No. 80-351

INTHE SUPREME COURT OF THE STATE OF MONTANA

1981

STATE OF MONTANA, Plaintiff and Respondent,

-vsAUGUST LEE WHITE, Defendant and Appellant.

Appeal from: DistrictCourt 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, MilesCity, Montana

Submitted on Briefs: May 8, 1981 Decided? August 31, 1981Mr. 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 deliberatehomicide. On August 6,1980,prior to the filing of the motion towithdraw, defendantwas sentenced to 50 years in theMontana State Prison and designated a "dangerousoffender." Defendant received an additional consecutive sentence of 10years pursuant to section 46-18- 221(1),MCA, for committing the crimewith a knife. It is undisputed thatAugust 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, DallasHaley, Joe Root and Rick Woods met at the Olive Hotel in Miles City, Montana. The purpose of the meeting was to allowWhite 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 TwelveMile Dam on the Tongue ~iver south of Miles City. A short conversationoccurred inwhich 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 inMiles 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 thewater. The body did not sink immediately so White and Root returned to shore and picked up rockswith 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 LasVegas 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 fromnot guilty to guilty. The Court interrogatedWhite extensively on the voluntariness of the plea, his understanding of the charge, the consequences of his plea, and the factualbasis of his plea. The issue on appeal iswhether 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;andState v. Azure (1977), 175Mont. 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 courtmay refuse to accept a plea of guilty and shall not accept the plea of guilty without firstdetermining that the plea is voluntarywith an understanding of the charge." Section 46-16-105(2), MCA, provides: "Atany time before or after judgment the courtmay, 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 canbe found in State

### v. Haynie (1980), 

### -Mont

# . , 607 P.2d 1128, 1131, 

### -

"Achange of plea will be permitted only if it fairly appears the defendantwas 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 ormisapprehension (citationomitted). Each case must be examined on its own record. The motion rests within the District Court's discretion, and the exercise of that discretionwill not be disturbed absent an abuse of discretion (citationomitted)." Statev. 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 toolengthy to set outverbatim, however, it is important to note its breadth. It established the following facts: 1. Defendantwas satisfied with the services of his attorney. 2. Defendantwas not under the influence of drugs or alcohol at the time he changed his plea. 3. Defendantwas not physically illwhen 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-examinewitnesses, 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 discussedwith the defendant all of the constitutional rights towhich the defendantwas entitled and that the defendant understood those rights. 8. Defendantwas aware that by pleading guilty to a felony he may be barred from certain occupations and professions. 9. Defendantknew that a plea of guilty is one of the strongest proofs known to criminal law. 10. Defendantknew that by pleading guilty,hewaived any factualdisputes. 11. Defendantwas 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 hemay have asmuch 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: "THECOURT: 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 youwere guilty of the crime charged. The difference being, that if you were found guilty by theverdict of a jury for a lesser included offense, the punishment might be less than fordeliberate homicide. Now do you understand that? "THEDEFENDANT: Yes sir." Although thewords "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 factualbasis for acceptance of the guilty plea. The District Court findings state:

"Thatdefendantwas advised of the elements of deliberate homicide and of the lesser included offense of mitigated deliberate homicide by his counsel.

"Thatdefendantwas advised of the mental state required to commit the offense charged 'purposely or knowingly' by his counsel."These findingsare 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), 622F.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 towhich he pleaded" is the pivotal question inwithdrawal 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 realnotice to the defendant. We hold that the combination of the district judge's examination of the defendant and the explanation by the defendant's attorneywere sufficient to show that the defendantwas informed of all that was required tomake a voluntary and understanding plea of guilty to the crime of deliberate homicide. Section 45-5-103(1), MCA, definesmitigated deliberate homicide as follows: "Criminal homicide constitutes mitigated deliberate homicide when a homicidewhich would otherwise be deliberate homicide is committed under the influence of extrememental or emotional stress for which there is a reasonable explanation or excuse.. 

# .

# ." Thus, deliberate homicide and mitigated deliberated homicide require the same mental state: "purposelyor knowingly." Section 45-5-102(1)(a),MCA. Further, section 45-2-203, MCA, provides: "Aperson who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition is involuntarilyproduced



# ..

# . . An intoxicated or drugged conditionmay be taken into consideration in determining the existence of a mental statewhich 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 requirementsof section 45-2-203,MCA, are met. With regard to proving the requisitemental state, "purposelyor knowingly," the defendant's own recitationof the facts surrounding the homicide at the time of entry of a guilty plea indicates a clear case of criminal responsibility. These factsplainly showhe knewwhat 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 crimewas secure because the body was hidden. Even if failure of the District Court specifically to discussmitigated deliberate homicide

was error, which we do not grant in this case,no withdrawal of his guiltyplea 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 Statev. Azure (1977),175Mont. 189, 573 P.2d 179, stating that it requires that a defendanthave a full understanding of the charge admitted by pleading guilty. We are satisfied that the present casemeets the requirementsofAzure and that the disparate outcomes of this case and Azure are mandated by the different circumstancesof each case. First, and most important, inAzure, there was substantial evidence of mitigating circumstances. The defendant inAzure, 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. 175Mont. 189, 193, 573P.2d 179, 181-182. There is no evidence of emotional stress in the present case. InAzure, we pointed out that if the

case had gone to trial, the defendant would have been entitled to an instructionon the law ofmitigated deliberate homicide. 175Mont. 189, 194, 573 P.2d 179, 182. On the facts of the present case,had there been a trial, itwould have been error for a trial judge to have presented an instruction onmitigated deliberate homicide to the jury. Second, inAzure, the District Court order denying defendant's motion to withdraw his guilty plea was made by minute entrywith no explanation for the ruling. There,we stated that "[a] DistrictCourt'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 towithdraw 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 defendantwas sufficiently informed to enter a plea thatwas "voluntarywith an understanding of the charge." Section 46-12-204,MCA. The defendant in Azure was not so informed. Having found nomerit indefendant's contention,we affirm the District Court order denying the defendant's motion to withdraw his guilty plea.

Justice L.'We Concur:

Chief Justice