PJo. 83-21 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

TIE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJAMES CAVANAUGH, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Steven E. Hagerman, Great Falls, Montana 

For Respondent : 

Won. Mike Greely, Attorney General, Helena, Montana 

J. Fred Bourdeau, County Attorney, Great Falls, 

Montana 

Submitted on Briefs: August 25, 1983 

Decided: Deceinber 23, 1983 

Filed: DEC 2 a 1983 

Clerk 
Mr. Justice Frank B. Morrison, Jr. d.elivered the Opinion 

of the Court. 

Defendant James Cavanaugh appeals the November 22, 1982, 

order of the District Court of the Eighth Judicial District, 

Cascade County, denying his petition for post-conviction 

relief. 

On August 9, 1977, Cavanaugh and co-defendant Sam Spicer 

were each charged by information with four felony 

offenses: count I, deceptive practices; count 11, attempt 

(deliberate homicide); count 111, aggravated kidnapping; and 

count IV, aggravated assault. Pursuant to a plea bargaining 

agreement, each defendant pled guilty on August 15, 1977, to 

counts I11 and IV. Once the guilty pleas were accepted, and, 

upon notion of the county attorney, counts I and I1 against 

both defendants were dismissed. 

Cavanaugh and Spicer were each sentenced on September 

19, 3.977 to 100 years for aggravated kidnapping and to 20 

vears for aggravated assault, the maximum penalties for each 

offense. Further, pursuant to section 46-18-202 (2) , MCA, 

enacted July 1, 1977, the trial judge ordered that Cavanaugh 

and Spicer were both ineligible for parole or for 

participation in the prisoner furlough program. Co-defendant 

Spicer has since died. 

James Cavanaugh and James Mesler thereafter filed an 

ori..gina.l application for a writ of habeas corpus in this 

Court, challenging the constitutionality of section 

46-18-202(2), MCA, on several grounds: equal protection; due 

process; vagueness; and as being an unlawful d-elegation of 

legislative authority. We held the statute to be 

constitutional on August 14, 1980. See Cavanaugh and Mesler 

v. Crist (1980), 615 P.2d 890, 37 St.Rep. 1461. 
Now, in this appeal. of the trial court's denial of his 

petition for post-conviction relief, Cavanaugh asserts that 

his pleas of guilty to the aggravated kidnapping and 

aggravated assault charges were not made knowingly, 

voluntarily, intelligently or with any understanding of their 

consequences for two reasons: 

1. He was not told that pursuant to section 

46-18-202(2), MCA, he might be denied parole or participation 

in the furlough program; and 

2. He did not understand. what was transpiring when he 

pled guilty. 

As we are persuaded by reason one, we find it unnecessary to 

address reason two. 

Defendant was denied parole and participati-on in the 

furlough program pursuant to section 46-18-202(2), MCA, which 

states in relevant part: 

" (2) Whenever the district court imposes a 

sentence of imprisonment in the state prison for a 

term exceeding 1 year, the court may also impose 

the restriction that the defendant be ineligible 

for parole and participation in the supervised 

release program while serving his term." 

It is undisputed that the possibility of being 

ineligible for parole or participation in the furlough 

program was not mentioned by either the tria.1 judge or the 

county attorney until the sentencing hearing. Cavanaugh 

testified at his post-conviction hearing that he had never 

been told by his attorney or anyone else, that if he pled 

guilty, he might be denied parole. Cavanaugh's original 

attorney testified at that same hearing that he did not 

recall whether he informed Cavanaugh of that possibility. 

Despite extensive efforts to do so, that attorney was 

unable to locate Cavanaugh's case file. There is no evidence 
contradicting defendant's claim that he was first informed of 

the possibility that he might be denied parole at the 

sentencing hearing. 

Section 46-16-105(1), MCA states: 

"Plea of guilty. (1) Before or during trial, a 

plea of guilty may be accepted when: 

(a) the defendant enters a plea of guilty in open 

court; and 

(b) the court has informed the defendant of the 

consequences of his plea. and of the maximum penalty 

provided by law which ma.y be imposed upon 

acceptance of such plea." 

Defendant pled guilty in open court after being informed of 

the maximum penalties for each count. However, defendant 

contends that failure to inform him prior to the entry of his 

guilty pleas of the possibility that he might be denied 

parole constitutes failure to inform him of a consequence of 

his plea. Therefore, the tria.1 court should not have 

accepted his guilty pleas and he must now be permitted to 

withdraw them, pursuant to section 46-16-105(2), MCA: 

"(2) At any time before or after judgment the 

court may, for good cause shown, permit the plea of 

guilty to be withdrawn and a plea of not guilty 

substituted." 

We agree. 

The consequences of one's guilty plea includes, among 

many other things, the sentence which accompanies such a 

plea. "The restriction of parole and furlough program 

eligibility is 'a part of the sentence' by the express terms 

of [section 46-18-202(2), MCA] . . . " Cavanaugh v. Crist, 

615 P.2d at p.893, 37 St.Rep. at p. 1464. Such a restriction 

has a great and profound effect upon the ultimate sentence 

served by a defendant. 

". . . the unavailability of parole directly 

affects the length of time an accused will have to 

serve in prison. If parole is unava.ila.hle, the 
mandatory period of incarceration under a given 

sentence is three times as long . . . It would 

seem that such a major effect on the length of 

possible incarceration would have great import- ance 

to an accused in considering whether to plead 

guilty. 

"The danger is that the accused makes his decision 

to plead guilty underestimating by a factor of 

three the risk of prolonged mandatory 

incarceration." Bye v. United States (2nd Cir. 

1970), 435 F.2d 177 at p. 180. 

Here, defendant knew when he pled guilty that he could 

be sentenced to a maximum of one-hundred years for aggravated 

kidnapping and twenty years for aggravated assault. He did 

not know that he might be found ineligible for parole. A 

flat sentence of one-hundred years is far different than the 

sentence anticipated. by a defendant who knows he might be 

sentenced to one-hundred and twenty years, but presumes that 

parole will be possible. Because of the disparity between 

the anticipated and actual sentence, the plea ba.rgain into 

which defendant thought he was entering was not the plea 

bargain accepted by the trial judge. 

Federal trial courts are required to allow a defendant 

to withdraw his guilty plea if the trial judge refuses to 

accept the remainder of the plea bargain. Federal Rule of 

Criminal. I?rocedure 11 (e) (4) provides : 

"(4) Rejection of a plea agreement. If the court 

rejects the plea agreement, the court shall, on the 

record, inform the parties of this fact, advise the 

defendant personally in open court . . . that the 

court is not hound by the plea agreement, afford 

the defendant the opportunity to then withdraw his 

plea, and advise the defendant that if he persists 

in his guilty plea or plea of nolo contendere the 

disposition of the case may be less favorable to 

the defendant than that contemplated by the plea 

agreement." 

The American Law Institute adopted a nearly identical 

rule : 
"Sentencing Following Plea. 

"If, at the time of sentencing, the court for any 

reason determines to impose a sentence more severe 

than that provided for in a plea agreement between 

the parties, the court shall inform the defendant 

of that fact and shall inform the defendant that 

the court will entertain a motion to withdraw the 

plea . . ." The ALI, A Model Code of 

Pre-?xraignment Procedure, Section 350.6 (Adopted 

May 20, 1975). 

The American Bar Association a.lso agrees. The ABA 

Standards Relating to The Administration of Criminal Justice: 

The Function of the Trial Judge, section 4.1 (c) , (1974) , 

provides: 

"Role of the judge in plea discussions and plea 

agreements. 

" (c) If the plea agreement contemplates the 

qranting of charge or sentence concessions by the 

trial judge, he should: 

" (i) unless he then and there grants such 

concessions, inform the defends-nt as to the role of 

the judge with respect to such agreements, as 

provided in the following subparagraphs; 

" (ii) give the agreement due consideration, but 

notwithstanding its existence reach an independent 

decision on whether to grant charge or sentence 

concessions; and 

" (iii) permit withdrawal of the plea (or, if it 

has not yet been a.ccepted, withdrawal of the tender 

of the plea) in any case in which the judge 

determines not to grant the charge or sentence 

concessions contemplated by the agreement." 

And, The ABA Standards Relating to the Administration of 

Criminal Justice: Pleas of Guilty, section 3.3 (b) (19741 , 

states: 

"Responsibilities of the trial judge. 

