No

No. 97-584

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 197

STATE OF MONTANA,

Plaintiff and Respondent,

v.

DIANNE ERETH,

Defendant and Appellant.

 APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable Marge Johnson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

J. Kim Schulke, Attorney at Law, Great Falls, Montana

For Respondent:

Hon Joseph P. Mazurek, Attorney General

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Mark W. Mattioli, Ass't Attorney General, Helena, Montana

Brant S. Light, Cascade County Attorney, Great Falls, Montana

Submitted on Briefs: June 11, 1998

Decided: August 11, 1998

Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Appellant Dianne Ereth (Ereth) appeals from the denial of her motion to 

withdraw her Alford plea and from her conviction in the Eighth Judicial District 

Court, Cascade County. We reverse and remand.

¶2 Ereth raises the following issues:

¶3 1. Did the District Court err in refusing to allow Ereth to withdraw her guilty 

plea?

¶4 2. Did the District Court err in ordering Ereth to pay $10,000 in restitution to the 

victims?

¶5 Because we find issue one dispositive, we will not address issue two. 

Factual and Procedural Background

¶6 On August 31, 1994, Ereth was charged by information with three counts of 

sexual intercourse without consent and two counts of sexual assault, all felonies. The 

charges involved J.A., an eleven-year-old boy, and K.A., a nine-year-old girl. Ereth 

lived with J.A., K.A., and their mother for a period of time and babysat the children. 

The information alleged that Ereth fondled J.A.'s genitalia and penetrated K.A.'s 

vagina with her fingers and with a crochet hook. Ereth obtained representation from 

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the Cascade Public Defender's Office.

¶7 In September of 1995, at the suggestion of one of her public defenders, Ereth 

underwent a "sex offender evaluation." She was evaluated by Lily Kravcisin 

(Kravcisin), a licensed professional counselor with InterConnections Counseling 

Group, Inc. (InterConnections). Kravcisin's evaluation indicated that Ereth was 

willing to undergo counseling and psychotherapy to determine whether she was 

repressing memories of the offenses. 

¶8 On December 6, 1995, Ereth filed a signed plea agreement and a notice of 

acknowledgment and waiver of rights. The District Court issued an order stating 

that it would likely reject the agreement. Therefore, the State and Ereth entered into 

a second plea agreement. Under the terms of this agreement, Ereth agreed to enter 

an Alford plea to two counts of felony sexual assault. In return, the State agreed to 

recommend that Ereth receive a five-year sentence with three years suspended on 

each offense and to dismiss the two charges of felony sexual intercourse without 

consent and one felony assault charge. The agreement also stated: "The Court in it 

[sic] discretion may reject a waiver of the mandatory minimum for these charges and 

impose a sentence upon the Defendant of up to ten (10) years in the Montana State 

Prison with six (6) years suspended on both counts." 

¶9 This agreement and Ereth's acknowledgment and waiver of rights were filed on 

February 5, 1996. Scott Albers (Albers), Chief Cascade Public Defender, wrote to the 

District Court, explaining that he could only convince Ereth to enter an Alford plea, 

not a guilty plea. Albers stated: "I do not believe that the defendant in this case is 

capable of admitting guilt. Although the facts of the case are against her the only plea 

which the defense will be able to bring forward is an Alford Plea." 

¶10 After filing the plea agreement, Ereth began sex offender counseling with 

InterConnections. On April 12, 1996, the District Court held a change of plea 

hearing. At the hearing, Ereth testified that she understood the nature of the 

proceedings and had received ample counseling from the Public Defender's office 

regarding the options available to her. She described her understanding of an Alford

plea as follows: "That I believe that the facts are overwhelming against me and I 

would be found guilty in a trial, but at this point I cannot admit to that guilt." 

¶11 Ereth testified that when she entered the Alford plea, she was not sure whether 

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she committed the offenses charged. She stated: 

Just in talking with the other members of my group [her InterConnections 

counseling group], I have come to believe that there is a possibility I could 

have done this. And I truly want to find out if I did do this. And that is my 

main goal right now in therapy.

Further, when questioned by Albers, Ereth replied as follows:

Q: Is it your belief at this time that you may have committed the offenses 

involved and simply have blocked them out of your memory? 

A: Yes, it is.

Q: Do you feel that's a substantial possibility? 

A: Yes, it is.

 Q: And for that reason and that reason alone you're unable to lay a factual 

basis yourself that you subjected these children to sexual contact? 

A: Yes.

¶12 Debra Baumgart (Officer Baumgart), a deputy with the Cascade County 

Sheriff's Department, testified regarding her videotaped interviews with J.A. and K.

A. On the tape, J.A. and K.A. both describe being abused by Ereth. The State also 

introduced into evidence the report of Dr. Nancy Maynard, who performed a 

physical examination of the children. Dr. Maynard reported K.A. had vaginal tissue 

findings consistent with having been sexually abused. 

¶13 Kravcisin also testified at the hearing. Kravcisin testified that Ereth was unable 

to remember the events surrounding this case, but that Ereth was horrified that she 

may have committed these crimes and wanted treatment. Kravcisin explained that 

she had been helping Ereth to explore her memory on both a conscious and 

unconscious level and that Ereth was close to "realizing" that she had abused J.A. 

and K.A. When asked by the District Court whether she had concerns about 

implanting false memories through hypnosis, Kravcisin replied, "I believe that for an 

untrained therapist, that a therapist can interogenically place into a client a 

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memory . . ." but explained how the method she employed avoided implanting false 

memories.

¶14 Ereth then pled guilty to two counts of sexual assault and pled not guilty to one 

count of sexual assault and two counts of sexual intercourse without consent. The 

District Court entered the pleas and set sentencing for July 23, 1996.

¶15 On July 19, 1996, Ereth filed a motion to withdraw her guilty pleas. In an 

attached affidavit, Ereth stated that she had always been uncomfortable about 

pleading and that through counseling, she had come to the "clear understanding" 

that she did not do the crimes with which she was charged. A hearing was held on the 

motion in October of 1996. Kravcisin again testified at the hearing. She stated that 

Ereth had not received treatment since July 1996. When asked by the District Court 

if she still believed that Ereth had suppressed a memory of committing the abuse, 

Kravcisin replied: "I don't know quite frankly if she's suppressed it or not. I believe 

there's a possibility that she could have. I have not yet, in the work that I've had with 

her, found that suppression."

¶16 Ereth testified that she had never been comfortable with the plea. She stated that 

Albers had told her if she went to trial, she would go to prison, and that she thought 

that a jury would never believe that she did not commit the crimes. She stated that 

when she entered the plea, she did not believe that she was guilty of the crimes 

charged and did not understand that an Alford plea was an admission of guilt. 

¶17 Regarding her therapy with Kravcisin, Ereth testified that she had entered 

therapy on the advice of Albers -- "On the chance that I had committed these crimes 

and had repressed it, the therapy would, would let me know that I had -- you know, it 

would bring that out if I had committed it." However, she testified that she never 

reached a point in therapy where she believed she had committed the offenses. Ereth 

stated that in May of 1996, she attempted suicide and, after being released from the 

hospital, told Kravcisin that she could no longer live with the fact that she had pled 

guilty to something she did not do. 

¶18 The District Court denied Ereth's motion, holding that Ereth had entered her 

plea voluntarily and intelligently. The court found that Ereth knew what she was 

doing when she entered her plea and had simply changed her mind. The District 

Court set sentencing for March 20, 1997 and ordered Ereth to undergo a psychiatric 

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evaluation to determine, for purposes of sentencing, whether she was suffering from 

a mental disease or defect. 

¶19 Ereth was evaluated by Dr. John Mendenhall (Dr. Mendenhall). Dr. Mendenhall 

filed a report with the District Court on March 18, 1997. Dr. Mendenhall found that, 

unlike most female sex offenders, Ereth does not suffer from a psychotic disorder. He 

found that Ereth "suffers from no dissociative or other mental disorder which 

statutorily or psychiatrically ought to give pause to the Court in passing sentence." 

¶20 Dr. Mendenhall also sent a letter to the court, outlining the concerns he had 

about the treatment program at InterConnections. Dr. Mendenhall stated:

The reports from InterConnections Counseling are based on non-scientific tenets. 

