LESLIE LEROY YOTHER, PETITIONER AND APPELLENT, v. STATE OF MONTANA, RESPONDENT AND RESPONDENT
No. 14412
Supreme Court of Montana
Submitted March 15, 1979. Decided July 3, 1979.
351 Mont. 597 | 597 P.2d 79
Mikе Greely, Atty. Gen., Helena, Mike McGrath, argued, Asst. Atty. Gen., Helena, Patrick Flaherty, Boulder, Mark Murphy, Special Deputy County Atty., argued, Boulder, for respondent.
MR. JUSTICE SHEEHY delivered the opinion of the Court.
Petitioner Yother appeals from the order of the District Court, Fifth Judicial District, Jefferson County, dated March 27, 1978, denying a petition for post-conviction relief. This petition is bаsed upon proceedings in justice court, a hearing in District Court on an application for writ of habeas corpus, and upon the arraignment and sentencing of petitioner in District Court for first degree assault.
In the early morning of March 9, 1973, petitioner, who was on parole or probation at the time, apрeared at the Clancy Bar, Clancy, Montana, and allegedly assaulted patrons of that tavern. Petitioner was arrested by a deputy sheriff responding to a call about the disturbance at the Clancy Bar. Later in the day petitioner was charged by complaint of the arresting officer in the justice court for Bоulder Township, Jefferson County, Montana, with disturbing the peace on March 9, 1973, at Clancy, Montana, “by tumultuous and offensive conduct; and . . . by loud, unusual noise, cursing or swearing, fighting and threatening to fight.”
The petitioner allegedly pled guilty to the charge of disturbing the peace, and was allegedly sentenced to 100 days in jail or a fine
A psychiatric examination was ordered for petitioner on March 22, 1973. Petitioner filed a handwritten letter on March 22, 1973, which the District Court treated as an application for a writ of habeas corpus. The writ wаs issued and a hearing on the writ was continued until after the examination was completed.
On April 12, 1973, the hearing on the writ was held before the court. Justice of the Peace Kirtley testified petitioner did not plead guilty and no sentence was imposed, rather petitioner was merely held pursuant to a warrant issued by a рarole probation officer. Deputy sheriff W. J. Gwaltney (the arresting officer) testified that petitioner was brought before the Justice of the Peace on the complaint of disturbing the peace and not because of any request by the parole/probation officer. Deputy Gwaltney further testified pеtitioner was arraigned on the charge, pled guilty and was sentenced to 100 days in jail. The deputy also testified petitioner expressed astonishment at the length of the sentence. The parole/probation officer testified no warrant was issued for petitioner for any possible parole/probatiоn violation.
Upon conclusion of the hearing, the District Court quashed the application for a writ of habeas corpus and denied relief. The court also determined the proceedings in justice court had “apparently never been disposed of” and indicated petitioner could be arraigned оn the charges contained in the information.
The petition for post-conviction relief was filed in District Court on August 19, 1977, and a hearing was conducted on February 1, 1978. The petitioner offered two grounds for granting the relief he requested—first, that he had been placed twice in jeopardy by his prosecution on the assault charges and second, that his guilty plea had not been completely voluntary and the District Court failed to ascertain the circumstances surrounding the plea as it was required to do. In the hearing, the court granted a motion requesting it to take judiciаl notice of the records in the prior proceedings. The court had before it as evidence the original complaint filed in the justice court as well as a copy of the Board of Pardons violation report indicating petitioner had pled guilty and been sentenced for disturbing the peace.
Petitioner testified at this hearing that he felt he had pled guilty in justice court and had been sentenced. As to the entry of the guilty plea in District Court, petitioner testified he had been unhappy with his representation by counsel and had tried to complain but to
The District Court denied the relief requested in the petition specifically finding the petitioner‘s guilty plea was knowingly and voluntarily given and that no undue influence was exerted or threats made with respect to the guilty plea. The court, however, made no explicit determination with respect to petitioner‘s double jeopardy claim.
Three issues confront this Court in this matter. First, does the record of proceedings in the District Court indicate the petitioner had pleaded guilty to an offense in justice court and was sentenced for that offense? Second, if the petitioner did plead guilty to a charge in justice court, did the charge arise out of the same transaction as the District Court charges in such a way as to bar the District Court proceedings as being violative of the constitutional protection against double jеopardy? Finally, did the District Court considering the petition for post-conviction relief correctly conclude petitioner had been properly informed of his constitutional rights and the voluntariness of his plea firmly established in light of the record before his guilty plea was accepted?
The scope of оur review of a denial of post-conviction relief is whether substantial evidence supports the findings and conclusions of the District Court. In Matter of Jones (1978), 176 Mont. 412, 578 P.2d 1150, 1152. The burden the petitioner has when requesting such relief is to show by a preponderance of evidence that the facts justify the relief. 578 P.2d at 1152; see, Young v. Cupp (1971), 8 Or.App. 41, 491 P.2d 1201.
In the present case, the District Court hearing thе petition concluded petitioner had failed to meet this burden and therefore denied the post-conviction relief requested. We disagree and conclude the petitioner had established by a preponderance of the evidence his claim of double jeopardy and his claim that the District Court did not affirmatively ascertain the voluntariness of his guilty plea.
Turning to the second issue in this cause we now must decide if such conviction would prevent for double jeopardy reasons a subsequent prosecution for first degree assault. We note initially petitioner‘s plea of guilty to the assault charge is nоt a bar to the claim of double jeopardy. Menna v. New York (1975), 423 U.S. 61, 62, 96 S.Ct. 241, 46 L.Ed.2d 195.
The United States Supreme Court has decided that a subsequent prosecution is barred by a prior conviction if the subsequent prosecution is based upon the same acts as was the prior conviction, if the subsequent prosecution is for an offense of which the оffense in the prior conviction is a lesser included offense, and if the subsequent prosecution is in a court which is part of the same sovereign as the court involved in the prior conviction. Waller v. Florida (1970), 397 U.S. 387, 390, 394-395, 90 S.Ct. 1184, 25 L.Ed.2d 435; see also United States v. Mechanic (9th Cir. 1971), 454 F.2d 849, 855; Turley v. Wyrick (E.D.Mo.1976), 415 F.Supp. 87, 88; State v. Rook (1973), 14 Or.App. 211, 511 P.2d 1245, 1246. Here the disturbing the peace charge and the first degree assault charge each were based upon the acts of petitioner while in the Clancy
According to the statutes under which the prosecutions occurred, to establish the offense of disturbing the peaсe it was necessary to prove petitioner (1) willfully and maliciously (2) disturbed the peace of a neighborhood or person (3) by tumultuous or offensive conduct or (4) by threatening to fight or fighting.
We conclude this cause falls within the ambit of the Waller decision and the petitioner here was placed twice in jeopardy by the subsequent prosecution for first degree assault. Moreover, the Supreme Court in Brown has held that a prior conviction for an offense requiring no proof beyond that necessary for conviction of a greater offense bars the prosecution for that greater offense. 432 U.S. at 168-169, 97 S.Ct. 2221.
Following its quashing petitioner‘s writ of habeas corpus, the District Court arraigned petitioner on the information filed against him. The court ascertained petitioner had read the information and then informed the petitioner оf the charges filed against him and the potential penalties involved. The court further informed the petitioner of his right to counsel and his right to remain silent. The petitioner indicated he would like to plead and then entered a not guilty plea. During the next few hours petitioner spoke with his attorney and with the county attornеy, the latter apparently informing petitioner that if the case went to trial, increased penalty under the recidivist statute would be sought. After this petitioner returned to court and through his counsel withdrew his earlier plea, personally indicated he was ready to enter a plea of guilty to first degree assault, and then through counsel entered the guilty plea to first degree assault. The remaining charges in the information were dismissed and the court passed sentence. The court made no inquiry as to the circumstances surrounding the change of plea, nor did it inform petitioner of his right to trial by jury and his right to confront witnesses. Petitioner argues thе record before the District Court mandated a thorough inquiry as to voluntariness and understanding and failure to do so should result in the granting of the relief he seeks.
The standard by which the validity of a guilty plea is judged is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant as affirmatively disclosed by the record. North Carolina v. Alford (1970), 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162; Brady v. United States (1970), 397 U.S. 742, 747, 90 S.Ct. 1463, 25 L.Ed.2d 747; Boykin v. Alabama (1969), 395 U.S. 238, 243-244, 89 S.Ct. 1709, 23 L.Ed.2d 274; Wilkins v. Erickson (9th Cir. 1974), 505 F.2d 761, 763. While it is clear that courts are not required to articulate specific rights when accepting a guilty plea, Wilkins, supra; State v. Griffin (1975), 167 Mont. 11, 535 P.2d 498, 503, an “in depth examination by the court is desirable and mandatory in cases where the record requires it.” Griffin, 535 P.2d at 503.
The record in this cause disсloses the District Court which accepted petitioner‘s guilty plea made no inquiries other than if petitioner was ready to enter a plea. The record also indicates “bargaining” had taken place between petitioner, his counsel and the county attorney. We would conclude upon this record that an in depth examination of the petitioner by the court accepting the plea was desirable and mandatory. For the future assistance of District Courts considering a guilty plea, we recommend reference to State v. Lewis (1978), 177 Mont. 474, 582 P.2d 346, and the scope of inquiry there employed by the District Court. See also, State v. Huttinger (1979), . . . Mont. . . ., 595 P.2d 363, 36 St.Rep. 945, 951-953.
Having concluded the petitioner demonstrated by a preponderance of the evidence in his petition for post-conviction relief that he had been convicted of disturbing the peace and thus was placed twice in jeopardy by the subsequent prosecution for assault, we reverse the denial of the petition. The matter is remanded to the District Court with instructions to allow petitioner to withdraw his guilty plea to the first degree assault charges and thereafter to dismiss that charge. The District Court is further instructed to dismiss petitioner from any custody by the State, or supervision by the Bureau of Probation and Parole, that is directly attributable to the conviction for first degree assault.
Judgment reversed and remanded with instructions.
MR. JUSTICES DALY, HARRISON and SHEA concur.
MR. CHIEF JUSTICE HASWELL dissenting.
I would grant the petition to the extent of vacating petitioner‘s guilty plea as involuntary and remand the case to the District Court for further proceedings. I would not dismiss the charge on double jeopardy grounds.
In my view, the record before us does not support the сonclusion