I' (b) If a tentative plea agreement has been 

reached which contemplates entry of a plea of 

guilty or nolo contendere in the expectation that 

other charges before that court will be dismissed 

or that sentence concessions will be granted, upon 

request of the parties the trial judge may permit 
the disclosure to him of the tentative agreement 

and the reasons therefor in advance of the time for 

tender of the plea. He may then indicate to the 

prosecuting attorney and defense counsel whether he 

will concur in the proposed disposition if the 

information in the presentence report is consistent 

with the re~resentations ma-de to him. -- If the trial - 

judge conc;rs, but later decides -- that the final 

disposition should not include the charge or 

sentence concessions~contem~lated bv the L lea 

agreement, he shall so advike the zfen~nt and 

-- then call uFon the defendant to either affirm or 

withdraw his --- ~lea of auiltv 2 2 -- ornolo contendere." 

(Emphasis addeh. 

Finally, the concept of "fairness" has been added by the 

United States Supreme Court to the "voluntary and knowing" 

test used to determine whether a defendant should be allowed 

to withdraw a guilty plea. Santobello v. New York (1971), 

404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427. We therefore 

adopt the previously discussed standards of the American Bar 

Association and F.R.Civ.P. ll(e)(4), and require the trial 

iudge, who accepts a plea but rejects any other portion of 

the plea bargain, to afford the defendant the opportunity to 

withdraw his guilty plea and enter a plea of not guilty. 

The decision in this case shall have prospective 

application only. The decision applies to defendant James 

Cavanaugh and all who are sentenced after the effective date 

of this decision. In support of this prospective holding, 

see State v. Campbell (1979), 182 Mont. 521, 597 P.2d 1146. 

With respect to defendant Cavanaugh, more than six years 

have elapsed since sentencing. It would be unfair to the 

state to allow withdrawal of the plea if crucial witnesses 

are not now available. Therefore, on remand we direct that 

the state can elect to have (1) defendant sentenced in 

accordance with the plea bargain or (2) defendant withdraw 

his plea of guilty with the state being allowed to revive 

the dismissed charges. Such a procedure has been followed bv 
other courts. See State v. Williams (1971) , 107 ~riz. 421, 

489 P.2d 231. 

The order of the District Court denying defendant ' s 

petition for post-conviction relief is reversed. This cause 

is remanded to the District Court for further proceedings in 

conformance with this opinion. 

We concur: 

%4 d#&4 

Chief Justick 

Justices 
Mr. Justice Daniel J. Shea., concurring in part and dissenting 

in part: 

1 join in the opinion insofar as we have now adopted 

meaningful standards for permitting a defendant to withdraw a 

guilty plea if the district judge does not abide by the plea 

bargain. Justice requires this. I do not, however, agree 

that the decision should have prospective application only, 

nor do I believe that the State should have the option of 

going along with the plea bargain or going to trial on the 

charges that were dismissed. 

Due process requires that defendants be permitted to 

withdraw their pleas where they were not given the chance to 

withdraw their plea on the trial court refusing to go along 

with the plea bargain. Due process also requires that the 

right to withdraw that plea should not depend on the 

fortuitious circumstances of whether the plea was entered 

before or after our decision. 

Nor do I agree that the State should have the option on 

remand of dictating to defendant whether he will go to trial 

again or whether he must content himself with the benefit of 

the plea bargain. It is not defendant who caused the 

procedural situation lacking in due process, and it should 

not be the defendant who must await his fate at the hands of 

the prosecution. Rather, fairness requires that the choice 

of obtaining the benefit of the plea bargain or going to tj 

trial on revived charges, should belong to the defendant. 
Mr. Justice L.C. Gulbrandson dissenting. 

I respectfully dissent. 

In my view, the majority has departed from 

longstanding practice and has adopted a new Rule of Criminal 

Procedure. The majority declares, "We therefore adopt the 

previously discussed standards of the American Bar 

Association on F.R.Civ.P. ll(e)(4), and require the trial 

judge, who accepts a plea, but rejects any other portion of 

the plea bargain, to afford the opportunity to withdraw his 

guilty plea and enter a plea of not guilty." 

The adoption of this rule goes far beyond the issue 

raised on this appeal. Counsel for defendant Cavanaugh has 

not contended that the sentencing judge rejected any portion 

of the plea bargain and has not argued or suggested that the 

above standards be adopted by this Court. 

The sole issue was "That Defendant's Guilty Plea was 

not done voluntarily, intelligently, knowingly and with an 

understanding of the consequences of his plea and therefore 

should be vacated." The main thrust of defendant's argument 

is that he was not told, until just prior to sentencing, 

that the sentencing judge could declare him ineligible for 

parole, or for the prison furlough system, and therefore, he 

did not understand the consequences of his guilty plea. 

Section 46-16-105, MCA, states that the plea of guilty 

may be accepted when the court has informed the defendant of 

the consequences of his plea. Other courts have 

distinguished between direct consequences of the guilty 

plea, of which the defendant must be told, and those 

collateral consequences of the guilty plea, of which the 

defendant need not be told in order for his guilty plea to 

be valid. Durant v. United States (1st Cir. 1969), 410 F.2d 
689; Spradley v. United States (5th Cir. 1970), 421 P.2d 

1043. Ineligibility for parole was not a direct and 

necessary corollary to Cavanaugh's guilty plea. 

Ineligibility for parole was a "consequence" of the serious 

nature of the crimes Cavanaugh committed and his prior 

record of five felony and ten misdemeanor convictions as set 

forth in the pre-sentence report. 

Parole and participation in the supervised release 

program, both of which relate to punishment, are 

pr ivileges--matters of grace, not rights. Lopez v. Crist, 

([font. 1978), 578 P.2d 312, 314, 35 St.Rep. 622, 624; 

Petition of Hart (1965), 145 Mont. 203, 206, 399 P.2d 984, 

985. When Cavanaugh earlier challenged the 

constitutionality of Section 46-18-202(2), MCA, this Court 

answered: "The district judges did not deprive petitioners 

of a right when they decided that petitioners should be 

imprisoned with no possibility of parole or participation in 

the furlough program. The district judges withheld grace. 'I 

Cavanaugh v. Crist (Mont. 1980), 615 P.2d at 895, 37 St.Rep. 

at 1466. Cavanaugh was told of the maximum possible 

punishment, but argues that he should have been told that 

maximum meant maximum and that there was a possibility that 

legislative grace of actually serving a lesser amount of 

time might be withheld. 

The issue presented by Cavanaugh's appeal is similar 

to that addressed in State v. McGuire, No. 82-156-M (D. 

Mont. filed April 27, 1983.) In McGuire, the question 

presented to the Court was whether a conviction should be 

set aside because petitioner was unaware that his prior 

conviction might cause him to be designated as a dangerous 

offender and that such a designation would affect his 

eligibility for parole. The McGuire Court stated that: 
"The law is clear that a valid plea of 

guilty requires that the defendant be 

made aware of all 'the direct 

consequences of his plea.' Wade v. 

Coiner (4th Cir. 1972), 468 F.2d 1059, 

1060. By the same token, it is equally 

well settled that, before pleading, the 

defendant need not be advised of all 

collateral consequences of his plea, or, 

as one Court has phrased it, of all 

'possible ancillary or consequential 

results which are peculiar to the 

individual and which may flow from a 

conviction of a plea of guilty,. . . ." 

Id. - at 3, n. 1. 

"The question of the designation of the 

defendant as dangerous or nondangerous 

does not arise until the time of 

sentencing. See Section 46-18-404, MCA. 

~d. - at 3, n. 2." 

The McGuire Court went on to state: "The problem of how a 

state shall designate offenders and what effect that 

designation shall have upon parole is solely a question for 

the state legislature and the state courts. There is simply 

no problem of federal constitutional law." - Id. at 4. 

The possibility of ineligibility for parole, like the 

possibility of designation as a dangerous offender, is a 

discretionary sentencing alternative. They are not direct 

consequences of the guilty plea and therefore the court 

should not be required to inform the defendant of these 

possibilities at the entry of the guilty plea. 

I would affirm the decision of the District Judge, and 

would defer to the Legislature on the issue of adopting the 

described standards. 

~ustice/ 

I join with Mr. Justice L.C. Gul randson in the foregoing 

dissent. 4