No. 81-07 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

STATE OF MONTANA, 

Plaintiff and Respondent, 

GARY BROWN, 

Defendant and Appellant. 

Appeal from; District Court of the Ninth Judicial District, 

In and for the County of Glacier, The Honorable 

R. D. McPhillips, Judge presiding. 

Counsel of Record: 

For Appellant: 

Charles M, Joslyn, Choteau, Montana 

For Respondent: 

EIon. Mike Greely, Attorney General, Helena, Montana 

James C. Nelson, County Attorney, Cut Bank, Montana 

Submitted on Briefs: May 1, 1981 

Decided : J.w 1 7 Ig8' 

Filed: && 17 19tM 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

In December 1979 defendant Gary Brown was charged in 

Glacier County District Court with three counts of felony 

theft, alleged to have been committed in Cut Bank, Montana, 

on various dates in November and December 1979. Defendant 

entered not guilty pleas in January 1980. Thereafter, a 

pretrial agreement was entered into between defendant and 

the State. Pursuant to the agreement, defendant was to 

plead guilty to each count and the State was to recommend 

five-year sentences to run concurrently and that defendant 

not be charged as a persistent felony offender nor that he 

be designated a dangerous offender for parole purposes. The 

pretrial agreement was signed and filed with the District 

Court on February 6, 1980. 

On February 21, 1980, defendant changed his plea to 

guilty on each count. The court took notice of the pretrial 

agreement and, after determining that defendant was 

knowingly and voluntarily changing his plea, accepted the 

plea and ordered a presentence investigation. 

On March 5, 1980, defendant appeared for sentencing. 

Following hearing, the court sentenced defendant to seven 

years and designated him a nondangerous offender. In 

sentencing defendant, the court acknowledged the pretrial 

agreement but increased the recommended sentence because of 

defendant's past history of parole violations, his inability 

to learn from past experiences with the law, and his 

untruthfulness with the presentence investigator. 

Immediately following sentencing, defendant filed a 

petition for post-conviction relief claiming that the State 

breached the pretrial agreement and that the sentence of 
seven years on each count was improper. The petition was 

denied, and defendant now appeals. 

The following issues are presented for our review: 

1. Whether the State breached the pretrial 

agreement; and 

2. Whether the District Court properly sentenced 

defendant on each of the three counts of felony theft. 

It is a widely-recognized principle that when a 

guilty plea rests in any significant degree on a promise or 

agreement of the prosecutor, so that it can be said to be 

part of the inducement or consideration, such promise must 

be fulfilled. See Santobello v. New York (1971), 404 U.S. 

257, 92 S.Ct. 495, 30 L.Ed.2d 427. 

Here the pretrial agreement required the State, in 

exchange for defendant's guilty plea, to recommend a fiveyear sentence on each count to run concurrently. Defendant 

maintains that this recommendation was not made. Upon 

reviewing the record, we must disagree. 

The actual agreement, which included a provision 

concerning the State's recommended sentence, was filed with 

the District Court nearly a month before the sentencing 

hearing. The District Court judge throughout the proceeding 

acknowledged the existence of this agreement and during 

imposition of defendant's sentence made particular mention 

of the State's recommendation: 

I1Q . Mr. Brown, you are aware of the 

negotiations for a plea here. A. Yes. 

"Q. The plea of guilty to three counts? A. 

Yes. 

"Q. In exchange for a recommendation of the 

County Attorney to the Court of five years in 

the State prison? A. Yes." 
We agree with defendant that the prosecutor did not 

specifically "voice" the recommendation of a five-year 

sentence but conclude that such action was not necessary in 

this instance. It is evident that the State fully apprised 

the District Court of the pretrial agreement and that the 

court was aware of the recommended five-year sentence 

throughout the sentencing process. The State's obligation 

under the agreement is thus deemed satisfied. 

Defendant next argues that the State breached the 

pretrial agreement by advocating the imposition of a 

sentence greater than the recommended five years. We again 

must disagree. 

In support of his argument defendant notes that the 

prosecutor, at the sentencing hearing, brought out that 

defendant failed to mention the full extent of his prior 

criminal record during the presentence investigation. We 

find no error in this effort. Certainly the State should 

not be forced to stand by and allow a defendant to make 

representations to the presentence investigator and the 

sentencing court which the prosecutor believes have been 

falsely stated in an improper attempt to better the 

defendant's position. Such a result will not be permitted, 

and the fact that a pretrial agreement has been signed which 

requires that a certain sentence be recommended has no 

bearing upon this conclusion. 

Regarding the second issue, defendant contends that, 

under his version of the facts, the three counts of theft 

with which he was charged constitute but one offense in one 

transaction and, therefore, he could be convicted only once. 

In rejecting this argument we need only note that defendant, 
after being fully advised by counsel and the court, pleaded 

guilty to three separate counts of theft as charged in the 

information. The information, as presented by the State, 

contends the offenses arose out of three separate incidents. 

If the defendant did not agree with this version of 

the charges or did not wish to face sentencing on all three 

counts, he could have gone to trial on his theory that the 

offenses in fact arose out of the same transaction. 

Defendant, however, chose not to do so and pleaded guilty as 

charged. We find no error in the District Court's 

imposition of sentence upon all three counts. 

The judgment of conviction as entered by the District 

Court is af f irmed . 

We concur: 

A