*1 128 MONTANA, OF
STATE
Respondent,
Plaintiff
v.
YOTHER,
KENNETH
Appellant.
No. 91-364.
26, 1992.
Submitted on briefs Mar.
1,May
1992.
Decided
St.Rep.
49
387.
Mont. 128.
For Femling Schwarz & Gustaf- son, Billings Respondent:
For Racicot, General, Marc Attorney Helena; Jordan, Patricia J. Attorney General, Helena; Asst. Haker, Keith County Attorney, Custer City. Miles
JUSTICE WEBER delivered the Opinion of the Court. The District Court for the District, Sixteenth Judicial Custer County, denied defendants motion to plea withdraw his to the offense of sexual intercourse without consent. Defendant appeals. We affirm.
The issues for our consideration are: 1.Did the District Court abuse its in denying discretion defendants motion to plea withdraw his guilty?
2. Were defendants rights constitutional process to due by violated the denial of his motion to guilty? charged defendant,
The State Yother, Kenneth with sexual inter- consent, assault, course without incest, sexual and all committed against the defendants thirteen-year-old daughter, B.Y.The affidavit in support of the information stated:
The Court is further through informed that investigation it was BY, youth, determined that a minor was at her tending residence to other Defendant, children when the who was known to the youth, came to her approximately residence at [sic] 3:00 oclock A.M. and go invited her to for a ride in an automobile which he was intending purchase. BY, to youth, The minor accepted the invita- tion for the ride and went with the Defendant. The Defendant left neighborhood and drove to a secluded area parked where he BY requested vehicle. that he take her back to her residence. This request ignored was began talking and the Defendant about young girls that he had sexual contact younger. with when he was BY attempted to leave the vehicle with the intent to walk home and her the hair grabbed the Defendant. He stopped but was crotch, pants were the area ofhis where her face down to pulled to her away. proceeded pull The Defendant pulled and she open, pants legs. her closer, her boot and one of pulling off BY, to her down, and, according penetrate to he was able held BY penis. vagina with advised the defendant arraignment, the District
At the Court an him, penalties, appointed maximum charges against rights. The court ofhis constitutional attorney and advised defendant the defendant: further informed make a with you advised that if
You should be agreement Attorney, that be an between County would Attorney you to enter a certain you and for to Attorney make a certain recommendation for the and the such party the Court. The Court is not the Court agreement. Should not be bound such an Court would an or otherwise guilty pursuant accept maximum right up to sentence [sic] would contain Court your Also, you right not have a to withdraw by law. would allowable guilty plea.... *3 charges. all pled guilty
The defendant not to defendant, attorney, the 21, 1991, his January On the victim, executed the and the mother of the victim Attorney, B.Y.the agreement In the Agreement. Plea Acknowledgment Rights of and sufficiency of the challenge the acknowledged right his to in violation information, right object any to to evidence obtained his jury at he had law, public trial which right speedy to a and of counsel, and right to confront of the right the to effective assistance witnesses, testify, right to call and have right the to the cross-examine himself, incriminate right compelled to be to testify, the not witnesses doubt, and the a reasonable charges proved beyond right to have contained the agreement The right appeal finding to a consent, sexual without for sexual intercourse penalties maximum waive guilty he would assault, agreed pleading He that and incest. given had acknowledged he been referred to. He rights all the above attorney the case with opportunity to discuss ample time and advise, and that he was attorneys full of that received the benefit that acknowledged attorney. He also the services of satisfied with disability; that he or any mental disease suffering from he was not medication; and that alcohol, drugs or under the influence was not or threatened, intimidated coerced or otherwise he had not been following agreement then contained any way. The influenced the defendant: regarding specific paragraphs voluntarily freely I into this 10. have entered and conditions. knowledge full of its terms and with bargain agreement is an that a 11.1 understand exchange for a that prosecutor and a between a defendant sen- particular will recommend particular plea prosecutor tence. in the may participate that the Court not
12. I -understand by the agreement nor is the Court bound making of such an lawfully my guilty alone I could understand that on 13.1 maximum authorized for punishment sentenced to the be offense(s) I and that the recommendation plead to which imposing when attorney way in no binds the Court prosecuting sentence. imposed that the sentence to be is within
14.1 understand does not sentencing judge and that the State sole discretion representation or as to what the sentence will promise make be. impose the Court does not the sentence 15.1 understand if required the Court is not to allow prosecutor,
recommended added). my plea guilty, (emphasis me to withdraw of sexual agreed plead guilty defendant then to the offense intercourse without consent as follows: 46-12-204, MCA, upon and conditioned
18. Pursuant to § below, understandings specified agree plead guilty Consent, felony, alleged as of Sexual Intercourse Without offense Information, folio-wing in the Amended on the basis: imprisonment recommend a. That the will (3) (5) of said years. five Three the Montana State Prison for entirety in its sentence shall be determinate and must be served spent time State less credit for Montana County Jail. Custer condi- early parole The Defendant shall not be entitled
b. tional release. *4 must State the Defendant
c. While at the Montana Program. the Intensive TwoYear Sex Offender complete Prison, the Defendant the Montana State Upon d. release from (2) years. two period on Parole for a placed shall be “prosecution” that the provided further in detail agreement The agreement would abide the terms of the throughout proceed- all ings, including parole, sentence review and and that prosecution attempt renegotiate would not to alter or agreement. the terms ofthe stated that the agrees State that the defendant shall entry be entitled to withdraw from the to the subsequent guilty plea of a in the event the State perform obligations fails to its pursuant to the
After a hearing, accepted plea the District Court defendants guilty consent, to the resulting offense sexual intercourse without dropping charges sexual assault and incest. The court ordered defendant to undergo psychosexual pursuant evaluation 46-18-111, MCA. § Bruno,
Defendant was professional evaluated Pete a licensed counselor. Mr. Bruno completely concluded that defendant denied problem sexuality, with deviant the defendant could not be accepted outpatient into therapy, and that Bruno could not recom- (Phase mend him placement for in the Phase II II requires a court order) program prison. at the sentencing,
Prior to
guilty
defendant moved to
plea
withdraw his
(1) following
because:
he was ordered
complete
a Sex
(2)
Evaluation;
Offender
“hope[d]”
the defendant
he
allowed
would be
Judge
withdraw his
if the
did not follow the
(3)
Attorneys recommendations;
the defendant entered
out
(4)
jury
do;
of “fear” of what a
might
the court did not elicit
sufficiently “strong
guilt by establishing
evidence” of
a factual basis
for the
before accepting
plea pursuant
to North Carolina v.
25,
400 U.S.
91 S.Ct.
In considering defendants motion to plea, the District Court following regarding stated the the sexual offender evaluation: they and his counsel certified to the Court that had 46-18-111, MCA, seq.
examined 46-18-101 et and were aware of and knew that the presentence investigation report required is include sex offender evaluation where the victim of a sex offense case, age age is under the of 16. In this the victim was 13 at the offense, requiring [I]n time of the the sex offender evaluation .... Court, Custer Criminal Cause No. this as a condition sentence, imposition previously required of deferred this same *5 defendant to obtain a Sexual Offender Evaluation and follow through with all recommendations of said evaluation. Defendant required failed to obtain sex offender evaluation absconded Ultimately, probation. probation from Defendants was revoked and Defendant served six months in the Custer Jail. The certainly expected defendant should have that this Court would definitely undergo him to a want sex offender evaluation after his above, light second sex offense conviction. In ofthe the Court finds suggestion Defendants patently unbelievable that he was either surprised unfairly prejudiced or requirement undergoing a sex offender evaluation. regard
With claim “hope[d]” defendants that he he would be Judge allowed to withdraw his if the did not follow the County Attorneys recommendations, the court referred to its admoni- tion to the defendant arraignment entry plea, both at and at the court would not plea agreement. be bound a The court stated premature the claim was yet because defendant had not been sen- tenced.
In addressing argument defendants that he entered his out of jury might do, “fear” of what a the District Court stated that the question is not whether the defendant hope, acted out of fear or but is whether defendant unduly was influenced and improperly either by hope byor fear in making plea. a The court concluded that there nothing was in the procedures used given which would have hope unduly such false or fear improperly or influenced him.
Finally, reviewing court, after the evidence before the court concluded that it had “no doubt that the defendant ... had sexual intercourse with BY’. The District Court denied defendants motion to withdraw his plea. sentencing hearing,
At the prepared officer who presentence investigation testified and recommended that the sen- long enough tence be for the defendant complete the sex offender program at prison. years She testified it would take about two complete program. She “leery further testified that she was ofthe Bargain”. Plea twenty years
The District Court sentenced defendant to a term of suspended. Montana State Prison with five to be history, court based its sentence on defendants includ- past criminal ing offense; prior sex the fact that the court defendant to believed offender; be a sexual the presentence investigation report; evaluation; society; defendants defendants threat psychosexual and the need dangerous parole purposes; offender for designation as prison from due to following the defendant his release monitoring for for not problems. explained The court its reasons psychosexual following Agreement have allowed the
Following Bargain the Plea would term confront- relatively prison serve a short without defendant to obtaining the treatment ing problems his sexual and without to rehabilitate the defendant. required motion to sentencing, defendant filed a second Following the County Attorney did guilty stating only that the *6 stating: denied the motion the motion. The District Court oppose not Guilty Plea. Defendants Motion to Withdraw Before the court is Guilty being prof- Plea Presumably, to Withdraw is this Motion sentencing filed before because the earlier Motion was fered did not follow the bargain that if the Court provided plea bargain, in the recommendations Therefore, a motion. County Attorney would not resist such the mo- County Attorney does not resist Court assumes that the hearing has and the fact that a light In of such non-resistance tion. Based the court deems the matter submitted. requested, not been the reasons stated in its in the record and for on the evidence motion, denying the earlier memorandum hereby denied. Defendants motion is July on filed a third motion to withdraw Defendant 12, 1991, stating: the recommendation in conformance with given
The sentence was Rebich, Adult Probation Hearing of Sheila Sentencing at the of her ex- was made violation Officer. This recommendation Kenneth defense counsel. Defendant representations to pressed when he entered upon representations relied those Yother word and belief upon probation officers Defendants reliance reliance legitimate. Defendants considered in her word should be gave Rebich veracity Probation Officer Sheila in the and belief Agreement. Plea followthe hope that the Court would rise to his to defen- opposition memorandum County Attorney filed a memorandum, the In the guilty plea. to withdraw his dants motion Attorney stated: County provided that Agreement Plea noted that
It should be in Montana imprisonment recommend County Attorney would (5) (3) years State Prison for three of said sentence five with entirety, to have been determinate and in its less credit for served time spent County jail the Custer Jail. The time to be served the Defendant plea agreement, under the would be close to what the Defendant serving will be under the terms ofthe Courts Order only of Commitment. The period real difference is an extended probation for the Defendant. replied County Attorneys arguing
Defendant to the memorandum State, by filing memorandum, that the violated its regard withdrawing the plea. hearing,
After a regarding District Court issued its order defendants third motion to plea stating: “The Court has not briefing County considered and the Attor- ney argued has not pursuant relative to this motion to the Attorneys acknowledged promise not to resist withdrawal of the if the Court County Attorneys did not follow the recommendation.
The Court notes that proposed acquies- officers cence to County Attorneys expressly recommendation was conditional on the being to complete able the intensive sex program offender at the Montana State Prison with that recommended sentence. After the probation officer consulted with officials at the Montana State she found out it was doubtful whether such a sentence would be workable .... fact, given the severity of the offense and defendants dismal
prognosis, the Court would have hard-pressed been to follow the probation officers report acquiesced had she Attor- *7 neys recommendation. Defendants counsel is aware that the Court sometimes deviates from probation the recommendations of the officer.The fact usually goes along that the Court with the recom- probation mendations of the give officer can no more rise to an improper hope, than usually goes along does the fact that the Court with the County Attorney. recommendations of the The Defendant thoroughly was advised that the Court retained the ultimate decision and could him up provided by sentence to the maximum law.... appeals from the denying District Courts order his motion plea guilty. withdraw his
Did the District denying Court abuse its discretion in defen dants motion to plea guilty?
Defendant contends that he relied on the representations of the probation officer that she would recommend that the Court District sentencing followthe plea bargain. recommendation contained in the He maintains that he entered repre- his reliance on such by probation officer, sentations the and was therefore misled. The by State contends that the probation statement officerwas part not a plea agreement. of the points The State further out that the probation representation officers that she would follow agreement was conditioned on the being accepted into the sexual offender program prison. at the
In State v. Milinovich 248 Mont. P.2d county Milinovich and the attorney entered into a plea would, which stated that the prosecutor sentencing, at the time of make no recommendation to the court relative to a term of However, be served. presentence investigation by prepared probation officer recommended that Milinovich be sentenced to 100 years in the Montana State designated dangerous Prison and be offender purposes parole for eligibility. claimed that the Milinovich probation officers equivalent recommendation was to a recommenda prosecutor, tion and therefore violated the plea This Court stated: pre-sentence investigation prepared by parole/proba-
tion officer by 46-18-111,MCA, is authorized and its contents are § spelled 46-18-112, MCA, out in 46-18-112, MCA. Section § states: investigation
“Whenever an required, probation is officer shall promptly characteristics, circumstances, inquire into the needs, and potentialities defendant; criminal record history; social offense; the circumstances of the the time the detention; victim, defendant has been in and the harm to the immediate family, community and the investigation ... The shall include a physical and mental examination of the defendant when it is opinion desirable in the of the court.” A sentencing may may merely recommendation is factor added.) not judge, (Emphasis be considered ... Milinovich, 812 P.2d at 340.
This Court held that the its discre- District Corut had not abused denying tion in In Milinovich’smotion to withdraw his so, doing this Court recommen- established that the officers dation equivalent prosecutor. was not to a recommendation case, present County Attorney consistently followedthe making to the court. of his recommendations *8 Milinovich, Following we conclude probation that the officers recom- mendation in this equivalent by case is not to a recommendation the prosecutor. We conclude that the did not breach the regard with to sentencing. by As stated the District Court, the record demonstrates the defendant was well informed that court would not be bound sentencing recommendations contained in the plea agreement.
We hold that the District Court did not abuse its discretion denying defendants motion to withdraw his
II Were defendants constitutional rights process to due violated by the denial of his motion to withdraw guilty?
Defendant maintains that Attorney breached the plea agreement by opposing the motion to withdraw the after assuring defense counsel that he so, would not do doing and so robbed the plea of its voluntary character. argues that the memorandum filed
Attorney violated the plea agreement. In that memorandum the County Attorney pointed out jail that the time to be served under the plea agreement would jail be close to the time to be served under the courts order of commitment only and that the real difference was the period extended under the order. That was not sufficient to constitute a violation of plea agreement. We restate our conclusion that the County Attorney did not breach plea agree- ment. regard With to the issue of rights, constitutional State v. Martz 136, 144, 233 Mont. 760 P.2d states:
If the defendant voluntary makes a intelligent plea, he know- ingly [certain] waives rights, constitutional regardless of whether or not judge accepts the recommendation of the State. We conclude that the defendant voluntary made a and intelligent plea knowingly waived all of rights. his constitutional
We hold that the defendants rights process constitutional to due were not violated rejection the plea bargain by the District Court.
Affirmed.
CHIEF JUSTICE HARRISON, TURNAGE and JUSTICES HUNT and McDONOUGH concur. GRAY,
JUSTICE specially concurring. I concur in majority opinion. advisory While do not believe or, necessity legal questions general, propriety on opinions law, I offering regarding practice advice believe that comment *9 particulars regarding may on several this case assist both counsel in avoiding problems and the courts in future cases. parties agree part that of the in this case was object
a not to to withdrawal of the promise agreement. failed to This the event court follow plea agreement, was not contained in the written however. promise promises part All and assurances which are of a in the in order to avoid dis- should be contained written document putes parts and difficulties over nondocumented addition, my prosecution it is view that when the makes such a promise, spirit it should abide both the letter and the circumstances, prosecutions Under such I believe it is the promise. subject duty filing any to refrain from brief or memorandum on the Here, Memorandum in prosecutions whatsoever. the content of the Guilty to Motion to Withdraw Plea did not constitute Opposition motion; rely did the court objection substantive to the defendants nor Memorandum, letter, however, technically did on it. The violate certainly spirit, promise. The Memorandum violated outcome; therefore, any have affected the error appear does not was harmless.
Finally,
important
it is
to note that the defendant
this
believe
plea”
charge
an
to the
of sexual intercourse
case entered
“Alford
dissenting opinion
State v.
without consent. As discussed
(Mont. 1992),
95,]
1284, 49
St.Rep.
[253Mont.
830 P.2d
Cameron
variety
unexpected
can result in a
pleas
Alford
in sex offense cases
who,
plea,
continue to
consequences for defendants
via
Alford
Imlay
v.
249 Mont.
assert their innocence. See also State
1260,].
Some of those conse
granted,
[Cert.
JUSTICE JUSTICE GRAY. concurrence of