The methods used by that facility are not scientifically valid. The contentions of that 

facility that hypnosis can be useful in cases of this sort are dead wrong, known to be 

dead wrong, and are disavowed by every reputable professional organization in the 

field of mental health. 

 The contention of Lily Kraviscin [sic] that false memories can be implanted is 

correct. Her further contention that they cannot be implanted, by virtue of her 

advanced methods of hypnosis, by her, is not. . . . The implantation of false 

memories is, actually, quite easy. . . . 25% of normal adult research probands can be 

made to believe, without hypnosis, without therapy, after a single exposure to a 

single oral story, that they personally experienced the events of the story. This 

number, in children, by the bye, approaches 100%. 

. . . .

The notion that Dianne Ereth, or anybody else, may have committed sexual crimes 

and "repressed" their memory is unsupported by scientific evidence. There is no 

credible evidence that repression of memory of being the victim of sexual abuse can 

happen, much less for being the perpetrator. Even those who make their livings in 

the sexual abuse industry, in the face of scholarly research raising very serious 

questions about any human ability to "repress memory," have largely abandoned the 

idea of "repressed memory." 

¶21 On March 19, 1997, the day before sentencing was to be imposed, Ereth moved 

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the court to reconsider her motion to withdraw her guilty pleas based on Dr. 

Mendenhall's opinions. She also alleged that she had been coerced into the entry of 

the guilty plea by her counsel from the Public Defender's Office. Eric Olson, a 

Deputy Public Defender, moved to withdraw. The court held a hearing at which Dr. 

Mendenhall testified about his findings and opinions regarding InterConnections. 

The District Court granted counsel's motion to withdraw and stated that it would 

allow further briefing and a hearing on whether Ereth should be allowed to 

withdraw her Alford plea. J. Kim Schulke was appointed to represent Ereth. 

¶22 A hearing was held on April 30, 1997. Ereth testified that Kravcisin had told her 

that only two percent of children who allege they have been sexually assaulted are 

lying and that it was likely that Ereth was simply repressing the memory. She stated 

that she was never informed by Albers or Kravcisin that, in the medical community, 

controversy surrounds the retrieval of repressed memories nor that it was not 

standard treatment. Ereth testified that had she known the information contained in 

Dr. Mendenhall's letter and report, she never would have entered the pleas. She 

admitted, however, that she had agreed to plead guilty prior to starting counseling 

with InterConnections.

¶23 At the conclusion of the hearing, the District Court denied Ereth's motion to 

withdraw her guilty plea. On June 13, 1997, Ereth was sentenced to a term of five 

years, with three years suspended on each of the two counts, with the terms to be 

served consecutively. The court also ordered her to pay $10,000 restitution to the 

victims.

Standard of Review

¶24 We review a district court's denial of a motion to withdraw a guilty plea for 

abuse of discretion. State v. Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175, 177. We 

have held that the district court need not apply a particular rule or standard to 

determine whether to allow a defendant to withdraw his or her plea, but rather must 

consider each case "in light of its unique record." Enoch, 269 Mont. at 11, 887 P.2d 

at 177 (citing State v. Radi (1991), 250 Mont. 155, 818 P.2d 1203). 

Discussion

¶25 We balance three factors when considering a criminal defendant's attempt to 

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withdraw a guilty plea: (1) the adequacy of the court's interrogation at the time the 

plea was entered regarding the defendant's understanding of the consequences of the 

plea; (2) the promptness with which the defendant attempts to withdraw the plea; 

and (3) the fact that the plea was the result of a plea bargain in which the guilty plea 

was given in exchange for dismissal of another charge. Enoch, 269 Mont. at 11-12, 

887 P.2d at 177.

¶26 We have held that a plea is adequate where the court:

"examines the defendant, finds him to be competent, and determines from him 

that his plea of guilty is voluntary, he understands the charge and his possible 

punishment, he is not acting under the influence of drugs or alcohol, he admits 

his counsel is competent and he has been well advised, and he declares in 

open court the fact upon which his guilt is based."

Enoch, 269 Mont. at 13, 887 P.2d at 178 (quoting State v. Mahoney (1994), 264 Mont. 89, 

870 P.2d 65). In addition, "it is well-settled that a guilty plea must be a knowing and 

intelligent choice among the alternative courses of action open to the defendant." Enoch, 

269 Mont. at 13, 887 P.2d at 178 (citations omitted). 

¶27 Thus, the purpose of inquiring into the adequacy of the court's interrogation is 

to ensure that the defendant has been well advised and that he/she entered the plea 

knowingly, intelligently, and voluntarily. The United States Supreme Court has held 

that a plea of guilty must represent "a voluntary and intelligent choice among the 

alternative courses of action open to the defendant." North Carolina v. Alford (1970), 

400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162. This Court will deem a guilty plea 

involuntary where it "appears that the defendant was laboring under such a strong 

inducement, fundamental mistake, or serious mental condition that the possibility 

exists that [s]he may have plead guilty to a crime of which [s]he is innocent." State ex 

rel. Gladue v. Eighth Judicial Dist. (1978), 175 Mont. 509, 511, 575 P.2d 65, 66. 

¶28 In this case, the District Court's interrogation of Ereth at the change of plea 

hearing was substantial. Further, in deciding Ereth's motion to withdraw and motion 

for reconsideration, the court held three hearings at which it heard the testimony of 

Ereth and several other witnesses. The District Court followed the proper statutory 

procedure at the change of plea hearing, and Ereth testified that she had signed and 

understood an acknowledgment and waiver of rights. However, Ereth argues that 

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because she was under the mistaken assumption that she may have committed the 

offenses for which she was charged and she would, through therapy with Kravcisin, 

be able to recover memories of the offense, her Alford plea was not a voluntary, 

knowing and intelligent choice. Despite the lengths to which the District Court went 

to ensure that Ereth understood the consequences of the Alford plea, Ereth was not 

well advised. We agree with Ereth that her plea was not voluntarily, intelligently and 

knowingly made. 

¶29 Dr. Mendenhall testified that "[t]he contentions of [InterConnections] that 

hypnosis can be useful in cases of this sort are dead wrong, known to be dead wrong, 

and are disavowed by every reputable professional organization in the field of mental 

health." Dr. Mendenhall told the District Court that "[t]he notion that Dianne Ereth, 

or anybody else, may have committed sexual crimes and 'repressed' their memory is 

unsupported by scientific evidence." However, when the District Court asked 

Kravcisin about the validity of repressed memory therapy, Kravcisin indicated that 

such therapy could be dangerous in the hands of untrained persons, but not in her 

own. Kravcisin told the court that she believed that Ereth wanted to remember her 

abuse of J.A. and K.A. and was close to "realizing" that she had committed the 

crimes. 

¶30 Throughout the country, mental health professionals and courts alike are 

condemning the use of repressed memory therapies such as those used by 

InterConnections. See Julie M. Kosmond Murray, Comment, Repression, Memory, 

and Suggestibility: A Call for Limitations on the Admissibility of Repressed Memory 

Testimony in Sexual Abuse Trials, 66 U. Colo. L. Rev. 477 (1995); Douglas R. 

Richmond, Bad Science: Repressed and Recovered Memories of Childhood Sexual 

Abuse, 44 U. Kan. L. Rev. 517 (1996). However, our purpose here is not to discredit 

Kravcisin or her theory, but merely to suggest that with knowledge of the substantial 

amount of controversy which surrounds repressed memory therapy or of Dr. 

Mendenhall's opinion that sexual abusers do not repress memories of their crimes, 

Ereth may have chosen not to enter her plea. However, Ereth was never told of the 

problems with InterConnections' methods. Rather, she entered therapy on the advice 

of counsel. Further, Ereth was told by Kravcisin that because only two percent of 

children lie about being assaulted, it was likely that she was repressing memories of 

assaulting J.A. and K.A. and needed to recover those memories so she could get well.

¶31 At the change of plea hearing, Ereth testified that she could not recount the facts 

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surrounding the sexual assault of J.A. and K.A. because, although she believed there 

was a substantial possibility she may have committed the offenses, she must have 

blocked them out of her memory. She testified that, "in talking with the other 

members of my group, I have come to believe that there is a possibility I could have 

done this." 

¶32 The State contends that Ereth entered the plea simply because she knew that if 

she went to trial, a jury would convict her. The State points out that at the change of 

plea hearing, Ereth testified: "I believe that the facts are overwhelming against me 

and I would be found guilty in a trial. . . ." It is possible that Ereth entered an Alford

plea simply because she thought the State had overwhelming evidence to convict her 

and then, after changing her mind, sought to withdraw the plea. However, it is also 

possible that Ereth truly believed that she had repressed any memory of committing 

the offenses for which she was charged and hoped, through therapy with 

InterConnections, she would be able to recover those memories and get help. We 

have held that "if there is any doubt that a guilty plea was not voluntarily or 

intelligently made, the doubt must be resolved in favor of the defendant." Enoch, 269 

Mont. at 18, 887 P.2d at 181. Given the role that repressed memory therapy played in 

Ereth's decision-making process and given the air of uncertainty regarding the 

validity of this therapy, there is at least doubt as to whether Ereth's Alford plea was 

entered voluntarily. Thus, we determine that Ereth's pleas were not voluntarily, 

knowingly and intelligently made and that the first consideration set forth in Enoch, 

269 Mont. at 11-12, 887 P.2d at 177, weighs in Ereth's favor. 

¶33 The second consideration under Enoch, 269 Mont. at 12, 887 P.2d at 177, is the 

promptness with which the defendant attempted to withdraw the pleas. "Because 

each case presents its own unique factual circumstances, we have declined to adopt 

specific parameters defining the timeliness of a motion to withdraw." Enoch, 269 

Mont. at 12, 887 P.2d at 178. In this case, Ereth filed her signed plea agreement and 

waiver of rights on February 5, 1996 and began counseling with InterConnections 

that month. The change of plea was entered on May 9, 1996. Ereth filed her notice of 

withdrawal of guilty plea on July 19, 1996, a few days before the date on which 

sentencing was set and ceased further counseling with InterConnections. Apparently, 

Ereth determined that the repressed memory therapy was not working within that 

period of time and promptly moved to withdraw her plea. We determine that, given 

the unique factual circumstances of this case, Ereth's motion was filed in a 

reasonably prompt manner. Thus, this factor weighs in favor of allowing Ereth to 

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withdraw her plea.

¶34 The third factor, whether the plea was given in exchange for dismissal of another 

charge, weighs against Ereth. The State agreed to dismiss two counts of sexual 

intercourse without consent and one count of sexual assault and waive the mandatory 

minimum sentence for the remaining charges in exchange for Ereth's Alford plea. 

However, since we have determined that Ereth's plea was not voluntarily, knowingly 

and intelligently made, we hold that the District Court abused its discretion in 

refusing to allow Ereth to withdraw her Alford plea.

¶35 Ereth also argues that the District Court erred in refusing to allow her to 

withdraw her plea because she received ineffective assistance of counsel. Because we 

hold that the District Court abused its discretion in refusing to allow Ereth to 

withdraw her plea, we will not address this argument.

¶36 Based on the foregoing, we reverse and remand. 

/S/ W. WILLIAM LEAPHART

We concur:

 /S/ J. A. TURNAGE

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER

/S/ WILLIAM E. HUNT, SR.

 Justice James C. Nelson dissents.

¶37 I respectfully dissent from the Court's determination that Ereth's pleas were not 

voluntarily, intelligently and knowingly made. In my view they were, and, 

accordingly, I would affirm the decision of the District Court denying Ereth's motion 

to withdraw her guilty pleas. First, it is necessary to review the pertinent trial court 

proceedings and the record.

¶38 At her change of plea hearing, Ereth testified that she spent considerable time 

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discussing the proceedings against her with her counsel, Scott Albers. She stated that 

she had ample opportunity to obtain legal counsel and understood the alternatives 

available to her. She testified that she read the acknowledgment of waiver of rights 

with the help of her attorney and that she signed the waiver. She stated that she was 

not under the influence of alcohol or drugs. She testified that she had been fully 

apprised of the negotiations with regard to the plea agreement.

¶39 In explanation of her decision to enter the Alford plea, Ereth testified:

at this present time I do not wish to enter--do not wish to say that I did do this, 

but I feel that if this were to go to trial at this point, that the facts are 

overwhelming against me and it would result in a guilty verdict.

On being asked if she wished to proceed with her change of plea, she stated that she 

wished to proceed.

¶40 After receiving evidence regarding the children's statements and videotaped 

interviews and Dr. Maynard's physical examination findings substantiating sexual 

abuse, Albers questioned his client. Ereth testified that she had "no doubt" that she 

would be convicted if a jury believed the evidence introduced at the change of plea 

hearing. In response to her counsel's inquiry about whether she understood the 

Alford pleas, she testified:

I believe that the facts are overwhelming against me and I would be found 

guilty in a trial, but at this point I cannot admit to that guilt.

¶41 Ereth then testified that she understood that she could receive a ten-year prison 

sentence; that she understood the severity of the situation; and that she would be 

required to register as a sex offender. She also stated that she wished to avoid going 

to trial:

Q. [By Mr. Albers] Now, you are entering this plea, as I understand it, 

because you wish to avoid the trial at all costs?

A. Yes, I do.

Q. Could you explain to the what you consider to be the eventual outcome of 

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a trial?

A. The eventual outcome, I believe at this point [is] that I would be found 

guilty.

¶42 Ereth also testified with respect to Ms. Kravcisin’s evaluation:

Q. [By Mr. Albers] That evaluation is of concern to me because it would 

indicate for the Court that you may not have committed this crime.

A. Yes.

Q. That report indicates that you do not come from a family that has a heavy 

history of sexual abuse.

A. Right.

Q. It also has a number of statements from family members which would deny 

the fact that you possibly could have done this?

A. Yes.

Q. It’s my understanding that your horror of the crime that is charged and 

your terror of possibly going to prison are the two principal things motivating 

this plea at this time?

A. Yes.

Q. And that this is the best option that you can come up with or that I’ve been 

able to offer or any attorney has been able to offer to keep you out of prison?

A. Yes.

Finally, Mr. Albers asked if Ereth believed she was probably guilty, to which she 

responded, "Yes."

¶43 Following Ms. Kravcisin’s testimony Ereth pleaded "guilty" to Counts I and V 

and "not guilty" to the remaining three counts of the information. Judge Johnson 

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accepted Ereth’s Alford pleas and ordered a presentence investigation.

¶44 At the hearing on Ereth’s motion to withdraw her pleas, although she stated that 

she was not comfortable with the plea and was never happy with it, she nevertheless 

maintained that she personally believed a jury would not believe her and that she 

would be convicted. Moreover, on cross examination by the county attorney, Ereth 

admitted her plea was made freely and voluntarily; that she understood the 

consequences of her plea; that she suffered from no mental disability; that she 

believed she would be found guilty; and that she never informed anyone at the 

change of plea hearing that she was under undue influence or duress. Furthermore, 

she admitted that she indicated satisfaction with her attorneys at her change of plea 

hearing.

¶45 In denying Ereth's motion to withdraw her plea, Judge Johnson stated that she 

had no question that Ereth "knew what she was doing." Judge Johnson also noted 

that Ereth was "intelligent" and simply changed her mind. The court observed that 

there was no indication that Ereth’s pleas of guilty were anything but a voluntary 

and intelligent assessment of her situation and that it was this assessment of the 

charges and evidence presented which prompted her entry into a very beneficial plea 

agreement. The judge found that Ereth was simply "unhappy with the result of her 

choices." I agree with the trial court's appraisal.

¶46 The majority opinion concentrates almost entirely--and erroneously, in my 

estimation--on Ereth’s claim that she pleaded guilty under pressure from her 

attorney and on the basis of questionable repressed memory therapy. I cannot agree. 

As we pointed out in State v. Enoch (1994), 269 Mont. 8, 887 P.2d 175, "a guilty plea 

must be a knowing and intelligent choice among the alternative courses of action 

open to the defendant." Enoch, 269 Mont. at 13, 887 P.2d at 178. See also North 

Carolina v. Alford (1970), 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162.

¶47 The record in this case indicates that Ereth chose to plead guilty because that 

alternative course of action was the one most likely to keep her out of a lengthy 

prison sentence. Given Ereth’s testimony at the various hearings regarding her 

change of plea, as referenced above, there is simply no merit to her claim that she 

was pressured by her attorney to plead guilty or that her pleas were somehow 

induced by her misapprehension of the repressed memory therapy in which she 

participated. In point of fact, her own testimony clearly indicates that her motivation 

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for pleading guilty was simply to avoid a jury trial and the possibility of a lengthy 

period of incarceration for her crimes. Ereth stated on several occasions during the 

change of plea hearing that the "facts were overwhelming" against her and that she 

had "no doubt" that a jury would convict her. In truth, even under her own 

assessment of her situation, she had few viable options available except to plead 

guilty.

¶48 We have recognized that a plea is not involuntary simply because it was entered 

to avoid the possibility of a greater punishment had the case gone to trial. State v. 

Milinovich (1994), 269 Mont. 68, 71, 887 P.2d 214, 216 (citing Brady v. United States

(1970), 397 U.S. 742, 751, 90 S.Ct. 1463, 1470, 25 L.Ed.2d 747). Moreover, Ereth’s 

unwillingness to admit her guilt, either then or now, is not a basis for allowing her to 

withdraw her pleas.

[A]dmission of guilt . . . is not a constitutional requisite to the imposition of 

criminal penalty. An individual accused of a crime may voluntarily, 

knowingly, and understandingly consent to the imposition of a prison 

sentence even if he is unwilling or unable to admit his participation in the acts 

constituting the crime.

Alford, 400 U.S. at 37, 91 S.Ct. at 167. Similarly, Ereth’s dissatisfaction with her previous 

decision is not a valid reason to allow her to go back on her plea agreement where the 

record clearly and unequivocally shows that her pleas were knowingly, voluntarily and 

intelligently made at the time.

¶49 The majority acknowledges the three-factor test which this Court utilizes in 

reviewing a district court’s denial of a criminal defendant’s attempt to withdraw a 

guilty plea. Enoch, 269 Mont. at 11-12, 287 P.2d at 177. Indeed, in considering 

whether the court’s interrogation of Ereth was adequate, the majority concludes that 

Judge Johnson’s interrogation was "substantial" and that she followed the proper 

statutory procedures at the change of plea hearing. Furthermore, we note that in 

deciding Ereth’s motion to withdraw and motion for reconsideration the court held 

three hearings at which it heard the testimony of Ereth and other witnesses. 

Nonetheless, in spite of this record, we conclude that Ereth’s plea was not 

voluntarily, intelligently and knowingly made. In coming to this conclusion we 

improperly substitute our judgment for that of the District Court's, purely and 

simply. 

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No

¶50 In my opinion, Judge Johnson, in the proper exercise of her discretion, refused 

to contravene Ereth’s obviously voluntary pleas. The District Court thoroughly 

examined Ereth and found her not only to be competent but intelligent. Judge 

Johnson determined that Ereth’s pleas were voluntary even though she would not 

admit to her guilt; that she understood the charges and potential punishment; that 

she understood the rights she was waiving; that she was not under the influence of 

drugs or alcohol; and, that she was satisfied with her attorneys. The District Court, 

having heard the testimony and having judged Ereth’s credibility, was certainly in 

the best position to determine whether her pleas were knowing, intelligent and 

voluntary. This Court, on the record here, has no business interfering with Judge 

Johnson's decision. See State v. Hilton (1979), 183 Mont. 13, 19, 597 P.2d 1171, 1174. 

¶51 Ereth's choice to plead guilty was an intelligent choice among alternative courses 

of action--she could go to trial, be convicted on the "overwhelming evidence" of her 

guilt and spend a substantial number of years behind bars or, alternatively, she could 

plead guilty and guarantee dismissal of some of the charges against her and a more 

favorable prison sentence. She, wisely, chose the latter.

¶52 I would hold that the District Court did not abuse its discretion in denying 

Ereth’s motion to withdraw her guilty plea and, accordingly, I would affirm Judge 

Johnson's decision. I respectfully dissent from our failure to do so.

/S/ JAMES C. NELSON

Justice Karla M. Gray joins in the foregoing dissent.

/S/ KARLA M. GRAY

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