No. 13710 INTHE SUPREME COURT OF THE STATEOF MONTANA 1977

STATE OF MONTANA, Plaintiff and Respondent,

-vsDAVID 

### L. AZURE, Defendantand Appellant.

Appeal from: District Court of the Twelfth Judicial District, Honorable B. 

### W. Thomas, Judgepresiding. 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

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- -- -- +.- . ;,Lt ;i i -.; .-- ~-- Filed: - :-Mr. Justice DanielJ. Shea delivered the Opinion of the Court.

DefendantDavid 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 iswhether the District Court abused its discretion in denying defendant's motion to withdraw his guilty plea. While not specificallydiscussed by either party at the District Court level or in their briefs on appeal,we confine our ruling to the arraignment record, aswe deem it to be controlling. On June 29, 1976,defendantwas charged by Information filed in Blaine County District Courtwith 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 atWarm Springs State Hospital. This evaluation concluded defendantwas able to understand the charges against him and to assist in his defense. On September 14, 1976, after his return fromWarm 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 knowwhat you are doing and that this is your ownvoluntary decision here. A. Yes. "Q. First of all, Iwill 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, thatyou 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 crossexaminationby your attorney and that youwould have the right to testify for yourself if youwanted 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, doyou understand by a plea of guilty that you are giving up those rights? A. Yes. "Q. Inmaking 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 inyour 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 againstyou? A. No. "Q. Doyou understand inmaking your plea today, thatyou are leaving the disposition of this case up to the Court? Itwill 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 themaximum penalty the Court could impose in this case? A. Yes, sir. "Q. What isyour 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 youdid certain things alleged in the information. What would be your understanding as to what you are admitting here? A. That Idid 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 Iknow that Idid it and I figure there is just no way around it. "Q. Doyou feel that if you stood trial that the statewould have enough evidence to convict you? A. Yes, sir. "Q. And,Mr. Ranstrom,you feelyou have had adequate time to go over thiswith the defendant? "MR. RANSTROM: [Counselfor defendant] Yes,Your Honor, Ihave. "THECOURT: And, do you concurwith the plea that the defendant hasmade? "MR. RANSTROM: Yes. Ido."THECOURT: Doyou feel you have had sufficient time to talk to Mr. Ranstrom about this? A. Yes. Ihave. "Q. And, do you have any question in yourmind 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 immediatelymake such a motion, telling defendanthe 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 towithdraw 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'smotion by order dated November 23, 1976. The order wasmade by minute entry,and we notethe record shows neither an explanation of nor a reason for this ruling. When amotion is addressed to the discretion of the court,

as is amotion 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 amotion may of itself call into question the soundness of the court's exercise of its discretion. This isunfortunate as well as unnecessary, and we urge the DistrictCourts to set out reasons for their rulingsonmotions of this nature. Following denial of this motion and a presentence hearing, defendantwas sentenced to a sixtyyear prison termwith 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 deliberatehomicide 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 convictedon a charge of deliberate homicide ispunishable by imprisonment for up to 100 years, or under certain circumstances,by death. Mitigated deliberate homicide carries amaximum sentence of 40 years imprisonment. If this case had proceeded to trial, and defendantpresented evidence tending to showmitigating circumstances,he would have been entitled to an instructionon the law ofmitigated 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),147Mont. 325, 331, 413 P.2d 315. This Court stated inThomas: 

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## * * on the trial of an indictment formurder, 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 jurywould be warranted in finding the accused guilty

## * * *.I1' 147Mont. 331. Section 95-1606,R.C.M. 1947, Procedure on arraignment, provides in pertinentpart:

"(e)

## * * * The courtmay refuse to accept a plea of guilty and shallnot accept the plea of guilty without first determining that the plea isvoluntary 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 ispleading guilty,before that plea may be accepted. In the handling of themotion to withdraw the plea, neither the defendantnor the state discussed whether the record of the arraignment itself disclosed that the defendanthad 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 differencebetween deliberate homicide and mitigated deliberatehomicide.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 deliberatehomicide: (1) whether defendantknew the maximum penalty which could be imposed, to which defendant replied he could receive the death penalty; and (2)whether defendantunderstood 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 DistrictCourtmade 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 kisversion of the offense and convicted him of mitigated deliberate homicide, themaximum sentence he could receivewould be a 40 year prison term. It is doubtful that an accused who has not been informed of these factors canplead voluntarily with an understanding of the charge as required by section 95-1606(e), R.C.M. 1947. The differencesbetween deliberate homicide and mitigated deliberate homicide in terms of the disparity in themaximum sentences which can be imposed and social stigmawhich attachesupon conviction of one or the other isprofound. But for the additionalmitigating 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 defendanthad a fullunderstanding of the precise kind of homicide to which he plead. Absent such a showing,this Courtwill not assume the plea wasmade "withan understanding of the charge". InJonesv. 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 itwas 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 criminalprocedure statute seeks to assure that an accused is afforded the kind of fundamental fairnessguaranteed by the due process clause. As the court stated in Jones, 235 F.Supp. at 676: 

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## * * * Real notice and understanding by a defendant of the true nature of the charge againsthim 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. 

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## * * " 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 isvacated, the District Court is instructed to allow thewithdrawal of the guilty plea, and to undertake such furtherproceedings as are consistent with this opinion.

We Conqr: