NO. 96-385 IN THE SUPREME COURT OF THE STATE OF MONTANA 1997

STATE OF MONTANA, Plaintiff and Respondent, VS. 

### JIMMY RAE BOWLEY, Defendant and Appellant.

APPEAL FROM: District Court of the Fifth Judicial District, In and for the County ofJefferson, The Honorable Frank M. Davis, Judge presiding.

COUNSEL OF RECORD: For Appellant: Eric Rasmusson, Boulder, Montana For Respondent: Joseph P. Mazurek, Attorney General, Christina Lechner Goe, Assistant Attorney General, Helena, Montana; Valerie D. Wilson, Jefferson County Attorney, Deborah Butler, Deputy Jefferson County Attorney, Boulder, Montana ' a 

# FILED Wmitted on Briefs:March 27, 1997 i 

### APR 

### 2 4 

### 1997 Decided: April 24, 1997 Filed: 

# &A -Ymitlz CLERK OF SUPREME cOURT STATE Of M~TAN~ ClerkJustice James C. Nelson delivered the Opinion of the Court.

The Fifth Judicial District Court, Jefferson County, denied Defendant Jimmy Rae Bowley's (Bowley) oral motions to withdraw his plea of guilty to the felony offense of criminal sale of dangerous drugs. Bowley appeals. We reverse and remand for further proceedings consistent with this opinion, concluding that the District Court abused its discretion when it denied Bowley's oral motions to withdraw his guilty plea. We consolidatethe issues raised on appeal into the followingissue: Did the District Court abuse its discretion in not allowing Bowley to withdraw his guilty plea? 

### FACTUAL AND PROCEDURAL BACKGROUND On October 20, 1995,Bowley was arraigned andpled not guilty to the felony charge of criminal sale of dangerous drugs (marijuana--Schedule

### I Narcotic Drug--second offense), in violation of 

### $8 45-9-101(1) and (4), 50-32-lOl(17) and 50-32-222 (Schedule

### I), MCA. A trial was scheduledfor March 8, 1996. On March 1, 1996, the District Court vacated the trial set for March 8, 1996, and scheduled in its place a change ofplea hearing. At the March 8, 1996 change ofplea hearing, the District Court began interrogating Bowley by explaining only the nature ofhis offense, his possible punishment, and his right to an attorney. Next, the District Court elicitedthe factual basis for Bowley's guilty plea by requesting that Bowley explain his actions. Bowley answered that he sold marijuana to a

woman. Subsequently, the District Court granted the prosecutor's motion to amend theinformation to indicatethat this was Bowley's first offense. Only after eliciting the factual basis of Bowley's guilty plea did the District Court inform Bowley of his constitutional rights. Thereafter, Bowley pled guilty. At the conclusion of the change of plea hearing, the District Court granted the prosecutor's motion to revoke Bowley's surety bond and to place him in the custody of the Jefferson County Jail until a presentence investigation was conducted. In response to this, Bowley moved to withdraw his guilty plea, which the District Court denied: MR. MASSMAN [Bowley's attorney]: Well, Your Honor, the defendant hasjust informed me he wanted to withdraw his guilty plea and change it back to not guilty,because he wasn't aware that he was going to get



### -- that his bond wouldbe revoked. He assumed that his bond was going to 

### -- THE COURT: Well, for goodness sakes,we're going to continue to play fun and games with this matter. Sothat's denied. This is over. You're remanded back to the sheriff. And if you can get Mr. Condo to extend the bond, that will be great. On March 11, 1996,Bowley's bond was reinstated and he was released fiom the Jefferson County Jail. On March 19, 1996, Bowley, his attorney and the prosecutor executed a written Acknowledgment of Rights & Pre-Trial Agreement (Pre-Trial Agreement). This Pre-Trial Agreement was not filed with the District Court until May 17, 1996,the date scheduled for Bowley's sentencinghearing. Pursuant to the Pre-Trial Agreement, Bowley agreed to plead guilty to the felony offense of criminal sale of dangerous drugs and the prosecutor agreed to recommend a five-year suspended sentence. Furthermore, in lieu ofthe one year mandatory minimum prison sentence, the prosecutor agreed to recommend an alternative sentencecomprising one year of inpatient or outpatient drug treatment; supervision by the Adult Probation and Parole; compliance with the rules and regulations of Probation and Parole; remaining drug free and submitting to random testing at the request ofBowley's probation officer. On May 17, 1996,before the District Court began the sentencing hearing, Bowley moved the court to discharge his attorney and to withdraw his guilty plea. The District Court, again, summarily deniedhis motion: MR. MASSMAN: Your Honor, before we start, could I advise the Court that the defendant, Jim Bowley, advisedme that he would like to, A, fire me as his attorney, and 

### ,B, withdraw his guilty plea on the conviction that is the subject oftoday's sentencing. THE COURT: Well, that motion is denied. Let's go ahead with the sentencing. During the sentencing hearing, the District Court heard testimony from Bud Walsh,

a Probation and Parole Officer 11, concerning his presentence investigation of Bowley. Walsh recommendedthat Bowley receive a five-year sentence to the Montana State Prison to run concurrently with any other sentence Bowley might receive in state or federal court. In responseto thisrecommended sentence,the District Court asked the prosecutor to explain why the probation officer's recommendation differed from the plea agreement: THE COURT: Well, Ms. Butler [state prosecutor], why have we departed from the plea agreementhere? Of course, I know I'm not bound by the plea agreement, and he knows that. MS. BUTLER: Yeah. The Staterecommended to Mr. Bowley 

### -- At the time that 

### I spoke with Mr. Massman [Bowley's attorney] in regard to this case, it was unaware that he'd been previously on probation, unaware that he had absconded from that probation, and unaware that the federal systemwas interestedin Mr. Bowley and incarcerated him. Your Honor, the State hasn't 

### -- Mr. Walsh, based on his investigation, gave you his recommendation. The Stateisn't diverting fromthat at this point, Your Honor. 

### I think that the Court is well aware that the State agreed to a five-yearcommitment with a minimum, with it all suspended, if Mr. Bowley would do treatment. Mr. Walsh also indicated that Mr. Bowley has been in treatment twice, or at least once before, and it's obviously not done any good, because here he is againwith a drug charge. And he never told 

### -- he told Mr. Walsh that he still uses. So atthispoint. 

### I don't thinkitmatters too much reeardineMr. Bowley, whether or not you give him five years in the State Prison or whether you suspend it. He's still incarcerated with the federal system, and that has yet to be tried. And I don't have aproblem with any sentencerunnine concurrent with the federal system either. [Emphasis added.] The District Court next heard from Bowley's attorney and finally addressed Bowley: THE COURT: Do you have anything to say, Mr. Bowley? THE DEFENDANT: Only that 

### I tried to 

### -- When 

### I was here in March, immediately,within one minute after I changed my plea to guilty, I tried to withdraw it and change it back to not guilty. And 

### I would at this time like to change my plea to not guilty. THE COURT: Well, you told the probation officer, when he interviewedyou, that, 

### "I sold an ounce ofmarijuana to a friend who had called repeatedly and begged me to score for her." 

### I guess that's a drug term, huh, score forher? "I normally wouldn't have done it,but finally didjust to get her to quit bothering me." So you've admittedtwo or three times that you did it. And you would just be postponing the inevitable ifyou withdrew your plea. So I'm not going to let you withdraw your plea.



### . . .. Immediately thereafter, the District Court sentenced Bowley to a five-year sentence in the Montana State Prison to run concurrently with any other sentence Bowley might receive in state or federal court. From this judgment and sentence,Bowley appeals. We

reverse and remand for further proceedings consistent with this opinion.

### STANDARD OF REVIEW Before accepting aplea ofguilty, a trial courtmust satis@statutoryrequirements such

as those containedin §§ 46- 12-210 and 46- 16-105(1),MCA. Because a criminal defendant waives numerous constitutional rights and protections when pleading guilty, "it is a wellsettled legal principle that a guilty plea must be a voluntary, knowing, and intelligent choice among the alternative courses of action open to the defendant." State v. Radi (1 99I), 250 Mont. 155, 159,818P.2d 1203, 1206(citing North Carolina v. Alford (1970),400 U.S. 25, 91 S.Ct. 160,27L.Ed.2d 162). Furthermore, a trial court may permit a plea of guilty to be withdrawn and a plea ofnot guilty substituted at any time before or afterjudgment, for good

cause shown. Section 46- 16-105(2), MCA. "The fundamentalpurpose of allowing the withdrawal of a guiltyplea is to prevent the possibility of convicting an innocent [person]

## ." State v. Johnson (1995),274 Mont. 124, 127,907P.2d 150, 152 (citations omitted). We have not established a rule or standard under which a trial court must address a request to withdraw a guilty plea; rather, each case must be considered in light of its unique record. Statev. Enoch (1994),269 Mont. 8, 11,887P.2d 175, 177. Furthermore, we review a district court's denial ofa motion to withdraw a guilty plea to determine ifthe court abused its discretion. Enoch, 887 P.2d at 177. To determine whether good cause existed and whether a district court abused its discretion by denying a defendant's motion to withdraw

a guilty plea, we consider three factors: (1) the adequacy of the court's interrogation at the time the plea was enteredregarding the defendant's understanding ofthe consequences ofthe plea; (2) thepromptness with whichthe defendant attemptstowithdraw theplea; and (3) the fact that the plea was the result ofa plea bargain in which the guilty plea was given in exchange for dismissal of another charge. Johnson, 907 P.2d at 152 (citing Enoch, 887 P.2d at 177; Radi, 818 P.2d at 1206). During both the March 8, 1996 change of plea hearing and the May 17, 1996 sentencing hearing, the District Court summarily rejected Bowley's three oral motions to withdraw his guilty plea to the felony offense of criminal sale of dangerous drugs. On appeal,Bowley argues that the District Court erred by denying his motions to withdraw his guiltyplea because good cause existedto permit suchwithdrawal. Accordingly, we consider the three factors discussed previously to determine whether good cause existed and whether the District Court abused its discretion when it denied Bowley's oral motions to withdraw his guilty plea. 

### DISCUSSION Did the District Court abuse its discretion in not allowing Bowley to withdraw his guilty plea? At the outset, we note that the Statecontends that Bowleynever filed a written motion to withdraw his guiltyplea, but rather made all motions to withdraw his plea orally without stating any supporting grounds. The State, therefore, argues that we should not consider Bowley's appealbecause he did not preserve these issues for appeal. The State's argument is unpersuasive. First, fj46- 16-105(2),MCA, does not requirethat a defendant'smotion to withdraw a guilty plea be in writing. Second, Bowley did not provide supportinggrounds for his motions to withdraw his guilty plea because the District Court never affordedhim the opportunity. Rather, the District Court summarily denied each motion. Consequently,we will address the merits ofthe arguments presented on appeal. Bowley contends that good cause existedto permit the withdrawal of his guilty plea because the District Court's interrogation was inadequate at the time he entered his guilty plea, his motions to withdraw his guilty plea were prompt, and his guilty plea was the result of a plea agreement breached by the prosecutor during his sentencing hearing. Bowley, therefore, argues that the District Court abused its discretion when it denied his motions to withdraw his guiltyplea. Consequently, Bowley asserts that, on remand, the District Court should either allow him to withdraw his guilty plea or, alternatively, sentence him in accordance with the Pre-TrialAgreement. The Stateresponds that the District Court did not abuse its discretion by denying Bowley's motions to withdraw his guilty plea. The State contends that althoughBowley's motions were prompt, the District Court's interrogationwas adequate and Bowley's plea was based on a plea agreement which the prosecutor did not breach. Therefore, the State asserts that we should affirm the District Court's denial of Bowley's motions to withdraw his guilty plea. We conclude that good cause existed for the District Courttopermit withdrawal ofBowley's guilty plea andthat the District Court abused its discretion by denying Bowley's motions to withdraw his guilty plea and thereby erred. Accordingly, we reverse and remand for further proceedings consistent with this opinion.As to the first factor, the adequacy ofthe court's interrogation atthe time theplea was entered,Bowley asserts that a number of deficiencies exist. First,Bowley argues that, during the March 8, 1996change ofplea hearing, the District Court failed to ask whether Bowley

was under the influenceof drugs or alcohol. Relying on Enoch, Bowley contends that this omission violates the voluntary, knowing and intelligent standard required to be met during

a change ofplea hearing, and, therefore, the District Court's interrogation was inadequate. See Enoch, 887 P.2d at 180-81. The State concedes that the District Court failed to ask whether Bowley's competency was compromised by the use of drugs or alcohol. However, the State responds that this omission is harmless error. We agree. We stated in Enoch that for an interrogation to be adequate, a court must examinethe defendant and determine, among other things, that the defendant is not acting under the influenceofdrugs or alcohol. Enoch, 887P.2d at 178 (quoting Statev. Mahoney (1994), 264 Mont. 89, 94-95, 870 P.2d 65, 68). In Enoch, during the district court's interrogation, the defendant testified that he was taking medication. We explained that this testimony should have prompted the district court to inquire further concerning the defendant's medical condition, the type of medication he was taking, or the medication's side effects. Enoch, 887 P.2d at 181. Becausethe court did not make further inquiry,it left a doubt as to whether the voluntary, knowing and intelligent standard was met during the change of plea hearing. Enoch, 887 P.2d at 180. Here, unlike the factual situation in Enoch, nothing in the record indicates that Bowleywas actually under the influence of any drugs or alcohol when he entered his guilty plea on March 8, 1996. Furthermore, eleven days afterthe change ofplea hearing, Bowley did sign the Pre-Trial Agreement stating that he was not under the influence of any drugs or alcohol

atthe time thehe executedthe Pre-Trial Agreement. Therefore, without some indication that Bowley was actually under the influence of drugs or alcohol, the District Court's failure to expressly questionwhether Bowley was under the influence of drugs or alcohol during the change of plea hearing is harmless error. Next, Bowley asserts that, during the March 8, 1996 change of plea hearing, the District Court also did not question him as to the competency of his counsel, whom he subsequently sought to discharge at the May 17, 1996 sentencing hearing. Bowley argues that this omission also caused the District Court's interrogation to be inadequate. The Stateresponds that the District Court asked Bowley two separate times whether he had adequatetime to discusshis case with his attorney, and, furthermore, advised Bowley that he was entitled to a qualifiedlawyer at and after trial. The State asserts that this shows that the District Court did inquire into the competency of Bowley's counsel. Furthermore, the State notes that Bowley signed the Pre-Trial Agreement wherein he stated he had "the right to effective assistanceof counsel." Moreover, the State points out that Bowley did not notifLthe court ofhis dissatisfaction with his attorney until he moved the court to discharge his attorney at the sentencinghearing without providing any specificreasons. Based on the foregoing,the Statearguesthat the District Court's interrogation was adequate. We disagree.By advisingBowley ofhis right to a qualified attorney,the District Court did meet the requirement of

## 5 46-12-2 10(1)(b),MCA. However this statement, combined with the court's inquiry into the adequacy ofBowley's time with his attorney, did not satis@the requirement that the District Courtmust determine that Bowley "admitshis counsel is competent and he has been well advised 

## . . .." Enoch, 887 P.2d at 178 (quoting Mahoney, 870 P.2d at 68). Furthermore, the Pre-Trial Agreement, while setting forth Bowley's right to "effective assistance of counsel" does not satisfy this requirement either because it was not timely. Bowley and the prosecutor did not execute the Pre-Trial Agreement until eleven days after he changed his plea to guilty. We refuse to permit acceptance of a guilty plea "based on information provided to a criminal defendant in bits and pieces over a long period of time." Enoch, 887 P.2d at 180 (holding that an acknowledgment of rights form signed by the defendant six months prior to entering his plea of guilty was not timely with regard to the requirements that must be met at the time a plea is accepted). While the District Court's failure to inquire as to whether Bowley was under the influence of drugs or alcohol was harmless error, the District Court's failure to inquire into the competencyofBowley's counsel is not. Here, unlike the absenceofany indication in the record that Bowley was under the influence of drugs or alcohol, the record shows that Bowley ultimately notified the court, at the sentencing hearing on May 17, 1996, that he wanted to discharge his attorney. Contrary to the State's assertion that Bowley did not provide the court with any specificreasons to support his motion to discharge his attorney,we note that the District Courtdid not provide Bowley with the opportunity to do so. Rather, the District Court, without inquiring as to the reasons for Bowley's dissatisfaction with his attorney, summarilydenied Bowley's motion to discharge his attorney as well as his motion to withdraw his guilty plea. The District Court's failure to inquire further to determine whetherBowley admitted that his counsel was competent and that he had been well advised, raises doubts as to whether the voluntary, knowing and intelligent standard was met when Bowley changed his plea to guilty on March 8, 1996. Consequently,we conclude that the District Court's interrogation during the March 8, 1996 change of plea hearing was not adequate in this respect. Finally, Bowley contends that, during the March 8, 1996change of plea hearing, the District Court elicited the factual basis for his plea of guilty prior to informinghim of his constitutional rights. Bowley asserts that under 

## 8 46- 12-2 1 O(l)(c)(iv), MCA, a court must determine that the defendant understands he has a right "not to be compelled to reveal personally incriminatinginformation," before accepting a plea of guilty. Therefore,Bowley argues that the District Court's interrogation was inadequate because the court violated 

## 5 46- 12-210,MCA, when it elicitedthe factual basis for Bowley's guilty plea before informing him of his constitutional rights, specifically his right against self-incrimination. The State does not respond to this argument. In Enoch, we concluded that the district court violated the statutory requirements of 

## 5 46- 12-210, MCA, when it failed to advise the defendant of a number of constitutionalrights, including his right not to be compelled to reveal incriminating information. We stated:In addition to being statutory requirements, these are not minor or inconsequential matters. One of the court's omissions concerned the fundamentalright against self-incrimination as guaranteed by the Montana and United StatesConstitutions. 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 [the defendant] was "giving up virtually all of [his] rights



### . . 

### .." Enoch, 887 P.2d at 179-80 (second alteration in original). Similarly,we conclude, in this case, that Bowley's constitutional rights were not adequately addressed because the District Court failed to inform Bowley of his constitutional rights 

### before eliciting from him the factual basis ofhis guilty plea. Here, unlike the case in Enoch, the District Court did not entirely omit informing Bowley ofhis right against self-incrimination at the March 8, 1996change of plea hearing. Yet, the court failed to inform Bowley of his constitutional rights, specifically his right against self-incrimination,

### before requesting that Bowley describe the crime he allegedly committed. Rather, before directly questioningBowley about his crime, the District Court only explained to Bowley the nature ofhis offense,his possible punishment and his right to

an attorney. Because a criminal defendant waives numerous constitutional rights and protection when pleading guilty, "it is a well-settled legal principle that a guilty plea must be a voluntary, knowing, and intelligent choice among the alternativecourses of action open to the defendant." 

# m, 818P.2d at 1206 (citing North Carolina 

### v. Alford (1970), 400 U.S.25,91 S.Ct. 160,27L.Ed.2d 162). By conductingthe change ofplea hearing in this manner, the District Court failed to adequately provide Bowley with information concerning his constitutional rights--information that Bowley needed to make a voluntary, knowing and intelligent choice concerning his guilty plea. Therefore, as to the first factor, we conclude that the District Court's failure to investigate whether Bowley was under the influence of drugs or alcohol was harmless error, standing alone. However, the District Court also failed to inquire about the competency of Bowley's counsel and to inform Bowley about his right against self-incrimination prior to elicitingthe factualbasis forBowley's guilty plea. That is,the District Court erredby failing to comply with the requirements set forth both in 

## 5 46-12-210, MCA, and Enoch. Consequently, we conclude that the District Court's interrogation at Bowley's change ofplea hearing was inadequate. This first factor, thus, weighs in Bowley's favor. The second factor,promptness, is not in dispute. Bowley made his first oral motion to withdraw his guilty plea and reinstate his original plea of not guilty at the conclusion of the change ofplea hearing on March 8,1996. Further, he made two additional oral motions to withdraw his guilty plea at the May 17, 1996 sentencing hearing, once at the beginning of the proceeding and again just before the judge sentenced him. The State concedes that Bowley's motions to withdrawhis guilty plea were promptly made. Accordingly, the second factor weighs in Bowley's favor, also. Last, we consider the third factor, whether the plea was the result of a plea bargainin which the guilty plea was given in exchange for dismissal of another charge. Bowley

notes that in the Pre-Trial Agreement the State agreed to recommend a five-year suspended sentence along with other specifiedconditions in exchange forBowley's guilty plea. Bowley asserts that, duringthe May 17, 1996 sentencing hearing, the prosecutor did not recommend the suspended sentenceagreedupon in the Pre-Trial Agreement, and, therefore, breached that agreement. Furthermore, Bowley argues that the District Court abused its discretion by denying his final motion to withdraw his guilty plea because good cause existedto permit such withdrawal due to the breached plea agreement. The Stateresponds that the fact that Bud Walsh, a probation officer, recommended

a different sentence from that agreed upon in the Pre-Trial Agreement does not constitute breach on the part of the prosecutor. Moreover, the Statecontends that the record shows the prosecutor recommended the sentence agreed upon in the Pre-Trial Agreement, and, therefore,the prosecutor did not breach the plea agreement. Consequently, the State argues that Bowley's guilty plea should stand. We disagree. While the Pre-Trial Agreement did not involve a guilty plea in exchange for a dismissal of another charge, it did involve a recommendation for sentence suspension, and, therefore, at first glance, would seem to weigh in favor of allowingBowley's guilty plea to stand. See Radi, 818 P.2d at 1208. We have repeatedly held that this Court "will not lend its assistance to an accused criminal in escaping his or her obligationsof a plea bargain after acceptingitsbenefits." Johnson, 907 P.2d at 153 (citations omitted). On the other hand, werecognize that a plea agreement presupposes hndamental fairness in the process of securing such an agreement between the defendant and the prosecutor and so we have held that prosecutors, also, are bound by a plea agreement: This phase of the process of criminaljustice, and the adjudicative element inherent in accepting a plea of guilty, must be attendedby safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement ofthe prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. Prosecutors who engage in plea bargaining must meet strict and meticulous standards of both promise and performance as a plea of guilty resting in any significant degree on an unfulfilled plea bargain is involuntary and subject to vacation. Prosecutorial violations, even ifmade inadvertently or in good faith to obtain a just and mutually desired end, are unacceptable. State v. Allen (1981), 197 Mont. 64, 68-69, 645 P.2d 380, 382 (citations omitted). Consequently, upon closerexamination oftheproceedingsthat took place priorto imposition of Bowley's sentenceon May 

### 17, 1996,we conclude that the prosecutor did not recommend the suspended sentence set forth in the Pre-Trial Agreement, and, therefore, did not meet the strict and meticulous standards ofperformance ofthe plea agreement. As a result, this third factor also weighs in Bowley's favor. As set forthpreviously, Bud Walsh, theprobation officer,testified duringthe May 17, 1996 sentencing hearing and recommended that Bowley serve a five-year sentence in the Montana State Prison to run concurrently with any other sentenceBowley might receive in state or federal court. Thereafter, the District Court asked the prosecutor to explain why the probation officer's recommended sentence differed fiom the Pre-Trial Agreement. Theprosecutor, in response, acknowledgedthat in the Pre-Trial Agreement, the Statehad agreed to recommend a five-year suspended sentenceifBowley agreed to plead guiltyto the charge of criminal sale of dangerous drugs and to undergo drug treatment. However, the State continued: Mr. Walsh also indicated that Mr. Bowley has been in treatment twice, or at least once before, and it's obviously not done any good, because here he is again with a drug charge. And he never told 

### -- he told Mr. Walsh that he still uses. So atthis point, 

### I don't think itmatters too much regardin~ Mr. Bowley, whether or not you ive him five years in the State Prison or whether you sus~end it. He's still incarcerated with the federal system, and that has yet to be tried. And I don't have a problem with any sentence running concurrent with the federal system either. [Emphasis added.] The State argues correctly that when a probation officer recommends a sentence differentfrom that contained in aplea agreement,this does not constitute breach of the plea agreement by the prosecutor because the probation officer's recommendation is not equivalent to the prosector's recommendation. Statev. Yother (1992), 253 Mont. 128, 137, 831 P.2d 1347, 1352. However, we are not concerned with the fact that Bud Walsh recommended a sentence differentfromthat contained in the Pre-Trial Agreement. Rather,

we are concernedwith the fact that the prosecutor recommended a sentence different Erom that contained in the Pre-Trial Agreement when the prosecutor effectively endorsed Bud Walsh's sentencerecommendation, as seen from the previous transcript excerpt. While the State did acknowledge the five-year suspended sentence recommendation contained in the Pre-Trial Agreement, we cannot characterize anything else in theprosecutor's response to the DistrictCourt as a recommendation of this suspended sentence. Rather, as the emphasized language shows, the prosecutor effectively recommended that Bowley serve a five-year sentence to run concurrently with any other sentence,as suggested by Bud Walsh, the probation officer. By failing to recommend the suspended sentence contained in the Pre-Trial Agreement, theprosecutor did not satisfythe strict and meticulous standards of performance of the plea agreement and thereby breached that agreement. Consequently, we conclude that the Pre-Trial Agreement is involuntary and is subject to being vacated. See Allen, 

### 645 P.2d at 382. In summary, the three factors discussed above show that good cause existedto permit Bowley to withdraw his guilty plea--the District Court's interrogation was inadequate, Bowley's motions to withdraw his guilty plea were prompt, and the Statebreached the PreTrial Agreement. Accordingly, we hold that the District Court abused its discretion by denying Bowley's motions to withdraw his guiltyplea, and in so doing, erred. Bowley suggests that, on remand, the District Court should either allow Bowley to withdraw his guilty plea or, alternatively, sentence him in accordance with the Pre-Trial Agreement. We agree. Due to both the inadequacy ofthe District Court's interrogation at the March 8, 1996 change of plea hearing and the prosecutor's breach of the Pre-Trial Agreementat the May 17,1996sentencing hearing, we remand this case to the District Court with specific instructions. First, should Bowley desire to do so, the District Court should allow him to withdraw his guilty plea. Alternatively, if on remand Bowley elects to be

### sentenced in accordancewith the Pre-Trial Agreement, the District Court should do so. Reversed and remanded for further proceedings consistent with this opinion.

We Concur: 

## /7 

# Y "Chief~ustice

JusticesJustice TerryN. Trieweiler specially concurring. I concur with the majority's conclusion that the District Court abused its discretion when it denied the defendant's motions to withdraw his guilty plea. Therefore,I concur in the result of the majority opinion. However,

### I also agree that based on simple notions of fairness, and our prior decision in State v. Allen (1981), 197 Mont. 64, 645 P.2d 380, "[p]rosecutors who engage in plea bargaining must meet strict and meticulous standards ofboth promise and performance as a plea of guilty resting in any significant degree on an unfulfilled plea bargain is involuntary and subject to vacation." Allen, 197 Mont. at 69, 645 P.2d at 382. 

### I conclude that when guilty pleas are inducedby promises from one agent ofthe State

to recommend a suspended sentence, and that recommendationis then rendered meaningless because another agent ofthe Statemakes a contrary recommendation, the State has not met "strict and meticulous standards of both promise andperformance." Therefore, 

### I donot agree with the majority's conclusion that "when a probation officer recommends a sentence different from that contained in aplea agreement,this does not constitute breach of the plea agreementby the prosecutor." Furthermore,to the extent that our prior decisions in State v. Yother (1992), 253 Mont. 128, 831 P.2d 1347, and State v. Milinovich (1991), 248 Mont. 373, 812 P.2d 338, hold otherwise, 

### I would reverse those decisions.What sense doesit make to pay lip serviceto the principle that an accused person has

a right to rely on material representations made to him or her as an inducement to enter into

a plea agreement,but then allow the practical effect of that inducement to be circumvented by permitting another agent of the same government to dojust the opposite of what was promised to the defendant? Is there any question whose recommendation the district judge will take more seriously? Because ofthat practical reality, what benefit did Bowley get from pleading guilty? In this case, Bowley pled guilty based on a promise, made by the agent of the State whowas responsible forprosecuting him, that a suspendedsentencewould be recommended. After he signed the plea agreement, and purportedly based on a subsequent investigation, another agent of the State filed a report with the District Court recommending that he serve five years in prison. If, in fact, information such as a prior probation, the failure of prior treatment, and involvement in the federal criminal justice system were learned subsequent to the agreement but could not have been known at the time of the agreement, then the remedy for the Statewas to repudiate the agreement based on mistake and allow Bowley to withdraw his guiltyplea. No principle of fairness or contract law allows the State to retain the benefit ofits agreement and avoid its obligation. That is what would have happened in this case had the District Court's refusal to allowBowleyto withdraw his guilty plea not been reversed on other grounds. I would not sanction that kind of shell game.Forthesereasons, while I concur with the result ofthe majority opinion,

### I do not agree with all that is said therein.

Justice William 

### E. Hunt, Sr., joins in the foregoing specially concurring opinion.

- Justice