No. 13710 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDAVID L. AZURE, 

Defendant and Appellant. 

Appeal from: District Court of the Twelfth Judicial District, 

Honorable B. W. Thomas, Judge presiding. 

Counsel of Record: 

For Appellant: 

Donald A. Ranstrom argued, Chinook, Montana 

Robert D. Morrison, Havre, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

J. Mayo Ashley, Assistant Attorney General, argued, 

Helena, Montana 

William M. Solem, County Attorney, Chinook, Montana 

Submitted: September 16, 1977 

Decided :&-c g 31 

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Filed: - 

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Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

Defendant David L. Azure appeals from a judgment entered in 

the District Court, Blaine County, upon a plea of guilty to the 

crime of deliberate homicide, in violation of section 94-5-102(1) (a), 

R.C.M. 1947. 

The sole issue on appeal is whether the District Court abused 

its discretion in denying defendant's motion to withdraw his guilty 

plea. While not specifically discussed by either party at the District Court level or in their briefs on appeal, we confine our ruling 

to the arraignment record, as we deem it to be controlling. 

On June 29, 1976, defendant was charged by Information filed 

in Blaine County District Court with the deliberate homicide of 

Randy Lewis, who was shot and killed while sitting in a parked vehicle near Chinook, Montana. On the same day, the District Court 

ordered defendant to undergo psychiatric evaluation at Warm Springs 

State Hospital. This evaluation concluded defendant was able to 

understand the charges against him and to assist in his defense. 

On September 14, 1976, after his return from Warm Springs, 

defendant appeared in court, with appointed counsel, and entered 

a plea of guilty to the charge of deliberate homicide. Before accepting his plea, the district judge examined defendant: 

"Q. And, before accepting your plea, Mr. Azure, 

its the desire of the Court to ask you some questions so that it can be established of record that 

you know what you are doing and that this is your 

own voluntary decision here. A. Yes. 

"Q. First of all, I will remind you that you have 

the right to a speedy trial if you should enter a 

plea of not guilty. That you do have the right 

to enter a plea of not guilty. And, that you could 

be represented throughout the trial by an attorney. 

That you could require the state to produce witnesses to testify in your presence subject to crossexamination by your attorney and that you would have 

the right to testify for yourself if you wanted to 

do that. You also have the right to remain silent 

and could remain silent during the trial. Do you 

understand that you have those rights? A. Yes. 
"Q. And, do you understand by a plea of guilty 

that you are giving up those rights? A. Yes. 

"Q. In making a plea today, are you acting on 

the basis of any promises that have been made to 

you? A. No, sir. 

"Q. And, so, at this time, you don't feel that 

any promises have been made by any law enforcement 

officer as to what would be done in your case? 

A. No, sir. 

"Q. And do you feel that you are acting as a 

result of any compulsion or any threats that have 

been made against you? A. No. 

"Q. Do you understand in making your plea today, 

that you are leaving the disposition of this case 

up to the Court? It will be up to the Court to 

decide what will be done in this case? A. Yes, sir. 

"Q. And, do you understand, also, what the Court 

could do, what the maximum penalty the Court could 

impose in this case? A. Yes, sir. 

"Q. What is your understanding of that? A. Death 

penalty. 

"Q. What do you understand that you are admitting? 

You do understand when you entered a plea today that 

you are admitting that you did certain things alleged 

in the information. What would be your understanding 

as to what you are admitting here? A. That I did 

shoot and kill Randy Lewis. 

"Q. And, you understand, also that you admit that 

this occurred in Blaine county, Montana, on June 23, 

1976? A. Yes, sir. 

"Q. And further, you are admitting that you did this 

purposely or knowingly? A. Yes, sir. 

"Q. Can you tell me at this time why you have decided 

to enter a plea of guilty? A. Because there are too 

many witnesses and I know that I did it and I figure 

there is just no way around it. 

"Q. Do you feel that if you stood trial that the 

state would have enough evidence to convict you? A. 

Yes, sir. 

"Q. And, Mr. Ranstrom, you feel you have had adequate 

time to go over this with the defendant? 

"MR. RANSTROM: [Counsel for defendant] Yes, Your Honor, 

I have. 

"THE COURT: And, do you concur with the plea that the 

defendant has made? 

"MR. RANSTROM: Yes. I do. 
"THE COURT: Do you feel you have had sufficient 

time to talk to Mr. Ranstrom about this? A. Yes. 

I have. 

"Q. And, do you have any question in your mind or 

any dissatisfaction with any services that Mr. Ranstrom 

has performed for you up to this time? A. No, sir." 

The District Court then set pronouncement of judgment and sentencing 

for October 19, 1976. 

Approximately ten days after pleading guilty, defendant 

wrote to the district judge, requesting appointment of new counsel. 

On September 28, 1976, at the hearing held on this request, defendant 

indicated he was dissatisfied because his counsel had not promptly 

moved to change his plea from guilty to not guilty. Defendant stated 

that after entering his guilty plea, he felt he had not been fully 

responsible for his actions on the night of the shooting, due to 

intoxication. Defendant requested his counsel to file a motion to 

withdraw the guilty plea. Counsel did not immediately make such a 

motion, telling defendant he wanted first to check on some things, 

and defendant then wrote to the district judge. During this September 28 hearing defendant withdrew his request that his attorney 

be removed and another appointed. The court ruled that his present 

counsel remain on the case. 

On November 3, 1976, a hearing was held on defendant's formal motion for leave to withdraw his guilty plea. Extensive testimony was given by defendant as to the circumstances surrounding his 

actions on the night of the shooting. In his account, defendant 

stated he had been under the influence of drugs and alcohol and was 

emotionally depressed when the shooting occurred. Defendant stated 

he learned these factors might tend to lessen his responsibility 

for his actions after his entry of the guilty plea, and he then 

decided to change his plea to not guilty and to proceed to trial. 

The District Court denied defendant's motion by order dated 

November 23, 1976. The order was made by minute entry, and we note 
the record shows neither an explanation of nor a reason for this 

ruling. When a motion is addressed to the discretion of the court, 

as is a motion for leave to withdraw a guilty plea, the touchstone 

on review is abuse of that discretion. A District Court's failure 

to provide even a skeletal record of its reasoning in support of 

its ruling on such a motion may of itself call into question the 

soundness of the court's exercise of its discretion. This is unfortunate as well as unnecessary, and we urge the District Courts to 

set out reasons for their rulings on motions of this nature. 

Following denial of this motion and a presentence hearing, 

defendant was sentenced to a sixty year prison term with credit for 

time served. 

Defendant argues that when he plead guilty to the charge 

of deliberate homicide he was not aware that,under the facts of his 

case, he may have been guilty only of mitigated deliberate homicide. 

Under section 94-5-101, R.C.M. 1947, criminal homicide constitutes three distinct crimes: deliberate homicide, mitigated 

deliberate homicide, and negligent homicide. Both deliberate homicide and mitigated deliberate homicide can be established by proof 

that the accused purposely or knowingly caused the death of another 

human being. Substantively, the difference between these two crimes 

is that mitigated deliberate homicide includes an additional, extenuating element; it is defined in section 94-5-103(1), R.C.M. 

"Criminal homicide constitutes mitigated deliberate 

homicide when a homicide which would be deliberate 

homicide is committed under the influence of extreme 

mental or emotional stress for which there is a reasonable explanation or excuse. The reasonableness 

of such explanation or excuse shall be determined 

from the viewpoint of a reasonable person in the 

actor's situation." 

Ultimately, the most telling difference between deliberate, and 

mitigated deliberate homicide is in the maximum sentence that can be 

received upon conviction of one or the other. A person convicted 
on a charge of deliberate homicide is punishable by imprisonment 

for up to 100 years, or under certain circumstances, by death. 

Mitigated deliberate homicide carries a maximum sentence of 40 years 

imprisonment. 

If this case had proceeded to trial, and defendant presented 

evidence tending to show mitigating circumstances, he would have 

been entitled to an instruction on the law of mitigated deliberate 

homicide. This follows from the fundamental rule the court's instructions should cover every issue or theory having support in the evidence. State v. Taylor (1973), 163 Mont. 106, 116, 515 P.2d 695; 

State v. Thomas (1966), 147 Mont. 325, 331, 413 P.2d 315. This 

Court stated in Thomas: 

"'* * * on the trial of an indictment for murder, 

the court is required to instruct not only as to 

that offense, but also as to all the inferior degrees of homicide * * * to which the evidence is 

properly applicable and of which the jury would 

be warranted in finding the accused guilty * * *.I1' 

147 Mont. 331. 

Section 95-1606, R.C.M. 1947, Procedure on arraignment, 

provides in pertinent part: 

"(e) * * * The court may refuse to accept a plea 

of guilty and shall not accept the plea of guilty 

without first determining that the plea is voluntary 

with an understanding of the charge." 

This statute imposes upon the court the duty to determine that the 

accused understands the charge to which he is pleading guilty, before 

that plea may be accepted. 

In the handling of the motion to withdraw the plea, neither the 

defendant nor the state discussed whether the record of the arraignment itself disclosed that the defendant had a clear understanding 

of the charge. In their arguments to this Court,theyargued only as 

to the actual hearing on the motion to withdraw the guilty plea. 

That is not enough. The record itself demonstrates that defendant 

was not sufficiently informed of the difference between deliberate 

homicide and mitigated deliberate homicide. 
The District Court's examination of defendant at the time 

of entry of his plea included only two questions as to defendant's 

understanding of the crime of deliberate homicide: (1) whether 

defendant knew the maximum penalty which could be imposed, to which 

defendant replied he could receive the death penalty; and (2) whether 

defendant understood he was admitting he shot and killed Randy Lewis 

"purposely or knowingly" and defendant answered "yes". The court 

did not explain the meaning of "purposely or knowingly". 

The District Court made no inquiry as to whether defendant 

understood that by purposely or knowingly causing the death of 

Randy Lewis he may have committed either deliberate homicide - or 

mitigated deliberate. homicide. Nor was defendant informed that if 

he went to trial on the charge of deliberate homicide, he would 

have the right to present evidence of mitigation, and if the jury 

accepted kis version of the offense and convicted him of mitigated 

deliberate homicide, the maximum sentence he could receive would 

be a 40 year prison term. 

It is doubtful that an accused who has not been informed of 

these factors can plead voluntarily with an understanding of the 

charge as required by section 95-1606(e), R.C.M. 1947. The differences between deliberate homicide and mitigated deliberate homicide in terms of the disparity in the maximum sentences which can 

be imposed and social stigma which attaches upon conviction of one 

or the other is profound. But for the additional mitigating element, 

they are established by proof of the same facts. They are deceptively similar. 

When an accused pleads guilty to the crime of deliberate 

homicide charged under Montana's statutory scheme which sets out 

distinct kinds of criminal homicide, it is of vital importance that 

the record discloses the defendant had a full understanding of the 

precise kind of homicide to which he plead. Absent such a showing, 
this Court will not assume the plea was made "with an understanding 

of the charge". 

In Jones v. State of Montana, 235 F.Supp 673 (D. Mont. 1964), 

the Federal District Court found a denial of due process in the acceptance of a guilty plea to a charge of first degree burglary where 

it was shown the accused had not been informed as to the difference 

between first and second degree burglary prior to entry of his plea. 

While our decision in the present case concerns statutory rather 

than Constitutional requirements, virtually every criminal procedure 

statute seeks to assure that an accused is afforded the kind of 

fundamental fairness guaranteed by the due process clause. As the 

court stated in Jones, 235 F.Supp. at 676: 

" * * * Real notice and understanding by a defendant 

of the true nature of the charge against him is the 

first and most universally recognized requirement 

of due process. * * * Understanding of the nature 

of the charge is indispensable to a valid plea of 

guilty. * * * " 

Because the District Court did not determine whether defendant understood the differing elements and effects of deliberate homicide and mitigated deliberate homicide, we hold that acceptance of 

his plea of guilty was improper. The District Court should have 

granted defendant's motion for leave to withdraw the guilty plea. 

Accordingly, the judgment and sentence is vacated, the District Court is instructed to allow the withdrawal of the guilty plea, 

and to undertake such further proceedings as are consistent with 

this opinion. 

We Conqr: