NO. 91-468 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsMICHAEL JOSEPH "MICK" JACOBSON, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Mark P. Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Leonard J. Haxby and Christine D. Somers, Butte, 

Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Elizabeth L. Griffing, Assistant Attorney General 

Robert M. McCarthy, County Attorney; Brad Newman, 

Deputy, Butte, Montana 

Submitted on Briefs: Jan. 16, 1992 

Decided: February 25, 1992 

# <" 1 ; Clerk 

...*.ti .-~jm EIZ 

CL';. " cL).>-r -, ... .. . , . ,iJilE COURT 

S'iAI'E OF MirNl'ANA 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Michael Joseph "MickIv Jacobsen (Jacobsen) appeals a judgment 

of the Second Judicial District of the State of Montana, ButteSilver Bow County, which imposed a sentence on Jacobsen greater 

than what was recommended in a plea-bargain agreement. We affirm. 

Jacobsen presents the following issue: 

Did the District Court err by imposing a sentence greater than 

that recommended in the plea-bargain agreement? 

On April 18, 1991, Jacobsen was charged by information with 

two counts of burglary. By separate information on April 18, 1991, 

Jacobsen was charged with one count of criminal possession of 

dangerous drugs with intent to sell. On April 18, 1991, Jacobsen 

pled not guilty to these charges and was released on bond pending 

trial. 

On June 17, 1991, Jacobsen was charged by information with one 

count of misdemeanor assault. On June 17, 1991, Jacobsen executed 

an acknowledgment of waiver of rights by plea of guilty and a pretrial agreement. In the pre-trial agreement, Jacobsen agreed to 

plead guilty to one count of burglary, one count of criminal 

possession of dangerous drugs with intent to sell, and one count of 

misdemeanor assault. In turn, the State in the pre-trial agreement 

agreed to 1) move to dismiss one burglary count and 2) recommend to 

the court a ten-year prison sentence with five years suspended for 

criminal possession of dangerous drugs with intent to sell and 
burglary, and six months in the county jail for the misdemeanor 

assault charge, these sentences to run concurrently. 

At the sentencing hearing on July 12, 1991 and following a 

review of the presentence investigation report, the District Court 

chose not to follow the State's recommended sentences. Instead, 

the District Court sentenced Jacobsen to ten years imprisonment in 

Montana State Prison for criminal possession of dangerous drugs 

with intent to sell, ten years imprisonment in Montana State Prison 

for burglary and six months imprisonment in county jail for 

misdemeanor assault, these sentences to run concurrently. From 

these sentences, Jacobsen appeals. 

Did the District Court err by imposing a sentence greater than 

that recommended in the plea-bargain agreement? 

Jacobson seeks specific performance of the plea-bargain 

agreement. Such a remedy is not available because the District 

Court is not a party to the plea-bargain agreement and is not bound 

by its terns. 

At the time Jacobsen executed the plea-bargain agreement, 5 

46-22-204 (3) (a) , MCA (1989) , read as follows: 

A plea bargain agreement is an agreement between a 

defendant and a prosecutor that in exchange for a 

particular plea the prosecutor will recommend to the 

court a particular sentence. A judge may not participate 

in the making of, and is not bound by, a plea bargain 

agreement, If a judge does not impose a sentence 

recommended by a prosecutor pursuant to a plea bargain 
agreement, the judge is not required to allow the 

defendant to withdraw a plea of guilty. 

In State v. Buckman (l989), 236 Mont. 37, 42-43, 768 P.2d 1361, 

1364, this Court held that because the judge is not a party to the 

plea-bargain agreement, the remedy of specific performance is not 

available. Furthermore, in Benjamin v. McCormick (1990), 243 Mont. 

252, 255, 792 P.2d 7, 9, this Court, in considering whether 

specific performance could bind a court to comply with a pleabargain agreement, held that lr[u]nder the present law, the 

sentencing court was not a party to the bargain and was not subject 

to its terms. The enforceabi 

an issue. 

Jacobsen further argues 

.lity of the bargain is, therefore, not 

that because the judge stated at the 

end of the June 17, 1991 arraignment hearing that "[rlight now it 

looks like I'll go along with your plea agreement[, 1" the judge 

became a party to the plea-bargain agreement. The judge's comment, 

made in passing and prior to the receipt of the ordered presentence 

investigation report and the issuance of a final written judgment, 

did not indicate the judgers unequivocal and binding acceptance of 

the sentence recommended in the plea-bargain agreement. When the 

statement is read in the context of the entire record, it becomes 

clear that sentencing remained conditional upon the judgers review 

of the presentence investigation report. We also note that 

Jacobsen was made aware on two occasions that sentencing was in the 
sole province of the judge, once when he executed the acknowledgment of waiver of rights by plea of guilty and once verbally by the 

judge during the June 17, 1991 arraignment hearing. We therefore 

hold that the District Court committed no error when it imposed a 

sentence upon Jacobsen greater than that recommended in the pleabargain agreement. 

Chief Justice 

We concur: 
February 25, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

LEONARD J. HAXBY 

CHRISTINE D. SOMERS 

Attorneys at Law 

P.O. Box 3008 

Butte, MT 59702-3008 

HON. MARC RACICOT, Attorney General 

Elizabeth L. Griffing, Assistant 

Justice Building 

Helena, MT 59620 

Robert M. McCarthy, County Attorney 

Brad Newman, Deputy County Attorney 

155 West Granite Street, Courthouse 

Butte, MT 59701 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTAN4 , 

BY: 

Depu