addition, it is
well-settled that a guilty plea must be a knowing and intelligent
choice among the alternative courses of action open to the
defendant. u,
818 P.2d at 1206; quoting North Carolina v.
Alford (1970), 400 U.S. 25, 32, 91 S.Ct 160, 164, 27 L.Ed.2d 162,
In this case, the following colloquy took place between the
District Court and Enoch at the time Enoch entered his guilty plea:
THE COURT: Mr. Enoch, I would like to explain a few
things to you. First of all, by withdrawing your plea of
not guilty and entering a plea of guilty, you're giving
up virtually all of your rights except the right to be
represented by an attorney. You lose the possibility of
being found not guilty or being found guilty of a lesser
included offense. You lose the right to confront
witnesses that would be called to testify against you in
a trial. You lose the right to subpoena witnesses to
testify on your behalf, and you lose the right to a jury
trial. Do you understand that?
MR. ENOCH: Uh-huh.
THE COURT: It is still your desire to withdraw your plea
of not guilty?
MR. ENOCH: (No verbal response.)
MR. BECCARI: Do you still want to plead guilty?
(Whereupon,Mr. Beccari had a discussion with his client
off the record.)
MR. BECCARI: Your Honor, he is going to enter an Alford
plea.
MR. ENOCH: Yes sir.
THE COURT: Your not guilty plea is ordered withdrawn
Are you under the influence of any alcohol, medication,
or other substance that would affect your reasoning
powers?
MR. ENOCH: Medication
THE C0URT:Would that affect your reasoning powers?
MR. ENOCH: I wouldn't think so.
THE COURT: Are you satisfied with the services of your
attorney?
MR. ENOCH: Yes
THE COURT: It is my understanding that on the plea of
guilty, the State is going to recommend ten years in
prison, and the defense is going to be able to argue for
whatever sentence they want.
MS. WING: That's correct
THE COURT: Other than this understanding, have any
promises or threats been made to you to induce you to
enter a guilty plea?
MR. ENOCH: Not overtly, no.
THE COURT: In any way?
MR. ENOCH: Well, just the fact that you face a lot more
severe sentence by risking going to court. That is the
only thing.
THE COURT: So just the sentencing factor is the only
thing that has entered into the discussions with you,
correct?
MR. ENOCH: Yes.
THE COURT: The Information alleges - - the plea of not
guilty is ordered withdrawn. Do you have a copy of the
information?
MR. ENOCH: NO - - yes, I do -- not with me
THE COURT: The Information alleges that you committed
the offense of issuing bad checks, a felony. That
carries a penalty of up to ten years in the Montana State
Prison and/or a fifty-thousand dollar fine. The
allegation is that on or about and between June 12
through June 27, 1992, you issued or delivered three or
more checks on a depository, First Security Bank, for the
payment of money knowing that the checks would not be
paid by the depository. The checks were written as part
of a common scheme. How do you plead to that offense?
MR. ENOCH: Guilty.
By statute in Montana, a court must determine that a criminal
defendant understands the following, among other things, before it
accepts a guilty plea:
(1)(a) the nature of the charge for which the plea is
offered;
(b) the mandatory minimum penalty provided by law, if
any ;
(cj the maximum penalty provided by law, including the
effect of any penalty enhancement provision or special
parole restriction; and
(d) when applicable, the requirement that the court may
also order the defendant to make restitution of the costs
and assessments provided by law;
( 3 ) that the defendant has the right:
(a) to plead not guilty or to persist in that plea if it
has already been made;
(b) to be tried by a jury and at the trial has the right
to the assistance of counsel;
(c) to confront and cross-examine witnesses against the
defendant; and
(d) not to be compelled to reveal personally
incriminating information;
(5) that if the defendant's plea of guilty is accepted by
the courts, there will not be a further trial of any
kind, so that by pleading guilty the defendant waives
the right to a trial;
. . .
Section 46-12-210, MCA (1991). In this case, the colloquy set
forth above establishes that the statutory requirements were not
met.
Specifically, the District Court failed to advise Enoch of:
(1) the possibility that it could order restitution; (2) his right
to persist in pleading not guilty; and (3) his right not to be
compelled to reveal incriminating information. In addition to
being statutory requirements, these are not minor or
inconsequential matters. One of the court's omissions concerned
the fundamental right against self-incrimination as guaranteed by
the Montana and United States Constitutions. Art. 11, Sec. 25.
Mont. Const.; U.S. Const. Amend. V. Rights this fundamental cannot
be addressed adequately by the District Court's broad statement
that Enoch was "giving up virtually all of [his] rights. . . . "
The State argues that the interrogation in this case was
adequate because " [tlhroughout these proceedings, the court
counseled Appellant with respect to the charges, the possible
punishment, and the rights which would be waived by entry of a
guilty plea." Presumably, the State is relying on the colloquies
which took place on separate dates in November, 1992, when Enoch
was arraigned and entered his original not guilty plea. We reject
this argument.
Neither the information provided to Enoch at the November
arraignment and entry of not guilty plea proceedings nor the
acknowledgement of rights he executed at that time meet the
specific requirements of 5 46-12-210, MCA (1991). The statutory
requirements apply to the proceeding at which a guilty plea is to
be accepted; here, the May 10 proceeding. Adopting the State's
position would totally vitiate those requirements and permit
acceptance of a guilty plea based on information provided to a
criminal defendant in bits and pieces over a long period of time.
This we will not do.
The State also contends that Laverdure is on point and
mandates a conclusion that the District Court's interrogation was
adequate. We disagree. There, the record contained both a careful
oral colloquy between the court and the defendant and a signed
acknowledgement of waiver of rights by plea of guilty which
contained the charge against the defendant and the associated
penalty; an enumeration of the constitutional rights waived when
one pleads guilty; an acknowledgement of the defendant's
satisfaction with his counsel; a denial that the defendant was
under the influence of drugs or alcohol; and the following
statement: "I believe I am guilty of this offense because I did
assault the girl." Laverdure, 685 P.2d at 377-378. At the change
of plea hearing, the trial judge reviewed the written
acknowledgement of waiver of rights, discussed with the defendant
the constitutional rights he would relinquish by pleading guilty,
and ascertained that the defendant was aware of the maximum
penalties involved and that a factual basis existed for the plea.
Laverdure, 685 P.2d at 377-378. We held that the interrogation was
adequate under the standards delineated in State v. Lewis (1978),
177 Mont. 474, 582 P.2d 346. The record presently before us is
readily distinguishable from that in Laverdure.
Here, no signed acknowledgement of waiver of rights by plea of
guilty exists. It is true that Enoch executed an acknowledgement
of rights on November 18, 1992; an acknowledgement of rights,
however, is not the equivalent of an acknowledgement of waiver of
rights by plea of guilty such as the court had before it in
Laverdure. Nor, as discussed above, can a form executed some six
months before the entry of the guilty plea be considered timely
with regard to requirements which must be met at the time the plea
is accepted.
Moreover, also as discussed above, the District Court did not
discuss with Enoch all of the constitutional rights he would be
waiving by entering a plea. In addition, Enoch's Alford plea
hardly equates to Laverdure's affirmative statement of guilt
premised on the factual basis for the charge.
Thus, it is clear that Laverdure does not support the State's
position here. Indeed, the record before us is a far cry from the
careful, deliberate proceeding which occurred in Laverdure and
which is required when a criminal defendant makes the important
decision to waive the full panoply of fundamental rights by
entering a guilty plea.
Nor can we say without doubt, on the record before us in this
case, that the Mahonev and Radi voluntary, knowing and intelligent
standard was met during the change of plea proceeding on May 10,
1993. One portion of the colloquy, concerning Enoch's medication,
relates to the "not acting under the influence of drugs,"
"competent" and "understands" elements of Mahoney. In this regard,
Enoch gave conflicting testimony regarding whether the medication
he was taking would affect his reasoning powers:
THE COURT: . . . Are you under the influence of any
alcohol, medication, or other substance that would affect
your reasoning powers?
MR. ENOCH: Medication.
THE COURT: Would that affect your reasoning powers?
MR. ENOCH: I wouldn't think so.
This exchange should have prompted the court to inquire further
regarding Enoch's medical condition, the type of medication he was
taking or the effect of such medication. This is particularly true
where, as here, the defendant had stated his desire to go to trial
only a short time before. Further inquiry by the court may have
resolved the question of what effect Enoch's medication and
physical condition had on his decision to enter a guilty plea and
removed any doubt raised by the exchange quoted above.
The record is also somewhat equivocal about the firmness of
Enoch's decision to plead guilty during the May 10, 1993,
proceedings. Following the court's question as to whether Enoch
understood the rights he was waiving, Enoch responded:
MR. ENOCH: Uh-huh.
THE COURT: Is it still your desire to withdraw your plea
of guilty?
MR ENOCH: (No verbal response.)
MR. BECCARI: Do you want to plead guilty?
(Whereupon,Mr. Beccari had a discussion with his client
off the record.)
MR. BECCARI : Your Honor, he is going to enter an Alford
plea.
Enoch's lack of response to questions from both the court and his
counsel, taken together with the additional facts that his counsel
finally responded for him and that he had stated his desire to go
to trial earlier the same day, raises doubts about the voluntary,
knowing and intelligent nature of Enoch's guilty plea.
With regard to the adequacy of interrogation factor,
therefore, the record is clear that the statutory requirements were
not met; in addition, the record at least raises doubts about the
knowing, voluntary and intelligent nature of Enoch's guilty plea.
We have held that if there is any doubt that a guilty plea was not
voluntarily or intelligently made, the doubt must be resolved in
favor of the defendant. Koepplin, 689 P.2d at 926; citing State ex
rel. Gladue v. Eighth Judicial Dist . (1978), 175 Mont . 509, 575
P.2d 65. On these bases, we conclude that the adequacy of
interrogation factor relating to the withdrawal of a guilty plea--
like the promptness and plea bargain factors--weighs in favor of
allowing withdrawal of the plea.
Having concluded that the three factors which must be balanced
when considering a criminal defendant's attempt to withdraw a
guilty plea all weigh in favor of withdrawal of the plea in this
case, we hold that the District Court abused its discretion in
denying Enoch's motion to withdraw his guilty plea.
Reversed and remanded for further proceedings consistent with
this opinion.
We concur: