No. 80-351 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsAUGUST LEE WHITE, 

Defendant and Appellant. 

Appeal from: District Court of the Sixteenth Judicial District, 

In and for the County of Custer, The Honorable 

Alfred B. Coate, Judge presiding. 

Counsel of Record: 

For Appellant: 

Leo J. Gallagher, Helena, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, 

Montana 

Keith D. Haker, County Attorney, Miles City, 

Montana 

Submitted on Briefs: May 8, 1981 

Decided? August 31, 1981 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Defendant appeals from an order of the Sixteenth 

Judicial District, Custer County. The order appealed from 

denies defendant's motion to withdraw his plea of guilty to 

the crime of deliberate homicide. On August 6, 1980, prior 

to the filing of the motion to withdraw, defendant was 

sentenced to 50 years in the Montana State Prison and designated 

a "dangerous offender." Defendant received an additional 

consecutive sentence of 10 years pursuant to section 46-18- 

221(1), MCA, for committing the crime with a knife. 

It is undisputed that August Lee White, also known as 

"Dusty" White, stabbed to death his friend, Dallas Haley. 

At approximately 2:30 p.m., on January 29, 1980, August 

White, Dallas Haley, Joe Root and Rick Woods met at the 

Olive Hotel in Miles City, Montana. The purpose of the 

meeting was to allow White to purchase certain valuable 

coins from Dallas Haley. In fact, White planned to obtain 

the coins from Dallas Haley, not pay for them, and drop 

Haley off some place out of town, thus giving White a 

headstart to flee to Las Vegas, Nevada. Prior to picking up 

Haley, White had voluntarily consumed liquor and LSD. The 

group proceeded to the Twelve Mile Dam on the Tongue ~iver 

south of Miles City. A short conversation occurred in which 

Dallas Haley was apprised of the fact that White was not 

going to pay for the coins and that the group was going to 

abandon Haley at the Twelve Mile Dam. Haley told White 

that he was going to report him to law enforcement officers 

in Miles City. White, who had been cleaning his fingernails 

with an open pocket knife, stabbed Haley twice in the left 

side, just below the shoulder, and once again in the back. 
White and Joe Root dragged Haley's body to a hole in the ice 

of the Twelve Mile Dam and threw the body into the water. 

The body did not sink immediately so White and Root returned 

to shore and picked up rocks with which to sink the body. 

When they returned to the hole in the ice, the body had 

sunk. 

August White, Joe Root and Rick Woods then returned to 

Miles City. White did not go to Las Vegas because Haley, 

who would have reported the theft of coins, was now dead. 

White was arrested in Miles City in the early morning 

hours of January 30, 1980. He was arraigned in District 

Court on the charge of deliberate homicide on January 31, 

1980. On April 3, 1980, White underwent a psychiatric 

evaluation which showed that he was competent to stand 

trial. On June 23, 1980, White requested that the Court 

allow him to change his plea from not guilty to guilty. The 

Court interrogated White extensively on the voluntariness of 

the plea, his understanding of the charge, the consequences 

of his plea, and the factual basis of his plea. 

The issue on appeal is whether the District Court erred 

in denying defendant's motion to withdraw his guilty plea. 

We find no error. 

Defendant's contentions are: (1) that his plea was not 

made by him intelligently and voluntarily, (2) that he was 

not adequately advised by his attorney prior to entering his 

guilty plea, (3) that there is no evidence that he understood 

the crime of deliberate homicide at the time of his guilty 

plea, (4) that he should be allowed to withdraw his guilty 

plea under the holdings in State v. Huttinger (1979), 

Mont. - , 595 P.2d 363, 36 St.Rep. 945; State v. Nelson 

(1979) I - Mont . , 603 P.2d 1050, 36 St.Rep. 2228; and 
State v. Azure (1977), 175 Mont. 189, 573 P.2d 179, and (5) 

that the District Court did not adequately ascertain the 

defendant's understanding of the charge against him before 

accepting his guilty plea. 

Section 46-12-204 (2) , MCA, states: 

"The court may refuse to accept a plea of 

guilty and shall not accept the plea of guilty 

without first determining that the plea is 

voluntary with an understanding of the charge." 

Section 46-16-105(2), MCA, provides: 

"At any time before or after judgment the 

court may, for good cause shown, permit the plea 

of guilty to be withdrawn and a plea of not 

guilty substituted." 

The standard for application of these statutes to 

White's motion to withdraw his guilty plea can be found in 

State v. Haynie (1980), - Mont . - , 607 P.2d 1128, 1131, 

"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 (citation omitted). Each case 

must be examined on its own record. The motion 

rests within the District Court's discretion, and 

the exercise of that discretion will not be disturbed 

absent an abuse of discretion (citation omitted)." 

State v. Haynie, supra, is in agreement with Nelson, 

Huttinger, and Azure, upon which the defendant relies. 

The record clearly reveals that White was neither 

ignorant of his rights nor of the consequences of pleading 

guilty to the crime of deliberate homicide. White had 

previously pled not guilty at the arraignment on January 31, 

1980. He changed his plea to guilty at a hearing held on 

June 23, 1980. The district judge questioned the defendant 

extensively before accepting his plea of guilty. He also 

examined the defendant's attorney. The examination is too 
lengthy to set out verbatim, however, it is important to 

note its breadth. It established the following facts: 

1. Defendant was satisfied with the services of his 

attorney. 

2. Defendant was not under the influence of drugs or 

alcohol at the time he changed his plea. 

3. Defendant was not physically ill when he entered 

his plea. 

4. Defendant had recently discussed the plea with his 

attorney. 

5. Defendant knew that by pleading guilty he waived 

his rights to a trial (by jury or otherwise), to confront 

and cross-examine witnesses, and to remain silent. 

6. Defendant's attorney felt there was no communication 

problem between himself and his client. 

7. Defendant's attorney believed he had discussed with 

the defendant all of the constitutional rights to which the 

defendant was entitled and that the defendant understood 

those rights. 

8. Defendant was aware that by pleading guilty to a 

felony he may be barred from certain occupations and professions. 

9. Defendant knew that a plea of guilty is one of the 

strongest proofs known to criminal law. 

10. Defendant knew that by pleading guilty, he waived 

any factual disputes. 

11. Defendant was not changing his plea because of a 

promise or threat from a member of the law enforcement. 

12. Defendant in fact believed he was guilty of the 

crime of deliberate homicide. 

13. Defendant had not been promised that he would be 

sentenced to a particular period of time as a result of 

pleading guilty to deliberate homicide. 
Before asking any questions, the district judge told 

the defendant that he may have as much time as necessary to 

answer and that he was free at any time to consult his 

attorney, who was present. 

In addition, the following exchange occurred prior to 

the acceptance of the guilty plea: 

"THE COURT: But there is a possibility that 

the jury could find that you're not guilty 

of the crime charged, but of some lesser included 

offense. There is also a possibility that the 

jury could find that you were guilty of the crime 

charged. The difference being, that if you were 

found guilty by the verdict of a jury for a lesser 

included offense, the punishment might be less 

than for deliberate homicide. Now do you understand 

that? 

"THE DEFENDANT: Yes sir." 

Although the words "mitigated deliberate homicide" do not 

appear in the transcript of the hearing at which the defendant 

entered his plea, it is clear from the above-quoted language 

that the defendant knew that if he were to have a trial, he 

could be convicted of some lesser-included offense and 

possibly receive a lesser sentence. Defendant chose not to 

take that chance. 

Following the examination of the defendant, the district 

judge conducted an extensive discussion to determine a 

factual basis for acceptance of the guilty plea. 

The District Court findings state: 

"That defendant was advised of the elements of 

deliberate homicide and of the lesser included 

offense of mitigated deliberate homicide by his 

counsel. 

"That defendant was advised of the mental state 

required to commit the offense charged 'purposely 

or knowingly' by his counsel." 
These findings are based on the testimony of the defendant's 

attorney. This Court is satisfied that there is sufficient 

evidence in the record to sustain the findings. 

The state cites the recent case of McGuirk v. Fair (1st 

Cir. 1980), 622 F.2d 597, cert.den. - U.S. - , 101 S.Ct. 

233, - L.Ed.2d , in support of its position that trial 

counsel's advice to a defendant concerning a charge should 

be considered before allowing the defendant to withdraw his 

plea of guilty. If defendant's "'real notice' of the offense 

to which he pleaded" is the pivotal question in withdrawal 

of a guilty plea, as it appears to be in McGuirk and Henderson 

v. Morgan (1976), 426 U.S. 637, 96B S.Ct. 2253, 49 L.Ed.2d 

108, then this Court must affirm the District Court's finding 

of real notice to the defendant. We hold that the combination 

of the district judge's examination of the defendant and the 

explanation by the defendant's attorney were sufficient to 

show that the defendant was informed of all that was required 

to make a voluntary and understanding plea of guilty to the 

crime of deliberate homicide. 

Section 45-5-103(1), MCA, defines mitigated deliberate 

homicide as follows: 

"Criminal homicide constitutes mitigated deliberate 

homicide when a homicide which would otherwise be 

deliberate homicide is committed under the influence of 

extreme mental or emotional stress for which there is a 

reasonable explanation or excuse.. . ." 

Thus, deliberate homicide and mitigated deliberated homicide 

require the same mental state: "purposely or knowingly." 

Section 45-5-102(1)(a), MCA. Further, section 45-2-203, 

MCA, provides : 

"A person who is in an intoxicated or drugged 

condition is criminally responsible for conduct 

unless such condition is involuntarily produced .. . . An intoxicated or drugged condition may 

be taken into consideration in determining the 

existence of a mental state which is an element 

of the offense." 
These statutes indicate that the intoxicated or drugged 

condition of the defendant cannot be used to show "extreme 

mental or emotional stress," since an intoxicated or drugged 

condition does not remove criminal responsibility unless the 

requirements of section 45-2-203, MCA, are met. With 

regard to proving the requisite mental state, "purposely or 

knowingly," the defendant's own recitation of the facts 

surrounding the homicide at the time of entry of a guilty 

plea indicates a clear case of criminal responsibility. These 

facts plainly show he knew what he was doing in stabbing the 

victim repeatedly, dragging the body to a hole in the ice, 

planning to weight it down with rocks, and, after the crime, 

riding back to Miles City thinking his crime was secure 

because the body was hidden. Even if failure of the District 

Court specifically to discuss mitigated deliberate homicide 

was error, which we do not grant in this case, no withdrawal 

of his guilty plea could be allowed here because such error 

would not be prejudicial to the defendant under the circumstances 

of the homicide. Section 46-20-701, MCA. 

The defendant relies most heavily upon State v. Azure 

(1977), 175 Mont. 189, 573 P.2d 179, stating that it requires 

that a defendant have a full understanding of the charge 

admitted by pleading guilty. We are satisfied that the 

present case meets the requirements of Azure and that the 

disparate outcomes of this case and Azure are mandated by 

the different circumstances of each case. 

First, and most important, in Azure, there was substantial evidence of mitigating circumstances. The defendant 

in Azure, in addition to being under the influence of drugs 

and alcohol at the time he committed the crime, was said to 

have been emotionally depressed. 175 Mont. 189, 193, 573 
P.2d 179, 181-182. There is no evidence of emotional stress 

in the present case. In Azure, we pointed out that if the 

case had gone to trial, the defendant would have been 

entitled to an instruction on the law of mitigated deliberate 

homicide. 175 Mont. 189, 194, 573 P.2d 179, 182. On the 

facts of the present case, had there been a trial, it would 

have been error for a trial judge to have presented an 

instruction on mitigated deliberate homicide to the jury. 

Second, in Azure, the District Court order denying 

defendant's motion to withdraw his guilty plea was made by 

minute entry with no explanation for the ruling. There, we 

stated that "[a] District Court's failure to provide even a 

skeletal record of its reasoning in support of its ruling on 

such a motion may of itself call into question the soundness 

of the court's exercise of its discretion." Azure, 175 

Mont. 189, 193, 573 P.2d 179, 182. In the present case, the 

District Court made extensive findings and conclusions in 

support of its denial of the defendant's motion to withdraw 

his plea of guilty. Upon reviewing these findings and 

conclusions, we hold that the District Court did not abuse 

its discretion. 

Third, as discussed earlier, the record in this case 

demonstrates that the defendant was sufficiently informed to 

enter a plea that was "voluntary with an understanding of 

the charge." Section 46-12-204, MCA. The defendant in 

Azure was not so informed. 

Having found no merit in defendant's contention, we 

affirm the District Court order denying the defendant's 

motion to withdraw his guilty plea. 

Justice L.' 
We Concur: 

Chief Justice