No. 85-195 INTHE SUPREME COURT OF THE STATE OF MONTANA 1985

STATE OF MONTANA, Plaintiff and Respondent,


### -vsRICHARD MELVIN WILLIAMSON, Defendant and Appellant.

APPEAL FROM: District Court of theFirstJudicialDistrict, In and for theCounty of Lewis & Clark, The Honorable Gordon Bennett, Judge presiding.

COUNSEL OF RECORD:

For Appellant: Cannon & Sheehy; Edmund F. Sheehy, 

### Jr., Helena, Montana

For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Mike McGrath, County Attorney, Helena, Montana Carolyn Clemens, Deputy County Atty., Helena

Filed: Submitted on briefs: July 25, 1985 Decided: October 9, 1985 

# a%- & ClerkMr. JusticeJohn Conway Harrison delivered the Opinion of the Court.

This 

### is an appeal from the DistrictCourt of the First Judicial District, Stateof Montana, 

### inand fortheCounty of Lewis and Clark, the Honorable Gordon R. Bennett presiding. The appeal 

### is from an order denying withdrawal of a guilty plea on chargesof theftand arson. Weaffirm. The appellant, Williamson, was charged in 1983with the offense of arson alleged to have been committed on ,January 11, 1983; and with the charge of theft, alleged to have occurred between January 10 and February 12, 1983. The theft charge was filed prior to the filing of the arson information. After numerous pre-trial proceedings, thearson charge was 

### set for trial May 31, 1983, and the theft charge

was 

### set forJune 30, 1983. Williamson was represented on both of these cases by Richard J. Pyfer, Esq. Mr. Pyfer filed a motion todismiss and a motion tosuppress some evidence developed in the arson
case. These motions 

### were heard May 11, 1983. The trial court denied the motions but gave Williamson's counsel an opportunity to submit additional memorandum on the arguments being raised in both motions. Thereafter the District Court noted no such additional memorandum 

### were ever filedwith the court. On oraboutMay 23, 1983, the court entered 

### itsorder denying the motion to dismiss and themotion to suppress in the arson case. Prior to that 

### time, there had been no discussion between the county attorney's office and defense counsel with regard toa plea bargain. On or about May 23, 1983, defense counsel was approached by the county attorney with regard to the trial, which was 

### set within the week. After some discussion, the county attorney advised counsel that if the appe'llant would enter a guilty plea toboth felony charges, the State wouldforego seeking increased punishment against him as a persistent felony offender. Inexchanqe for the guiltyplea, the State also said 

### it would ask for a ten year sentence on each charge to run concurrently. Williamson's counsel approached him with the State's offer. Williamson was advised of the plea bargain on or about May 25, 1983, and requested that the county attorney come to him personally with his counsel todiscuss theplea bargain. He alleged at that 

### timethe county attorney, inhisdiscussion of theplea bargain, said ifhe did not change hisplea by 10:OO a.m. the next morning, which was the

### timesetto

### select a jury forthe arson case, theplea bargain would not be offered ata later date. Williamson, after full discussion with his counsel, Pyfer, and theCounty Attorney, McGrath, did agree on May 

### 26, 1983, totheplea bargain and Williamson changed hisplea to gui

### 1ty

# . The District Court, on July 27, 1983, sentenced the appellant on both charges on the basis of his guilty plea. Williamson received ten years on thetheft charge; and on the arson charge he received twenty years with ten years suspended, on the condition that he would pay $36,000 

### in restitution for the arson. Williamson then sought sentence review from theMontana Sentence Review Board. His application was denied and he filed with this Court a pro 

### se petition for post-conviction relief. Atthe same 

### time, in July 1984, Williamson filed 

### a pro 

### se motion in the District Court to withdraw his plea. This Court on August 31, 1984, entered an order holding the petition for post-conviction relief in abeyance until the 

### District Court ruled on Williamson's motion towithdraw his guiltyplea. New counsel was appointed 

### by the District Court for Williamson to represent him on this motion towithdraw hisguiltyplea. On November 30, 1984, theDistrictCourt held a full hearing on the motion towithdraw the guilty plea, and

on February 12, 1985, the court entered 

### itsorder and opinion denying the motion towithdraw the guilty plea. It 

### is from this order of the District Court that Williamson 

### is appealing. The sole issue presented in this case 

### is whether the District Court erred in denying the motion to withdraw FJilliamson's guilty plea. The appellant, in his pro 

### se motion towithdraw theguiltyplea argueshe was coerced into entering 

### it and was not giveneffectiveassistanceof counsel atthe

### timethismatterwas argued. The coercion argument stemmed from Williamson's testimony that he entered intothe guilty plea toavoid the increased punishment forbeing a persistent felony offender. Five years prior tothe charges that he faced 

### inthiscause, he had been sentenced toa ten year prison 

### term. Appellant alleges his counsel, Mr. Pyfer, advised him the State could notice him as a persistent felony offender, which advicewas

erroneous. The testimony atthehearing on thewithdrawal of the plea indicated Mr. Pyfer told Williamson atthe 

### timethe plea bargain was made 

### he was not certain and would consult

more experienced counsel. However, after researching the statute, counsel agreed at a later hearing held with the county attorney and the district judge, the appellant could not have been charged as a persistent felon due to the statute's five-year limitation. Williamson contends the plain language of the statute, 

### S 46-18-501, MCA, was misconstrued by his original counsel, Mr, Pyfer, the county attorney's office, and the District Court. Section46-18-501, MCA, reads asfollows: A "persistent felony offender" 

### is an offender who has previously been convicted of a felony and who 

### is

### presently being sentenced for a second felony committed on a different, occgsion than the first. An offender is considered to have been previous1y convicted of a felony if:

(1) The previous felony conviction was for an offense committed in this state or any other jurisdiction for which a 

### sentence to a term of imprisonment in excess of 

### 1year could have been imposed;

(2) Less than 5 years have elapsed between he commission of the present offense and either:

(a) the previous felony conviction; or (b) the offender's release on parole or otherwise from prison or other commitment imposed as a result of the previous felony conviction; and (3)the offenderhas not been pardoned on the ground of innocence and the conviction has not been set aside in a postconviction proceeding. It is Williamson's position that having entered a guiltyplea to the theft charges,and then pleading guilty to the arson charges,he could not be found a persistent felony offender because the two felonies were committed at approximately the same time and his pleas were entered at the

same time. The State's position is the statute's definition of a "persistent felony offender" is not wholly consistent with the statute

### 's definition of "previously convicted" and thus the rules of statutory construction require that the statute be read and construed in its entirety. State ex re1 Cashmore

v. Anderson (1972), 160 Mont. 175, 500 P.2d 921, cert. denied, 410 U.S. 

### 931, 93 S.Ct. 1372, 35 L.Ed.2d 593. The State submits that this is precisely what Judge Bennett did, and hence no abuse ofdiscretion could be shown. The substantive argument revolves around the terms "commission" and "conviction" of prior and subsequent felonies,which was clearly summarized and decided in Judge Bennett's order:

### The prisoner urges that 46-15-501 be construed toban the use of the statute where the second offense was committed priortotheconvictionon the firstone. If construction of the statute 

### is required, 

### itmust be, i f a tallpossible, construed infavor of thedefendant. The statutory definition of the 

### term is crystal clear and needs no construction: "A 

### 'persistent felony offender' is an offender who has previouslybeen convicted of a felonyand who 

### is presently being sentenced for a second felony committed on 2 

### different occasion than the first.I' 

### (46-18-501) This definition, standing alone, would notpermit thequestion now raised by the prisoner. It 

### simply requires a past conviction and sentencingon a subsequent one. 

# .

# . But then the same statute goes on to define a previous felony conviction. It 

### firstdefines a felony, which 

### is totally unnecessary (see 45-2-101 (21))

## , and then it defines "previous" by limitation: 

### it isn't previous if more than five years elapsed between the commission of the 

### crime for which a sentence is being imposed and the previous felony conviction. The prisoner argues that he has, under this statute, a sort of "window of opportunity." He 

### can commit allmanner of felonies between the 

### time be commits his first felony and his conviction therefor and be immune from persistent felony designationbecause the five year clock doesn't start running until afterthe firstconviction. There is no evidence in the statute, or anyplace else, 

### that the legislature intended toprovide such an open season. b7e 

### have often held, therules of statutoryconstruction dictate that legislationmust be read asa who3.e inorder to ascertain legislative intent. The most recent holding on this issue 

### is State v. Magnuson (Mont. 1984), 682 P.2d 1365

Finally, appellant buttresseshisargument witha vague and unsupported attempt todistinguish "different occasions" from "the same 

### time frame." The statute speaks clearly of two felonies being committed on different occasions, which

are 

### the factsinthiscase. Appellant defines "occasions" as "time frames" without theburden of any authority. The trial

### judge characterized this terminology as "deriving from the Watergate hearings" and refused "to open another window of opportunityunder the statute." In his argument appellant cites three recent cases of this Court covering our latest holdings on the problem of a prosecutor's notice of intention to increasepunishment to a defendant pursuant to Montana's persistent felony offender statute. Statev. Seitzinger (1979),180 Mont. 136, 589 P.2d 655; State v. Johnson (1978), 179 Mont. 61, 585 P.2d 1328; and State v. Sather (1977), 172 Mont. 428, 564 P.2d 1306. In this case, we find there is no dispute that the appellant was told from the outset the persistent felony offender designation would be sought if no bargain could be struck. In addition, there is no dispute he was free at all times to accept or reject this offer. Although appellant attempts to generate some confusion and to attribute to the State an improper motive, it is 

### clear the State did nothing improper in refusing to give the persistent felony offender notice until after the appellant had been convicted of the first felony,the felony in which he entered aplea. Throughoutappellant's retaliation argumenthe confuses bargaining with coercion. Both this Court and the United States Supreme Court have explicitly rejected this type of



### "Indeed, acceptance of the basic legitimacyofplea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a 

### constitutional sense simplybecause it is the end result ofbargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or 

### reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial. " 

### Johnson, 179Mont. at 69,585 P.2d 

### at 1333.Finally as to appellant Williamson's allegation performance of his original defense counsel, Mr. Pyfer was not within "the range of competence demanded of attornys in criminal cases'' 

### we cite State 

### v. Rose (1980), 187 Mont 74, 86, 608 P.2d 1074, 1081. The standards clearly indicateMr. Pyfer's actions 

### were within the range set forth in Rose, supra. Mr. Pyfer consulted with other criminal counsel regarding thequestion of a persistent felony designation and did allthings properly todefend thisman who faced serious criminal charges. We note this was not the first 

### time appellant graced the county courthouse doors in his activities as an offender. The record indicates Mr. Pfyer did everything possible to investigate and advise the appellant before he entered his pleas of guilty. It 

### is interestingtonote thatinhiscurrentbrief appellantmakes

no effort toaddress the issue of Mr. Pyfer's performance as measured by the State v. Rose standard. He has failed to show Mr. Pyfer's counseling was inadequate or incompetent or that the trial judge abused his discretion in not granting thewithdrawal of hispleas. The decision of theDistrict Court 

### isaffirmed.

We concur: