No. 81-269 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsGEORGE ALLEN, 

Defendant and Appellant. 

Appeal from: District Court of the Eleventh 3udicial District, 

In and for the County of Flathead, The Honorable 

Robert C. Sykes, Judge presiding. 

Counsel of Record: 

For Appellant: 

Sherlock & Nardi, Kalispell, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, 

14on Lana 

Ted 0. Lyrnpus, County Attorney, Kalispell, 

Montana 

Submitted: March 16, 1982 

Decided : MAY 14 1982 

Filed: MAY 1 4 1982 

Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

On December 30, 1981, we remanded this appeal to the 

District Court for an evidentiary hearing on the terms of a plea 

bargain agreement and whether the prosecutor violated the 

agreement. State v. Allen (1981), Mont . -1- P.2d 1 38 

St.Rep. 2192. The evidentiary hearing has been held; the 

District Court has certified its findings of fact, conclusions of 

law, and order to this Court; supplemental briefs have been filed 

by the parties; and the appeal is now before us for final determination pursuant to our retention of jurisdiction. 

Although the facts were set out at length in our previous 

opinion, supra, we recount them briefly here. On July 14, 1980, 

defendant was charged with sexual intercourse without consent 

involving a regular course of conduct with his daughter, age 

under 16, from 1977 through September, 1979. At the arraignment 

the next day, an amended information was filed charging defendant with sexual assault. Defendant pleaded guilty and was 

released to the Veterans Hospital in Sheridan, Wyoming. 

On November 3, 1980, at the hearing in aggravation or 

mitigation of punishment, defendant was sentenced to 20 years 

imprisonment. On January 7, 1981, the District Court entered 

an order finding the prior sentence reasonable and left it 

unchanged. On January 12, defendant requested the District Court 

to set the sentence aside or to be allowed to withdraw his plea 

because the county attorney allegedly failed to fulfill his promises made to the defendant in a plea bargain agreement dated 

July 2, 1980, thereby denying defendant due process of law. The 

purported agreement was contained in a letter from defendant's 

counsel to the prosecuting attorney and provided in pertinent 

part: 

"It is my understanding that your office would 

be willing to accept a plea to one count of 

sexual intercourse without consent from my 

client and in return would recommend -- to the 

court that Mr. Allen receive a sus~ended sen- 
tence for a period --- of ten to fifteen years and 

that said suspension be conditional upon his 

attending and-completing a treatment program at 

the Veterans Hospital in Sheridan, Wyoming, for 

whatever time period they deem appropriate and 

necessary. It is my understanding that your 

office will not present testimony in aggravation 

of sentence nor oppose a withdrawal of the 

guilty plea should our agreement not be followed 

by the court. 

"If you have any additions or corrections please 

don't hesitate to contact me at any time." 

(Emphasis added.) 

The prosecuting attorney acknowledged that he made no written 

response to this letter. The District Court denied defendant's 

motion to set the sentence aside or to withdraw the guilty plea. 

Our first consideration of the case followed. We remanded 

with instructions to the District Court to determine the terms of 

the plea bargain agreement and whether the county attorney 

breached them. Although appellant raises peripheral issues, the 

central issue here revolves around the county attorney's failure 

to recommend the suspended sentence of 10 to 15 years. The 

District Court made the following finding of fact relating thereto: 

"19. The County Attorney did not agree to 

recommending a suspended Sentence. He did agree 

to make no opposition to the request of the 

Defendant for a suspended sentence." 

The District court made the following finding regarding the presentation of the agreement to the court, which is uncontroverted by 

defense counsel : 

"14. At the January 7th hearing, the defense 

counsel presented to the Court for the first 

time the July letter of Mr. Nardi [defense 

counsel] . The Court at that time disregarded the 

letter for any and all purposes. 

"18. Until January 7, 1981, no mention was ever 

made by either the defense counsel nor the 

Defendant as to the recommended 15 year 

suspended Sentence by the County Attorney, nor 

any mention made as to a change of plea ." 

The following conclusions of law were entered with regard to the 

plea bargain itself: 

"1. The initial plea-bargain agreement between 

defense counsel and the prosecutor was that the 
Defendant would enter a plea of guilty to the 

offense of Sexual Intercourse without Consent, 

one count, a felony, and that in exchange for 

which plea the prosecutor would: not pursue the 

additional counts of the original charge; assent 

to and join in the Defendant's request that he 

be sent to the Fort Sheridan Veterans Administration Hospital prior to imposition of Sentence, 

and, following his successful completion of the 

Fort Sheridan Veterans Administration Hospital 

treatment program and appropriate discharge 

therefrom, not oppose the Defendantt s proposition to the Court that he receive an extended 

suspended Sentence. 

"2. The State did not agree to a£ firmatively 

recommending a suspended Sentence. 

"7. The prosecutor did not oppose any suspended 

Sentence at any time." 

The issue now before us is whether the prosecuting attorney breached the terms of the plea bargain, denying defendant 

due process of law. 

The transcript of the hearing on remand reveals two distinct 

versions of what the parties believed the agreement to be. 

Defendant's counsel stated they felt the letter embodied the 

terms of the agreement and so advised their client. The county 

attorney, on the other hand, repeatedly stated that he never 

agreed to recommend a suspended sentence but that he would not 

object to a suspended sentence. He felt that his version of the 

agreement was established by the numerous contacts between the 

parties subsequent to the quoted letter. 

Defendant's counsel rely heavily on Santobello v. New 

York (1971), 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427. In that 

case the original prosecutor agreed to make no recommendation as 

to sentence in return for the defendant's pleading guilty to a 

lesser included offense . Seven months later, at the sentencing 

hearing, a different prosecutor recommended the maximum one-year 

sentence. 

The Supreme Court reversed the sentence and remanded the 

case back to the state district court for further consideration, 

stating: 
" . . . when a 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." Santobello, supra, 404 U.S. 

at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 433. 

Its clear that the Santobello holding was based in part on analoglies to contract law. 

However, there appears to be a recent trend away from a 

strict contract characterization of a plea bargain agreement, at 

least before a contract is formed, and toward the reasonable 

expectations of the defendant's counsel. In Cooper v. U.S. (4th 

Cir. 1979), 594 F.2d 12, a plea bargain arrangement was offered 

by the prosecutor and accepted by the defendant. The defense 

counsel then made numerous unsuccessful attempts to contact the 

prosecutor by telephone to acknowledge acceptance and when contact was finally made, he was informed the of fer had been 

withdrawn, 594 F.2d at 15. 

The court acknowledged that by strict contract law 

principles no contract had arisen but still concluded that relief 

must be given and enforced the plea proposal to the extent then 

possible. More importantly, the Court described the test to be 

applied and the sources of defendant's rights: 

"We hold instead that under appropriate 

circumstances--which we find here--a constitutional right to enforcement of plea proposals 

may arise before any technical Icontract' has 

been formed. and on the basis alone of expec- & 

tations reasonably formed in reliance -- upon the 

honor -- of the aovernment - inmakina and abidins bv - - - A 

its proposals. At what point this right arises 

short of the struck bargain or any tangible, 

objective acts of reliance we need not attempt 

to say here as a matter of general rule. 

"We begin by noting that two distinct sources of 

constitutional right are involved here: most 

obviously and directly, the right to fundamental 

fairness embraced within substantive due process 

guarantees; less directly perhaps, but nonetheless importantly, the Sixth Amendment right to 

effective assistance of counsel." 594 F.2d at 18. 

( Emphasis added. ) 

Several other courts have adopted the -- Cooper rationale. See 
Enforcing Plea Bargains: A Step Beyond Contract Law, 40 Maryland 

Law Rev. 90, 114 (1981). 

Here the District Court accepted the county attorney's 

version of the agreement and rejected defense counsels9 argument. 

There is substantial evidence in the record to support this decision. The standard of review is whether findings of fact and 

conclusions of law are clearly erroneous : 

"Findinqs of fact shall not be set aside unless - clearly erroneous, and due regard shall be given 

to the opportunity of the trial court to judge 

the credibility of the witnesses." Rule 52(a), 

3I.R.Civ.P. 

Neither Santobello nor Cooper require reversal in 

this case. Although defense counsel would have us believe 

that the July 2, 1980, letter embodied the agreement, there is 

ample evidence that there were subsequent negotiations between 

the parties to such an extent that the terms of the letter should 

not have been relied upon by defendant's attorneys. For example, 

the letter states that defendant would plead guilty to the charge 

of sexual intercourse without consent. However, this term of the 

agreement was changed to a plea of guilty to the charge of sexual 

assault. Thus the final plea entered did not rest "in any 

significant degree on a promise or agreement of the prosecutor" 

to recommend a suspended sentence. Santobello, supra. 

Here the uncontroverted facts indicate that the defendant 

was originally sentenced on November 3, 1980. The county attorney did not recommend a suspended sentence at that time. The 

first time the quoted letter or alleged plea bargain for a 

suspended sentence was presented to the District Court was over 

two months later on January 7, 1981. If defendant and his counsel were induced to enter a guilty plea on July 15, 1980, by the 

alleged promise of the county attorney to recommend a suspended 

sentence, why did they wait until January 7, 1981, to inform the 

District Court of the quoted letter and alleged promise of the 

county attorney? Are these uncontested facts consistent with 
expectations reasonably formed in reliance upon the alleged promise of the county attorney to recommend a suspended sentence 

under the Cooper rationale? Not at all! 

Accordingly, we hold that the defendant's substantive due 

process rights were not violated under the circumstances of this 

case. The judgment of conviction and sentence are a£ firmed. 

Chief Justice \ 

We concur: 
Mr. Justice Daniel J. Shea dissenting: 

The real evil lies in the fact that we remanded this 

case for an evidentiary hearing before a district judge 

who had already held that a plea bargain did not exist and 

was determined to be harsh as possible in sentencing. It 

was a foregone conclusion that in the evidentiary hearing he 

would accept the county attorney's version of what happened 

which would enable him to keep the sentence intact. This 

Court should have ordered an evidentiary hearing before a 

different district judge. 

The only fair way to handle this case would be to order 

a different district judge to determine whether there was a 

plea bargain. The original district judge already determined 

in his own mind what should be done with the defendant.