No. 85-195 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsRICHARD MELVIN WILLIAMSON, 

Defendant and Appel lant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County 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%- & 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from the District Court of the First 

Judicial District, State of Montana, in and for the County of 

Lewis and Clark, the Honorable Gordon R. Bennett presiding. 

The appeal is from an order denying withdrawal of a guilty 

plea on charges of theft and arson. We affirm. 

The appellant, Williamson, was charged in 1983 with 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, the arson 

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

was set for June 30, 1983. 

Williamson was represented on both of these cases by 

Richard J. Pyfer, Esq. Mr. Pyfer filed a motion to dismiss 

and a motion to suppress 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 filed with the 

court. On or about May 23, 1983, the court entered its order 

denying the motion to dismiss and the motion 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 to a 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'l lant would 

enter a guilty plea to both felony charges, the State would 
forego seeking increased punishment against him as a 

persistent felony offender. In exchanqe for the guilty plea, 

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 to discuss the plea bargain. He alleged at 

that time the county attorney, in his discussion of the plea 

bargain, said if he did not change his plea by 10:OO a.m. the 

next morning, which was the time set to select a jury for the 

arson case, the plea bargain would not be offered at a later 

date. Williamson, after full discussion with his counsel, 

Pyfer, and the County Attorney, McGrath, did agree on May 26, 

1983, to the plea bargain and Williamson changed his plea to 

gui 1 ty . 

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 the theft 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 the Montana 

Sentence Review Board. His application was denied and he 

filed with this Court a pro se petition for post-conviction 

relief. At the 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 to withdraw his 

guilty plea. 

New counsel was appointed by the District Court for 

Williamson to represent him on this motion to withdraw his 
guilty plea. On November 30, 1984, the District Court held a 

full hearing on the motion to withdraw the guilty plea, and 

on February 12, 1985, the court entered its order and opinion 

denying the motion to withdraw 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 to withdraw the guilty plea argues he was coerced into 

entering it and was not given effective assistance of counsel 

at the time this matter was argued. 

The coercion argument stemmed from Williamson's 

testimony that he entered into the guilty plea to avoid the 

increased punishment for being a persistent felony offender. 

Five years prior to the charges that he faced in this cause, 

he had been sentenced to a ten year prison term. Appellant 

alleges his counsel, Mr. Pyfer, advised him the State could 

notice him as a persistent felony offender, which advice was 

erroneous. The testimony at the hearing on the withdrawal of 

the plea indicated Mr. Pyfer told Williamson at the time the 

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. Section 46-18-501, MCA, reads as follows: 

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 previous1 y 

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 1 year 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 offender has 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 

guilty plea 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 of discretion 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 to ban the use of the statute 

where the second offense was committed 

prior to the conviction on the first one. 

If construction of the statute is 

required, it must be, i f a t all possible, 

construed in favor of the defendant. The 

statutory definition of the term is 

crystal clear and needs no 

construction: "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 2 different 

occasion than the first. I' (46-18-501) 

This definition, standing a lone, would 

not permit the question now raised by the 

prisoner. It simply requires a past 

conviction and sentencing on a subsequent 

one. . . But then the same statute goes on to 

define a previous felony conviction. It 

first defines 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 

all manner of felonies between the time 

be commits his first felony and his 

conviction therefor and be immune from 

persistent felony designation because the 

five year clock doesn't start running 

until after the first conviction. There 

is no evidence in the statute, or 

anyplace else, that the legislature 

intended to provide such an open season. 

b7e have often held, the rules of statutory construction 

dictate that legislation must be read as a who3.e in order to 

ascertain legislative intent. The most recent holding on 

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

Finally, appellant buttresses his argument with a vague 

and unsupported attempt to distinguish "different occasions" 

from "the same time frame." The statute speaks clearly of 

two felonies being committed on different occasions, which 

are the facts in this case. Appellant defines "occasions" as 

"time frames" without the burden of any authority. The trial 
judge characterized this terminology as "deriving from the 

Watergate hearings" and refused "to open another window of 

opportunity under 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 increase punishment to a 

defendant pursuant to Montana's persistent felony offender 

statute. State v. 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 a plea. 

Throughout appellant's retaliation argument he confuses 

bargaining with coercion. Both this Court and the United 

States Supreme Court have explicitly rejected this type of 

"Indeed, acceptance of the basic 

legitimacy of plea bargaining necessarily 

implies rejection of any notion that a 

guilty plea is involuntary in a 

constitutional sense simply because it is 

the end result of bargaining 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, 179 Mont. 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 indicate Mr. 

Pyfer's actions were within the range set forth in Rose, 

supra. Mr. Pyfer consulted with other criminal counsel 

regarding the question of a persistent felony designation and 

did all things properly to defend this man 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 

interesting to note that in his current brief appellant makes 

no effort to address 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 

the withdrawal of his pleas. 

The decision of the District Court is affirmed. 

We concur: