No. 14892 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

IN THE 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: AUG 6 - 1380 

- 1 '2 ' ih:' 

Filed: -- - 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

In August 1974 petitioner was convicted of robbery on 

a plea of guilty. In July 1979 petitioner instituted an 

original proceeding in this Court for post-conviction relief, seeking leave to withdraw his plea of guilty. This 

Court remanded the matter to the District Court with directions to conduct a hearing and to determine the merits of 

the petition. The District Court, af ter hearing, denied 

the request for leave to withdraw the plea, and petitioner 

appeals. 

On July 2, 1974, a Kwik Way store in Billings, Montana, 

was robbed. Petitioner was arrested the following morning. 

On July 15, 1974, petitioner appeared with appointed counsel 

and entered a plea of not guilty before the District Court. 

On July 31, 1974, petitioner appeared before the District 

Court and moved to change his plea to guilty. At that time 

petitioner was not advised by the District Court of the 

nature of the charge, the rights waived by a plea of guilty, 

or potential punishment. Defense counsel did, however, tell 

the court that he had advised petitioner of the possible 

maximum penalty of forty years in prison. The court accepted the plea and set sentencing before another district 

judge for August 14, 1974, which was later continued to 

August 26. 

In the time between 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 in an extended discussion of 

the nature of the charge, the consequences of his plea, and 

his reasons for pleading guilty. Petitioner admitted being 
in 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 to remain 

silent. The judge informed petitioner that the plea would 

probably result in a sentence of confinement in the state 

prison. Judge Luedke on two occasions offered petitioner 

further time to consider his plea, which petitioner refused. 

Finally, the judge advised petitioner that he 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 

to withdraw his guilty plea. 

The sole issue before this Court is whether the trial 

court committed error in denying petitioner's post-conviction 

request to withdraw his plea of guilty. 

In State v. Haynie (1980), Mont. , 607 P.2d 

1128, 1131, 37 St.Rep. 415, 419, this Court held: 

"A change of plea will be 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 in making the plea, or if 

it appears the plea was entered under some 

mistake or misapprehension. State v. McAllister 

(1934), 96 Mont. 348, 353, 30 P.2d 821, 823." 

This has been the long-standing rule in Montana. 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 

rights he could exercise. Looking to the record, we find 

that the District Court was very careful and explicit in its 

discussions with petitioner: 
"JUDGE LUEDKE: Well, Mr. Cunningham, are you 

satisfied in your own mind that your participation in this whole transaction was sufficient 

that you are actually guilty, that you did take 

part in the robbery by aiding and by abetting 

or by actively participating, any of them?" 

Further, the judge gave an extensive explanation to 

petitioner regarding his right to a jury trial, his right to 

remain silent, the right to cross-examine and the right to 

confront the witnesses and evidence against him. 

We are also persuaded by the fact that petitioner was 

assisted by legal counsel at every point in the criminal 

procedure. Although petitioner bases his appeal in part on 

the assertion that his plea was the product of a fundamental 

mistake in his legal understanding, Judge Luedke made a 

special effort to guarantee that petitioner was aware of the 

consequences of his plea and the fundamental principles of 

law involved. In its memorandum accompanying the order 

denying the motion to withdraw the plea, the District Court 

stated: 

"Assuming that the charge against the attorney 

is more than adumbration, it is apparent from 

the record that the defendant's claim was the 

very concern the court had 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 the matter. It 

was the conclusion of the court at that time 

that the defendant knew what he was doing and 

wanted to do it. The new hearing has produced 

the same factual picture as was before the 

court on August 26, 1974." 

The record reveals that petitioner was accorded every 

consideration but declined to reconsider his action. 

Sitting without a jury, the trial judge, as finder of 

fact, is as fully entitled to believe or disbelieve a defendant's assertions as a jury would be. State v. 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: "The only 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. 

Af f irmed . 

We concur: ( \ 

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/' Justices / I