No. 14892 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

INTHE MATTER OF STEVEN DUANE HARDY, Petitioner,

ORIGINAL PROCEEDING;

Counsel of Record: For Petitioner: Michael J. Whalen, Billings, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Harold Hanser, County Attorney, Billings, Montana

Submitted on Briefs: June 25, 1980 Decided: 

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### ih:' Filed: ---Mr. Justice John Conway Harrison delivered the Opinion of the Court. InAugust 1974 petitioner 

### was convicted of robbery on
a plea of guilty. InJuly 1979 petitioner instituted an original proceeding inthis Court for post-conviction relief, seeking leave towithdraw his plea of guilty. This Court remanded the

### matter to the DistrictCourt with directions to conduct 

### a hearing and to determine the

### meritsof the petition. The DistrictCourt, af

### ter hearing, denied the request for leave towithdraw the plea, and petitioner appeals. On July 2, 1974, a Kwik Way store inBillings, Montana,



### was robbed. Petitioner 

### was arrested the following morning. On July 15, 1974, petitioner appeared with appointed counsel and entered a plea of not guiltybefore the DistrictCourt. On July 31, 1974, petitioner appeared before the District Court and moved to change hisplea to guilty. Atthat time petitioner 

### was not advised by the DistrictCourt of the nature of the charge, the rights waived by a plea of guilty,

orpotential punishment. Defense counsel did, however, 

### tell the court that he had advised petitioner of the possible maximum penalty of fortyyears inprison. The court accepted the plea and 

### set sentencing before another district judge forAugust 14, 1974, which 

### was later continued to August 26. In the 

### timebetween arraignment and sentencing, the sentencing judge, the Honorable Charles Luedke, became aware of a 

### letter written by petitioner to the county attorney in which petitioner asserted his innocence. Judge Luedke, therefore, engaged petitioner inan extended discussion of the nature of the charge, the consequences of his plea, and his reasons forpleading guilty. Petitioner admitted beingin the 

### car with the robbers and sharing the proceeds with them. He also admitted that he had prior knowledge that the robbery would take place. The judge advised petitioner that his plea constituted a waiver of several constitutional rights, such as the right to trial by jury, right to confront and cross-examine witnesses, and the right toremain silent. The judge informed petitioner that the plea would probably result ina sentence of confinement inthe state prison. Judge Luedke on two occasions offered petitioner further time to consider his plea, which petitioner refused. Finally, the judge advised petitioner thathe had the right to

### a jury trial and that

### a jury might find him not guilty on the facts before the court. Petitioner nonetheless refused towithdraw his guiltyplea. The sole issue before thisCourt 

### is whether the trial court committed error indenying petitioner's post-conviction request towithdraw hisplea of guilty. In Statev. Haynie (1980), Mont. 

## , 607 P.2d 1128, 1131, 37 St.Rep. 415, 419, this Court held: "A change of plea 

### willbe permitted only if 

### it fairly appears the defendant 

### was ignorant of his rights and the consequences of his act, or he 

### was unduly and improperly influenced either by hope or by fear inmaking the plea, or if 

### it appears the plea 

### was entered under some mistake or misapprehension. Statev. McAllister (1934), 96 Mont. 348, 353, 30 P.2d 821, 823." This has been the long-standing rule inMontana. In applying 

### it to the 

### case before us, 

### we find that the decision of the District Court must be sustained. Judge Luedke provided petitioner every opportunity to consider his action, the consequences of the plea and the rightshe could exercise. Looking to the record, 

### we find that the DistrictCourt 

### was very careful and explicitin

### its discussionswith petitioner:"JUDGE 

### LUEDKE: Well, Mr. 

### Cunningham, areyou satisfied inyour own mind thatyour participation in thiswhole transaction was sufficient thatyou are actually guilty, that you did take part inthe robbery by aiding and by abetting or by activelyparticipating, any of them?" Further, thejudge gave an extensive explanation to petitioner regarding his right to 

### a jury 

### trial, his right to remain silent, the right tocross-examine and the right to confront the witnesses and evidence against him. We 

### are alsopersuaded by the fact thatpetitioner was assisted by legal counsel atevery point inthe criminal procedure. Although petitioner bases his appeal inpart on the assertion thathisplea was the product of a fundamental mistake inhis legal understanding, Judge Luedke made 

### a special effort toguarantee thatpetitioner was aware of the consequences of hisplea and the fundamental principles of law involved. In itsmemorandum accompanying the order denying the motion towithdraw the plea, the District 

### Court stated: "Assuming that the charge against the attorney ismore than adumbration, it 

### is apparent from the record that the defendant's claimwas the very concern the courthad at

### the time of sentencing; and is the reason why defendant was queried in the context of 'aiding and abetting

## ' ; 

### and why it

### was suggested that a jury could possibly find him not guilty; and why he was offered on more than one occasion further time 

### to discuss and consider thematter. It 

### was the conclusion of the court at

### that time that the defendant knew what he was doing and wanted todo it. 

### The new hearing has produced the 

### same factual picture aswas before the courton August 26, 

### 1974." The record reveals thatpetitioner was accorded every consideration but declined toreconsider his action. Sittingwithout a jury, the trial 

### judge, as finder of fact, is 

### as 

### fullyentitled tobelieve or disbelieve a 

### defendant's assertions asa jury would be. Statev. Hilton

### (1979) -

### Mont. 

## , 597 P.2d 1171, 1174, 36 St.Rep. 1314, 1319. In light of petitioner's continual insistence on a guilty plea and the evidence against him, we find a completely adequate basis for the District Court's factual conclusions. From petitioner's own testimony there is sufficient admission to warrant the court's decision: "Theonly reason I have for participating in this crime is I needed money to get to Texas." Our view of the applicable law in this case is supported by several of our recent decisions. In re Brown (1980), 

### - Mont. 

## , 605 P.2d 185, 37 St.Rep. 65; State v. Haynie, supra; State v. Doty (1977), 173 Mont. 233, 566 P.2d 1388; and State v. Griffin (1975),167 Mont. 11, 535 P.2d 498. The importance of these decisions, as they apply to the

case at bar, is that it is the sole province of the trial court to determine whether a motion to withdraw a guilty plea should be granted. The abuse of discretion required to

reverse the lower court is not present in this case. Affirmed

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We concur: 

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